Dr Evan Jones continues his six-part analysis on the series of parliamentary inquiries into systemic bank corruption as the victims of fraudulent foreclosures continue to wait for justice.
Read the other parts of this series:
The current banking inquiry into 'The Impairment of Customer Loans' is neglecting the parlous role of court litigation in facilitating bank corruption.
The “impartiality” of the court system laid bare
In his interventions during the 13 November hearing, Inquiry committee member Philip Ruddock showed that he had read one submission, that of the CBA itself (no.48). The CBA submission is replete with the usual blah ('we work with the customer’s best interests at heart', and so on) and the usual lies. (The GFC’s impact on property values pushed multiple Bankwest loans into non-viability.)
But the bank also used the occasion – customary for bank submissions – to nail the coffin shut with presumably damning confirmation from the courts.
[The bank] has also provided evidence in response to these allegations in a number of legal cases. In those cases, no evidence providing credible foundation for these allegations has ever been put forward. Indeed, where the substance of allegations has been tested in court it has been found in favour of [the] Commonwealth Bank.
Wijeyeratne replied, on the contrary:
[Victim allegations have] not been tested in the courts. It has been put to the courts — and then people run out of money, so the courts do not get to actually test it. …
Well, I am hoping you can work out what is wrong with the court system, when you see the evidence which is about to come before you! That is why I have been focusing on the parliament for the last three years. We cannot fix this through the judicial branch of government. It has to be done through the executive. You will see different results …
To which Senator Williams retorted:
“Are you saying that these judges have made very bad decisions in these cases?”
Quite. Wijeyeratne held his ground but, to my mind, was too kind in his response.
Why the deference, implicit in the tone, to the courts? Williams himself has seen scandalous judicial partisanry at first hand during the bloody litigation over 1980s foreign currency loans.
This is evidence again that the members have not read my submissions to this inquiry or previous. In my submission to the current inquiry I include a section specifically on 'bank malpractice and the courts'. There I note:
At worst, some judges appear to be complicit with bank malpractice in deciding for the bank in litigation. Perhaps sometimes subconsciously — after all, a not inconsiderable number of judges have been elevated to the bench after acting for banks. That, after all, is where the money is.
The judge presiding over recent litigation between Bankwest and a high profile CBA/Bankwest victim had himself previously acted as energetic counsel for the very same Commonwealth Bank. In his latter day incarnation, he gave judgement for the bank.
Worse, some bank litigation judgements are so manifestly unsavoury that one infers that the complicity would have to be conscious. The absence of a register for judicial pecuniary interests facilitates potential complicity of this nature.
At best, the judiciary appears to be poorly educated. Legal education is steeped in the law of contract under common law, and the judiciary appears to be attracted to it as to a religion. The borrower had borrowed funds from the bank lender; the borrower owes those funds, plus interest and fees, to the bank lender, end of story. Summary judgement awarded to the bank, costs awarded against the borrower. …
Few judges bother to augment their impoverished tertiary training with some self-education regarding the nature of the bank – SME/farmer borrower relationship. Such a relationship is complex but, above all, it is fundamentally asymmetric. The power and discretion of the lender over the borrower is significant.
The high profile victim litigation referred to above is that of Bankwest borrower Geoff Shannon in 'CBA v Geoffrey Shannon NSWSC 1076 (12 August 2013)'. The presiding judge was one John Sackar, anointed to the NSW bench in February 2011. Sackar decided for the bank.
The same man acted for the same bank in litigation whose court case I have described in some detail, that of 'Dwyer v CBA, NSWSC 50463/90 (18 October 1991)'. None of the Dwyer litigation is available publically. The behaviour of Sackar in this hearing was base beyond measure. It is so disgusting that I had to take regular breaks to regain the emotional strength to finish writing the article. Geoff Dwyer, a hapless foreign currency loan victim, was crucified by the venality and dishonesty of Sackar.
It so happens that Sackar discloses in his swearing-in-ceremony to the bench (these events can be illuminating as to the law profession’s incestuousness):
One person I had all too little exposure to was the extraordinary Doug Staff QC. He was often not well especially in the latter part of his career. That said his intellect, integrity and courage were in such abundance. On one occasion and over our daily ritual of whisky …
It also so happens that Staff (as Acting Judge) presided over the Trial hearing of Dwyer v CBA (as above) at which Sackar appeared as counsel for the bank. It was a shocker of a judgement – a mere 2500 words – displaying complete indifference to the character of the foreign currency loan phenomenon and undefended partisanry regarding Dwyer’s personal experience. Intellect, integrity and courage, rather than being in abundance, were nowhere to be seen.
The Dwyer Trial hearings occurred during May and September 1991. Sackar’s brutality was doubly necessary for the CBA because the bank had suffered a significant loss in an appeal court only several months previously — that of Quade v CBA, FCA 26 (14 February 1991). That iconic victory for a victim (indeed for all bank victims) had to be obliterated in order to turn back the tide in favour of the bank. Sackar was a key vehicle for this corrupt process.
All the organisations within the financial regulatory apparatus claim that the courts are the ultimate vehicle for presumed victims of financial sector crimes to achieve justice. Whether through ignorance, cowardice or venality, the regulators are an integral part of the ongoing farce.
This is the third in an Independent Australia six-part series analysing ongoing bank corruption and ineffectual parliamentary inquiries, as victims remain uncompensated.
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