Raymond Finkelstein QC, better known as The Fink will go down in history as one of the greatest fools to ever be appointed a judge, an absolute legend. This is a man who tried to hear his own case which was before the court. It does not get much worse than that.
Justice Finkelstein was eventually forced to stop hearing the case because not only did he have a financial interest in the case but he was in fact one of the parties to the class action against a company called Centro Properties via his own private super fund.
The Fink retired as a Federal Court of Australia judge on June 30, 2011 and has recently been appointed to head up an inquiry into the Australian Media focusing on codes of conduct for both print and online.
Centro Properties, an Australian listed company, has been accused of deliberately misleading shareholders about its true financial position. Basically it had a lot more short-term debt than it told shareholders. The initial proceedings are well set out in an article by Carolyn Cummins at the Melbourne paper The Age in 2008 where she says:
“EMBATTLED Centro Properties returns to court today in preliminary hearings for the $1 billion-plus joint class actions launched by disgruntled investors who bought in when the stock was riding high, only to find it was near collapse.”
“the actions have been bought by two law firms specialising in class actions, Slater & Gordon and Maurice Blackburn.”
“The Maurice Blackburn action is referred to as an “opt-in” claim by investors who are backed by listed litigation funder IMF Australia.” “In contrast, the Slater & Gordon case is a more traditional class action, which effectively covers all shareholders not signed by IMF Australia, unless they opt out.” (Click here to read the full article)
As it turned out The Fink was a party to the second class action (Nicholas Vlachos – Slater & Gordon) via his self-managed superannuation fund, Motown Investments. The Fink had bought shares in Centro in 2007 for almost $20,000 that had decreased to less than $200 at the time he declared to the court he was a shareholder in Centro Properties.
This is part of what it says on the Slater and Gordon lawyers website:
“On Friday 23 May 2008, Slater & Gordon commenced a class action on behalf of stapled security holders in Centro Properties Group (CNP) and Centro Retail Trust (CER).”
“The claim alleges that CNP and CER failed to adequately disclose the financial risk to which the entities were exposed when financing the acquisition of the US listed shopping trust, New Plan Excel Realty, in April 2007. The acquisition required CNP and CER to assume billions of dollars of debt which had to be refinanced during or before December 2007.”
“It is alleged that both CNP and CER breached Australian Accounting Standards and engaged in misleading conduct, when they misclassified this debt as non-current in their 30 June 2007 financial reports. It is further alleged that CNP and CER then failed to disclose the existence of these liabilities at all until 17 December 2007 and, even then, did not disclose the full extent of those liabilities until 28 February 2008.”
“The litigation is being funded by Comprehensive Legal Funding LLC, a US- headquartered litigation funder. The claim seeks damages for the losses suffered by CNP and CER security holders as a result of purchasing stapled securities during the relevant period at artificially inflated values.”
This is about as clear as it gets for a prima facie case for a breach of section 34 of the 1914 crimes act which is:
34 Judge or magistrate acting oppressively or when interested
(1) Any person who:
(a) being a judge or magistrate and being required or authorized by law to admit any person accused of an offence against the law of the Commonwealth to bail, in abuse of his office, requires excessive and unreasonable bail; or
(b) being a judge or magistrate, intentionally and perversely exercises federal jurisdiction in any matter in which he has a personal interest;
shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
Well Justice Finkelstein clearly had a personal interest given he had lost a substantial amount of money on his investment in Centro and he was one of the applicants.
Once you can show the personal interest element half the prima facie case is made out. The second element that needs to made for section 34(1)(b) is “intentionally and perversely exercises federal jurisdiction”. Well he had to know that he was a share holder and that he would eventually have to stand down from hearing the case. This aided and abetted Centro in time delaying tactics that they needed as they were in the process of trying to refinance $4 billion of dollars of debt.
When Mr Finkelstein initially notified the court of his shareholdings he refused to stand down from hearing the matter. It was only when the law firms involved continued to press the matter that he finally recused himself.
The written judgement that he published on the 14th November 2008 giving reasons why had finally stepped down from hearing the case is an interesting read to say the least.
Make no mistake Justice Finkelstein knew full well that being in the position he was in that there is no way in the world that he could justify hearing the case. His failure to stand down immediately is quite disturbing. This is supported by two key parts in his judgement one which he conceals an important fact and another where he uses a precedent to support his position which clearly does not support him at all. The net effect is that he is clearly lying in his judgement to try to justify his unjustifiable actions. (Click here to read the judgement)
In his judgement he says at section 2 “I am one of two members of the self-managed superannuation fund, the trustee of which is Motown Investments Pty Ltd. Motown has two directors; I am one. On 8 August 2007, Motown purchased 2,400 shares in Centro Properties Group (ASX ticker symbol: CNP). The price per share was $8.17, and the total cost was $19,608. At the time, this constituted a very small percentage of the fund’s overall value.” Who is the other director you say, an accountant? an Investment Adviser? a Lawyer maybe? No its his wife! That’s right, The Fink and his wife run their private super fund and neither new they had shares in Centro. What garbage! The fact that he does not mention that his wife is the other director says it all. Most people reading the judgement would have thought the other director was an accountant or somebody like that. But when you know the other director is his wife it is hard to believe that The Fink did not know he had shares in Centro when in all likelihood he was the one who personally decided to invest in them, not his wife, given that he is an expert in commercial matters.
At section 7 The Fink says: “the High Court has held that a judge’s holding of a relatively small stake in a corporate party to litigation does not give rise to an appearance of impropriety such as to found a reasonable apprehension of bias requiring the judge’s recusal: Ebner v Official Trustee in Bankruptcy  HCA 63;”
The precedent he refers to deals with two cases where the Judges had small share holdings in the ANZ Bank and their judgments would have had no impact on the share price of the ANZ Bank. Which bares no resemblance to Justice Finkelstein’s situation where he had lost a lot of money and the outcome was potentially worth hundreds on millions of dollars to Centro.
It is worth noting what Justice Finkelstein says at section 3: “Since their purchase the value of the shares steadily declined, as has the value of all the shares in the fund.” The Fink obviously lost a lot of money during the Global Financial Crisis in 2007-2008. He would have been ripe for a bribe.
This is what one report said at the time “A BILLION-DOLLAR joint class action against Centro Properties Group has been thrown into chaos because the presiding judge, Justice Ray Finkelstein, owned shares in the beleaguered retail manager.”
“Justice Finkelstein said the fund, which he and his wife run, spent $19,608 on August 8 last year to buy 2400 Centro securities at $8.17 apiece. On October 10 this year, the day he informed parties to the class action that Motown held the securities, Centro was trading at 6.8c and his investment was worth $163.” (Click here to read the full story)
Justice Ryan took over from Justice Finkelstein in 2008 and seems in no hurry to hear the class action. It is still dragging on now over 3 years since it was started.
The Australian Securities and Investment Commission also launched action against numerous people in relation to the above. This is what is says on the website delisted on 21/10/2009: “ASIC has launched civil penalty proceedings in the Federal Court of Australia against current and former directors and a former Chief Financial Officer (CFO) of various entities within the Centro Properties Group and Centro Retail Group (CER)- it is seeking orders to disqualify the directors and officer from managing corporations and will ask the Court to impose pecuniary penalties on them – the defendants to ASIC’s action are: Mr Brian Healey, former Chairman and non-executive director; Mr Andrew Thomas Scott, former Chief Executive Officer (CEO) and Managing Director; Mr Samuel Kavourakis, a former non-executive director; Mr James William Hall, a non-executive director; Mr Paul Ashley Cooper, a non-executive director; Mr Peter Graham Goldie, a former non-executive director; Mr Louis Peter Wilkinson, a former non-executive director; and Mr Romano George Nenna, former CFO.”
What happened with the action by ASIC. Not Much. Justice John Middleton of the Federal Court handed down a scandalous judgement doing basically nothing.
This is what it says in story by John Beveridge at the Herald Sun titled “Centro’s directors scored a predictable get-out-of-jail-free card”:
“Justice Middleton said the simple court declaration of a breach of the Corporations Act for the six non-executive directors was enough of a deterrent for other directors, who will no doubt have learned to be much more vigilant in examining company accounts.”
“The means current Centro chairman Paul Cooper, former chairman Brian Healey, former audit committee head Sam Kavourakis, Centro director Jim Hall and former directors Peter Wilkinson and Graham Goldie can keep working as directors and face no fines other than ASIC’s costs.”
“Former chief financial officer Romana Nenna got the two-year corporate ban he volunteered for and former chief executive Andrew Scott got a $30,000 fine on top of the court declaration.”
“Sentencing is always a subjective issue but that all seems like a very light slap on the wrist, even if you concede that the directors all acted in good faith and were not deliberately negligent.” (Click here to read the full story)
Centro seem to be getting a very good run in the Federal Court starting off with The Fink.
I have no doubt The Fink has been appointed by the government to head up the Media Enquiry on the basis of the old theory “never hold a an enquiry unless you already know the result.”
It is worth looking at Ray Finkelstein’s history and his appointment to the Bench. In a very good story about The Fink’s retirement Leonie Wood in the SMH says: “For Finkelstein, who variously represented Australia’s biggest companies and its most influential tycoons in multimillion-dollar takeovers and disputes. the Mason court was a revelation.” “Finkelstein’s own chance came when he was appointed to the Federal Court in July 1997.”
“In 1975, Michael Black moved his admission to the bar and six years later Finkelstein and silks Ron Merkel, Alan Goldberg and Ron Castan set up chambers in Queen Street.”
“Now he is stepping down and returning to the bar in Melbourne. He will move into chambers, alongside long-time friends and former Federal Court colleagues Alan Goldberg, QC, and Ron Merkel, QC.” (Click here to read the full article)
The Michael Black mentioned above later became the Chief Justice of the Federal Court of Australia. (1 Jan 1991 to 21 Mar 2010). I wonder what part he played in getting The Fink appointed a judge. Just for the record Michael Black is an absolute grub of man. Corruption in the Federal Court under his leadership was absolutely rife.
On Wikipedia it says “He was made a Queen’s Counsel in 1986.”
“Finkelstein was appointed as a judge of the Federal Court of Australia on 21 July 1997. By that point, his colleagues Goldberg and Merkel were also on the bench.” (Click here to read) For the record Finkelstein was on the bench from 21 July 1997 to 1 Jul 2011, Goldberg was on the bench from 3 Feb 1997 to 4 July 2010 and Merkel was there from 5 Feb 1996 to 15 May 2006. I find it amazing that they were all appointed in quick succession and from the same small chambers. It must be the old case of who you know.
The Fink handed down some good judgments during his career. But he handed down at least one dodgy one to many.
Raymond Finkelstein needs to stand down from hearing the media inquiry. At best, given the above, he is an idiot who does not know the law. At worst, a corrupt former judge who has been brought in to hand down pre-determined findings.
Why in the title of this post “a fist full of dollars”? Do I think he took a bribe in the Centro case? Yes I do or maybe he was doing a favour for mates. And he is certainly getting paid a small fortune of tax payer dollars to head up the inquiry.
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