Monthly Archives: March 2019

Court throws out Willmott forestry scheme class-action settlement

VicForests has been left without a market for hundreds of thousands of tonnes of residual timber. Photo: Andrew QuiltyThe Federal Court has refused to approve a piecemeal class-action settlement for victims in the Willmott Forests managed investment schemes after finding it was not fair and that returns to investors did not match the millions they had paid to fund the law firm running the case.

More than 3500 investors were caught up in the collapse of Willmott Forests which went under in 2010 owing its banks, most notably the Commonwealth Bank, about $200 million. Investors had ploughed $400 million into Willmott Forests schemes.

The settlement offer was put forward by Macpherson and Kelley Lawyers (also known as M+K), which were representing some of the investors in the four separate class actions. The four class actions were heard together by Federal Court judge Bernard Murphy.

The court’s refusal of the Willmott settlement comes after the court approved a highly controversial deal put forward by M+K in 2014 in relation to the Great Southern schemes, which saw the law firm take $20 million of the $23 million compensation in legal fees.

M+K was recently criticised over its handling of the Great Southern class action in a recent Senate Inquiry report on the failure of managed investments schemes that focused on the 2009 collapses of Timbercorp and Great Southern.

On Monday, Justice Murphy found the Willmott settlement gave preference to M+K clients over those who had chosen not to be represented by the law firm in the matter.

“The Court will not approve a settlement unless it is satisfied that the settlement is fair and reasonable having regard to the interests of the class members who will be bound to it, including by not preferring one group of class members over another,” Justice Murphy said.

Justice Murphy also found the settlement offer put forward by M+K gave preference to investors who had participated in M+K and even then the payout dwarfed the legal fees paid by investors to M+K Lawyers.

“Class members who are or were M+K’s clients in the proceedings paid costs and disbursements to the firm totalling approximately $7.835 million. The applications (M+K Lawyers) seek orders that $4.1 million to be paid by the respondents in the proceedings be expended on the pro rata reimbursement of class members who are or were M+K’s clients and paid legal costs,” Justice Murphy said.

Justice Murphy said that for some of M+K’s clients, the payout represented 51 per cent of the money they had stumped up to fund the case and for other investors 57 per cent.

Justice Murphy also raised concerns about the settlement agreement put forward by M+K included an admission by investors the loan agreements with lenders were valid and enforceable.

Like the Timbercorp and Great Southern schemes, investors took on large loans on top of their investments based on the provision returns would be sufficient and the schemes would provide a tax break for investors.

However, many investors disputed whether the loans were enforceable and such an admission could have had an effect on other investors also in dispute with their lenders over the loans.

M+K have been contacted for comment.

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First novels and other surprises on the Miles Franklin Award longlist

Author Lucy Treloar’s first novel Salt Creek is longlisted for the 2016 Miles Franklin Literary Award. Photo: Joe ArmaoOne day at the Melbourne bookshop he works in, a reader came up to A.S. Patric to talk to him about his first published novel, Black Rock White City. He had loved the book, he said, but it would never win the Miles Franklin Literary Award.

“When I asked why it couldn’t win the prize, the man said because it’s not about Australia,” Patric says. “But it is. So much of our literature is about the privileged, middle class. But Black Rock White City is a working-class book about refugees in Melbourne. This is Australia as well.”

Black Rock White City is longlisted for the 2016 Miles Franklin, the prestigious $60,000 prize for “the novel which is of the highest literary merit and which must present Australian life in any of its phases”.

Patric’s novel tells the story of a poet and his wife, refugees from the former Yugoslavia, and their physical and emotional exile. Fairfax’s review described Patric as a writer who “deliberately or not, continues Patrick White’s mission to bring European modernism to the Australian suburbs”.

Patric has previously published two collections of short stories and a novella. But the first book he completed was a 175,000-word philosophical novel in which he could get no interest from publishers. “I couldn’t even get it read.”

The longlist is full of new names, small publishers and other surprises, including the omission of respected writers who might have been expected to appear.

After the prize went to second novels by Evie Wyld and Sofie Laguna in the past two years, it seems the Miles Franklin is broadening its range in many ways.

The gender balance is not a concern this year, as it was when the Stella Prize was set up to counter a perceived male bias. Perhaps the predominance of five Melbourne writers is the only one to cause concern in some parts of the country.

Melbourne-based Lucy Treloar’s Salt Creek is another impressive debut, which is also a finalist for Britain’s Walter Scott Prize for Historical Fiction, in which she is the only woman among respected authors such as William Boyd, Patrick Gale and Allan Massie.

Salt Creek is a very “Australian” story, which follows a colonial family’s descent into poverty, despair and conflict with Indigenous residents as they try to build a home in the remote and beautiful country of South Australia’s Coorong region.

Treloar had lived around the world, raised four children and published three children’s books before she felt she felt the need to express herself in literary fiction.

“The fever caught me,” she says.

She won an award for an unpublished manuscript set in Cambodia but publishers thought it wouldn’t sell. When Alex Craig at Picador asked what else she had, Treloar showed her 5000 words of Salt Creek.

“That’s the one,” said Craig, and Treloar wrote it in a year. “It feels like a second novel to me,” she says, as she embarks on her third.

Most predictable among the nine longlist books (chosen from almost 60 entries) is Charlotte Wood’s fifth novel, The Natural Way of Things, one of last year’s most lauded, and recently book of the year at the Indie Book Awards. Mireille Juchau’s The World Without Us, is also a critical success and won the Victorian Premier’s Literary Award for fiction.

Both are dystopian novels set in near-future rural environments afflicted by corporate control, climate change, misogyny and other human pain.

Rural stories – dystopian and pastoral, historical and contemporary – feature strongly on the list. As Treloar says, “Even though most Australians live in an urban environment, there is something about rural Australia that speaks to all of us. The great unknown interior has great metaphorical power as we cling to the edges of the country and of civilisation. It’s an ongoing concern.”

One of the judges, the State Library of NSW librarian Richard Neville, notes another common theme: “the impact of grief and loss –complex families, unstable relationships, accidents, European war crimes, suicide, – and how the experience of these issues deeply determine the narrative and direction of lives.

“These powerful stories, underpinned by distinct physical environments and each with a unique register and tone, range from the colonial past into the near-future,” Neville says. “All possess a quality of writing that indicates Australian literature is strong and thriving.”


Tony Birch for Ghost River (UQP)

Stephen Daisley for Coming Rain (Text)

Peggy Frew for Hope Farm (Scribe)

Myfanwy Jones for Leap (Allen & Unwin)

Mireille Juchau for The World Without Us (Bloomsbury)

Stephen Orr for The Hands: an Australian pastoral (Wakefield Press)

A.S. Patric for Black Rock White City (Transit Lounge)

Lucy Treloar for Salt Creek (Pan Macmillan)

Charlotte Wood for The Natural Way of Things (Allen & Unwin).

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Soccer mums and dads need to be aware of child abuse risk, royal commission hears

A girl was attacked by her soccer coach, a royal commission has heard.Girl, 8, ‘raped and infected with HIV’, inquiry told

Soccer mums and dads need more education on how to recognise the signs of sexual abuse to help protect their children from predators, a royal commission has heard.

Football NSW head of child protection Michelle Hanley told the royal commission that all sports officials should be legally obliged to report child abuse and every volunteer should undergo a background check.

Ms Hanley made the recommendations on the second day of the inquiry into paedophilia at sports clubs by the Royal Commission into Institutional Responses to Child Sexual Abuse.

The commission has previously heard testimony from a woman who was allegedly raped by her soccer coach when she was eight and was later diagnosed with HIV.

Ms Hanley told the commission that Football NSW would consider broadening its child protection policies by making more information about child abuse available to parents, including displaying posters at clubs.

She also agreed that it would be an “excellent idea” to give children information about where to raise allegations, even if doing so anonymously.

There are 127,000 children registered with Football NSW, and many of their parents volunteer as coaches and referees.

At present parents who volunteer for a school or sports club where their child is directly involved are exempt from undergoing background checks.

Ms Hanley told the commission this exemption should be removed but conceded that may not stop predators.

“I would like to see the Working with Children Check applied to everybody,” she said.

“It is a check for previous charges and convictions. It’s no guarantee but it certainly would identify people in the sport that have a previous charge and conviction who aren’t appropriate to work with children or volunteer with children.”

In her testimony she called for all sports officials to be mandatory reporters, making them legally obliged to inform authorities of child abuse.

The commission heard that the soccer coach accused of raping the eight-year-old in 1996 continued to coach children in south-western Sydney for years after being charged over the assault.

Ms Hanley told the commission that neither the NSW Police nor the Department of Family and Community Services informed Football NSW that the coach was facing charges over the alleged rape.

The coach, who cannot be named for legal reasons, was found not guilty of raping the eight-year-old but was later convicted of sex offences involving other young children and sentenced to five years’ jail.

The hearing, before Justice Peter McClellan​, continues.

Lifeline: 13 11 14; Kids Helpline: 1800 55 1800; Royal commission: 1800 099 340

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Aussie cricket team slaughters Nine Network

$315 million wiped off value at NineNine shares slump after ad market warningComment: Nine searches for a multi-night hit to corral viewers

The Australian cricket team are serial killers. Not only did they slaughter the weaker West Indies, they murdered  Nine Network ratings and inflicted injury to its profit prospects.

The third victim was the Nine share price, which has now been crushed more than 20 per cent.

One would think the Australian team would have been more considerate than to beat the West Indies in quick time rather than take the five days allocated by the Nine Network over which they sold advertisements.

Yes, the super sporting ability of captain Steve Smith and Co, is primarily responsible for Nine’s disappointing ratings performance.

Nine says that the weather and the standard of the competition (read Aussies too good and West Indies not good enough) meant that a third of the scheduled days were lost.

In a generally good advertising market, a shorter-than-expected cricket game and a rain downpour would be disappointing but not a disclosable event.

But it’s a soft advertising market in an industry that is increasingly falling victim to rapid structural change.

In the free-to-air television industry everything needs to be going right for an operator – just in order to stand still. All the leverage is to the downside.

There is no room for an outperforming cricket team to upset a television company’s over optimistic forecasts.

Nine said Television revenues were down 11 per cent in the third quarter to March 2016 against the same period last year. That is a massive drop by any measure.

The only chance of treading water for the three players is to see ratings improvements.

And that is not going to happen at Nine, which on Tuesday noted it expected the ratings for calendar 2016 would be about 37 per cent. It had previously expected ratings to be 38 per cent.

Nine says the revenue performance was also hit by the absence of the Cricket World Cup event (which it had in 2015) and the early timing of Easter.

But is wasn’t all about cricket. Like most television networks Nine had its flops and during this period the poor performance of Reno Rumble didn’t help.

The pressure is now on Nine to get its costs down sufficiently to compensate for the worse-than-expected revenue result.

Certainly media analysts will be working on their corporate models – downgrading their expectations for Nine’s full-year result.

Two and a half years ago Nine listed on the ASX at $2.05 and has been a lousy investment for those who acquired shares in the IPO. At lunch on Tuesday it was trading at $1.20.

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Hertz to refund hundreds of customers it falsely accused of damaging rental cars

Hertz conceded it overcharged customers for pre-existing damages to its rental cars. Photo: Graham TidyRental car giant Hertz has been forced to refund hundreds of aggrieved customers amounts totalling $395,000 because it had charged them for damage they did not cause.

Following an Australian Competition and Consumer Commission investigation, Hertz admitted that between November 2013 and August last year it had incorrectly charged customers for causing damage to a rental car that was in fact pre-existing.

From January 2014 and August last year, Hertz refunded 283 customers about $243,000 in total.

Hertz also conceded that between January 2013 and August last year it had charged customers for repair costs it falsely claimed was the cost borne by the company.

In fact, Hertz received spare parts at a discount and did not pass on any savings. In cases involving windscreen or tyre repairs or replacements, the cost to Hertz was much lower than the amount charged to customers.

Hertz is refunding, or has refunded, $152,000 to more than 700 customers. Many of these customers are yet to be identified and contacted about the refund.

“This case serves as a message to vehicle rental companies that they must have robust compliance procedures in place to ensure they do not contravene the Australian Consumer Law by incorrectly charging customers for damage they are not responsible for,” said ACCC deputy chair Michael Schaper.

“Vehicle rental companies must also ensure that they are transparent and accurate in communicating with their customers about the charges they are applying for vehicle rentals and repairs.”

Hertz has acknowledged its conduct was likely to have breached the Australian Consumer Law prohibitions on misleading or deceptive conduct and false or misleading representations.

Hertz has taken voluntary steps to improve its damage charging and assessment practices, and has also provided a court-enforceable undertaking to the ACCC which says it will contact and refund all affected customers.

The undertaking follows recent ACCC court action against car hire company Europcar Australia, in respect of alleged unfair contract terms and misleading advertising of its “extra cover” products. The parties are awaiting judgment.

A statement from Hertz said the company has invested significant resources to address the concerns about its “historical procedures” for vehicle damage charges.

“Steps already implemented by Hertz include proactively contacting customers who were incorrectly charged for pre-existing vehicle damage, as well as the ongoing review of records to identify any other customers who have potentially been impacted by its historical processes,” the company said.

“Customers affected by this error will be refunded where appropriate and necessary.”

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