Bernard Madigan v The Commonwealth Bank of Australia

[2002] NSWCA 88

CITATION:	BERNARD MADIGAN v THE COMMONWEALTH BANK OF AUSTRALIA [2002] NSWCA 88
FILE NUMBER(S):	CA 40015/01
HEARING DATE(S):	11 March 2002
JUDGMENT DATE:	11 March 2002
PARTIES :	Bernard MADIGAN v THE COMMONWEALTH BANK OF AUSTRALIA
JUDGMENT OF:	Mason P at 1; Meagher JA at 19; Powell JA at 20

LOWER COURT JURISDICTION :	Registrar Irwin
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL:	Appellant: In person Respondent: J. Lanser (Sol)
SOLICITORS:	Appellant: Bernard Madigan Respondent: L E Taylor (CBA)
CATCHWORDS:	Appeal - competency - r8 affidavit (ND)
DECISION:	Application dismissed with costs

CA 40015/01

MASON P
MEAGHER JA
POWELL JA

Monday 11 March 2002

BERNARD MADIGAN v COMMONWEALTH BANK OF AUSTRALIA

JUDGMENT

1 MASON P: The claimant, Mr Madigan, seeks a review of the decision of Registrar Irwin. The registrar gave reasons on 3 December 2001 for concluding that an appeal that had been lodged was incompetent.

2 The proceedings in this Court arise out of proceedings in the District Court which involved the trial of the issues presented by a further amended cross-claim. That cross-claim had been filed in proceedings commenced in the Supreme Court by the Commonwealth Bank against Mr Madigan. Those proceedings as between the bank and Mr Madigan were resolved and the cross-claim remitted to the District Court for trial.

3 The trial took place over a number of days before her Honour Judge Ainslie-Wallace who gave judgment on 15 December 2000. Her Honour dismissed the cross-claim and ordered the cross-claimant to pay the bank’s costs of the action. Subsequently in the judgment given on 9 March 2001 she ordered that costs be paid on an indemnity basis.

4 The amended notice of appeal pursuant to which the claimant invokes this Court’s jurisdiction is at page 116 of the red appeal book. It was filed on 13 August 2001. Several affidavits were filed in essence in response to the bank’s claim that the appeal was incompetent. One of those affidavits, the affidavit of Mr Madigan sworn 4 September 2001, was treated by common agreement as the affidavit purportedly in compliance with part 51 rule 8.

5 That rule provides that where an appeal to the Court of Appeal is restricted by reference in any Act to a specified amount or value the appellant shall within the time limited for instituting the appeal file and serve on each necessary party an affidavit stating facts which show that the restriction does not apply. The relevant restriction (this being an appeal brought from a verdict and judgment of the District Court) is to be found in s127 of the District Court Act. In essence, it must be shown that the matters in issue in the appeal involve a claim by a party to the appeal against the other party to the appeal exceeding $100,000.

6 The Court has had the benefit of a statement which was read to the Court and provided to us today in which Mr Madigan explains clearly the basis of his several complaints against the bank. He has provided us with a history of his involvement including his input to the Martin inquiry and has referred to a number of issues which he has raised in places other than the Court concerning banking practice generally and the practice of the Commonwealth Bank in particular.

7 This Court is not a Royal Commission and does not have a general remit to involve itself in wide ranging inquiries. It can only proceed according to the jurisdiction conferred upon it by statute. That jurisdiction in cases such as the present in turn is affected by the jurisdiction of the Court from which the appeal has been brought. I mention that fact because two of the matters raised by Mr Madigan are entirely outside the civil jurisdiction of the District Court. They are the claim for a penalty under Pt 4 of the Trade Practices Act which is a matter within the exclusive jurisdiction of the Federal Court and the allegations of criminal misconduct which Mr Madigan made. The allegations were made in terms which would not be permissible and they have been made by a member of the legal profession. I do no more than record that they are allegations which have nothing to do with the matter at issue, namely the competency of this appeal and are allegations which the Court has not troubled Mr Lanser to respond to because they have nothing to do with the matters before the Court.

8 Rule 8 as I have indicated required the appellant in his affidavit to state facts which show that the relevant restriction did not apply. This means facts which show the legal cause of action invoked in the proceedings below and invoked in the appeal. The Court is not concerned with the tenability of those facts at this stage of the proceedings. Rather, its concern is to see whether the affidavit upon which the appellant invokes the jurisdiction of the Court states facts which the Court can be satisfied that that appellate jurisdiction has been duly invoked.

9 The Registrar in his reasons dealt paragraph by paragraph with the amended notice of appeal and the arguments tendered both orally and in the several affidavits filed before him which form part of this Court’s record in the present application. Nothing that has been raised in writing or in the claimant’s submissions persuades me that there is any basis for reviewing the registrar’s decision or his conclusion that the appeal has not been shown to be competent.

10 The affidavit of 4 September contains a paragraph, (par 22) to which our attention was particularly drawn. That paragraph purports to quantify the value of the civil claim brought by Mr Madigan in his own right in the proceedings below and which he seeks to maintain in this appeal. It is elaborated in annexure K to the affidavit which is found at page 160 of the red book. As Mr Madigan confirmed in his submission this morning, the springboard for his claim for damages is the contention that the bank wrongly debited an account which may or may not have been a closed account at the time (I will assume it was closed) with the sum of $65 being the cost of a transcript of proceedings in the Supreme Court at some earlier stage in this litigation.

11 Judge Ainslie-Wallace dealt with this at pages 41-2 of her judgment. Annexure K to the claimant’s affidavit explains the basis upon which the claimant contends that this wrongful debiting became the basis for a quantified claim for damages, $105,940.44. It states in part, “if the Court finds that:

the bank had no right to seize and retain deposits made to an account after it was closed, and

the bank had no right to charge fees to an account after it was closed, then

the damages shall include the return of that money plus the interest calculated from the date it was seized and fees paid.”

12 Thence follows a schedule of money claims totalling $105,940.44 which include claims to the return of the entire interest and bank fees charged under the relevant loans, loss of revenue from loss of rent, loss of capital value for a quick sale, disbursements for sale of property, disbursements for purchase of property and other items.

13 In my opinion the Registrar was entirely correct in regarding this as insufficient compliance with rule 8. It is true that the figures total up to over $100,000, but the affidavit does not state facts which show that the claim that is tendered for this Court’s determination in the appeal exceeds that amount or gets anywhere close to that amount.

14 I am conscious that the power we are concerned with today is the power to dismiss for lack of competence as distinct from a power to dismiss summarily for a claim that is bound to fail. If I thought that there was a viable genuine claim lying behind the poorly drawn affidavit then it would be proper to consider giving leave for an amended rule 8 affidavit to be filed. But everything that has been put before us today only reinforces my view that we are not dealing with such a claim.

15 I have I think already made plain that Mr Madigan’s complaints in relation to banking practices generally and his allegations of breaches of Part 4 of the Trade Practices Act and his allegations of criminal misconduct of various forms have nothing to do with the civil jurisdiction of the District Court that was invoked. And I have not overlooked that he seeks to make serious allegations against Mr Lanser. He has been allowed to say some very strong things in relation to Mr Lanser.

16 Those matters do not establish compliance with rule 8 nor do they suggest that lying behind that non-compliance there is a tenable claim that the $65 point can be the springboard for the $105,000 damages claim that is formulated.

17 This Court has a limited appellate jurisdiction and the reason for that is the huge volume of claims that are brought in this Court as the final Court of Appeal for virtually all matters arising under state and federal law and civil matters in this state. We have a duty to be satisfied that our jurisdiction is properly invoked, not only because that is the law but also because failure to do so means that the Court’s time and the time and cost of litigants in the Court including people like the claimant is wasted on what will turn out to be claims going nowhere.

18 In my view the application for review should be dismissed with costs.

19 MEAGHER JA: I agree.

20 POWELL JA: As do I.

21 CLAIMANT: Can I just - the main part or a part of my application was that rule 25 says that if the bank didn't file a competency motion within 21 days and I find my application that the bank was penalised by way of paying all my costs. Now I had to meet a lot of costs all the way through this matter, I had to meet these costs all the way through and then at the very last minute at the twelfth hour, the bank have filed an application to have the matter dismissed. The bank should have done that within 21 days so I shouldn’t have to meet these costs.

22 MASON P: Yes. I will say something about that.

23 In one of his affidavits filed in support of the claim as to competency, Mr Madigan complained about the late filing of the objection to competency and he drew the Court’s attention to part 51 rule 25 which provides:

Competency
25(1) A respondent who objects to the competency of an appeal shall, by motion on notice filed and served on all other parties to the appeal within 21 days after service upon the respondent of the notice of appeal with appointment, apply to the Court of Appeal for an order striking out the appeal as incompetent.
(2) If the respondent fails to comply with subrule (1), but the appeal nevertheless is dismissed as incompetent, he shall not, unless the Court of Appeal otherwise orders, receive any costs of the appeal, and the Court of Appeal may order that he pay to the appellant any costs of the appeal proving useless or unnecessary.

24 Mr Madigan is obviously relying upon subrule (2) and his argument in brief is that the bank should not receive any costs of the appeal, indeed it should pay his costs because the objection to competency was not filed within twenty-one days after service of the notice of appeal with appointment. Subrule (2) is capable of displacement, as the words “unless the Court of the Appeal otherwise orders” makes plain. This was a case in which the parties clearly joined issue as to the competency of the appeal, there were extended opportunities given to Mr Madigan to file affidavits explaining the competency of his appeal and the Court’s record contains affidavits filed between September and December 2001 in that regard. It was in this context that the registrar dealt with a contested, discrete dispute as to the competency of the appeal. In my view it was well open to the registrar to provide that costs should follow the event and I would not disturb his order in that regard.

25 CLAIMANT: I hear what you’re saying but if you please understand that I had to pay a lot of money to start this mater off in the first place and when this matter had been started I served notice on the bank in accordance with what I was required to do on 22 May I think it was. The bank had until about 11 June to respond. Instead the bank filed a notice of contention with no mention about it whatsoever. Then the matter proceeded and proceeded and proceeded until the callover and then at the callover the bank objected to the competency of the appeal, they had 21 days. We’re talking now about six months, whatever it was, later. I just think that I was left with no option, I couldn’t say I will discharge the appeal and that you’re right and that I’ll accept your ruling because I’d already outlaid a lot of money, a lot of money which I was going to lose if I didn’t say the appeal in my opinion the appeal is competent and I do believe the appeal is competent.

26 MASON P: I understand that, Mr Madigan.

27 CLAIMANT: But I do want you to be fair about the matter because in all honesty I paid that money in advance and then the bank had 21 days to notify me to stop me from spending any more money and the matter could have been aired, should have been aired prior. Instead the bank let it go on, let it go on and that meant more and more costs and then didn’t meet their obligations under rule 25, complained and now I’ve had to meet all those costs as well as the bank’s rejection when the bank didn’t meet their obligations in the - under rule 25 nor did the bank file any objection when the bank filed its contention.

28 MASON P: The registrar obviously concluded that even if the bank had filed the document in time you would have gone on and that’s the conclusion I would draw as well.

29 CLAIMANT: Well, the registrar concluded that incorrectly because I would say had the document been filed in time I wouldn’t have gone on but I would have known more about it.

30 MASON P: Yes, Mr Madigan. Your remarks are noted and they will be on the transcript.

31 MEAGHER JA: Yes, I agree with what the President has just said.

32 POWELL JA: I agree with the additional observations and the President.

33 MASON P: The Court will now adjourn to reconstitute--

34 CLAIMANT: Just before you do call an adjournment there are other matters on the notice of motion which haven’t been addressed.

35 MASON P: What are those, Mr Madigan?

36 CLAIMANT: That is the matter of motion number 5, notwithstanding that the Court may dismiss the appeal as being incompetent to proceed with appointment, I’m asking for an order to list the matter for assessment of the evidence that John Morris Lanser and Scott Andrew Atkins did conspire to pervert the course of justice and may be guilty of misappropriation of funds, fraud, perjury, malicious prosecution and or professional misconduct. Application is hereby made under section 88 of section 51 (4) of the Supreme Court Act--

37 MASON P: Yes we have read that, yes.

38 CLAIMANT: Okay. Now there is the evidence, I have the evidence here--

39 MASON P: Mr Madigan, I have explained already why this Court does not have a criminal jurisdiction in the matter and I do not propose to hear any further submissions about that paragraph which is clearly an abuse of process.

40 CLAIMANT: I was asking for the matter to be remitted to a criminal division.

41 MASON P: This Court does not do that sort of thing. The Court will now adjourn.

**********