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Bank Litigation Judgments of Interest to Bank Victims

Bank Litigation Judgments of Interest to Bank Victims

Bank Litigation Judgments of Interest to Bank Victims

Evan Jones

February 2017

A Work in Progress

(Customer victories, albeit sometimes transitory, highlighted in yellow)

[Note: this list naturally does not include all those victims foreclosed in processes that did not include court litigation]

[Note: this list does not include those victims who achieved a ‘positive’ settlement with their bank without court litigation. Generally such victims were in possession of smoking gun evidence. The

settlement terms remain rigorously confidential and the specifics of bank malpractice remain unpublicised.]

[Note: some victims on the list are noted as ‘property investor’. This label characterises the purpose of the loan on which the litigation arose; the victims have typically engaged in many other activities,

perennially successful in small business ventures.]

[Note: this list does not include the considerable list of victims of NAB’s sometime British subsidiary, Clydesdale & Yorkshire]

[Included below the judgment list are two ancillary lists: is a list of those effecting transitions from bank counsel to bench, and the law firm bank litigation honour roll]

To View please click here

Transitions from bar to bench

* Paul de Jersey, after a career acting for Westpac (and, at one stage, being on a Westpac retainer), was appointed to the SCQ in 1985, becoming Chief Justice in February 1998, serving in that capacity until his appointment as Governor of Queensland in July 2014. While on the SCQ, de Jersey presided over numerous cases involving Westpac and then the National Australia Bank, the latter by his admission his then personal banker. Bank victim activist John Salmon has long sought to have various Queensland authorities, not least the Crime and Misconduct Commission examine de Jersey’s record presiding over bank litigation, to no avail.

Significant judgments in which de Jersey has been involved are not publically available – in particular, Potts v Westpac, MacKenzie J presiding (10.12.90), Westpac v Potts appeal (16.4.92), Doneley v NAB (12.10.98), NAB v Troiani/Wide Bay Bricks (22.3.01) and Bernstrom v NAB (20.9.01). Troiani was advised by ‘his’ counsel A J H Morris not to attend the 21.3.01 hearing; the transcript for this hearing, earlier promised to Troiani, was destroyed on de Jersey’s order.

* Susan Kiefel was elevated to the SCQ in May 1993, to the Federal Court of Australia in October 1994, to the High Court in August 2007, and as Chief Justice of the High Court in November 2016. Her Wikipedia entry notes, as the time of her appointment to the High Court, “She was considered a conservative ‘black letter’ judge”.

* George Fryberg was appointed to the SCQ in September 1994 (retiring in 2013). His actions for the NAB in Somerset/Kabwand v NAB (1988, 1989) were contemptible, contributing to a corrupt judgment against the Somersets. During Fryberg’s presence on the bench, it appears that he did not preside over bank litigation.

* John Muir was appointed to the SCQ in 1997, and to the Court of Appeal in 2007 (retiring in 2014). He has acted for a bank victim (Chiarabaglio). However, during a McMinn v NAB hearing 17 January 2001, Alan McMinn, self-representing NAB victim, claimed that he and his wife had been victims of NAB fraud. Muir responded, to the effect: "Litigants should be careful about making allegations of fraud against banks. It has been my experience that on the basis of 100 allegations of fraud against banks, 99 have no substance and cannot be sustained." The claim is complete rubbish. This claim has been deleted from the transcript issued on 25 January 2001.

* Richard Chesterman, long time counsel for Westpac, was appointed to the SCQ in 1998 and to the SCQA in 2008 (until 2012), in which capacity he has presided over bank litigation.

* William Henric Nicholas was elevated to the NSWSC in February 2003. In his swearing in ceremony, the close sometime link between Nicholas and John Sackar is noted. Nicholas appeared for the CBA in Bryant v CBA (9.11.94, 11.11.94, 14.6.95) and Healey v CBA (8.12.98), and for the ANZ (peculiarly in South Australia) in Copping v ANZ McCaughan (20.5.94, 24.4.95, 9.2.96). Potential judicial bias of Nicholas is pursued in Bakarich v CBA (1.4.10, 26.11.10).

* Philip McMurdo was appointed to the SCQ in 2003 and to the SCQA in 2015. Not to be confused with his wife Margaret McMurdo, President of the SCQA since July 1998. (In such capacity, Margaret McMurdo presided over the dismissed appeal of Bernstrom against the de Jersey summary judgment for the NAB, 28.6.02 & 20.8.02 – see Austlii.) Philip McMurdo has appeared for both sides of the banking litigation fence – for the victim in Thannhauser v Westpac (19.3.91) and for the bank in CBA v Muirhead (9.6.95). Philip McMurdo was appointed (belatedly) as counsel for the Troianis (Wide Bay Bricks), 12 March 2001, in their case against the NAB before Chief Justice de Jersey. McMurdo withdrew within 24 hours (the Troianis’ solicitor was told that McMurdo had ‘simply overlooked another engagement’), handing the Troianis’ brief to one A J H Morris, who delivered the Troianis to the slaughter on 22 March, instructing the Troianis that they should not be present during the key hearing (the transcript of which was subsequently destroyed).

* Patrick Keane was appointed to the QSCA in February 2005, as Chief Justice of the Federal Court of Australia in February 2010, and to the High Court in March 2013.

* Nemeer Mukhtar ws sworn in as Associate Judge of the SCV in August 2009. In the ceremony, Steve Stevens, President-elect of the Law Institute of Victoria spokesperson sees fit to denigrate at length, no doubt with Mukhtar’s consent, the character of a litigant when Mukhtar was acting as counsel for the NAB. The subject of the insult is clearly identified as the victim of foreclosure in NAB v Walter (16.2.04). The weblink to Stevens’ 26 August 2009 speech has since been taken down, for evident reasons. Amongst colourful references to Mukhtar’s sterling dignity in the midst of the victim’s supposedly irrational utterances, Stevens claims that “The Judge did the litigant-in-person the courtesy of a 49-page reasoned judgment”. The judge did no such thing. The judgment was perfunctory, displaying no interest in the details of the process that led to foreclosure, and the unconscionable processes following foreclosure, including sale dramatically under value. In any case, Dodds Streeton J should have disqualified herself from hearing the case for conflict of interest (she admitted to being the owner, in trust, of 8,000 NAB shares, then worth ~ $250,000).

* John Sackar was elevated to the NSWSC in February 2011. In his swearing in ceremony, Sackar is noted as having been a close friend in chambers of Acting Judge Doug Staff who presided over Dwyer v CBA (18.10.91), during which Sackar contemptibly bullied and misled the plaintiff, and of W H Nicholas (they ran a sometime business partnership) who presided over Bakarich v CBA (20.4.04). Anthony Bakarich has waged a personal crusade against judge/counsel links, without success.

* Anthony Meagher was elevated to the NSWSC in August 2011.

* Philip Dowdy was appointed to the Federal Circuit Court of Australia in December 2015.


The law firm bank litigation honour roll

Malleson Stephen Jaques, early days NAB (now part of King & Wood Mallesons)

Thynne & Macartney, early days NAB Queensland

Feez Ruthning, early days Queensland (later merged with Allens)

Gadens, esp CBA, now also NAB – the current predominant law firm beneficiary of and participant in bank malpractice

Dibbs Barker (or Dibbs + various names), esp NAB NSW

Kemp Strang, nationwide

Minter Ellison, nationwide, esp NAB

Norton Rose Fulbright, CBA NSW (previously Cannon & Peterson)

HWL Ebsworth, NSW, recent addition; opportunist firm wanting to join the A list

Simmons Wolfhagen, Tasmania

Ashurst, blow in from overseas, looking to establish presence

Henry Davis York, NSW, occasional

McKean Park, Victoria, bottom feeders

Turks, Victoria, NAB, bottom feeders

Russell Kennedy, Victoria, bottom feeders

Thomsons, Victoria, bottom feeders


Last modified onThursday, 02 March 2017 10:24
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