Final thoughts

The only certainty about the law is its uncertainty. Certainly, our cases against the banks appear strong. However, we are very much dependent on our lawyers and ASIC to put our best case forward.

Whilst I believe that having ASIC on our side is a huge plus, even for those that are taking independent action through legal firms such as Levitt-Robinson, it can also lead to confusion and complexity. Indeed, we are already seeing this in what has occurred so far.

For those that have said, "We don’t need ASIC" they seem to be forgetting that many within our ranks have no money whatsoever and are relying on ASIC alone for justice. Make no mistake! ASIC is an important part of this equation simply because it is the Regulator. That is why I have made it a point to keep ASIC fully informed of my views on the various issues involved in our cases. Its seal of endorsement and approval is both critical and essential.

ASIC also offers us that are litigating independently a fall-back position, which is very necessary. There is no doubt that our best outcome would be to have these schemes declared “unregistered managed investment schemes” because we could then ask for full restitution. Whether we get it is another matter. However, we must have other possibilities on offer such as breach of contract, unconscionability, and so on. To “put all our eggs in one basket” by suing on the basis of unregistered managed investment schemes” alone is risky. Look what happened when we took this "all-in" approach with Storm. We had nowhere to go when it all came tumbling down. That is why having a number of strings to our bow (breach of contract, banking codes, unconscionability, violation of various Acts and so on) is desirable. That is why we need ASIC as a back up to ensure that all matters are given adequate consideration and all matters are covered. Two heads are better than one! We are fighting against Goliath here and we need the biggest sling shot we can get!

In my past correspondence with the various parties involved, much of which I have supplied here for your perusal, I have commented on various aspects of the law. It must be remembered by you, the reader, that I do not have access to the many precedents that exist in common law, whereas law firms do. Further, the law is always subject to interpretation and in this regard, even judges get it wrong. The ‘Goodridge’ case is a timely reminder of this.

The one thing that I do have over lawyers however is time. I have the time to sit down and give this my full attention whilst lawyers do not. They will argue that they know best because they are professionals. Storm told us the same thing! In my logistics career, I was a professional too! During my working life I came across many so-called professionals that turned out to be buffoons. Some of them were bean counters (accountants) and lawyers. I therefore am wary of anyone that calls himself a professional until he or she has posted some runs on the board.

When this sorry saga first began, we employed a law firm called Holman Webb on the recommendation of our accountant.  I then found that I did all the work and they did all the charging! They even charged us for sending information to them! When Slater & Gordon appeared on the scene, we took the opportunity to switch to them even though it cost us a few thousand dollars to do so. Unfortunately, that was like leaping from the frying pan into the fire. We had one that charged like a wounded buffalo and did nothing and the other that was preoccupied with finding buried treasure. The only time S & G responded (2 days) to anything we asked was when I wrote to them and said, “The least people can expect from you is strong advocacy! Unfortunately, on the evidence provided to date, your firm has not demonstrated this.”  I registered a genuine complaint and they answered it by promptly firing Helen and me as clients. Fortunately, Levitt Robinson was around to pick up the pieces. I say fortunately because at least we now have a fighter on our hands in Steward Levitt who is not hell bent on making a fortune overnight, and is not afraid to go up against the big boys. We, his clients, have the utmost confidence in his law firm's ability to see this through satisfactorily. That doesn't mean however that we still won’t be asking questions where necessary.

The banks for their part have much to lose by allowing this to run its full course. For one they could be up for full restitution and for another, their nefarious ways could be fully exposed in a court of law. Then you have the issue of “precedents” that this case could establish. For one, the banking codes which are still ambiguous in law and have yet to be fully tested. The violation of various Acts and ‘unconscionability’ will also be tested. In addition, there remains the question of whether the schemes they operated in conjunction with Storm were unregistered managed investment schemes.

Another factor that is in our favour is public perception. Banks want to protect their good names and spend millions of dollars in advertising promoting the notion that they are caring and trustworthy. In Court the exposure they will receive will certainly chip away at their reputations.

Having said all that, the banks may well decide to put up a hard fight. If they do, they will counterpunch by introducing factors such as: (1) Storm were our agents, (2) Partial responsibility, (3) Their conditions of contract, and so on. If you read the attachments on this website you will find that I have commented on all these issues fully.

Personally, I believe that our cases are strong, and I feel the banks will be clutching at straws. Why do you think that Ralph Norris of the CBA capitulated early in the piece and came up with the CBA resolution scheme? When was the last time you heard of a banker being magnanimous? Therefore, it is my opinion that the banks will finally come to the party. The bad news is that I believe that they will drag it out for as long as possible so that when an offer is finally made, we will be all so bloody exhausted that we will all agree to settle no matter what. Quite frankly, I would like to sue these bastards to hell and back, but then I am not "everybody". In the final analysis everyone must decide for himself or herself what is best for them when offers do trickle through.

To those that have suffered at the hands of Storm and these unconscionable banks, I say only this: Some of us have not survived the journey. The banks have crushed them out of existence.Their souls along with the rest of us cry out for justice. We owe it to them, if not ourselves, to see that justice is done. We owe it to ourselves to see this through.

Frank Ainslie - 4th May 2011