Ocker Records Australia Pty Ltd v National Australia Bank

[2003] HCATrans 763

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S177 of 2002

B e t w e e n -

OCKER RECORDS AUSTRALIA PTY LIMITED

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 2.28 PM

Copyright in the High Court of Australia

MS L. CORREY appeared in person, on behalf of Ocker Records Australia Pty Ltd. 

MR L.S. EINSTEIN:   May it please the Court, I appear with MR J.A. HAMMOND for the respondent.  (instructed by Dibbs Barker Gosling)

KIRBY J:   You are an officer of the company, I think, is that correct?

MS CORREY:   Yes, I am.  I am the director of the company, your Honour.

KIRBY J:   What is the attitude of the respondent to the appearance of Ms Correy on behalf of the company?

MR EINSTEIN:   We have no objection, your Honour.

KIRBY J:   There was a case of Bay Marine, which is a scar I still bear from the Court of Appeal, where officers were said under the New South Wales Rules not to have a right to appear, but, in light of the fact that Mr Einstein does not raise any objection, we will hear what you have to say.

MS CORREY:   Thank you very much, your Honour.  Can I start?

KIRBY J:   You know that you have a limited time?

MS CORREY:   Yes I do.  I am fully aware of that, your Honour.

KIRBY J:   Lights will start to flash.

MS CORREY:   I know, I have been watching them all morning.

KIRBY J:   Yes, very well.

MS CORREY:   So which light do I look out for, the red or the orange?

KIRBY J:   Well, when you get the orange, you know you have only a few minutes left.

MS CORREY:   Right, thank you very much.  First of all, I would like to address the Court.  I was an ordinary banking customer and I had been with the National Australia Bank since the 1960s.  Since 1986, I have dealt with three levels of banking management:  the junior, middle and senior management.  Along the way of our bill facility, we ended up getting different information from different management levels, that in the end, your Honour, I will bring it all together to show that at the end we did not know what to believe or who to believe.

First of all, an irrevocable authority was signed by my ex‑husband in July 1987 for the sum of $9,800, and the banker, Mr Bob Janda, got my husband to sign an irrevocable authority for that amount, which included interest in advance for the bill facility on 19 August 1987.  Well, my husband signed the irrevocable authority.  A cheque of $19,300 went into our account.  The Bank kept the whole lot.  Now, I call that a breach.  Now, the next point is ‑ ‑ ‑

KIRBY J:   What do you say is the error or mistake on the part of the Court of Appeal?

MS CORREY:   First of all, your Honour, that my husband signed an irrevocable authority for roughly – well, exactly $9,800.  We were expecting a cheque from Austrade and we were given a round figure of $10,000 by Mr Lees from the Austrade office, and that was going to be part of the payment of the interest for the bill facility in advance.  A sum of $19,300 by Austrade went into our account.  The Bank kept the whole lot.  On 5 August, my ex‑husband, purely by accident happened to call middle management, Mr Murray Walsh, who happened to inform my husband that the bill facility on 19 August will be converted to an overdraft.  Now, this was done not in writing ‑ ‑ ‑

KIRBY J:   Now, you are going into the detailed facts, and you are stating matters as facts.

MS CORREY:   They are facts.

KIRBY J:   We are an appeal Court, you see.

MS CORREY:   They are facts.

KIRBY J:   Well, you say that.  We normally look at what the Court of Appeal has said and then we see whether there is a mistake ‑ ‑ ‑

MS CORREY:   Right.  Would you like me to go on to clause 6, your Honour?

KIRBY J:   You have to take your own course.  Normally, the Court does not get involved in factual disputes.  Sometimes, if they are serious injustices, we do, but normally we concentrate on legal mistakes.

MS CORREY:   Right.  I will go onto clause ‑ ‑ ‑

KIRBY J:   So it might be more productive if you concentrate on that argument.

MS CORREY:   Clause No 6.  Clause No 6 states:

Within the availability period and subject to the provision of this Letter upon the maturity of each bill drawn and accepted pursuant to this Letter the Drawer may draw a replacement bill having a face value equal to the face value of the maturing bill which shall be accepted by the Bank.  Such –

that is what I want to stress –

Such replacement bill shall be delivered to the Bank on the business day prior to the maturity date of the maturing bill.

Now, I fully understand what that bill means, but on the previous two occasions, your Honour, the Bank drew up the bills.  I was given the opportunity of sighting this bill back in August 1986, and if the Bank is going to pursue this particular bill they have failed to instruct me, advise me, or given me a format on how to draw up a bank bill.  I have on previous occasions spoken to the St George Bank, and apparently what they do – and this is their words – it is a highly specialised area conducted by staff specialised in this area.  Banks draw up bills, not customers.

KIRBY J:   What is the precise mistake that you say the Court of Appeal has made?

MS CORREY:   Well, the thing is expecting a banking customer to draw up a bill facility when we were – no mention – nothing was ever mentioned of drawing up a bank bill.  I work with the Department of School Education.  When a program is being implemented, teachers get in‑service, we get training.  If I knew how to draw up a bank bill, I would have done that, your Honour, I would have delivered that bill to the Bank.  But, your Honours, this is contrary to the industry practice.  This particular clause in their contract benefits the Bank.

KIRBY J:   But what is the mistake that the Court of Appeal – I understand that you feel that ‑ ‑ ‑

MS CORREY:   They are upholding this particular clause, that I, as a banking customer, have to draw up a replacement bill and deliver it personally to the Bank.

KIRBY J:   Yes, but if you agree to a clause, then that is binding on you, subject to any disqualification.

MS CORREY:   Your Honour, this clause was new to us.  On the previous two occasions, the Bank drew up this bill facility.  Now, the bill facility – it is not as easy as if you are going to be signing up, or writing up a bank cheque.  It is a highly specialised area.  This clause was introduced in our District Court trial towards the end, I do not know – day two, because it was a three day trial.  This clause was not ‑ ‑ ‑

KIRBY J:   You have not raised any objection on that basis.

MS CORREY:   Your Honour, I did not ‑ ‑ ‑

KIRBY J:   There is no ground of appeal or application on that basis.

MS CORREY:   I was not at the appeal process, your Honour, because what happened during our appeal process, your Honour – our barrister, who had volunteered his services, and our lawyers, who had volunteered their services, which I am very, very grateful for, because I have come this far ‑ our barrister was disqualified from practising, because he was one of the barristers that apparently did ‑ ‑ ‑

KIRBY J:   That does not seem to have anything to do with the case.

MS CORREY:   Well, we ended up getting a new barrister in about a couple of days before the appeal date, your Honour.  So this particular barrister ended up coming in for the appeal, not having had a lot of time to look at our case, to look at the clauses, et cetera.  Also, can I raise another issue, the history of bill facilities.  I have done quite a bit of reading.

The history of bill facilities were implemented when there were trading banks.  Major corporations ended up dealing with bank facilities, where they had their own accounts departments.  Now, we were only small‑time borrowers of $50,000.  We did not have our own accounts department, yet the Bank has failed to change the clauses with the current times.  Now, can I go onto the breach of contract?  Can I do that, your Honour?

KIRBY J:   Yes.

MS CORREY:   Right.

KIRBY J:   But it has to be related to an error on the part of the Court of Appeal.

MS CORREY:   Yes, it is.

KIRBY J:   Because we are not a trial court here.  We are dealing with the matter on the third level.

MS CORREY:   I know, your Honour, I am fully aware, your Honour.  I am a school teacher.  I have been a consultant.  I have put – maybe I did not put together this correctly.

KIRBY J:   You are doing the best you can, so you just press on.

MS CORREY:   I am only an ordinary banking customer that has tried to do the right ‑ ‑ ‑

KIRBY J:   I am only an ordinary Judge just dealing with the application.

MS CORREY:   I know that, your Honour.

KIRBY J:   We can only deal with the case on the basis that you are challenging the Court of Appeal, you see.

MS CORREY:   I am challenging the court on clause 6, expecting banking customers, which is contrary to banking industry practice, that I have to go away, draw up a bank bill, deliver it to the Bank, when I was not informed, nor trained, nor even given a format on how to draw a bill facility.  Now, that clause is purely for the benefit of the Bank, and, as far as I am concerned, a contract has to be beneficial to both parties.

Now, the breach of contract.  Interest was paid in advance for the bill facility.  On 5 August, my ex‑husband found out that the Bank was going to respond by changing our bill facility to an overdraft, and they froze our funds, froze our account and took over on 5 August, when the maturity date was on 19 August.  Now, I do not think that is quite correct.  Maybe I am not using the right terminology, I do not know, but I am trying to do the best that I can.

Now, I keep saying to people, what I paid for, what I signed for, I did not quite get.  Now, if the Bank froze our account on 5 August, 13 days before the maturity date of 19 August, they had no right to do that whatsoever.  They had no right to do that whatsoever.  They were anticipating a breach before the maturity date.  Now, I could live with failures.  If Ocker Records, a music company, walked away and failed, I could live with failure like I have lived with my past failures.  But to lose a hell of a lot under clause 6 and expecting banking customers, ordinary little people like myself, to go away, draw up a bill facility, deliver it to the Bank ‑ which they were not, according to her Honour Judge Wallace in the District Court, going to accept, anyway.

KIRBY J:   Of course, many transactions that customers have with banks are very complicated.  We see them from time to time.

MS CORREY:   Well, your Honour, it is about time ‑ ‑ ‑

KIRBY J:   If you have complaints about banks or the way they handle matters or their documents ‑ ‑ ‑

MS CORREY:   We have tried to discuss.

KIRBY J:    ‑ ‑ ‑ you can go the banking ombudsman, but when you come to a court of law we have to simply analyse the agreement that you have ‑ ‑ ‑

MS CORREY:   I realise, your Honour ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ undertaken and hold you to it, you see, unless there is some way of getting around it.

MS CORREY:   Your Honour, you have to realise that I was an ordinary banking customer.

KIRBY J:   Well, you have said that.  I understand that, but, you see, you are still bound, as anybody else is, by the law and by what you have agreed.

MS CORREY:   Yes, I realise.  I believe in the law.  I teach my students to believe in the law.  I mean, I have no problems with that.  But if the clauses were all explained to us, if the Bank informed me that Mrs Lisa Correy better go away and draw up a bank bill, this is what it looks like – I mean, how could I possibly draw up a bill facility which is contrary to industry practice, when the only time I have had the experience of seeing a bank bill is for a few seconds in August 1986?

KIRBY J:   I understand these complaints, but, you see, we have to deal with it in the way in which you conducted the proceedings.

MS CORREY:   The clause is put there for the benefit of the Bank.

KIRBY J:   You did not plead at the trial that the way the Bank had acted was unconscionable.

MS CORREY:   No, not trade practices ‑ ‑ ‑

KIRBY J:   And you did not plead at the trial that there were pre‑contractual misrepresentations to you, or that the Bank was estopped from acting.

MS CORREY:   Sorry, your Honour, I am sorry to interrupt, but it was breach of contract.  Pure and simple.  What I paid for, signed for ‑ ‑ ‑

KIRBY J:   Therefore you are simply in the business of analysing what the contract says and what you have agreed to, you see.

MS CORREY:   The contract – the terms and conditions were never explained to us.  This was never explained to us.  How many are there?  There are quite a few.  There are 26.  It is all legal mumbo‑jumbo.  I am sorry that I use this expression.  This was never explained to us.  If it was, I do not think I would have been signing that contract in the first place.  So, your Honour ‑ ‑ ‑

KIRBY J:   But the fact is that you did, and therefore the Bank says that you must ‑ ‑ ‑

MS CORREY:   I know, I am fully aware ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ the company must be held to its agreement.

MS CORREY:   I am fully aware of signing it, but I was never aware that I was bound by clause No 6.  I was never aware that the Bank had the right to convert this bill facility into an overdraft without our signature or consent, which we could not ‑ ‑ ‑

KIRBY J:   What would happen to our economy if everybody, every company that executed an agreement, simply said, “Well, we didn’t really understand it and we’re not going to be bound by it.”

MS CORREY:   Your Honour, the company had a No 10 in the record charts in Chicago and No 19 in Italy.  We were never given the opportunity.  The Bank froze our funds.  Our home was taken away.  My marriage was destroyed, and that is it.  If we were ‑ ‑ ‑

KIRBY J:   I am sorry this has happened, Ms Correy, but we can only deal with the matter on the law.

MS CORREY:   Right.  Your Honour, I am not here for your – I am not being disrespectful, your Honour.

KIRBY J:   I am not apologising.  I am just saying that I was – because I have nothing to do with it, but I am sorry that you have suffered these disadvantages.  But we have to apply the law.

MS CORREY:   Your Honour, clause No 6, which is contrary to industry practice – am I the only person that this particular clause is going to be applicable to?  Why should I be singled out?  Why should Ocker Records be singled out?

KIRBY J:   Well, you may have some remedies with the banking ombudsman.  There is a bank industry ombudsman.

MS CORREY:   I have been in touch with the banking ombudsman, but this has been before the court, so they are not going to touch it, your Honour.

KIRBY J:   Well, I understand that.

MS CORREY:   I have great belief in the justice system.  As I said, clause No 6 is for the benefit of the Bank, not for the banking customers like myself.

KIRBY J:   Yes.  Is that all you wish to say?

MS CORREY:   There is one more point, your Honour.  I cannot see any lights.  I would like to sort of conclude on this.  I put this resolving problems and I thought, well, maybe I should have a look at it, but this came out later on in the 1990s, after our event:  “At the National we try to provide you with the best banking services and facilities in the country, but we recognise that we are not perfect.”  That is on their own little brochure.  It is a shame that this was not printed.  It is a shame that – we have tried to work out, to have discussions with the banking officers, but it did not matter what we said.  Whether we could afford, whether we could not afford, we had no say in the matter whatsoever.  We were left as is.

KIRBY J:   Yes.

MS CORREY:   Thank you, your Honours.

KIRBY J:   Thank you very much, Ms Correy.  The Court does not need your assistance, Mr Einstein. 

The special leave questions said to arise in this application are factual questions.  Most of them do not appear to have been raised in the matters litigated in the courts below.  The submissions which the Court permitted Ms Correy to make on behalf of the applicant do not reveal any aspect of the reasoning of the Court of Appeal which has any prospect of being held to be erroneous if special leave were granted.  Accordingly, special leave must be refused.  Does the Bank ask for costs? 

MR EINSTEIN:   We do, your Honour. 

KIRBY J:   It must be refused with costs.  Thank you, Ms Correy.  

AT 2.47 PM THE MATTER WAS CONCLUDED