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Problems Experienced by Bank Litigants in the Jurisdiction of the Supreme Court of Queensland:

Problems Experienced by Bank Litigants in the Jurisdiction of the Supreme Court of Queensland:














Problems Experienced

by Bank Litigants

in the Jurisdiction

of the Supreme Court of Queensland





John A Salmon



May 2009





Table of Contents

Preface: A Case for Judicial Review

Introduction 1

Chapter 1: Bias 4

(i) Bias in General 4

(ii) A Judge’s Personal Banking Relationship with a Bank Litigant 8

(iii) The Manipulation of Transcripts 13

Oath of Office 13

Court Transcripts 16

(iv) Judge Shopping 25

Chapter 2: Response to de Jersey letter 38

Chapter 3: Conclusion 55



Appendices:

(a): The Doneley Family and Their Litigation Case History

(b): The case history of Lynton Noel Charles Freeman

(c): The case history of Sante Troiani and Rita Cesarina Troiani as Third Party Guarantors to Wide Bay Brickworks Pty Ltd

(d): The Case History of Anita Brigitta Bernstrom

(e): The case History of Alan William McMinn and his wife, Wilma Helen McMinn

Exhibits:

JAS1: Extract: John Salmon & Evan Jones, ‘Shadow Ledgers and the Default Process in the Australian Banking Sector, March 2008

JAS2: Letter, Chief Justice Paul de Jersey to Linda Lavarch, Minister for Justice & Attorney-General, 23 March 2006

JAS3: Ministerial Statement, Linda Lavarch, Queensland Parliament, 30 March 2006

JAS4: Speech, Christopher Foley, Member for Maryborough, Queensland Parliament, 22 November 2005

JAS5: Speech, Christopher Foley, Member for Maryborough, Queensland Parliament, 8 March 2006





Preface: A Case for Judicial Review



This Report comprises 210 pages, including 73 pages of Report proper, 99 pages covering five case histories involving victims of National Australia Bank malpractice and 28 pages devoted to referenced exhibits.

This Report addresses the issue that the Honourable Paul de Jersey AC may have been engaged in what may be perceived by a fair-minded lay observer as dubious activities in a plethora of instances while he has been carrying out his duties as a judge of the Supreme Court of Queensland since February 1985 and as Chief Justice of the Supreme' Court of Queensland since February 1998.

It is submitted that the facts revealed are sufficiently serious that the Chief Justice, Paul de Jersey AC, could be subject to all allegations made. In brief:

Oath of Office

From information given to me by employees of the Supreme Court of Queensland, it is possible that Paul de Jersey as a Justice of the Supreme Court and as Chief Justice of the Supreme Court issued instructions to State Reporting Bureau employees that the transcript of proceedings with respect to his Oath of Office so sworn in February 1985 and February 1998 respectively be deleted from the transcript of proceedings.

I have been told by Supreme Court of Queensland employees that the transcript of proceedings as issued by the State, Reporting Bureau is a secondary copy and that the 'original' is held in the, private Supreme Court of Queensland library.

It is my belief that Justice Paul de Jersey may have sworn at earlier, times an oath of Allegiance where the contents of that Oath of Allegiance have conflicted and contradict by degree the Oath of Office so sworn as a judge of the Supreme Court of Queensland. I consider that a possible explanation of this peculiar behaviour is that Paul de Jersey AC may be a registered member of a Masonic Lodge.

Paul de Jersey AC in the matter of The Pecuniary Interest Proscription

(i) Paul de Jersey as a justice of the Supreme Court of Queensland informed those present in the court room on the first day of the trial hearing in action No. 2285 of 1995 on the 30 June 1997 that the National Australia Bank (NAB) were his personal bankers. The NAB was the Third Defendant. The reader will become aware that while the NAB lost this action, they eventually won the day, and very handsomely so.

(ii) Justice de Jersey presided over three other separate Applications to court, all where the NAB was a party, be it directly- or indirectly to the hearing.

(iii) Chief Justice de Jersey presided over another Application and only disclosed to the plaintiff that the NAB were his personal bankers after he handed down his decision in favour of the NAB.

(iv) The Report will also reveal that Chief Justice de Jersey presided over two Applications to the court where there was no disclosure on the Chief Justice's part that the NAB was his personal, banker. Both decisions were handed down in favour of the NAB in what appears highly contentious circumstances.

(v) Chief Justice Paul de Jersey handed down a decision in favour of the NAB on 21 March 2001 and six months later the Chief justice travels to Cairns, North Queensland and presides over Anita B Bernstrom's action instigated against the NAB.

The Chief Justice permits the Defendant bank to Cross Claim on a Summary Judgement Action basis and then hands down a judgement in favour of his personal bankers in what I describe as highly contentious circumstances.

(vi) Two months later the Chief Justice presides over an Application filed by Alan W McMinn and his wife, Wilma H McMinn where the NAB was the Respondent.

The case histories brought to the readers' attention in (i) to (vi) above form part of the nine matters of litigation mentioned it my Report overall where the common in denominator in all these litigation matters is Chief Justice Paul de Jersey AC and his personal bankers, the NAB.

The reader may deduce from my material, as I have done, that Chief Justice Paul de Jersey has a predilection for residing over litigation involving the NAB, his personal bankers.

I refer to High Count of Australia precedence of Ebner v official Receiver in Bankruptcy (2000) HCA 63, 202 CLR337 and Clenae - v - ANZ Bank (1999) VSCA 35, on the subject of 'Bias' and their determinations on a judge having a 'banking association'. It is given scant regard with more emphasis on a 'judge's shareholding'.

I have been able to calculate from a Freedom of Information search application that Chief Justice de Jersey has been remunerated by the taxpayer to the extent of approximately $2.9 million dollars for the ten year period from February 1998.

By virtue of the Chief Justice's status allied with the fact of his remuneration as mentioned above, his personal bankers, the NAB would be in a position to generate a gross profit for their valued customer by advancing at bank discretion certain monies, not improbably on concessional terms, to invest in real estate amounting to approximately $10 million during the ten year period in question.

The fair minded lay observer could clearly construe from the above that Chief Justice Paul de Jersey may have not administered judicial impartiality. If an affirmative decision was reached in this regard, then it follows that a pre-determination existed and that he constantly demonstrates bias towards his personal bankers, the NAB.

Associated Parties

This section makes reference to, justice de Jersey's association with a client before-.his elevation to the bench of the Supreme Court of Queensland.

The client, which happens to be one of the four major banks in Australia, is a party to the litigation/hearing before him.

From information available Paul de Jersey was in receipt of a retainer from Westpac Banking Corporation prior to his elevation to the Supreme: Court of Queensland bench in February 1985. This signifies a 'special' relationship.

P



aul de Jersey represented. Westpac Banking Corporation as both junior and senior counsel and later presided over litigation involving Westpac Banking Corporation.

The predominant litigation I bring to the readers' attention is represented by Westpac's 1991 Supreme Court of Appeal hearing where Lionel Potts and his wife, Lucy Potts, were the Respondents.

This Appeal hearing extended to four days and Lionel Potts was, present in the court at all times. At no stage did Justice de jersey make any attempt to inform the Respondents that he had previously represented the Appellant bank, Westpac Banking Corporation, as bath junior and senior counsel. The strength and ties of such an association rewarded de Jersey by being the recipient of a retainer from the bank.

Searches conducted by myself revealed that one of justice de Jersey's fellow members presiding over Westpac's Appeal held current mortgages with the Appellant, Westpac.

Judge Shopping

This is another highly undesirable practice and shows the failure to declare pecuniary interest. The evidence shows that the practice is alive and well.

In the main litigation which I relate, Paul de Jersey was one of the Appeal judges where the evidence highlights that he had a special previous association with the Appellant bank, a relationship not disclosed to the Respondent during the four day hearing. Further, published material indicated that Paul de Jersey had a ‘friendly’ association with his fellow Appeal judge with whom he brought down a decision in favour of the Appellant bank.

It was stated in Ebner v Official Trustee by Hayne J that "Judges do not choose their cases". Hayne J is decidedly wrong as far as my knowledge is concerned. Hayne J is generally correct when he proceeds to say in his Ebner decision, "litigants do not choose their judges". It will be noted that Hayne J makes no comment on the logical inference as to whether the legal team so representing a client can choose their judges. The evidence is that they clearly can.

I say that an association so outlined could have adverse connotations by virtue of the fact that these two prominent members of the legal profession had a close relationship outside the legal profession.

Does Chief Justice Paul de Jersey misrepresent his position?

(i) The Report exhibits a letter signed by The Hon P de, Jersey AC Chief Justice with the letterhead emblem of the Supreme Court of Queensland and the heading, Chambers of the Chief Justice, Exhibit "JAS2" refers. Legal people who have knowledge of what transpired here: believe that Chief Justice de Jersey has acted unethically when he signs off on court stationery of this nature.

(2) Chief Justice Paul de Jersey responds to my allegation in Exhibit "JAS2" that he was presiding over litigation involving Westpac Banking Corporation when he previously received a retainer from this bank before his elevation to the Supreme Court bench. De Jersey states in. Exhibit "JAS2" that, "from memory the fee was $1,000.00 in early 1993".

I was advised from two independent sources that de Jersey was probably receiving in the vicinity of $50,000.00 per annum. I hold written hand notes, from one of these sources which so confirm and also statutory declaration confirmation.

De Jersey’s awarding of a Summary Judgement to the bank in NAB - v- Sante -Troiani and Rita Cesarina Troiani

Sante Troiani arrived in this country from Italy in his early twenties penniless and virtually built his company, Wide Bay Brickworks Pty Ltd, from scratch to become the second largest private brick manufacturing company in Australia employing approximately 135 employees. The company’s annual sales exceeded $14 million.

The plaintiff bank instigated a long term undermining operation involving their customer, Wide Bay Brickworks Pty Ltd constituting the implementation of a "shadow ledger" (dual accounting process-) in a highly deceptive process. That operation was consummated through the filing of a Summary Judgement Application by the plaintiff bank.

The bank never proves their customer’s default debt. Contrast Chief Justice de Jersey's favourable decision for his personal bankers, the National Australia Bank, with that of precedent litigation involving nine Summary Judgement Applications to: court. In all these Applications, Their Honours-see fit to include remarks in their judgements as follows: "Summary Judgement could be exercised with great care"; "the need for exceptional caution in granting summary judgement"; "great caution was necessary"; "should never he exercised unless there is no real question to be tried"; "pending full disclosure between the plaintiff and the defendant of all documents relating to the issue".

When these judgement conclusions are tempered with the decision of Chief Justice de handed down in favour of his personal bankers, the National Australia Bank, all fair-minded lay observers would ponder the question, is this right?

The author is so concerned with a bank's ability to receive a benefit by way of a Summary Judgement Application to the court that I state, as per my Recommendation. No (8), "A bank's ability to file for Summary Judgement should be terminated."

Chief Justice Paul de Jersey’s relationship with counsel

The name-of Barrister-at-Law, Anthony JH Morris QC, figures prominently in the Doneley Family Case History as well as that of Sante Troiani and Rita C Troiani, being case histories described in Appendices (a) and (c) respectively.

T



here is also the third common denominator regularly involved with these two members of the legal profession; viz.: NAB.

The 'relationship' between the Chief Justice Paul de Jersey and Morris appears to be questionable in the professional sense when they are both involved in the same litigation.

The perception is that the Chief Justice always seems to find in favour of his 'friend', Anthony JH Morris QC.

I refer to a letter addressed to AJH Morris ESQ. QC, dated 14 December 1998, which was raised by Hon Justice Paul de Jersey Chief Justice under Supreme Court of Queensland insignia together with the .letterhead of 'From Chief Justice Paul de Jersey'.

The six line comment commences, "I was delighted to hear of the good outcomes in the Doneley case."

Any fair minded lay observer who has knowledge of the relevant litigation would say, on reading the Chief Justice's letter that there exists a highly questionable relationship situation when it comes to litigation where barrister Morris is representing a party in proceedings appearing before the Chief Justice.

In Chief Justice de Jersey's letter addressed to the Hon Linda Lavarch MP which is Exhibit "JAS2" he states that they (Morris and de Jersey) are "friendly acquaintances".

Court Transcripts

The strange-phenomenon whereby transcripts of proceedings do not become available from the State Reporting Bureau. In all instances cited, Chief justice de Jersey has presided over the relevant litigation.

The bank is a party to the proceedings in all instances of this phenomenon; it thus represents a distinct disadvantage to the victims of banking malpractice. I suggest that the reader will treat all revelations under this section as very serious indeed.

In General

My twenty years’ experience of being involved in litigation before the courts and tribunals has revealed a plethora of highly undesirable practices on the part of the legal profession. However the ultimate and most deplorable conduct involves judges.

My experience indicates that it seems to me that there is a clear desire on the part of the judiciary to ‘protect’ banks. As a result of this conduct, the banks win the day. It is even more serious a problem if a judge ‘volunteers’ to hear a case or is easily persuaded to clear the decks to take a particular case

There is voluminous legal text on judicial conduct which relates to bias and how it should be dealt with. However, there is always one common baseline and thought in this literature – that any resolution is to be achieved via a process within the legal profession itself. This stance is totally unsatisfactory in my view – if the legal profession cannot be relied upon to solve its own ills, it cannot be trusted.

The solution rests in the hands of government. I commend my Report to the reader.



Introduction



In mid-1992 I had been continually involved in litigation where a bank was party to the proceedings for the past five years when Lionel Potts informed me of his litigation experiences to date.

Lionel and his wife, Davina Lucy Potts, were the victims of Westpac Banking Corporation’s Foreign Currency Loans saga of the 1980s, and Lionel was devastated when he became aware in April 1992 that Westpac Banking Corporation’s Supreme Court of Queensland Appeal against a Trial Court judgement in his favour was upheld. Both Lionel and his wife were experiencing financial stress.

At this point in time, Lionel Potts had been aware of my background for the past twelve months and had fully acquainted me with the details which took place from the time that Westpac Banking Corporation appealed the lower court decision until their four day appeal hearing commenced on the 4 November 1991.

What Lionel Potts told me concerning that which took place prior to appeal hearing commencement was highly disturbing, and I formed the view that the appellant bank was engaged in a “judge shopping” exercise. When I learnt that Justice Paul de Jersey was a member of the appeal panel, I decided to make it my business to follow as closely as possible Justice de Jersey’s judicial involvement where a bank was a party to those proceedings.

This aim was reinforced from the point of view that when I spoke to the many legal people from time to time, they all subscribed to the view that Justice de Jersey’s Westpac’s Potts appeal judgement was, as far as they were aware, the worst ever to be handed down in the Supreme Court of Queensland.

I have had continual involvement in bank litigation for the ensuing fifteen years and during that time my predominant involvement was with the National Australia Bank. It was during this period that I learnt that the Hon Paul de Jersey, AC, Chief Justice of the Supreme Court of Queensland, conducted his personal banking arrangements with the National Australia Bank.

It was also during this period that there was often a common denominator in much of the litigation involving the National Australia Bank and the Chief Justice, that denominator being Anthony JH Morris QC, Barrister-at-Law.

In the course of all my investigations I had access to court transcripts and to the National Australia Bank’s discovered documents whenever they were available.

The more I researched, the more that highly questionable’ activity was revealed. This activity revealed that the Chief Justice had a very optional approach as to whether he disclosed during the litigation process that the National Australia Bank was his personal banker. There was also the problem of the non availability, doctoring and tampering of transcripts of proceedings where de Jersey was the presiding judge or one of the presiding judges on appeal.’

The bottom line status of all this was that the National Australia Bank always came out on top — they never lost. What I consider to be that abhorrent word in judicial administration was “discretion”. Discretion always ended up being in the bank’s favour.

A reader of this submission will certainly pose the question to himself, does the Chief Justice, Paul de Jersey have a predilection in presiding over litigation where his personal bankers, the National Australia Bank, are one of the parties to the proceedings.

A reader of this submission will certainly pose the next question to himself, does this submission reveal that the Chief Justice has damaged public confidence in the judiciary?

I will let the reader form his own view after he has read this submission.

My allegation of facts has, in the main, been drawn from the case histories that I have listed in the Appendices which are exhibited to this submission. Two of the case histories are further elaborated in the ‘Shadow Ledger’ document also appended.

It will also be noted by the reader that I render no detail commentary concerning the appeals in the various jurisdictions of the NAB’s victims of their “sting” operations. I consider that the appeal proceedings are irrelevant because the primary decision handed down in favour of the NAB represents a manipulation of process and this aspect of the vice cannot be rectified in any appeal. The reality is that the primary judgement was flawed from the outset.

The alleged victims are, as per the appendices:

(a) John Justin Doneley and the Estate of Therese Doneley and the two sons of John Justin Doneley, Sean George Doneley and Matthew Justin Doneley.

(b) Lynton Noel Charles Freeman

(c) Sante Troiani and his wife, Rita Cesarina Troiani, as Third Party Guarantors to Wide Bay Brickworks Pty Ltd.

(d) Anita Brigitta Bernstrom

(e) Alan William McMinn and his wife, Wilma Helen McMinn.

What the reader should be cognisant of is, “When those who referee the game become the leading practitioners of deception, then civilization is finished.*

* Hugh Nibley, unpublished introduction to Victoriosa Loquacitis, published in Of All Things! Classic Quotations from Hugh Nibley, Desert Book Company, page 191. ISBN 0-87579-678-8.



Chapter 1: Bias



(i) Bias in General

The case histories dealt with in this-report will give the reader the impression that the Chief Justice of the Supreme Court of Queensland, Paul de Jersey, has a predilection for presiding over litigation proceedings involving the National Australia Bank, who Paul de Jersey has acknowledged are his personal bankers.

What must remain in the back of the reader's mind at all times is that the case histories dealt with are the victims of a National Australia Bank "sting” operation and I claim that, if you were to ask Rita Troiani and Anita Bernstrom who was responsible for their permanent demise, they would have no hesitation in responding with the name of the Chief Justice, Paul de Jersey.

Because of the predilection to preside over litigation involving his personal bankers, the National Australia Bank:

* has Paul de Jersey predetermined the decision he is required to hand down?

* has Paul de Jersey been engaged in actual bias?

* have litigants who are opposing the National Australia Bank been denied procedural fairness?

* does Paul de Jersey have an economic interest in the outcome of the litigation, be it directly or indirectly?

* does Paul de Jersey derive economic benefits by virtue of his association with the National Australia Bank?

* can it be said the Paul de Jersey willingly gets involved in "judge shopping" exercises?

* does Paul de Jersey engage himself in personal discussions with members of the bar association with respect to litigation before him, or to come before him?

* does Paul de Jersey "doctor" in any way the process of raising transcripts of proceedings in which he has an involvement?

* does Paul de Jersey hand down decisions of doubtful quality which will always benefit his personal bankers, the National Australia Bank?

* has Paul de Jersey presided over litigation involving a bank in which he has represented as counsel before being elevated to the bench of the Supreme Court of Queensland?

* has Paul de Jersey breached his Oath of Office which was sworn on the 17 February 1998?

The reader will be cognisant of the fact that this report to date is permeated with the phrase, "fair minded lay observer". This statement, "fair minded lay observer" has remained predominant in my mind since I read the decisions of Ebner v Official Receiver in Bankruptcy (2000) HCA63, 202 CLR337 – decision handed down on the 7 December 2000; and Clenae v ANZ – decision handed down on 7 December 2000, cited as Clenae (1999) VSCA 35, (1999) 2 573 at 582 & 592. In reading these two judgements, it will be seen that the term, "fair minded lay observer" is mentioned on at least fifteen occasions.

The decisions of Ebner and Clenae particularly deal with the shareholding of a judge and it would be fair to say that the matter of a judge's personal bankers being a party to the litigation at hand is given scant regard.

In clause 29 of Clenae it simply said, "It may be assumed that all Australian judges have some sort of relationship with a bank", and it is left at that. In Ebner, clause 136, it states, "furthermore, virtually every judge will have a bank account. All banks are major litigators before the courts", and it is also left at that. (I believe that the statement, "'all banks are major litigators" is correct. By referring to a letter I received from the office of the Director of Courts, Queensland Courts, Brisbane dated 16 December 2008, the Director of Courts, Supreme & District Courts advised me that since court records were computerised in 1992 the number of civil files entered for the four major banks and four of their nominated subsidiaries aggregate to: NAB – 1555; Westpac – 1516; ANZ & Esanda – 1650; and CBA – 918. I don't think that there would be any other litigant in civil litigation in Queensland who could reach anywhere near these numbers.)

These two comments in the judgements concerning a judge and his bank account highlights the official view that nothing untoward can be gleaned from this connection. In my view, this type of attitude shows a clear case of ignorance, indeed wilful deception.

Let me relate an episode which took place sometime in 1962-3 during my banking career with the National Australia Bank. During this time I sighted an internal memorandum of the bank's Queensland State Administration addressed to the Manager of the bank's Brisbane 3office situated at 308 Queen Street, Brisbane. The memorandum was signed off by a very senior employee of the bank's Queensland Administration. The author pointed out that there had been a recent appointment to the bench of the Supreme Court of Queensland. The Brisbane Office Manager was instructed to make discrete inquiries to the new judge, offering him, as a potential favoured customer (if he was not already an existing NAB customer), 'concessional banking arrangements'.

I would suggest that that approach to the judge as described above has been ingrained in the NAB's culture for the past fifty years and I think it highly probable that nothing has changed during the period since Paul de Jersey was elevated to the bench of the Supreme Court of Queensland on 4 February 1985.

To give the reader further information regarding the very generous arrangements that the NAB is prepared to enter into for senior members of the legal profession, I will briefly relate the details of a conversation with a legal partner of a well known firm of Brisbane Lawyers.

During the course of one discussion which took place in 2005, the solicitor confessed to me that she was personally embarrassed at the extent of concessional arrangements that the NAB was prepared to give members of the legal firm. She was a recently appointed member of the legal firm.

Bearing the foregoing in mind, the obvious follows, if being a partner in a legal firm automatically gives you NAB banking concessions of extraordinary dimension, what would they be prepared to do for an appointed judge to the Bench of the Supreme Court of Queensland? I’ll let the reader answer this question himself.

I would like to illustrate what the National Australia Bank would be prepared to do for the Chief Justice, Paul de Jersey, following his elevation to that position in February 1998. It must be remembered that Paul de Jersey is the State Government’s first representative overseeing all judicial administration in the State of Queensland; he acts from time to time as acting State Governor of Queensland and in that capacity would also preside over the weekly meeting of the Executive Council.

I would suggest that with Paul de Jersey's status, the NAB would say that "the sky is the limit here" if Paul de Jersey wishes to borrow any monies. This could well mean that if Paul de Jersey wished to purchase an investment property, say a dwelling house in the suburb of Hamilton, one of the prestige suburbs of Brisbane, the NAB may say by way of concession, we will apply a base rate of interest which will extend to half the carded interest rate of the day – the advertised rate. No interest rate margin would be applied. During my managerial career which approached seventeen years in duration, I can say that I had only one borrowing customer who was charged the bank's advertised base interest rate of the day with no interest rate margin added.

Published material by the NAB indicates that at the time the Chief Justice, Paul de Jersey, was elevated to that position in February 1998, the base interest rate was 8.75%. It follows that the NAB may have applied an all up interest rate for Paul de Jersey's investment loan at 4.375%. It would not surprise me if it were not lower.

There is a simple means for the NAB to make Chief Justice, Paul de Jersey a millionaire 'overnight'. Let us say that if the NAB was prepared to lend the Chief justice the contract purchase price to purchase an investment home in the Brisbane suburb of Hamilton each year for ten years from the time of his elevation, where the contract purchase price was represented by the sales annual average for the suburb of Hamilton, then according to my calculations, at the end of the ten year period, Paul de Jersey's capital appreciation would extend to $10,187,402.00, over and above an aggregate cost amounting to $10,269,368.00, a capital appreciation of almost 100%. These figures have been arrived at by referring to a Property Data Solutions Printout compiled as at 11/12/2008 for real estate clients.

The suggested investment exercise which I have outlined above is completely feasible. I have calculated from the Reports raised by the Salaries and Allowances Tribunal for the ten years from 1 January 1998 to the 31 December 2007 that Chief Justice Paul de Jersey earned the approximate aggregate earnings amounting to the sum of $2,908,707.00 over the ten year period.

By way of contrast, if the Chief Justice was so inclined to retain all his surplus earnings in a cash management account with the NAB, then it is quite on the cards that the NAB would be prepared to pay him a premium for his funds which could mean that if the NAB's carded interest rate of the day was 8%, then the bank would pay the Chief Justice 12% on the cash management account balance.

There is also the question that the Chief, Justice may elect to contribute to an NAB controlled superannuation fund. While I am not in a position to determine what favourable benefits the Chief Justice might derive from this style of investment, I feel sure that he would be well compensated.

The prospect is that all our major banks in Australia give preferential treatment to certain professions and professional people, where the most prominent gain preferential benefits on a plus, plus basis. For support of this claim, one refers to page 35 of Stephanie Retchless’ book, Are All Banks Bastards? (Zeus Publications, 2005), wherein she states: “The medical profession has extraordinary access to lower interest rates than most other professional groups throughout Australia. Each professional group is normally affiliated with a particular bank through an affinity or loyalty program. Every financial member of that group is eligible for banking discounts. Mere mortals pay standard interest rates.”

I must emphasise that any financial transaction, be it legitimate or illegitimate, is not beyond the realms of possibility when it comes to the NAB. I would like to briefly relate to the reader a financial transaction which was brought to my notice by a fellow NAB employee whose responsibility it was to process the transaction. This employee was a senior administrative employee; he was under instructions to destroy all hard copy of the transaction once it had been confirmed as finalised.

Brief details of the transaction are as follows: the NAB was required to pay interest on deposit monies held on behalf of the bank's number one customer in Queensland, a mining company.

The bank's customer requested that the said monies due to them, which were in the millions of dollars (I was not made aware of the amount), requested that the bank remit the amount to their credit in their company name to an account conducted in a tax haven country in Europe. The remittance was routed through one of the NAB's United Kingdom London branches. The NAB was to pay the said amount of interest direct, meaning that the amount was not initially credited to the company's account in Australia. Highly illegal I would suggest and no doubt would have breached certain statutes of this country. The payment would therefore be practically untraceable, or basically so on an internal audit.

After I retired from the NAB at the end of 1986, 1 was encouraged on legal advice to report this transaction to the Australian Taxation Office which I did. The ATO compliance employee investigating (I have a record of his name) eventually informed me that no action would be taken by the ATO because the transaction was now considered to be stale and the status of the NAB's former number one customer had changed. The ATO employee had taken the file for discussion to the ATO in Canberra and he confirmed to me that the ATO was able to satisfy themselves that the said transaction had taken place.

So there it is, the NAB is a protected institution, even when it comes to breaching statutes of this country. It follows that the suggested hypothetical lending transactions and cash management account interest paid benefit arrangements, as described immediately above, are practicable in every respect.

The litigant must be informed; it must be mandatory to disclose what the presiding judge's banking association is.



(ii) A Judge’s Personal Banking Relationship with a Bank Litigant

It would be preferable that the judge chosen to preside must inform the parties as soon as possible where it may be perceived that there is a possible conflict of interest. There must be a 'Public Register'.

Let us compare the disclosure process of the banking association between the Chief Justice Paul de Jersey and His Honour, Bill Pincus, who was a judge of the Federal Court of Australia at the time. Justice Pincus was to become a justice of the Court of Appeal on 16 December 1991.

In the Federal Court of Australia, Justice Pincus presided over a directions hearing on the 18 May 1987 where EP and EJ Somerset were the Applicants and the National Australia Bank was the Defendant, known as the G65 litigation. At the outset, Justice Pincus informed those present in the court room, "HIS HONOUR: This is my bank by the way, do you know that, the National Bank? I do not – I have not been hearing cases, or not recently, but I did hear a couple of minor ones, and I have not been hearing cases involving them except directions hearings.”

This preferred presented record of Justice Pincus contrasts significantly when compared to that of Chief Justice, Paul de Jersey. De Jersey certainly had a completely different policy which seems to be very selective in disclosure. What is the underlying reason?

The selective disclosure and non-disclosure of the Chief Justice, Paul de Jersey, is subject to further contrast if one refers to the published article in The Weekend Australian on November 15-16 titled, "Conflicted Federal Court Judge off Centro hearing". The opening paragraph speaks for itself, "A SENIOR Federal Court judge who bought $19,000 of later worthless Centro shares has sacked himself from the Centro shareholder class action." The judge in question was Justice Ray Finkelstein. Justice Finkelstein ruled the case should be reassigned to another Melbourne Federal Court judge.

In the No 2285 of 1995 Doneley litigation (discussed below), Justice de Jersey announced to all parties to the proceedings on 30 June 1997 that the National Australia Bank was his personal bankers. De Jersey's disclosure in this regard was directed to JJ Doneley who was an unrepresented litigant. De Jersey asked Doneley if he had any objection to him presiding over the hearing.

The situation at the time represented an embarrassment from Doneley's point of view because he would have preferred to obtain legal advice at the time. The fact was that the three opposing learned counsel were ready to proceed – two were QC's and all had junior counsel assisting.

JJ Doneley agreed to trial commencement, knowing that de Jersey had had carriage of the litigation since December 1996. Doneley considers that de Jersey should have brought his banking association to his notice during the six month intervening period. I certainly agree with Doneley here. Doneley understands that de Jersey held at least one directions hearing; Doneley was never notified that a directions matter was listed in this interim period.

Doneley had formed the view very shortly after the No 2285 of 1995 litigation had been instigated by his sons' legal team that there was an odious taint about the whole legal proceedings. Doneley often wondered why counsel for his two sons, AJH Morris QC, never formally objected to Justice de Jersey presiding. The fact was that Morris and de Jersey were friends.

At about the same time as this hearing, Lynton Freeman was also appearing before the Chief Justice. Freeman was a veteran of much litigation in both the Supreme Court of Queensland and the Federal Court of Australia. In the majority of these hearings, Freeman was an unrepresented litigant. As someone who has been acquainted with Freeman for the past eight years, it came as no surprise when Freeman responds to the Chief Justice with these remarks, "With respect, your Honour, that's worse. I'd much rather you be a shareholder."

Freeman is clearly a wake-up to the situation and the Chief Justice responds, "But, there you are, I've been candid with you. I don't think anything arises out of it. I would not consider that circumstance would have justified my disqualifying myself from the case."

Freeman makes no further comment.

The arrogance of the Chief Justice here is really extraordinary, given his previous involvement in litigation matters involving the National Australia Bank. The fact was that this previous history was not then known to Freeman. For that matter, the Chief Justice's record in presiding over previous litigation involving the NAB is not known at all. I am sure that if Freeman had knowledge of the Chief Justice's NAB association, he would have appealed his decision.

In the National Australia Bank v Sante and Rita Troiani litigation bearing the recital No 7759 of 2000, the Chief Justice Paul de Jersey's NAB personal banking association was first brought to Sante Troiani's attention by myself in the latter half of 2004. 1 cannot recall Sante Troiani's response; however I am reasonably sure that it was very unpleasant. At what stage I told Sante Troiani that his counsel, AJH Morris QC, was aware at the time of the NAB's Summary Judgement hearing that he Morris, was well aware of the Chief Justice's NAB association, I do not know. I certainly told him at some stage.

This was another nail in the coffin from Sante Troianis point of view in that it further affirmed his view that both he and his wife were subject to a 'frame-up' situation. When thinking about this issue, one needs also to take into consideration the other adverse factors, a major one being that a transcript of proceedings was never made available to the Troianis by the State Reporting Bureau.

Prior to Sante Troiani's death in October 2007, Sante Troiani told me on numerous occasions that he had been sold down the drain by Morris. Sante Troiani could well understand why Morris never objected to the Chief justice presiding.

Both Sante Troiani and his wife attended a pre-hearing conference with Morris in his chambers prior to the hearing commencement on the 19 March 2001, and Morris made no attempt whatsoever to inform them that the National Australia Bank was the personal bankers of the Chief Justice, Paul de Jersey.

Just on six months after the Chief justice hands down, the Summary Judgement in favour of his personal bankers, the National Australia Bank, against Sante and Rita Troiani, the Chief Justice travelled to Cairns and presided over a dispute between his personal bankers and Anita Bernstrom, on the 20 September 2001.

The Chief Justice handed down a favourable decision for his personal bankers by way of the NAB's Counter Claim for Summary Judgement. This action is recited as No 52 of 2001.

The transcript of proceedings comprises eleven pages and they do not disclose that Chief Justice de Jersey advised those present in the court room (which included Anita Bernstrom and her counsel, Mr Bradshaw) that the Defendant, the National Australia Bank, was his personal bankers.

The first time that the Plaintiff, Anita Bernstrom, became aware that the Chief Justice’s personal bankers were the National Australia Bank was when I informed her as such about the middle of 2008. It was round about the same time that I also informed Anita Bernstrom's counsel Mr Bradshaw. Bradshaw informed me that if he had been aware of the Chief Justice's banking status at the time of the trial hearing, he would have voiced a strong objection.

Just on ten weeks after the Chief Justice dealt with the Bernstrom v NAB litigation, he presides over litigation involving his personal bankers once again and Alan W McMinn and his wife, Wilma H McMinn. The recital No is 5580 of 2001.

The transcript of the proceedings comprises ten pages and they do not disclose that Chief Justice de Jersey advised Alan W McMinn and his wife and other family members who were present in the court room that the Respondent to the McMinns' Application, the National Australia Bank, was his personal bankers. When Alan McMinn brought details of this hearing before de Jersey many months later, I informed him that the NAB was de Jersey's personal bankers. Alan McMinn's reaction was one of complete disgust.

I would further advise the reader that Justice de Jersey presided over Supreme Court of Queensland litigation where the National Australia Bank was the First Defendant and Graham Arnold Prance Thomas was the Plaintiff, recited as No 037 of 1996. I have no further details of this litigation and I have not carried out exhaustive searches at the Queensland Supreme Court to ascertain whether justice or Chief justice de Jersey has presided over other litigation involving his personal bankers, the National Australia Bank.

To summarise:

From my assessment of the documentation made available to me concerning the Doneleys, the Troianis, the McMinns, Freeman and Bernstrom, it means that Paul de Jersey as Justice and as Chief justice de Jersey has presided over ten individual instances of court litigation, if the Thomas recital is taken into consideration, where his personal bankers, the National Australia Bank is a party to the proceedings.

I should also point out that I consider that John Justin Doneley, the Estate of AT Doneley, JJ Doneley's two sons Sean and Matthew Doneley, Sante and Rita Troiani, Anita Bernstrom and Alan W and Wilma H McMinn, and Lynton NC Freeman are all victims of a National Australia Bank "sting" operation.

Further, JJ Doneley, Lynton NC Freeman, Sante and Rita Troiani and Alan and Wilma McMinn have all been involved in the bankruptcy process. All, with the exception of JJ Doneley, were the subject of an NAB petition.

The contention, which I have held for some time affirms to the view that Chief Justice de Jersey has a predilection for presiding over hearings involving his personal bankers, the National Australia Bank.

It should be further pointed out that it seems to me that the Chief Justice also has a tendency to preside over hearings which are considered beneath his seniority.





(iii) The Manipulation of Transcripts

Is there a need for the Hon Paul de Jersey, AC, Chief Justice of the Supreme Court of Queensland, to respond to the allegation that he has ordered or instructed third parties to delete his Oath of Allegiance from the transcript of proceedings regarding his swearing in ceremonies on the 4 February 1985 and the 17 February 1998?

Is there a need for the Hon Paul de Jersey, AC, Chief Justice of the Supreme Court of Queensland, to respond to the allegation that he has tampered or 'doctored' transcripts of proceedings or has instructed third parties to tamper or 'doctor' transcripts of proceedings?

Oath of Office:

My initial thinking on the subject of tampering and the 'doctoring' of transcripts of proceedings and at the same time learn what the wording of the Chief Justice's Oath of Allegiance to which he swore to was to examine the official record of the swearing in ceremonies which Paul de Jersey had participated in on his elevation to the bench of the Supreme Court of Queensland on the 4 February 1985 and on his elevation to Chief Justice on the 17 February 1998.

I made an initial approach to the Supreme Court Library and was informed that the information which I was seeking could be obtained from the Court Reporting Bureau. I proceeded to the Reporting Bureau and made the appropriate application for a transcript of proceedings to the Bureau for de Jersey's swearing in ceremonies.



I returned to the Bureau some seven to ten days later on the 23 May 2007 and read the transcripts provided to me.

I noticed that each transcript was identical in that the Oath of Office as administered and sworn to by de Jersey had been omitted from the transcript of proceedings. Each transcript simply stated, "Oaths of Allegiance and Office Administered."

I pointed out to the employee of the Bureau who had handled the transcripts of proceedings for me that the transcripts did not represent a true and correct recording of the swearing in ceremony, giving my reasons. The employee readily agreed with me. The employee then proceeded to inform me of the Bureau's standard policy in transcribing what had taken place at the ceremony and stated that the Oath of office so sworn would normally have been transcribed.

After this procedure had been completed by the Bureau, the transcript would then have been sent to de Jersey for ratification. In de Jersey's revision of the transcript of proceedings, he simply deleted all reference to his Oath of Allegiance as administered. I expressed surprise to the Bureau employee at de Jersey's autocratic action. The employee responded by saying, "judges do what they like". Personally I thought that this was a tragic state of affairs and that a great percentage of the residents of Queensland would be very surprised to hear what transpires in judicial circles.

De Jersey's action in deleting all reference to his Oath of Allegiance enforced my strong suspicions that de Jersey has adopted the practice of ensuring that a transcript of proceedings never becomes available to a bank victim if he chooses to do so. This confirmed to me that bank victims were being denied natural justice.

As noted, the transcript of proceedings was never made available to Sante and Rita C Troiani when they defended a Summary Judgement Application which took place before



Chief Justice de Jersey.

Considering the import of the swearing in ceremony for a judge of the Supreme Court of Queensland and also from the point of view of a judge's elevation to Chief Justice of the Supreme Court of Queensland I had a strong feeling that an original record of the swearing in ceremony should be available for public inspection if need be.

Accordingly, I attended the Counter Information Kiosk at the Law Courts Complex, situated at 234 George Street Brisbane on the 29 May 2007. 1 asked the employee in attendance if she could direct me to the point where I could inspect the record which represented the swearing in ceremony of the Chief Justice on the 17 February 1998. The employee contacted a senior administration employee in the back office and then informed me that I could sight the record at the State Reporting Bureau.

I knew that the information just furnished was incorrect and I then decided to proceed to the Supreme Court Library and seek their assistance in the matter. After much discussion with more than one library attendant, I was advised that the record which I was seeking was held in the private library section which was not generally available to public access. After my particular interest in the matter, the library official allowed me to inspect the original document of the swearing in ceremony of the Chief Justice, Paul de Jersey on the 17 February 1998.

I inspected the document so produced and noticed immediately that the Oath of Allegiance was again not transcribed therein. I made no comment to the librarian who had handed me the document.

I found de Jersey's willingness to delete his Oath of Allegiance from the supposedly original record to be highly disturbing and indicated that if he is willing to do this, then the act of tampering or the 'doctoring' of a transcript of proceedings presented no problem to him.

Readers of The Australian on Friday 24 August 2007 in the Legal Affairs Section would have observed an article titled, 'Prejudice by Susannah Moran' which related to the Mohammed Haneef saga. It reports Justice Spender's Federal Court judgement as stating, "His function as a judge, he said, was to give faithful obedience to the judicial oath, irrespective of whether people approved or not."

It follows of course that if anyone wishes to ascertain details of the Oath of Allegiance as sworn by de Jersey, he will not be able to do so because de Jersey has deleted all reference to his oath of Allegiance from: the transcript of proceedings of his swearing in ceremony

Is it reasonable to pose the question, since de Jersey sees fit to delete all reference to his Oath of Allegiance from the transcript of proceedings, namely, is de Jersey a hypocrite or a dissimulator?

This question is posed because in de Jersey's address to those present at his swearing in ceremony held at the Supreme Court on the 17 February 1998, he states, "The responsibility is substantial". De Jersey then proceeds to detail in specific form what those responsibilities are, one of which is "the State Reporting Bureau". So de Jersey is the boss and he simply does what he likes as advised in comment to me by the State Reporting Bureau employee.

If we now proceed to some years down the track to 23 May 2005 when the Hon P de Jersey AC addressed the Queensland Magistrates Conference, we find de Jersey informing those present, "The grounding for judicial independence is our individual commitments to the delivery of justice according to law in accordance with our oaths or affirmations of office, that is, 'without fear, favour or affection'."

Passing through de Jersey's magistrates conference address, de Jersey feels the need to reiterate part of Chief Justice Gleeson's address to the Australian Bar Association in July 2000 as follows:

"Judicial power, which involves the capacity to administer criminal justice, and to make binding decisions in civil disputes between citizens, or between a citizen and government, is held on trust. It is an express trust, the conditions of which are stated in the commission of a judge or magistrate, and in terms of the judicial oath."

It can be seen from the above how important is a judge's Oath of Allegiance, yet in the case of de Jersey, no



one knows the wording of his Oath of Allegiance simply because he has authorised it to be deleted.

Queensland Premier Anna Maria Bligh’s Affirmation of Allegiance and of Office, sworn on the 13 September 2007, is available to any member of the public. Bearing this in mind, I cannot see why Chief Justice Paul de Jersey should be permitted to delete any material he chooses from the transcript of proceedings of his swearing in ceremony. After all, the Chief Justice and his fellow Supreme Court Bench members are all public servants with their appointments all open to public accountability.

The importance of the 'Oath of Office' has recently been stressed at the inauguration ceremony of Barack Obama on Tuesday the 20 January 2009 when the word ‘faithfully’ was misplaced at his swearing in ceremony. When Barack Obama was alerted to this fact, he had Supreme Court Justice, John Roberts, repeat the 'Oath of office' swearing in the next day in the correct manner.

I have carried out some research as to why de Jersey feels there is a need to delete all reference to his sworn Oath of Allegiance from the transcript of proceedings and it has been pointed out that the Oath of Allegiance de Jersey has been required to swear to contains differing allegiances in contrast with the Oaths of Freemasonry.

I hold a copy of an affidavit deposed to by Brian William Shaw of 280 Leakes Road, Truganina, 3030 in the State of Victoria, wherein he swears to the Masonic oath of the Entered Apprentice which states in part as follows: "do hereby sincerely and solemnly promise and swear that I will always hele, conceal and never reveal.''

It has been pointed out to me that this section of the Masonic oath conflicts with the contents of the Oath which is required to be sworn by a judge of the Supreme Court of Queensland and is in breach of the Constitution of Queensland 2001. Whether this allegation is true or not I do not know; I am not a Mason, have never been a member of any Masonic lodge and I am also unaware whether Chief Justice Paul de Jersey is a Mason or was a Mason at any stage in his adult life. I can take this issue no further.

Court Transcripts:

From my recollection, Sante Troiani informed me that he was unable to obtain a transcript of proceedings from the State Reporting Bureau with respect to the Summary Judgement hearing which took place on the 19 March 2001 sometime during the year ending 30 June 2005.

I knew at the time that the Summary Judgement hearing took place before the Chief Justice, Paul de Jersey. I immediately responded to this information of Sante Troiani by informing him that this was not the first time that a transcript of proceedings was not available and that de Jersey was one of the presiding judges to oversee such a procedure.

The relevant litigation of which I was aware took place in the jurisdiction of the Queensland Supreme Full Court between Westpac Banking Corporation, Appellant, and Lionel James Potts and Davina Lucy Potts, respondents, being recited as No 657 of 1988. The Full Court hearing was conducted over four consecutive days to the 7 November 1991 before Chief Justice Macrossan, Justice de Jersey and Justice Dowsett (the latter now a judge of the Federal Court of Australia). Westpac's Appeal related to a Foreign Currency Loan that they sold Lionel Potts and his wife in 1982.

Sometime after a majority decision was handed down in favour of the Appellant, Westpac Banking Corporation, Lionel Potts called at the State Reporting Bureau to order a Transcript of Proceedings applicable to the bank's Appeal in preparation of his appeal to the High Court of Australia. The Bureau employee informed Lionel Potts that the appeal transcript was not available for any day. Potts thought that response was extremely strange and repeated his request on subsequent occasions. In all these instances Potts was given spurious reasons why he could not be supplied with the transcript of proceedings. What Potts did note was that the reasons for non provision varied.

It was with this knowledge in mind when Sante Troiani first brought to my notice that he had never been able to obtain the Summary Judgement transcript and that he was highly suspicious of the fact that the Chief Justice Paul de Jersey may have been responsible in some way for that non-availability.

Since the matter of non-availability of the Summary Judgement Application of the National Australia Bank v Sante and Rita Troiani was made known to me, certain happenings have evolved concerning this matter which are as follows:

Sante Troiani was accompanied by Justin Doneley when they called at the State Reporting Bureau about mid-July 2004. They were attended to by a State Reporting Bureau employee by the name of Scott.

Shortly after the initial inquiry and application had taken place, Sante Troiani realised that it was late in the day and he would have to rush off and catch the return to home in Bundaberg. Before Sante Troiani left, Justin Doneley informed him that he would convey the cost of the transcript in due course. Scott had informed both Doneley and Troiani that a transcript of proceedings or a tape thereof was available for purchase.

After Sante Troiani's departure, Scott returned from the interior office and advised Justin Doneley what the scheduled costs would be. Justin Doneley cannot recall now what the actual costs to purchase were; however he can recall that the tape was cheaper than the hard copy.

Sometime later, Doneley telephoned Sante Troiani to advise him what had transpired after he had left the State Reporting Bureau and what the cost would be for either the tape or the hard copy. Some days after that, Sante Troiani telephoned Justin Doneley to advise him that the Transcript of Proceedings was not now available. This information represents a complete surprise to Justin Doneley as Scott had made it perfectly clear to him that copies could be purchased in either form.

Justin Doneley thought that Sante Troiani's remarks as to non-availability of the Transcript of Proceedings quite strange. Doneley had been ordering and collecting transcripts from the State Reporting Bureau for the past eight years and he had always found the staff he was dealing with to be very reliable.

Referring to the Statutory Declaration of Sante Troiani of 9 Eriksen Street, Bundaberg, sworn at Bundaberg on 27 May 2005, it reveals the undermentioned contents:

“(3) On the 14 July 2004 1 made an application to the State Reporting Bureau, 4th Floor Law Courts Building, George Street, Brisbane. This application was made in writing.

(4) The application as described in (3) above was handed to Scott in the premises of the State Reporting Bureau as detailed in Clause (3) above. Scott was not prepared to reveal his sir name (sic).

(5) Scott instructed me to return to the Bureau the next day when he anticipated that the Transcription of Proceedings for the hearing on the 19 March 2001 would



be available for my collection.

(6) I returned to the Bureau the next day where the matter was discussed with Ben Russo, the Bureau employee who told me that Scott had proceeded on a week’s leave.

(7) Ben Rosso informed me that he had the tape in his possession, however it was blank. (Nothing was transcribed thereon.) Ben Rosso then informed me that the Chief Justice had requested that the proceedings on that day, viz 19 March, 2001 not be recorded.

(8) I then asked Ben Rosso if I could buy the tape he was holding in his hands for $200. His, Ben Rosso's reply was 'NO'. He proceeded to say that he would be able to give me a copy the next day.

(9) I then asked Ben Rosso if he could hand me the tape he was holding together with a piece of paper. I extended my arm to grasp the tape, however was only successful in taking possession of the paper which was revealed to be of A4 size.

(10) I perceived that Ben Rosso was visibly upset and asked me for the A4 size sheet of paper to be returned to him. I refused Ben Rosso's request and retained the A4 size sheet of paper.

(11) The A4 size sheet of paper which was now in my possession was titled, "Revised Judgement Order". This document contained a nine box chronology of individual action and also stated the number of pages raised.

This box chronology states as per the revised Judgement Order as follows: Date received 26/3/01; Date recorded on Recfind 26/3/01; Date sent to judgement retypes 26/3/01; Date corrected 29/3; Date photocopied 29/3; Date distributed 30/3/01; Date revised Date Entered on Recfind 29/3; Date sent to AO records For filing 30/3.

(12) An examination of the Revised Judgement order reveals to me that a tape of the hearing on the 19 March 2001 was recorded and that the tape was transcribed. This transcription was represented by two pages of Transcript of Proceedings.

(13) I have returned to the State Reporting Bureau as described in Clause (3) above on more than one occasion to seek information on the whereabouts of the tape raised for the hearing held on the 19 March 2001 and have been advised on each occasion that the tape does not exist.''

The contents of the Statutory Declaration as sworn above by Sante Troiani on the 27 May 2005 is self explanatory; however before adding further commentary on my part, I advise the reader of the contents of a Statutory Declaration sworn by Colin Eric Walker, Retiree of 130 Sandy Creek Road, Kilcoy, sworn on the 1 December 2008:

"In July 2004 1 attended with Mr Sante Troiani (since deceased) to make enquires at the State Reporting Bureau in Brisbane's Supreme Court Building. We were specifically seeking a copy/copies of a tape and/or transcripts of a Supreme Court hearing before Chief Justice Paul de Jersey on March 19 2001. This was a Summary Judgement hearing involving Mr/Mrs Troiani and the National Australia Bank on that day. Mr Troiani had been advised (prior to our visit to the Bureau) that a tape of these proceedings (of March 2001) would be available, at prices (for a tape copy and/or transcripts) quoted by an officer of the court. When I (in July 2004) accompanied him to follow up on this advice, he was advised by an officer (who I understand to be Mr Russo or Rosso), who he had seen previously, that the tape – which he had previously been told was a record of proceedings of 19/3/2001 – was not now available, as the tape was blank. He (Mr Troiani) was



further told by the officer (Mr Rosso or Russo) that the presiding judge, Chief Justice de Jersey, had directed that no taped record of proceedings be recorded and that accordingly, no tape record or transcript was therefore available. When Mr Russo (or Rosso) was told that this conflicted with previous advices and that he (Mr Troiani) had in his possession a court administration document detailing various stages of internal review, revision, correction and editing by officers of the court process, Mr Russo (Rosso) appeared visibly embarrassed and quickly excused himself. He reaffirmed before leaving, that no record of the proceedings of the March 19 (2001) hearing was available or would be available to Mr Troiani.

As an "onlooker" in this process, it seems quite unbelievable to me that officers of our court system and processes would be called upon to waste their time, efforts and resources reviewing, correcting, retyping, revising and photocopying (as shown on the court paper work held by Mr Troiani) a record of proceeding which it is/was subsequently claimed (and still claimed) did not exist in the first place. It is even more inconceivable that court offices would expect anyone to believe the reasons now admitted by "the system" for the non-availability of such vital material, in this case.

It is difficult NOT to conclude that these vital court records have been tampered with and/or removed, to the grave detriment of Mr and Mrs Troiani."

No further comments on my part are necessary; the contents of Colin Walker's Statutory Declaration are self explanatory.

I will now relate what transpired when I attended the State Reporting Bureau some time during the first four months of 2005. At the time I was in the company of Sante Troiani and Mr Bell who was representing Sante



Troiani and his wife in the Federal Court of Australia in Brisbane.

Mr Bell was the spokesman for the group. On speaking to an employee of the State Reporting Bureau, Mr Bell was advised, "we don't have it, it should be here and I don't know" – words to that effect.

Mr Bell brought the matter of the non-availability of the summary judgement transcript to the notice of Justice Dowsett in the Federal Court of Australia on the 8 April 2005 concerning the ongoing dispute between Sante Troiani and Another (his wife, Rita G Troiani) and Michael Peldan Trustee in Bankruptcy of Sante and Rita Troiani.

The transcript records as follows:

"Mr Bell: The problem the Troianis have to overcome right now is that they cannot get a transcript of the original decision of the Supreme Court.

Mr Bell: Because apparently its disappeared, your Honour. I have been dealing with the transcripts people for the past two weeks, and we have to pin that down, because there is an hour and a half hearing before the Chief justice and we do not know what happened.

HIS HONOUR: What sort of a hearing? A hearing for what purpose?

MR BELL: It was a hearing at which a principal creditor, Ms Costello's client, the National Bank, was found to be owed a certain amount of money. Now, that was substantially reduced by the order of half in the Court of Appeal later. But despite having a QC there, the  

HIS HONOUR: Well, the matter has been to the Court of Appeal.

MR BELL: Yes, it has.

HIS HONOUR: Well, it doesn't matter what happened before, the Chief Justice then, does it?

MR BELL: Well, yes, it does so very much your Honour, because the matter has to be revisited, because there were absolute anomalies.

HIS HONOUR: But the time to do this was on the hearing of the petition, not now."

And so the dialogue continues. I should point out that in the two Court of Appeal hearings of Sante and Rita Troiani, they were both unrepresented litigants.

I would like to remind the reader that in the National Australia Bank's Counter Claim against Anita B Bernstrom I have indicated that I consider that the transcript of proceedings has been tampered with. The transcript confirms this in part wherein it records that, viz: "Portion of recording missing". How could it be missing, I ask you? The dialogue which is missing was very vital to the proceedings, especially to Anita B Bernstrom on the NAB's Counter Claim. The particular missing part relates to the controversial issue of what took place concerning the cross examination of Anita Bernstrom's son, Shayne Buckley, by the bank's counsel. Chief Justice de Jersey ordered that the cross examination could be conducted outside the auspices of the court room. In retrospect, it is the current opinion of Anita Bernstrom's counsel that the Chief Justice ambushed her son. When all surrounding facts are considered, I agree with that conclusion.



I would imagine that if the Chief Justice was called upon to explain his actions here, he would simply respond by saying that he exercised his discretion. This is a word that a judge can bring into litigation picture at anytime to support his intentions, be it legitimate or illegitimate.

De Jersey wastes no opportunity to mention the word 'discretion' in his delivered speeches since his elevation to the position of Chief Justice. One only has to refer to Chief Justice de Jersey's address on 17 February 1998 wherein he informs those present, "Through you, I wish to assure the people of Queensland that I will be doing my utmost to discharge the duties of this high office in a progressive way, with enthusiasm, wisdom and discretion.'

Some years down the track Chief Justice de Jersey AC raised a paper titled, "Some thoughts on the place of law and lawyers in the new millennium" wherein he stated, "That aside, a substantial part of a judge's work, and a substantial part of the supporting work of litigation lawyers, is of a discretionary character." The Chief justice further informs readers, "Judges apply law, and exercise discretion based on conventional notions of morality within any applicable legal framework."

I have no doubt that the non availability, the delayed availability and the 'doctoring' of transcripts of proceedings in Potts, Troiani, McMinn (yet to be discussed) and Bernstrom has been contrived. This of course has all been to the detriment of victims of banking malpractice.

The importance of a transcript of proceedings is illustrated in a Discussion Paper, released March 2007 on the subject of Judicial Ethics released by the Australian Institute of Judicial. Administration Incorporated which states, under the sub-heading of Disposal of Court Business- with



Reasonable Efficiency, "They should maintain accurate records, and resist any temptation to edit or 'doctor’ transcripts to their own advantage."

The bank's victims of banking malpractice are more often than not the victims of an engineered "sting" operation and have clearly been denied natural justice. The perpetrators of transcript tampering or 'doctoring' clearly have a hidden agenda. Troiani, McMinn and Bernstrom are most definitely all victims of an NAB "Sting" operation. It will be seen that the primary denominator here is the National Australia Bank and the secondary denominator is the Chief Justice Paul de Jersey. In addition de Jersey could have played an indirect role in McMinn.

Could the Chief Justice be accused of being a hypocrite? I say this because if one refers to the court reference cited, R v Tupou; ex Parte A-G (Qld) (2005) QCA 179, we find that the Chief Justice presides in this Court of Appeal judgement. It will be seen that the Chief Justice Paul de Jersey criticised a District Court judge for changing the wording of a sentence she imposed on a man convicted of bashing a person with cerebral palsy.

The Chief Justice records in his judgement as follows:

"The learned sentencing Judge's remarks included in the record of proceedings reflect very heavy correction and change to the transcript produced following the sentencing hearing. Her Honour made those revisions as appears from the revised green transcript included in the papers provided to members of the court. While many concern aspects of style or grammar or syntax, some bear on matters of substance.

In the revised transcript, Her Honour amended this ... The significant amendment was the deletion of the unequivocal confirmation at the sentencing hearing that the attack was unprovoked.



For the purposes of determining this Appeal, we should in these circumstances work from what was said by the Judge at the hearing, not her amended version. If Her Honour believed she had erred in what she had said in Court and she considered it went to a matter of significance, the proper course would have been to reconvene and explain herself, as she saw accurately, to the respondent."

In my view there should be no difference in clarification between criminal and civil trials; all victims of banking malpractice expect to be treated with judicial procedural fairness as observed by any fair minded lay observer.

Chief Justice de Jersey is not the only Queensland Supreme Court judge who has engaged in the tampering or 'doctoring' of transcripts of proceedings. George Arthur Muirhead and his wife, Stephanie Susan Muirhead, have advised me that their Supreme Court of Queensland litigation would be described as scandalous from the point of view of obtaining transcripts from the State Reporting Bureau.

Their litigation was recited as No 509 of 1993 and they were the defendants while Ernest George Harris was the First Plaintiff and the Commonwealth Bank of Australia was the second defendant.

The Muirheads have provided me with their notes, affidavits and transcripts of proceedings relating to the trial hearing conducted on the 8 April 1993 before Justice Byrne.

The hearing commenced some time after the luncheon break. The hearing lasted approximately thirty minutes and it was not until September 1993 that the Muirheads were able to obtain a preliminary transcript of proceedings. There does not appear to be any page numbering.



It will be seen that there is an approximate five month delay in providing the transcript of proceedings for the hearing before Justice Byrne on the 8 April 1993. The Muirheads made numerous requests for the transcript which was vital for follow-up court proceedings. The issue of a transcript in September 1993 apparently only took place after the direct intervention of Denis Alfred Collins, Independent Member of the Legislative Assembly of the Northern Territory.

The Muirheads realised immediately, following their reading of the transcript, that there were numerous omissions from what was said by Justice Byrne, by the Commonwealth Bank's senior counsel, Mr Fraser QC and by George and Stephanie Muirhead. It seemed to the Muirheads that all the very vital dialogue, especially what Justice Byrne had told those present in the court room and also the pertinent remarks of the bank's counsel, had been deleted from the transcript of proceedings.

The Muirheads readily came to the conclusion that this transparently deceitful if not fraudulent process was clearly by design to prevent them from any chance of seeking justice in the Supreme Court. The Muirheads were not alone in their thinking on this repugnant court process; they had many friends in the court room when the hearing before Justice Byrne took place on the 8 April 1993.

The Muirheads and their friends considered that justice Byrne was directly responsible for the frustration surrounding the availability of the transcript of proceedings.

It eventually came to pass that the formal transcript of proceedings for the 8 April 1993 hearing came into the possession of the Muirheads at 12.26pm on the 21 December 1993. At the first opportunity, the Muirheads compared this transcript with that received in the previous September and noticed that there were again numerous discrepancies.

For instance, the Muirheads were able to pinpoint the fact that on page nineteen of the transcript it did not record the advice issued to Justice Byrne to the effect, "You will have time to complete it before you go to trial".

What this transcript tampering and 'doctoring' means is that Justice Byrne is endeavouring to protect the Commonwealth Bank, the Second Plaintiff, and he is surely going out of his way to do so.

I would like to draw the reader's attention to the Supreme Court of Queensland case history of Alan WJ McMinn and his wife, Wilma H McMinn. The McMinns had already appeared before Chief Justice de Jersey on the 30 November 2001 and his Orders were that the matter be adjourned.

The McMinns appeared before Justice Muir on the 7 February 2002 and I was present in the court room when this hearing took place.

Alan McMinn, an unrepresented litigant, made certain statements from the bar table that his former bankers, the National Australia Bank, had engaged in fraudulent process. Justice Muir immediately responded by informing Alan McMinn that litigants should be careful about making allegations of fraud against banks. Muir went on to say that "it has been on my experience that on the basis of 100 allegations of fraud against banks, 99 have no substance and cannot be substantiated." I made notes during the hearing.

His Honour's foregoing statement concerning fraud against banks does not appear in the transcript. My experience clearly indicates that Justice Muir's remarks are completely erroneous. The reverse ratio would have been



more accurate. The obvious question which will come to one's mind is, does Justice Muir adopt a policy of protecting the banking industry at the expense of its victims? His Honour's experience at the bar prior to his elevation to the Supreme Court bench would have allowed him to assimilate the maladministration of process in so far as Australia's major banks are concerned.

Justice Muir has clearly 'doctored' the transcript of the McMinn hearing. Further perusal of the five page transcript reveals that the three dots, viz: ‘ ... ’, appear on this transcript on no less than five occasions on pages four and five. This means that Justice Muir has saw fit to delete matters stated in the hearing from the official record. This has been confirmed to me by State Reporting Bureau employees on more than one occasion.

After Justice Muir adjourned the hearing on the 7 February 2002, 1 formed the view that Justice Muir was acting to protect the National Australia Bank Plaintiff in the action.

It so transpires that I have been handed a copy of a letter raised by The Self Litigants Association dated Wednesday 6 July 2005 and which is addressed to The Legal Practitioners Admittance Board. By referring to page 10, third paragraph, it states as follows:

''As a lot of transcripts are missing, we Demand Inquiry be conducted to find them. The loss of important transcripts appears to be like the corruption in the legal profession, 'at plague proportion'. Self Litigants are aware of a large number of important transcripts that have 'just mysteriously disappeared'. The action of transcripts will not be tolerated by Self Litigants and legal services consumers. We are now 'Demanding' that an investigation that is independent of any lawyer is conducted into their disappearance to confirm the legal implications of any/all parties linked to them, including all/any links to justice



Margaret McMurdo nee Hoare and Justice Margaret White QC."

The practice of tampering and 'doctoring' transcripts of proceedings is inherent in litigation involving the Chief Justice, Paul de Jersey, where his personal bankers, the National Australia Bank, are a party to that litigation. As Chief justice, de Jersey is responsible for procedural fairness with respect to the production of a transcript of proceedings.




(iv) Judge Shopping

Is there a need for the Chief Justice, Paul de Jersey, to respond to an allegation that he has presided over litigation which he believes may be a product of a "judge shopping" exercise?

My interpretation of a "judge shopping" exercise is when a legal representative of a party to a proceeding before a court contacts a court employee in the registry, or the judge's associate or the judge himself, and seeks their indulgence to organise his judicial involvement in their current litigation before the court.

The purpose of contact is an approach and a request that a certain judge or judges preside over a hearing scheduled to be heard in the future. It naturally follows that in doing so, their client will have a far better chance of achieving a successful outcome.

The recited case history of an alleged “judge shopping" exercise is Westpac Banking Corporation's Supreme Court Appeal where Lionel James Potts and his wife, Lucy Potts, were successful in their lower court hearing as Plaintiffs against Westpac Banking Corporation, being No 657 of 1988. Justice Mackenzie handed down a judgement in favour of Lionel J Potts and his wife for the sum of $615,580.84 on the 17 December 1990.

Why would it be in the interests of Westpac Banking Corporation, the Appellant bank, to engage themselves in a "judge shopping" exercise?

Westpac Banking Corporation had a real problem. During the foreign currency loans fiasco of the mid 1980s, the bank



sold 168 foreign currency loans in Queensland alone to the non-corporate sector. The Potts, as the Respondents in the bank's Supreme Court Appeal, were lent $500,000.00 from the bank in 1982 and, as at the 29 May 1987, the loan had blown out to A$1,783,424.00.

As indicated above, Justice Mackenzie awarded the Potts the sum of $615,580.84. It theoretically follows on the basis of, say, 160 foreign currency loans sold that Westpac Banking Corporation could be looking at losses exceeding $80 million. This is in Queensland alone; the bank sold approximately 870 loans throughout Australia to both the corporate and non-corporate borrowers.

Westpac's predicament at the time of their appeal filing in 1991 was exacerbated by the fact that the bank had already lost two foreign currency loan litigation cases in Federal Court of Australia jurisdiction where the successful parties were D & I Chiarabaglio and HW & N Ferneyhough, recited as No QG 159 of 1987 and No FCA557 of 1991 respectively.

In the selling of all the foreign currency loans in Queensland by Westpac, they all involved two Westpac employees who had a specialised spiel in selling and dealing with foreign currency loan matters on behalf of their employer. One of these employees was so successful that his superior upgraded his annual appraisal targets.

Westpac could have faced a catastrophe from a litigation point of view following a further judgement awarded against Westpac where Johanna Thannhauser was the Plaintiff and the bank was the respondent. His Honour handed down his Reasons for Judgement in Federal Court of Australia, Queensland Registry jurisdiction being recited as QG 29 of 1989. The Respondent, Westpac Banking Corporation lost this case and Thannhauser was awarded the sum of $439,153.00.


This decision was another devastating blow for Westpac; however Thannhauser had a far more deleterious effect on the bank when His Honour's remarks concerning the bank’s principal witness were taken into consideration. The bank's principal witness in this litigation was Herbert Shields (pseudonym). Although Mr Shields was not responsible for selling the Potts their loan, there were many common factors in so far as Potts and Thannhauser were concerned and it had the potential to create a flow-on effect with respect to other Westpac foreign currency loan borrowers and victims. As I have mentioned before, 168 non-corporate foreign currency loans were sold in Queensland and Mr Shields had a virtual involvement in very nearly all of them. Mr Shields had a very aggressive salesmanship spiel.

Some of the adverse remarks included in His Honour Justice Pincus' Reasons for Judgement were, "Mr Shields was not to be believed on this important point; but the evidence of Mr Shields which I have mentioned cannot be accepted; I am satisfied that Mr Shields was not telling the truth when he said that his role was to warn people of the risks of offshore borrowing".

Many Westpac discovered documents which were put into evidence were self supporting of Mr Shields' marketing abilities; one of these documents was personally signed by Mr Shields and was addressed to the bank's Deputy Treasurer Australia under date of 23 May 1985 and stated, "Queensland has been a heavy promoter of offshore loans". On the 2 August 1985 we have Mr Shields personally signing off an Internal Memorandum addressed to State Manager Corporate and International wherein he states, "Queensland has been proactive in regard to offshore lending".

One can completely understand His Honour's remarks when he recorded in his judgement, "was not to be believed''



and "evidence cannot be accepted".

Justice Pincus put his knife further into Westpac's wounds when he recorded in his judgement, "No senior officer of Westpac was called to give evidence about the bank's policy with regard to arranging borrowings in foreign currencies or matters of any kind. No person to whom Mr Shields reported or had authority over him was called to support his story that his function as an employee of the bank was to warn people of the risks in borrowing in foreign currencies, rather than to persuade them to borrow in foreign currencies.”

It can be seen from the above that Westpac Banking Corporation were in a disastrous situation and that they were desperate to reverse past adverse foreign currency loan litigation decisions to a situation which could reverse that loss status to one of a more positive mode.

* Who were the Supreme Court of Queensland members of the bench chosen to preside over Westpac Banking Corporation's Appeal against the lower court decision of Justice Mackenzie which awarded Lionel and Lucy Potts the sum of $615,580.84 on the 17 December 1990? Could it be construed that the three judge panel so selected could be considered inappropriate to a fair minded lay observer who became conversant with the facts?

The Supreme Court Appeal judges comprised Chief Justice Macrossan, Justice de Jersey and Justice Dowsett.

It transpires that Judge de Jersey and Judge Dowsett had a close personal relationship. By referring to an article published in the Courier Mail on the 27 February 1999 under the heading, "Out of the ivory tower" it stated, "they enlisted in the university regiment, they worked together, they studied together, it was a little world of their own".



It is obvious, given these published comments, that both Dowsett and de Jersey were friends and the fair minded lay observer would most definitely question whether it was appropriate to have these two judges sitting on an appeal together. Justice de Jersey was elevated to the Supreme Court bench on the 4 February 1985 with Justice Dowsett being elevated just five months later on the 29 July 1985. (On the 14 September 1998, Justice Dowsett assumed his role as judge of the Federal Court of Australia, in essence transferring from one jurisdiction to another.)

On the 6 February 2004, Lynton Noel Charles Freeman appeared as an unrepresented litigant before Justice Dowsett in Bankruptcy Jurisdiction where Freeman was the Applicant and Horwarth Jefferson Stevenson as Trustee for the Bankrupt Estate of LNC Freeman being No Q7009/03. I was present in the court room when the hearing took place.

Freeman was addressing justice Dowsett with the fact that he considered that Supreme Court of Queensland Justice Ambrose "couldn't understand it". Justice Dowsett immediately interjected by informing Freeman that, "he couldn't tolerate language like that in his court" (words to that effect) and then went on to say, "Justice Ambrose is a friend of mine". These statements are contained in my Statutory Declaration sworn at Upper Mount Gravatt on 11 February 2004. LNC Freeman has sworn a Statutory Declaration on the 29 February 2004 and confirms justice Dowsett's comments, viz "he is a friend of mine". (As a matter of interest, I was refused access to the court transcript tape as I was not a party to the proceedings.)

Dowsett's bias is there for all to see, and it follows of course that he will follow in the footsteps of his fellow judge and friend, Paul de Jersey, in his judgement – which he did.

* Is there a judge on the appeal panel who has had a previous association or an existing association with Westpac Banking Corporation or their instructing solicitors, Feez Ruthning, Solicitors and Notaries of 123 Eagle Street, Brisbane, which would give rise to a situation where a "judge shopping" approach could confidently thought to be successful? It needs to be acknowledged that Feez Ruthning have been Westpac Banking Corporation's instructing for all their involvement with foreign currency loan litigation.

Justice Paul de Jersey:

By reference to the speech delivered to the Queensland Young Lawyers Seminar at Phillips Fox, Waterfront Place, 1 Eagle Street, Brisbane on the 26 September 2002, The Hon Paul de Jersey AC, Chief Justice of Queensland, informs those present that he was admitted to the Bar on the 16 September 1971 and that in 1983 he was given a. retainer by Westpac Banking Corporation in 1983, "a point of achievement" in his own words.

Since de Jersey was elevated to the Supreme Court bench in February 1985, it means that he was in receipt of a retainer from Westpac for approximately two years.

Prior to de Jersey's admittance to the Bar, he did his articles at Feez Ruthning. (Confirmed by reference to the Australian Financial Review, Friday 4 August 2006, and The Courier Mail, 8 September 2006, in articles titled, ‘Hearsay and Wise Counsel’ and ‘A late night’ respectively.)

De Jersey represented Westpac Banking Corporation as both junior and senior counsel for many years prior to his elevation to the bench of the Supreme Court of Queensland in February 1985. Court records reveal that he represented Westpac in the 1970's and the representation continued into the 1980’s. De Jersey was briefed as both junior and senior counsel for Westpac



Banking Corporation when the bank was called as a witness into the Royal Commission on the Activities of the Federated Ship Painters and Dockers, Union conducted by Commissioner, Mr Frank Costigan QC.

The reader will perceive that Justice de Jersey had a very close relationship with both Westpac Banking' Corporation and their instructing solicitors, Feez Ruthning.

It follows of course that the senior partners, or certainly some of them, would have been on first name terms with Justice de Jersey and that direct personal contact was readily achievable.

Justice Dowsett:

I have already referred to the close personal relationship which existed between Justice Dowsett and Justice de Jersey. I conducted a title search at the Queensland Government is Department of Natural Resources & Mines on the 19 March 2004 in the name of John Alfred Dowsett and it revealed that the property known as Lot 45 on the Registered Plan No 93891 being County Stanley, Parish of Indooroopilly, was subject to a registered mortgage to the Bank of New South Wales Savings Bank Limited on the 8 July 1981 with a second mortgage registered to Bank of New South Wales on the 1 September 1981. (Note: The Bank of New South Wales and their Savings Bank subsidiary were subject to a name change to Westpac Banking Corporation in 1982.)

What the foregoing charges mean is that it is reasonable to assume that His Honour conducted his personal banking facilities at the time he was a member of the panel hearing Westpac's Appeal. If this was the case I hold the clear view that he was receiving favourable treatment from Westpac. If there were affirmative responses here to the information put, then Mr & Mrs Potts were entitled to know this information prior to the commencement of the Full Court Appeal.

* Does the lead up period to the commencement of Westpac's Appeal hearing and the appeal hearing itself give rise to any concerns which would indicate to the fair minded lay observer that a "judge shopping" exercise had taken place?

Westpac's Appeal hearing commenced on Monday the 4 November 1991 which represents a time delay of approximately nine months from the time Westpac filed their appeal papers in the Supreme Court Registry. Lionel Potts had been pressing his instructing solicitors continuously for the past five months to have the Full Court Appeal brought on. However his opponents always seemed to come up with some excuse which most definitely lacked candour at the time.

The trial commencement was virtually an 'overnight' notification as far as Lionel Potts was concerned. The delay and the lack of notice prohibited Lionel and his wife from engaging the services of their preferred counsel who had considerable knowledge of Westpac's foreign currency loan product and how it was sold – he had already been briefed. (It is my understanding that that person has since been elevated to the bench of the Supreme Court of Queensland.)

On the Friday immediately preceding the hearing commencement, Westpac handed over to Potts's legal representative at 5.30pm a further 250 documents in late discovery. Mr Potts was not made aware of this event before hearing commencement. A substantial percentage of these documents had been in Westpac's possession for just on ten years – if it is accepted that they were genuine and not reconstructions, which is likely.

Mr Potts never had the opportunity to examine these documents. This aspect of late discovery of numerous documents has been a ploy of the Appellant Westpac to gain a distinct advantage for themselves to the complete disadvantage of their opponents. This is a good example of one of the legal tricks being pulled out of the bag.

As was Mr Potts' usual practice, he made copious notes throughout the appeal hearing. Lionel Potts recorded the comments of Justices Dowsett and de Jersey regarding address from the bar table of RN Chesterman QC, senior counsel for the appellant bank. Comments attributed to Justice Dowsett were:

"Hedge or not to hedge; need management skills; you are attacking the finding of reliance; commonsense, he is an airline pilot; he went to the bank – if any of us did it we would be in the same position as this man; different facts, different knowledge, did the trial judge get anything right Mr Chesterman? This is unreal."

Comments attributed to Justice de Jersey were:

"You [Chesterman] are being very critical of the trial judge and I don't like it. Doesn't sit with the image of your presentation of Mr Potts. Don't bring facts from other cases. You are being disrespectful of the trial judge."

Mr Potts also made notes of the many instances where the Appellant Bank's counsel blatantly twisted the facts in endeavouring to present a far more favourable image for his client which was totally false. His obvious modus operandi was to deflect unfavourable practices which his client had been engaged in.

Given what was stated above, one wonders what has influenced their Honours in majority to see all issues in a different form and context to that of the primary judge, Mackenzie J. Their Honours de Jersey and Dowsett handed down their decision on the 16 April 1992 with the Appellant Westpac's Appeal being upheld. Chief Justice Macrossan dissented.

His Honour de Jersey's judgement was contained over a mere six pages and he simply selected a phrase from an earlier judgement, not involving a bank, and found that it accurately represented the role of a bank in Australian society: "Indeed, in a competitive society, the infliction of pure economic loss upon another will commonly be a concomitant of the successful pursuit of personal advantage by way of lawful conduct in that there can be discerned, in many commercial and financial transactions, a correlation between the attainment of personal gain for one's self and the sustainment of economic loss by another." (Sutherland Shire Council v Hayman, 157 CLR 424 60 ALR 1, before Deane J.)

The reader will put the very valid question to the test, given what I have disclosed above, how could Mr & Mrs Potts lose on a majority decision? This is especially so when it is borne in mind Westpac's previous litigation losses with respect to foreign currency loans.

On the balance of probabilities, can the reader come to the affirmative decision that Westpac Banking and/or their instructing solicitors, Feez Ruthning, and/or a judge on the appeal panel knowingly participated in a "judge shopping'' exercise?

Firstly, in my view, Justice de Jersey has concealed his previous association with Westpac and their instructing solicitors from Lionel Potts and his wife, the Cross Appellants; it should have been a situation of automatic disclosure. It readily poses the question, did Justice de Jersey have a pre-determined disposition?

The dialogue comment of both Justice Dowsett and de Jersey, as I have recorded above, is nothing more than a charade in my view. During my years of attending court



room hearings whets the victims of banking malpractice are endeavouring to seek justice, judges will often castigate the bank's counsel and this gives the bank's victim, who is present in court, a 'feel good' outlook which will give him some confidence that he may be given a favourable decision. However I must say that it never happens. Banks will always win.

For the five year period to 1996, I was in regular contact with Lionel Potts and he kept me in touch with details of his ongoing dispute with Westpac Banking Corporation. Four years ago I decided to carry out further investigations into the Westpac v Potts Supreme Court Appeal with the "judge shopping" forefront in my mind. What I wanted to know was whether this appeal could be considered an isolated one as far as “judge shopping" was concerned or was it inherent in the court system.

Westpac had no hesitation in informing their foreign currency loan victims of the decision of Dowsett. Just over twelve months after the decision was handed down, Westpac writes to a foreign currency loan victim and informs them as follows: "you will no doubt be aware of the Supreme Court of Queensland in Potts v Westpac Banking Corporation and the comment made by Justice Dowsett that, in reviewing the procedure adopted by Mr Imhoff in his meetings with borrowers, it was difficult to conceive of what more Mr Imhoff could have told the borrower to explain the ramifications of borrowing offshore".

Here follows a reiteration of comments extracted from Lionel Potts' correspondence:

* 28 February2 1995: Lionel Potts' letter addressed to Mr JA Uhrig, [Address follows]. (Uhrig was then Managing Director of- Westpac.)

"There was a delay of eleven months between the Trial Judgement & appeal hearing – our trial barrister was not available – all the barristers and solicitors from the trial were available for Westpac – our hastily appointed Legal Aid Funded Q.C. incredibly came from the same chambers as the junior Barrister for Westpac – De Jersey J when a QC was on a retainer from your company. The inconsistencies in the judgements of De Jersey and Dowsett J are monumental".

* 27 June 1995: Lionel Potts’ letter addressed to Mr G Tierney, General Manager Legal Services, Westpac Banking Corporation.

"I enclose several newspaper cuttings and other items which once again show how irrational were the decisions



as given by De Jersey J and Dowsett J. We repeat – we had to accept the irrational decisions of De Jersey and Dowsett and try and find a way to rectify that Miscarriage of Justice for 'whatever reasons'.”

* 1 September 1995: A Without Prejudice submission of Lionel Potts for the attention of Mr R Joss, Managing Director of Westpac Banking Corporation.

"Justice Dowsett found there was a duty of care but it was not breached. Justice de Jersey found there was NO duty of care yet the bank itself admitted there was a duty. The findings of the majority [de Jersey and Dowsett] are in conflict with precedent setting other Full Court decisions. Their irrational decisions are regarded as the worst ever handed down by the Queensland Supreme Court.''

I received positive information that "judge shopping" did occur in the Supreme Court of Queensland when Colin John Donkin provided me with the transcript of proceedings concerning his Federal Court of Australia litigation involvement, described as No QG107 of 1989 where CJ Donkin and Anor were the Applicants and AGC (Advances) Ltd was the Respondent. (ACC (Advances) Ltd was a wholly owned subsidiary of Westpac Banking Corporation.) The litigation was presided over by Kiefel J.


It seems to me that "judge shopping" has been an ongoing practice in the Supreme Court of Queensland for some time.

It will also be seen in the Doneley Family litigation case history, as per Appendix 1, that Justice de Jersey has presided over four individual litigation matters where his personal bankers, the National Australia Bank, is directly or indirectly involved. It also transpires that Anthony JH Morris QC, a friend of de Jersey, has had a hand in all these litigation matters, be it directly or indirectly.

Given the two common denominators of the Chief Justice, Paul de Jersey and Barrister-at-Law, Anthony JH Morris QC, it would seem that the latter has 24 hour access to the Chief Justice Paul de Jersey. The more that one studies the background of these two prominent legal personas, one gets the message that there is some veracity in my foregoing statement.

It will be seen in this Doneley Family case history (Appendix (a)) that both Justice de Jersey and Anthony JH Morris QC have been involved directly, some may consider indirectly:

The closeness of the de Jersey/Morris friendship is clearly illustrated by the contents of Chief Justice, Hon Justice P de Jersey's letter to Morris dated 14 December 1998:

"Our Ref: 1:29 AJH Morris Esq. Q` level 13-MIC Centre 239 George Street BRISBANE Q 4000 Dear Tony, I was delighted to hear of the good outcomes in the Doneley case. You may rightly regard your own contribution to this as little short of monumental. I have already told you how extremely valuable I found your submissions – from which you know I shamelessly plagiarised in preparing my judgement! Thank you very much for writing to me. I reciprocate in wishing you and Alice a very happy Christmas and a fulfilling 1999. With best wishes, Yours sincerely (signed Paul de Jersey) Hon P de Jersey Chief Justice.”

The contents of de Jersey's letter as above speaks for itself, I consider my 'friendship' question proven. The further worrying issue for consideration can be found in Troiani case against the National Australia Bank: Troiani’s instructing solicitor had obtained the services of a barrister who agreed to the brief, claiming that his time was free. The next day, the barrister, who was married into the upper echelons of the Queensland judiciary, pulled out, claiming an hitherto unacknowledged urgent case. This barrister recommended as a substitute AJH Morris QC, who then formally represented Troiani and his wife at the Summary Judgement hearing."

Chief Justice de Jersey presided over this Summary Judgement hearing and the question which will immediately to the readers' mind is whether AJH Morris QC has been instrumental in having his friend preside over this Summary judgement, or vice versa, brought on by de Jersey's personal bankers against the Troianis.

By referring to Who's Who in Australia, it will be seen that these two legal people attended the Anglican Church Grammar School for their secondary education, de Jersey from 1961, with Morris matriculating in 1977. Right from the beginning of any relationship we have "the old school tie" factor". Generalised knowledge knows the importance which is stressed on this "old school tie" arrangement.

There can be no doubt that Chief justice de Jersey is very 'touchy' about anyone who brings his education


background into the open.

In the Doneley Family litigation case history (Appendix (a)), with respect to the No 2285 of 1995 litigation, transcript page No 195 reads as follows:

"HIS HONOUR: I have read all of that Mr Doneley. I must say I find the contents of page 9 bordering on scandalous, but I will ignore that bearing in mind that you are not represented here. Where I went to school is of not the remotest relevance to the issues here or my treatment of the trial."

Justice de Jersey is referring to Exhibit 35 which is a nine page letter addressed to Justice de Jersey and signed by Justin Doneley, the Second Defendant named. In the action, Doneley writes on the final page in part, "my friends at the Irish Club told me that you are fair and a gentleman and you went to churchie".

Everyone knows that the "the old school tie" helps in securing employment and it flows on from there in many directions. With the consistency of common engagement in litigation which exists between Chief justice de Jersey and AJH Morris QC, should situation this be permitted? I pose this question because, if one refers to the Brisbane Courier Mail on March 27, 2006, with the subject heading, "Nudgee Nudgee wink wink" listed under Perspectives, we see Brisbane District Court Judge Michael Noud disqualify himself from sentencing a young man who had pleaded guilty to assault, occasioning bodily harm in company, because he (Noud) attended the same school, Nudgee College, as the accused.

If legal circles consider that Judge Noud was correct in disqualifying himself, then it would be my contention on the grounds of persistent litigation contact duty, that Morris's opponents should be made aware of this association and given the opportunity to object to justice


de Jersey if he so desires.

Chief Justice de Jersey attended the University of Queensland and graduated with Honours in 1971. He then did his time with Feez Ruthning and was called to the Queensland bar in 1971. (Reference, About the Courts, Judgements Publications Practice and Procedure Library Site Services and the Brisbane Courier Mail, Friday, September 8, 2006 with the subject title, "Wise counsel late at night".)

What the reader needs to know is that AJH Morris's father, Graeme Oriel Morris B.A. LL.B. (hons), was a partner with Feez Ruthning from 1954 and a senior partner since 1972 to 1994. It is reasonable to assume that Morris senior would have introduced his son to Paul de Jersey at some stage and while the former was a- partner with Feez Ruthning. (Reference, Who's Who in Australia.)

Before I leave the reader to decide as a fair minded lay observer would, I should point out that Chief Justice de Jersey wrote the Foreword to the book titled The Quartercentenary of Sir Walter Raleigh's Trial which was authored by AJH Morris QC and can be found in the Supreme Court Library.

I would like to direct the reader to the Doneley Family litigation once again with respect to the No 2285 of 1995 action where the Hon Justice Moynihan, Senior Judge Administrator, had the carriage of this action. I hold a copy of a letter raised by Peter McInally, solicitors for the fourth and Fifth Defendants, Mr A and Mrs M Connellan, dated 30 July 1996 and addressed to Justice Moynihan, which indicates that McInally is presenting obfuscating tactics when he says to His Honour: "my clients cannot accept your suggestion of their matter being heard immediately after the other matter." (The other matter being the No 1882 of 1992 action.)

This letter was not filed in the No 2285 of 1995 file under the control of the Supreme Court Registry and it came into JJ Doneley's hands by accident.

In December 1996, Justice Moynihan informed parties that he was relinquishing control of the file and it would be transferred to Justice de Jersey.

On the question of Justice de Jersey receiving a retainer from Westpac Banking Corporation prior to his elevation to the Supreme Court bench, I highlight the Statutory Declaration sworn in Rockhampton on 27 May 2003 by Colin John Donkin of 69 Medcraf Street North Rockhampton wherein Dunkin states, "At a conference in Brisbane with my lawyers, Paul Watts and Angelo Vasta QC prior to my bankruptcy hearing in November 1994. The fees paid to these layovers were discussed at length, when Angelo Vasta QC said ‘de Jersey, when he was a barrister was paid $50,000 a year just as a retainer by Westpac’.”

It so transpires that in December 2008, 1 was given access to all foreign currency loan documentation of LJ and DE Potts. Included in that documentation was a note in Lionel Potts’ own handwriting which suggests that, sometime in 1992, he had a conversation with Angelo Vasta who informed Lionel Potts that de Jersey was in receipt of a retainer of $50,000 per annum from Westpac Banking Corporation.

"Judge shopping" is an abhorrent practice and should be stamped out. From the information furnished above, the reader will no doubt realise that "judge shopping'' has been evident. Further investigation is called for.

It must be remembered that the legal profession is the most incestuous in Australia and nothing is beyond them.

I’ll rest my case on the matter of "judge shopping". I lean to the view that "judge shopping" is an ongoing problem in every Supreme Court jurisdiction in Australia.





Chapter 2: Response to de Jersey Letter



Preamble: On the 8 March 2006, the State Parliamentary Independent Member for Maryborough, in Queensland, Mr Chris Foley, delivered a speech under the heading, 'National Australia Bank, Wide Bay Brickworks Pty Ltd’, and tabled twenty individual documents of which four were raised by myself. Two of these documents, addressed by me to Sante and Rita Troiani, were the result of investigations I conducted concerning the Wide Bay Brickworks Pty Ltd and were marked 'Confidential'. I was unaware at the time that these two documents were to be tabled by Chris Foley.

As a result of the tabling of these documents, the Chief Justice of the Supreme Court of Queensland, Paul de Jersey, felt the need to write a six page letter addressed to the Honourable Linda Lavarch MP, Minister for Justice and Attorney General, dated 23 March 2006.

This letter was written under the letterhead of the Supreme Court of Queensland, Chambers of the Chief Justice and signed by the Honourable P de Jersey AC personally. My confidential reports to the Troianis were critical of the Chief Justice's conduct in many ways and the Chief Justice in turn felt the need to advise the Minister for Justice and Attorney General his version of events. However, the Chief Justice also felt the need to describe my allegations as 'baseless and scurrilous'.

The Chief Justice concluded his written letter by informing the Minister, "I respectfully request you table this letter in the House". The Minister, The Hon Linda Lavarch, acceded to Chief Justice Paul de Jersey's request when the Minister delivered a speech in the House on the 30 March 2006.

In tabling the Chief Justice’s letter, the Minister saw fit to reiterate the remarks, viz. 'scurrilous' and 'baseless', as previously referred to in the letter raised by the Chief Justice, Paul de Jersey. The Minister also included the following remarks in her speech, "I can advise there are no plans to review the matter by the Member for Maryborough of Mr Salmon with respect to the judiciary.”

Previous to the speech being delivered by Minister Lavarch, I had addressed a letter to the Minister under the date of 6 February 2006 which dealt with a number of matters of bank litigation. It was a letter of some detail covering thirty seven pages. The contents of the letter highlighted problems I had experienced in bank litigation during the past eighteen years. At the time the Minister delivered her speech in the House on 30 March 2006, 1 had not received an acknowledgement to my letter.

In May 2006 1 received a letter dated 17 May 2007 addressed to me by the Minister, signed by Minister Lavarch, and which acknowledged my letter of the 6 February 2006. The Minister advised me as follows, "I have considered the issues in great detail and am satisfied that no further investigation is warranted." The Minister also exhibited to me a copy of her Hansard speech delivered in the House on 30 March 2006. In my view, the Minister did not carry out any investigation.

Needless to say I was most unhappy with Minister Lavarch's application to the concerns which I had addressed, so much so that I then wrote to the Premier, The Honourable Peter Beattie. I directed two letters to the Premier under the dates of 23 March 2006 and 8 May 2006. In my letters I rebutted much of the commentary contained in the Chief Justice's tabled letter by the Minister. I thought it only fair in the circumstances that my rebuttal comment with respect to the Chief Justice's determinations be tabled in the House also. However my request was subject to acknowledgement by Rob Whiddon, Chief of Staff of the Office of the Premier, who advised me that it was not appropriate for my letters to be tabled in Parliament.

Rob Whiddon also stated in his letter of the 3 July 2006 that, with respect to the Minister for Justice's letter to me dated 17 May 2006, "she had thoroughly investigated the issues and that no further investigation was warranted" and that was that.

Needless to say, Whiddon's comment, "thoroughly investigated" is incorrect; it's nothing more than a runaround.

I was thoroughly disgusted with the whole exercise, and felt so strongly that the Chief Justice had erred when he did not seek independent legal advice as to the tabled documentation of the Independent Member for Maryborough, Chris Foley, on 8 March 2006. I felt strongly the need to carry out further investigations regarding the judicial activity of the Chief Justice and otherwise.

I also considered that the reputation of the Chief Justice, Paul de Jersey, to be severely tarnished.

* * *

On the 23 January 2005 1 addressed a confidential report to Sante and Rita Troiani which outlined my opinion concerning the NAB's conduct and processing of the $7,450,000.00 Bill Facility the bank approved on behalf of Wide Bay Brickworks Pty Ltd in November 1993. Sante Troiani was the Managing Director of WBB and with his wife were the major shareholders.

This report comprised sixteen pages and also dealt with comment of the Chief Justice Paul de Jersey's decision he handed down in favour of NAB on the 22 March 2001. This comment dealt with the judgement debt of the Chief Justice as it related to the WBB Bill Facility.

On the 21 March 2005 1 addressed a second letter to Sante and Rita Troiani comprising fourteen pages which I handed to Sante Troiani personally on the 23 March 2005. In this report I did make some critical remarks concerning the Chief Justice's decision which he handed down in favour of his personal bankers, the NAB. It was my contention that the Chief Justice should have exercised his discretion in favour the Troianis, the Defendants in the NAB instigated Summary Judgement hearing No 7759 of 2000.

Sometime in October or November 2005, the Troianis handed my two confidential reports to Chris Foley, MLA and State Member for Maryborough. This action was unknown to me. On the 22 November 2005, State Member Chris Foley tabled my two reports in the Queensland Parliament on behalf of his constituents, Sante and Rita Troiani.

On the 8 March 2006, Chris Foley, MLA tabled the fourteen page affidavit deposed to by John Justin Doneley with eleven exhibits in State Parliament on the 8 March 2006.

It was in response to the tabling of documents in State Parliament by Chris Foley as alluded to above which caused the Chief Justice, Paul de Jersey AC to address a six page letter to the Honourable Linda Lavarch MP dated 23 March 2006 with the request that Linda Lavarch MP table his letter in the House, which she did on the 30 March 2006.

Here follows my response to the six page letter dated 23 March 2006, raised by The Hon P de Jersey AC Chief Justice of the Supreme Court Queensland addressed to The Honourable Linda Lavarch MP Minister for Justice and Attorney General and tabled in the Queensland Parliament by the Hon LD Lavarch by way of Ministerial Statement on the 30 March 2006. The de Jersey letter is exhibited herewith and marked "JAS2". The final direction of the Chief Justice to Minister Lavarch is, "I respectfully request you table this letter in the House."

The reader will see that by perusing this exhibit, the Chief Justice has elected to use the letterhead of the Supreme Court of Queensland, Chambers of the Chief Justice with its insignia. All legal people who become aware of Chief Justice de Jersey's actions here have advised me that the response to Minister Lavarch should have been through the intermediary of an instructing solicitor. I'll let the reader decide the rights and wrongs about this.

Minister Lavarch's Ministerial Statement attracted the title heading, Wide Bay Brickworks Pty Ltd, Member for Maryborough. Hansard records as follows:

" … on 22 November last year and on 8 March this year the member for Maryborough made statements in the House about the National Australia Bank and Mr and Mrs Troiani, the former owners of Wide Bay Brickworks Pty Ltd. In his statements, the honourable member referred to a Mr John Salmon as a senior banking expert and investigator, and he tabled certain reports by Mr Salmon."

The Minister proceeded to reiterate what the member for Maryborough also said: "Mr Salmon raises very grave allegations of misconduct ... against senior counsel and



the top echelons of the Queensland Supreme Court judiciary. … Mr Salmon, with more than 40 years banking experience with the NAB, asserts that the Troianis have been victims of 'a deliberate sting operation by the National Australia Bank'." I exhibit a copy of the Minister's speech which is marked “JAS3”.

The documents tabled by the member for Maryborough on the 22 November 2005 comprised twenty documents in all which in turn were represented by 280 pages of documentation. Included in those documents were two confidential reports raised by myself and addressed to Sante and Rita C Troiani, and dated 23 January 2005 and the .21 .March' 2005. As a matter of interest I had no prior knowledge that my two reports were to be tabled in the Queensland Parliament. The content of both of those reports not only dealt with NAB/Wide Bay Brickworks Pty Ltd association from commencement in November 1993 to the appointment of Receivers and Managers in August 1999, it also dealt with the litigation process which Sante and Rita Troiani had been involved in.

Since the Chief Justice felt the need to write in his letter that allegations made against him were "baseless and scurrilous", I only thought it fair that my rebuttal comments to the contents of his letter addressed to Minister Lavarch should also be tabled in the Queensland State Parliament.

As a consequence I wrote to the Honourable Peter Beattie, Premier of Queensland on the 8 May 2006 outlining my rebuttal comments to the Chief Justice's tabled letter by the Minister and requested that my letter be tabled in State Parliament. The Premier's Chief of Staff, Rob Whiddon, advised me, vide his letter dated 3 July 2006, that "the Premier does not believe it appropriate for your letters to be tabled in Parliament nor seek any further investigation."

I now propose to present my rebuttal to the Chief Justice's letter tabled by the Minister on the 30 March 2006 which will not only take into consideration what I have said in my correspondence to the then Premier, Peter Beattie, but that version will now be updated.

Comments on the Chief Justice's letter as tabled by Minister Lavarch:

Page 1 Item 1: I queried whether the Chief Justice may have specially listed the Troiani case and he denied it. The situation of now is that the Chief Justice is in charge of the Supreme Court complex and what he says goes. I will recall the remark of the State Reporting Bureau employee who said to me that "judges do whatever they like" irrespective. What needs to be kept in the back of the readers' mind at all times is that this report shows that the Chief Justice has a clear predilection for presiding over litigation involving his personal bankers. He does not generally disclose this to those present in the court room, and many of those cases which he has presided over, I would suggest, could have been dealt with by the most junior judge in the court complex.

Page 1 Item 2 : In my report to Sante and Rita Troiani I suggested that the Chief Justice's Summary Judgement hearing of the NAB v Sante & Rita C Troiani, No 7759 of 2000, had not been recorded and he agrees that that may have occurred. He then proceeds to say that it is not necessary to record court hearings in “applications".

In my experience I have known all "applications" to be recorded but the Chief Justice goes out of his way to point out that it is not necessary to record proceedings unless oral evidence is given. What about the McMinn hearing of the 30 November 2001 which took place before him, where he makes the remark which appears in the transcript, page eight refers, "Is this all being recorded, by the way?”

What about Bernstrom? There was no oral evidence there and a transcript was raised even though de Jersey felt the need to ‘doctor’ same in due course.

De Jersey proceeds to say in the next paragraph, "I cannot now recall whether or not I specifically indicated that the proceedings not be recorded." One minute he says that he "may", now he "can't recall". Isn't this duplicitous on de Jersey's part?

De Jersey is referring to my confidential communication to Sante & Rita C Troiani raised over three years ago. From the material I have sighted during that time which is relevant to this issue, I am of the opinion that a tape of the NAB/Troiani Summary Judgement of proceedings was in the hands of the State Reporting Bureau and that Bureau employees were then able to provide a hard copy. At about that time I strongly believe that de Jersey ordered it to be destroyed.

My strength of opinion here is partially governed by the non-availability or the doctoring of transcripts where de Jersey has been a presiding judge.

A transcript of proceedings is a mandatory requirement for court appeal purposes, be it Supreme Court of Federal Court jurisdiction, and the Troianis were at a dramatic disadvantage because they were not in possession of one.

Page 2 Item 3: This section deals with the fact that the "outline of argument" presented to the Chief Justice by the Troianis' counsel, AJH Morris QC, was not subsequently found in the court file and it came to light by chance much later. The Chief Justice states he cannot recall whether the "outline of argument" was handed to him. What I find amazing from investigating bank/ litigation processing matters is that the strangest things always happen in bank litigation, particularly where the National Austral Bank has an involvement.

From his comments, the Chief justice implies that in Summary Judgement proceedings the judge relies upon the filed evidence for his subsequent examination after he adjourns the hearing. The clear fact is that if the Chief Justice had taken the time to examine all the material filed with emphasis on the Troianis’ filed affidavits, in my view he would never have handed down a decision in favour of his personal bankers, the National Australia Bank. The fact is that the Chief Justice as an astute man would have realised that his personal bankers, the National Australia Bank, had not proved their debt or monies alleged to be owing pursuant to the Guarantee and Indemnity executed under the date of 26 April 1995.

Page 2 Item 4: The commentary here highlights that in any appeal or subsequent hearings that a judge or judges are somewhat reluctant to reverse a Chief Justice's decision by virtue of his status. The Chief Justice implies that my comments are “an absurd contention, contemptuous – my position aside – of the integrity of my colleagues.”

The Chief Justice's comments here raise a variety of issues. Take for instance what the transcript reveals in the Federal Magistrates Court before Magistrate, Mr M Baumann, with recital No BZ176/04 which took place on 6 July 2004. "HIS HONOUR: But, Mr Troiani, the Chief Justice said there being no defence there is no need for a trial. Now, that's a fact." The implication is clear, the Chief Justice is speaking and he says, you've got no defence, end of story. You're finished.

Let us also reflect on the Court of Appeal hearing which took place on the 22 November 2001 before their Honours, Thomas JA, Chesterman J and Atkinson J, which attracts recital No 3447 of 2001.

The remarks of Thomas J: “But what happened instead the bank brought on a summary judgement hearing and they succeeded”, and what follows by the same judge, "That is all that's left because the Chief Justice thought it was so clear that you didn't need all this investigation and no issues were raised before him that justified it.'' That remark of His Honour is totally ludicrous in my view.

The Court of Appeal hearing on 22 November 2001 was adjourned and reconvened on the 10 April 2002; however there were to be three different judges presiding, viz McPherson JA, Fryberg J and Helman J. As a matter of interest, I went to the Court of Appeal Registry on two separate occasions and enquired of a senior person, in adjourned Court of Appeal hearing, could the Appellants appear before three different judges? I was told each time that this did not happen and it has never happened. I left the Registry without commenting.

"McPHERSON JA: Now, the question we have to consider is whether there was a sufficient ground to justify the Chief Justice in doing what he did which was to exercise his discretion not to allow the case to go to trial but to decide it on the spot."

This report reveals how the Chief Justice uses his discretion which always seems to benefit his personal bankers, the National Australia Bank. For further comment here, I will rely on the thirteen Summary Judgement hearing decisions which I have detailed in the Sante and Rita C Troiani case history.

Further emphasis on the status of the Chief Justice is available when one refers to the Supreme Court of Queensland reconvened Court of Appeal hearing (held on 10 April 2002), page 82 of the transcript, where the bank's senior counsel is addressing their Honours: "we would submit, your Honour, because the evidence was before de Jersey J – I'm sorry, the Chief Justice, I apologise." This needs no comment, as it speaks for itself.

Page 2 The penultimate paragraph: The Chief Justice highlights the fact that during the last eight years while Chief Justice, his judgements have been "interfered with" by the Court of Appeal. That may well be so; however I would suggest the situation is quite clear as far as I know it, and that is that none of the Chief Justice's decisions in primary court have been interfered with when the litigant is a victim of an NAB "sting" operation.

Page 2 The final paragraph: Contents of this paragraph record the Chief Justice's response to the fact that I contend that he should not preside over litigation involving his personal bankers, the National Australia Bank. I steadfastly maintain to this day that he should not do so.

There is one clear fact here – no individual instance of litigation should be looked at in isolation. They must be looked at collectively. There is a trend, there is a pattern. Justice de Jersey deals with the Doneley Family litigation saga where the National Australia Bank had direct involvement on no less than four occasions. The question which arises is that of the predominance of association which prevails between Justice/Chief Justice de Jersey and his personal bankers, the National Australia Bank, involving cases which span over six years.

On the 22 March 2001, Chief Justice de Jersey destines Sante and Rita Troiani to a life of penury when compared to their previous comfortable life style. Then, six months later the Chief Justice travels to Cairns and engages in handing down a decision in favour of his personal bankers, the National Australia Bank, to the detriment of Anita Bernstrom who ends up in the same predicament as the Troianis. Again, the Bernstrom hearing is open to high conjecture.

On the Chief justice's return to Brisbane he presides over the initial hearing of the McMinns' Application when they are referred back from the federal Magistrates Court. . While the Chief Justice could not continue to preside over future hearings of the McMinns, he knew full well that they would never succeed against his personal bankers. Given what eventually transpired in the McMinns' future hearings before Justice Muir, and given the apparent doctoring of the 17 January 2002 transcript, it is not beyond the realms of possibility that the Chief Justice may well have tapped his fellow Judge, Justice Muir, on the shoulder and said, "Could I suggest you do it this way, allow them to proceed; however preclude the McMinns from mounting an action against the NAB for fraud or deceit".

My thinking is clear – a thorough investigation is required into these matters.

Chief Justice de Jersey makes the parallel comment concerning his NAB personal banking association and that of a Brisbane City Council ratepayer. De Jersey states, since he is a Brisbane City Council rate payer, that under my policy he should not preside over litigation where the Brisbane City Council is a party to the proceedings. De Jersey's comparison view on this matter is totally ridiculous; he is surely reaching the bottom of the barrel with this attitude. Basically, it is puerile and I would suggest that the reader will also readily reach that conclusion .

Page 3 with exception of final paragraph: The Chief Justice sees fit to quote extracts from the Guide to Judicial Conduct published in 2002 for the Council of Chief Justices in Australia with respect to the aspect of a banking association and reiterates, "A current business association with a party will usually mean that a judge should not sit on a case."

The question here of course is, what is the extent of that business association? That is the crux of the matter. What needs to be understood by all these precedents is that they are written for members of the legal profession and, right through the centuries, members of the profession continually protect their own numbers. The inference is that de Jersey has been receiving favoured treatment from his personal bankers, the National Australia Bank, since he commenced that association, whenever it was.

As long as there is no standing requirement by way of a Pecuniary Interest Register, members of the public and litigants are always going to be highly suspicious of any judge who banks with a particular bank and decides to preside over litigation where his bankers are a party to that litigation.

Let me digress for a moment and give you a brief example of this. The case in question is recited as, Fritz and Ingrid Walter & Ors, Plaintiffs v the National Australia Bank, Defendant, being No 7407 of 2002 in the jurisdiction of Victoria.

During the trial hearing conducted on the 15 May 2003, the presiding judge, Dodds-Streeton J, informed those present in the court room that she was a beneficiary in a trust which held approximately 8000 shares in the National Australia Bank and that she also held a standard banker-customer relationship. The Plaintiffs submitted in these circumstances that Her Honour had no jurisdiction to hear the proceedings on the grounds of apprehended bias.

Dodds-Streeton J refused to disqualify herself and told the Plaintiffs, if they didn't like it, to appeal. In my view the Plaintiff's objection should have clearly been upheld. I would venture to say that when Her Honour states in her judgement handed down on the 16 February 2004 the disclosure, "a standard banker-customer relationship'' it is most unlikely to be factual; Clause 198 of her judgement refers.

I have stated elsewhere in this report that, from my knowledge, the National Australia Bank has been giving concessional treatment to members of the judiciary at least since 1962/3 in Queensland. I feel certain that the state of play would be the same in other Australian States. Judges would be receiving a variety of banking benefits.

The Plaintiffs were so incensed with Supreme Court judge Dodds-Streeton's decision to continue to preside over their 7407 of 2002 trial hearing that they decided to initiate a private prosecution against Her Honour, alleging that she had breached Section 34 of the Crimes Act. The allegation was in this instance that Dodds-Streeton had abused her office.

The hearing before a Melbourne magistrate took place on the 18 May 2004 with family member, Carmen Walter, announcing that she was representing herself and her parents, Fritz Walter and Adelheid Rosa Walter, comprising the informants. Her Honour was represented by counsel while there was also an appearance on behalf the Commonwealth Director of Public Prosecutions.

Counsel representing the Director of Public Prosecutions stated at the outset that he had taken over the Prosecution in terms of the Commonwealth Director of Public Prosecutions Act 1983. Counsel further confirmed that he had so informed the Registrar by letter on the 7 May 2004. He proceeded to inform the magistrate that he wanted the prosecution struck out.

The magistrate upheld this approach, despite the fact that he had not found it necessary to hear any evidence on behalf of the three informants. This issue was pointed out to the magistrate by Carmen Walter and, at the same time, she highlighted the fact that Judge Dodds-Streeton was not present in the court to hear the informants' supporting evidence. It appeared that the Commonwealth Director was striking out his own case before it had commenced. These arguments fell by the wayside as the magistrate struck out the action.

Judge Dodds-Streeton's counsel then made an application to the magistrate to have the charges and summons removed from the court files on the grounds that they contain scandalous material, and that they also allege impropriety in the course of her judicial duties. The magistrate's response was, 'you are asking me to do something with actual documents. What would normally happen is that they will be filed in our filing system'. Judge Dodds-Streeton's counsel then decided not to press his application.

Only one conclusion can be reached with respect to the Walter family's private prosecution, and that is an unrepresented litigant cannot obtain justice in the State of Victoria. I am able to say that I have been able to examine all relevant documentation in the Walter case history and this includes the NAB's discovered documents. I am able to say that the Walter Family members are the classic victims of an NAB "sting" operation. The Walter parents, Fritz and Ingrid, sold their successful business in Germany and migrated permanently to this country after inducements made by the State of Victoria. The Walters erected a boutique brewery on land they acquired for this purpose in Wodonga, Victoria, and borrowed certain monies from the NAB. Despite the fact that their loans were not in arrears, the NAB foreclosed, appointed receiver/managers, and they were bankrupted.

In his tabled response, the Chief justice then proceeds to make reference to High Court of Australia in Ebner v Official Trustee in Bankruptcy (2001) 205 GLR 337 and the Guide to Judicial Conduct where he highlights the matter of a ‘professional association' once again. In these two instances the Chief justice highlights that the 'professional association' is not in itself a reason for disqualification.

Firstly I am prepared to say that the High Court judges and those setting out text on apprehended bias are either ignorant or do not wish to spell out what a business association is in so far as a judge and his personal bankers are concerned. As I have stated previously a personal banker can virtually make you millions 'overnight'. With respect to the reference and precedent material, I would suggest that most do wish to present the obvious interpretation of the situation, the one which puts the judiciary in a favourable light.

The salient issue here is that I don't think that one will find any text or precedent material on the subject of Apprehended Bias where it deals with an habitual involvement of a judge such as we have in the litigation considered here. Just as there is a perceived habitual involvement of the Chief Justice in transcript 'doctoring', it can be seen that the Chief Justice has an habitual involvement in presiding over litigation involving his personal bankers, the National Australia Bank. That is the problem we have here.

Page 3 Final paragraph comment under (a) and proceeding to (f) next page:

This sectionalised comment under (a) to (f) relates to Justice de Jersey's involvement (and others) in the Full Court Appeal litigation being Potts v Westpac Banking Corporation, the judgement being reported at (1993) 1 Qld R 135 where Westpac Banking Corporation was the Appellant.

With respect to (a): The Chief Justice rebuts my criticism of his judgement being "a mere six pages". In the main my criticism is contained in my Section of Apprehended Bias, with respect to "judge shopping". De Jersey proceeds to say, "to condemn a judgement for its conciseness is ridiculous". In the normal course that would be correct; however I honed in on the principal issue arising from Sutherland Shire Council v Heyman reported at 157 CIR 424 60 ALR 1, which Justice de Jersey referred to in his judgement. The fact is that I doubt the veracity of inclusion of this precedent as it relates to Potts. There is no valid comparison in my view. The Chief justice makes no attempt to rebut here. The predominant ingredient in Potts was that it was foreign currency loan litigation.

With respect to (b): The Chief justice says that with respect to my reference to his friendship with Justice Dowsett, "This absurd contention does not warrant response."

The Chief Justice may well say that, and he is entitled to his opinion. However I would like to reiterate my Courier Mail published comment: on February 27, 1999 under the heading, "Out of the ivory tower" wherein it quoted, "They. [de Jersey and Dowsett] worked together, they studied together, it was a little world of their own." It clearly indicates to that there was an established friendship which was created over an extensive period of time. I continue to uphold my view that these two judges should not be on the same appeal panel in combination.

My view is further enforced when I refer to Justice Dowsett's comments from the bench in the Federal Court of Australia litigation between Lynton Noel Charles Freeman and Horwarth Jefferson Stevenson as Trustee in the Bankrupt Estate of Lynton Noel Charles Freeman recited as No Q 7009 of 2003.

Freeman was addressing Justice Dowsett and bringing to his attention the fact that the primary judge in his Supreme Court of Queensland v the National Australia Bank litigation, Justice Ambrose, "couldn't understand it". Justice Ambrose immediately interjected and informed Freeman that "Justice Ambrose was a friend of mine" and that he was not prepared to accept that criticism of his friend.

I was present in the court room at the time as an observer and was astounded by Justice Dowsett's comments. As soon as practicable I approached Auscript to listen to the tape of these proceedings and was refused, and after complaining, was refused in affirmation by Judge Dowsett's associate because I was not a party to the proceedings.

Freeman himself was eventually permitted to hear the tape and he confirmed Justice Dowsett's comments, "Justice Ambrose was a friend of mine” in his sworn Statutory Declaration at Brisbane on the 29 February 2004.



The evidence which I have illustrated above reinforces my view that Justices de Jersey and Dowsett should not have presided together on Westpac's Appeal against Potts. Justice must be seen to be done; we cannot have two "friendly" judges on the same panel.

Page 4 reference to (c) regarding the non-availability of the appeal transcript:

Mr Potts informed me that he called at the State Reporting Bureau on many occasions seeking a transcript of the appeal proceedings and he was always given differing responses by Bureau employees. It made him highly suspicious of the situation, especially so when all the circumstances were taken into consideration as to how Westpac's Appeal was brought on in an "overnight" situation.

My only additional comment here directs me to say that I am very reluctant to believe the Chief Justice in the light of what has transpired in other matters of litigation over which he has presided and there are subsequent anomalies in the matter of the transcript of proceedings.

Page 4 reference to (e) which deals with the Chief Justice's response to "judge shopping":

The Chief Justice claims that my allegation in the Westpac v Potts Supreme Court Appeal is "baseless". I continue to affirm to my view and refer the reader to my sub-section, Chapter 1: (iv) Judge Shopping. Anyone who becomes acquainted with the lead up facts to Westpac's Appeal would be highly suspicious, in my view.

I strongly lean to the view that a "judge shopping" exercise was also involved in the Doneley Family litigation.

Moreover there is the vice versa situation where a judge may select certain matters of litigation involving certain parties over which he wishes to preside.

How did Chief Justice de Jersey come to preside so frequently over litigation where his personal bankers, the National Australia Bank, were a party to the proceedings, be it direct or indirect? It calls for a full investigation.

I arranged for a general computer search at the site of National Centre for State Courts and it reveals that they produced a "Judge Shopping: Memorandum". Their article covers a two page spread under two principal headings, "A Judge Shopping" and “B Remedies for Judge Shopping". The article concludes by way of footnote which states, "There are also stories about situations in which attorneys have tried to direct cases to corrupt judges who might be bribed to decide cases in a particular fashion."

I hold to my view that the Westpac/Potts Full Court Appeal was a "dead set" ''judge shopping' situation.

Page 4 Reference to (f): The Chief Justice points out that Lionel Potts and his wife were refused leave to appeal to the High Court.

In my view this is a total irrelevancy to the matters as discussed above.

Page 4: Reference to the Doneley v National Australia Bank litigation.

In my report which the Chief justice refers to, I suggested that he should have disqualified himself in the No 2285 of 1995 litigation over which he presided. It is now my contention that Justice de Jersey should have brought his National Australia Bank association to Justin Doneley's notice sometime during the six month period prior to the commencement of the trial hearing proper. This should have been done during directions, not left until the commencement of the trial when all parties were ready to proceed.



Chief Justice de Jersey considers it commendable that Anthony JH Morris QC assumed the trusteeship for no financial reward. Admittedly that is what the court filed documents presume. The real fact is that Chief Justice de Jersey cannot categorically state that AJH Morris QC has not received any remuneration for his services as trustee.

The fact is that my report reveals that when the "Beardie" grazing property (the aggregation of contiguous properties) is to be sold that his personal bankers, the National Australia Bank, are to receive 57.5% of any sale proceeds of the aggregation, The aggregation was sold for $3.3 million and the National Australia Bank received the sum of $1,897,500.00. My research reveals that the National Australia Bank, at best should have received 15.15% maximum which extends to $500,000.00. What this means is that the Chief Justice's personal bankers, as it appears to me, have received the sum of $1,397,500.00 in deceitful process. There is room in this sum for distribution of largesse.

Chief Justice de Jersey then brought to Minister Lavarch’s attention that he omitted to disclose his personal banking relationship with the National Australia Bank at the outset of the hearing between Freeman and the National Australia Bank. The Chief justice proceeds to say that it his usual practice to inform parties at the outset. De Jersey says that the delay is without significance. What about Bernstrom, Troiani and McMinn where the Chief justice never warns them at all.

When I informed litigants Troiani and Bernstrom of de Jersey's banking status they were absolutely disgusted, and readily construed that it was part of an undermining pattern. Moreover, the Troianis were represented by AJH Morris QC who was aware of the Chief Justice's National Australia Bank association and he made no attempt to inform his clients what the position was here.

I consider that the vital issue here is disclosure and it seems me that the Chief Justice has gone out of his way to conceal his personal banking association from the bank's "sting" operation victims.

Chief Justice de Jersey then proceeds to four allegations I made which appear on pages four and five. My response is as follows:

No 1: The Chief Justice-responds to the allegation that I say he has a predilection to preside over cases involving the National Australia Bank.

This report clearly indicates that the Chief Justice has a predilection for presiding over hearings, etc, where his personal bankers, the National Australia Bank, are one of the parties involved.

De Jersey proceeds to say that, "Judges inevitably hear many cases involving a range of banks". I ask him to provide a list of those judges and the hearings over which they have presided. I doubt that he will be able to provide any similar statistics to his own involvement with the National Australia Bank.

Until such time as he does provide that list, the reader will hold to the view that there is most definitely something untoward about de Jersey's NAB court involvement.

Chief Justice de Jersey proceeds to inform Minister Lavarch as follows, "A graphic illustration of the absurdity of Mr Salmon's allegation that I exhibit bias in favour of the National Australia Bank appears from the Doneley judgement itself. I found against the National Australia Bank, and the bank knowingly participated in major breaches of trust. I ordered the Bank to pay the successful plaintiffs' costs of the action."

The difficulty for the Chief Justice here is that he has not looked at what took place beyond his judgement. His personal bankers certainly lost the battle; however at the end of the day they won the war and that is the situation which counts.

As the drama surrounding the sale of the grazing property "Beardie" unfolded, de Jersey's Doneley judgement became an irrelevancy. As I have explained above, de Jersey’s personal bankers, the National Australia Bank, received the sum of $1,897,500.00 or 57.5% of the sale proceeds of "Beardie" when they were only entitled to no more than $500,000.00 at most in my opinion.

I believe that the information which I have furnished above clearly indicates that, at the end of the day, de Jersey's earlier decision has no relevance whatsoever. From all the evidence available regarding the events leading to the sale of "Beardie", one will construe that de Jersey's friend, AJH Morris QC, has helped the National Australia Bank, de Jersey's personal bankers to a very favourable outcome indeed.

The Hon Justice P de Jersey, in his letter dated 14 December 1998 addressed to friend, AJH Morris Esq QC, acknowledges, "I was delighted to hear of the good outcomes in the Doneley case." The unknown factor of course


is the extent of the information concerning the sale of "Beardie" passed on to him by his friend, AJH Morris QC. We don't know of course. And for whom was the outcome good? Certainly not for any member of the Doneley family.

No 2: I will quote the Chief Justice's comments here which will be self explanatory to the reader: "Insofar as he seeks to impugn my judgements by reference to legal principle, I note that the appeal process applies, and it is absurd to suggest as he does that the Court of Appeal would not interfere because of my being the Chief justice; history shows that it has, and does.''

This distinctive statement of the Chief Justice may well be correct in general. However in my commentary to which he refers, I am specifically talking about litigation involving one of our four major banks in this country. I was also referring to litigation where the bank’s victim, previously a litigant appearing before de Jersey and losing, eventually becomes a litigant in bankruptcy proceedings before the Federal Court or the Federal Magistrates Court of Australia.

No 3: The Chief Justice states that there is no pecuniary or other relationship between himself and Mr Morris. He does go on to say that they are members of the same profession and friendly acquaintances. Note: the friendship factor is acknowledged.

No 4: The Chief Justice responds to the question which I put to him, whether he had been in receipt of a retainer from Westpac Banking Corporation. The Chief Justice responds to this question by confirming that he was in receipt from the bank since 1983 and from memory the fee was $1,000.00.

Now I would suggest that the Chief Justice has a very good memory and he would be able to recall, almost to the dollar what the annual retainer was that he received from Westpac.



It is my view that the aim of the Chief justice of receiving a retainer at $1,000 per annum indicates that he is endeavouring to downplay the import of this important fact of profile. The Chief Justice knows full well that his Westpac retainer was likely to be substantial. Most people would suggest that the aim of the Chief Justice is to deceive members of the Queensland Legislature and their constituents.

Chief Justice de Jersey's then fellow member of the Supreme Court bench, Angelo Vasta, informed his client of the day, Colin John Donkin, that "De Jersey, when he was a barrister was paid $50,000.00 a year just as a retainer by Westpac". The Statutory Declaration sworn at Rockhampton on the 17 May 2003 refers.

The personal notes of Lionel Potts, since deceased, indicate that he had a conversation with former Supreme Court Judge, Angelo Vasta, and Vasta informed Potts that De Jersey was in receipt of a retainer from Westpac amounting to $50,000.00 per annum.

It needs to be pointed out that Paul de Jersey was appointed a QC in 1981; he was the youngest appointed QC in Queensland at the time and there was no way that Westpac would be offering Queensland’s star counsel the paltry sum of $1,000.00 per annum.

The Chief Justice then proceeds to say that he has never considered that the brief circumstance of receiving a retainer from Westpac did not warrant him to stand down in cases where Westpac was a party to the proceedings before him.

There is one other vital issue here which goes hand in hand with the aspect of receiving a retainer from Westpac and that is that de Jersey has been representing Westpac as both junior and senior counsel in litigation since the late 1970’s. The fact is that de Jersey has a clear duty to disclose this relationship in my view.

Page 5: The final issue the Chief Justice deals with is the contents of the affidavit of John Justin Doneley:

I will simply relate the three issues to which the Chief Justice feels the need to respond to.

The Chief Justice felt the need to respond to his relationship with AJH Morris QC where JJ Doneley believed out of court arrangements had been agreed upon by the two parties. De Jersey also referred to his letter addressed to Morris dated 14 December 1998 and pointed out that he did not know how the letter came into the possession of Mr Doneley.

The Chief Justice concluded by rejecting all allegations of impropriety made in JJ Doneley's affidavit.

The Chief justice then closed off his communication to Minister Lavarch by informing here that my allegations are "baseless and scurrilous".

I will let the fair minded lay observer decide on this score. However I consider that serious matters have been raised with respect to the judicial process involving the Chief Justice and that these matters should be subject to an independent investigation.



Chapter 3: Conclusion



I would suggest that this report raises some very serious issues which would be a concern not only to members of the legal profession, including the judiciary – it would also be a major concern to the public at large. If they were a victim of banking malpractice, then their chances of seeking rightful compensation are nigh on impossible through the judicial system, particularly through the Supreme Court of Queensland.

Although I have emphasised case histories involving the National Australia Bank, I do not think that there would be a marked difference if a previous bank employee of similar status as myself, or more senior of course, was in a position to examine case histories of litigants involving his own former employer.

What worries me is that the judiciary seems to go out of way to believe bank officers and the bank's legal team just about every step of the way. Then, if it becomes reasonably apparent in appeal, the judiciary will prefer to protect its own number. Consequently, the bank's victim of malpractice, be it a "sting" operation or otherwise, will never win.

The reader will have realised that I have alleged that members of the Doneley Family, Sante and Rita Troiani, Anita Bernstrom, Lynton NC Freeman and Alan W and Wilma H McMinn are the victims of an NAB "sting" operation.

I would like to set out my definition of a "sting" operation so that there is clarity in the description:

A sting operation in the general sense means that a bank will engage in a deceptive lending process whereby the victim will fail in his endeavours; it is a clear entrapment exercise. The bank has the tools at their disposal to ensure that their clandestine aims will succeed. This will mean that security given to the bank will be lost in due course, with resulting impecuniosity being the norm. The bank has the ultimate tool of instituting bankruptcy proceedings against their victim. The bank will always have a hidden agenda for instigating a sting operation which is of varied circumstances. The bank may employ the assistance of outside co-conspirators to achieve their aims in the operation.

The National Australia Bank knows full well that if litigation eventuates in due course, then the legal profession at its highest level, i.e. the judiciary, will come to their aid.

By virtue of the bank's status in society, no one is immune from a bank "sting" operation; they have the ability to exploit anyone.

A bank "sting" operation is "white collar crime" and it is also "economic crime". My consultancy experience over the past twenty years indicates to me that the National Australia Bank is a masterful exponent; it certainly demonstrates this capacity when it comes to instigating a "sting" operation."

Bank foreclosures and "sting" operations usually have unfortunate and harsh consequences, and one of the most common is that they render their victims impecunious. This means that the victims cannot mount a defence with a competent legal team. A predominant number of bank victims are the owners of a small business operation which is their sole means of livelihood, and of course the bank's predatory tactics terminates their cash flow. That is the general state of play.

It transpires that after being involved investigating case histories of bank malpractice victims, I raised a twenty nine page letter addressed to the Honourable Paul de Jersey AC Chief justice of Queensland under the date of 15 August 2002, setting out my banking experience and knowledge gleaned since retirement and listed thirteen recommendations for his consideration.

My third recommendation to the Chief justice was that in all bank litigation, the court should appoint a bank officer of middle management status or above as 'consultant assisting' as a neutral witness to assist His Honour in his deliberations. In that way the 'consultant assisting' would have been able to inform their Honours as to how the NAB proceeded to dealing with the Commercial Bill Facility at $7,450,000.00 approved on behalf of Wide Bay Brickworks Pty Ltd. The NAB would not then have been able to have their deceit of process go undetected.

In all other case histories I have mentioned in this report, I believe that if a 'consultant assisting' had been employed, then a very different picture and outcome would have eventuated.

With respect to this matter, the Postscript to my letter to The Honourable Paul de Jersey AC, dated 15 August 2002, was as follows:

“Firstly I would like to reiterate my Recommendation (c) which relates to "consultant assisting" as follows: "The services of a bank officer of middle management status or above should be retained by the court as consultant assisting' for independent assessment purposes. The consultant would have the appropriate authority to have access to all relevant bank manuals (if not discovered) so that he could inform His Honour of relevant procedures. He would be in a position in certain circumstances to determine whether a bank employee was committing perjury, and if he was attempting to deceive the Court. His Honour would have access to specialist banking advice at all times. If this procedure was in place in G65 as per (b) above (Federal Court of Australia, Kabwand/Somerset v NAB), a decision in the bank's favour would never have been handed down. And similarly so with the WK Smith District Court Action No 2598 of 1984 mentioned on pages 19 & 20.”

The Associate to the Chief Justice, the Hon Paul de Jersey AC, Bona Turnbull, responded to my letter of the 22 August 2002 as per her letter dated 4 November 2002, and she advised me as follows:

"I did not intend to convey in my letter of 19 August 2002 that the Chief Justice would make further response to your recommendations. It would not be appropriate for him to do so. In so far as you refer to cases which have come before the Court, he is grateful for your views, but any avenue for challenge in respect with rests of course with the parties, by the appeal process. In so far as you make other observations in relation to the conduct of banking institutions, the Chief Justice simply wished to convey that he had read your material. He does not think it within the purview of his Office that he should pursue the matter in the manner you mention in your letter of 31 October 2002.”

There is one extremely important point which I need to highlight concerning the Chief Justice's Associate’s letter to me dated 4 November 2002 and that is that the Associate's letter was accompanied by the return of my letter dated 15 August 2002, without acknowledgement of the fact.

I thought immediately, what's the cunning plan the Chief justice has in mind here? I notice that my report so returned was subject to many staple holes in the left hand top corner. I mentioned what had transpired here to a few people and the most common response was that ‘he doesn't want this information to be subject to a Freedom of information Application, so he simply decided to get rid of it out of the Supreme Court Law Courts building and that was that.’

The Chief Justice's actions here left me with the ever decreasing degree of trust I had for the judiciary. I notice, by referring to the July 2008 Edition of the Australian Reader’s Digest under the Chapter, Trust 108, that they include a sub-section, Australia's Most Trusted Professions, wherein judges are ranked 20 from a list of 40. Basically it’s a pitiful result in my view. Then again, anyone who has taken the time to study bank litigation for the past twenty years would say that they are lucky to be ranked at the half way mark.

I stated above that the Troiani/Wide Bay Brickworks litigation Queensland in 1999 could be construed as fraud on the taxpayers of Queensland. I would like to add that this particular NAB “sting” operation also represents a fraud on the taxpayers of the Commonwealth.

On the 24 January 2005 1 was speaking to a barrister-at-law who specialised in taxation law. I discussed bank "sting" operations in general, with special emphasis on the National Australia Bank. Given that I had acquired considerable knowledge on the Queensland scene as far as bank "sting" operations were concerned, I was also aware that the National Australia Bank engaged in "sting" operations in other Australian States. These statistics were mentioned to the barrister.

The barrister informed me from what I had told him that the National Australia Bank had adopted "a scheme" whereby people would be defrauded and it could well be construed that the bank had breached the Crimes Act of 1914. I then said to the barrister that if this was the .case, then the bank would not be entitled to a taxation deduction for a Bad Debt Write Off because it would-also be in breach of the Income Tax Assessment Act of 1936. I was then advised that this would be correct.

If this interpretation was applied to the Wide Bay Brickworks Pty Ltd/Sante and Rita Troiani NAB perpetrated "sting" operation, then I would like to refer to the court filed documentation in the NAB's Summary Judgement, No 7759 of 2000 which took place before Chief Justice de Jersey on the 19 March 2001 and we find that a bank-filed document purported to be a mainframe copy of the Mori HKM Roller Kiln leasing contract No 471 879 787 statement; we find that the bank wrote off the sum of $4,774,213.89 on the 18 August 2000.

If we also refer to the count filed documents of Sante and Rita Troiani, we find that they exhibited a bank statement for the No 2 Account No 66 158 5675 being page No 18 with date of issue being 31 March 1999. This statement page was issued out of-the NAB's mainframe computer and was exhibited to the affidavit of Sante Troiani sworn on the 16 March 2001 and filed with leave on the 19 March 2001. This statement page discloses that the NAB wrote off the sum of $2,000,000.00 on the 29 March 1999.

Increased profit derived by the NAB with respect to these write offs is as follows:

29 3

3 8

1999

$2,000,000.00 @ 0.36c

$ 720,000.00.

18

8

2000

$4,774,213.89 @ 0.34c

$1,623,228.00

Total taxation benefit gained illegally

Taxation

benefit gained illegally

$2,323,228.00

There are several reasons why I maintain that Sante Troiani and his wife Rita Troiani should never have been declared bankrupt.

If I apply the same scenario to the Doneley Family case history, who I have previously claimed to be the victims of a NAB "sting" operation, the taxation benefit gained by the NAB is as follows:

Although the NAB lost in the No 2285 of 1995 litigation and were forced to surrender their securities and return the title deeds to AJH Morris QC as trustee for JJ Doneley's two sons, trustee Morris considered that ultimately it was a very favourable result for clients who were apportioned 42.5% of the gross proceeds from the sale of the aggregation, the grazing property known as "Beardie". The NAB receives the lion's share at 57.5% of the gross sale proceeds. "Beardie" was sold for $3.3 million in Dec 1998.

February 1999 NAB receives 57.5% sale proceeds






$1,875,000

(Gross, adjustments not entered)


Taxation benefit as a write off deduction on a


gross debt amounting to $948,084, vide Bad &


Doubtful Debt Return dated 23/9/92


At $0.39c extends to

369,753


$2,244,753

(At 23/9/92 the NAB had already commenced the $2,244,753


Shadow Ledger Record which recorded aggregate


debt at $975,253.20, vide B & DD Return.)


Less legitimate debt write off in the names of

300,000

John Justin Doneley and Anne Therese Doneley


Note: This debt in the joint names was fixed in


June 1989 when all further advances were made in


name of the Doneley Pastoral Co.


(Approx) net profit

$1,944,753

I should mention at this point that AJH Morris QC advised JJ Doneley, in his letter addressed to him dated 29 October 1997, that, "the National Bank has already written off the whole debt, and therefore – in the minds of the Bank's management – any amount recovered for Lot 9 (the leasehold land) will be a bonus."

This is a fantastic achievement for the NAB; they instigated a plot to obtain a financial advantage by deception and it succeeded despite the fact that they lost on all counts in the No 2285 of 1995 litigation. Everyone will wonder: how they can lose and yet win?

I would like to quote what Kerr on the Law of Fraud and Mistake, 7th ed (1952), says at 3. It has been said: "if a transaction has been originally founded on fraud, the original vice will continue to taint it, however long negotiations may continue, or into whatever ramifications it may extend.” It would seem to me that Kerr has been proved wrong when it is applied to the Doneley Family case history.

All issues raised here should be subject of a thorough investigation. The crux of the situation in-this chapter reveals that litigation involving banks conducted out of the Supreme Court of Queensland are denying their victims procedural fairness.

In the matter of transcript manipulation:

In the majority of case histories which have come to my notice during the past twenty years, it has been revealed to me that judges have no qualms about tampering with transcripts. It is no wonder that the status of the judiciary is continually being downgraded in this country. The constant deletion of critical comment by judges and, to a lesser extent, by bank counsel should be a worry to officialdom.

Why does the judiciary continually protect the banking industry? That is a clear and proper question I would suggest. I think that the worrying fact for most readers is the fact there is much tampering and 'doctoring' of transcripts on the watch of the Chief Justice – a very undesirable trend.

Transcript of proceedings processing needs to be subject to a complete overhaul and should be in the hands of a totally independent body. The majority of my knowledge concerning the tampering and 'doctoring' of transcripts proceedings has been acquired since I wrote to the Chief Justice on the 15 August 2002. In that letter I raised the issue of what Justice Muir had told Alan McMinn in his No 5580 of 2001 litigation concerning Justice Muir’s deletion from the transcript of proceedings as follows, "it has been my experience that on the basis of 100 allegations of fraud against banks, 99 have no substance and cannot be sustained.''

I have absolutely no doubt that this statement of Justice Muir represents a charade on his part. I make this claim given the fact that he acted for Johanna Thannhauser v Westpac Banking Corporation, the bank resorting to every underhand act possible to avoid revealing the truth. I had a personal interview with Muir at the time and my recollection is that I made him reasonably aware of my own employer's bag of dirty tricks, but then we can't expect Justice Muir to recall the Thannhauser litigation and my remarks, can we?

At the time that I disclosed the 'doctoring' of the McMinn transcript to the Chief Justice, Alan McMinn had not told me that both he and his wife appeared before the Chief Justice on the 30 November 2001. No wonder the Chief Justice decided to return my original letter addressed to the Chief justice on the 15 August 2002.

The Question of the Chief justice; Paul de Jersey’s National Australia Bank affiliation:

I admit that my precedence reading material has been limited when it comes to assessing and determining what can and should not be done when it comes to the question of whether a judge should preside over litigation where his personal bankers are a party to the litigation before him.

I have relied principally upon the two High Court of Australia decisions of Ebner v Official Trustee in

V

Bankruptcy (2000) HCA 63; 205 CIR 337; 176 TLR 644; 75 ALJR 277 (7 December 2000) and Clenae Pty Ltd & Ors & and Australia and New Zealand Bank Limited, M2/2000, 7 December 2000, and the Supreme Court of South Australia decision in Southern Equities Corp Ltd & Ors v Bond & Ors No SCGRG-96-113 (2000) SASC 450 (20 December 2000).

I also have referred to Guide To Judicial Conduct (second Edition) as published by the Australian Institute of Judicial Administration Incorporated and Michael Wheelahan SC publication of 14 September 2005 titled Bias. As Wheelahan SC states under sub-heading B Apprehended Bias General Principles, "In most cases, it will be unnecessary to allege actual bias of the Court or Tribunal. Actual bias is difficult to prove;"

I would like to stress that I am not alleging that the Chief Justice Paul de Jersey has engaged in actual bias – that is for others to decide on a full investigation of the facts. What cannot be disputed is the fact that the Chief Justice has a clear predilection of presiding over litigation involving his personal bankers, the National Australia Bank.

Although it is beyond my capacity to carry out thorough research concerning other judges on the Supreme Court of Queensland bench, I don't think that a comparative situation could be found if one was able to carry out that appropriate research.

This report indicates the undeniable fact that justice and Chief Justice Paul de Jersey has presided over nine individual instances of litigation where the National Australia Bank is a party directly or indirectly to the proceedings wherein he is required to make decisions.

Firstly the Chief Justice's involvement with the National Australia Bank needs to be more fully investigated and then explanations can be sought. As I have previously indicated, text books and precedent do not accommodate the situation which we are confronted with here – it is totally new ground.

I should mention that when I was writing my book, The Untouchable Banks, during the 2004 to 2006 period, I attempted on many occasions to ascertain from Supreme Court Registry personnel how the Chief Justice was able to preside over hearings and applications, etc., which involved the National Australia Bank. In all instances of contact I was given very short shrift. At one stage I managed to speak to a deputy registrar, however could not advance very far with him. As I perceive the situation, the Chief Justice is in command of the Supreme Court of Queensland Complex and whatever he says goes.

I have already indicated in Chapter 1 above that it was theoretically possible for a person to achieve a capital gain of $10,187,402.00 over a ten year period if he purchased a dwelling house property in Hamilton, suburb of Brisbane by borrowing the full contract purchase price by borrowing from the NAB on an interest only basis.

The solution is quite clear in my view: a pecuniary Interest Register must be introduced and be available to a litigant where a financial institution is a party to the proceedings. This Pecuniary Interest Register would contain information concerning all assets of a judge, including his superannuation arrangements and also disclose assets of all direct family members. In that way, a litigant can decide in due course whether he wants a judge from presiding over litigation which he is involved in.

Judge Shopping:

Judge Shopping” to my mind is a cunning stratagem. This highly discreditable practice is aimed at attempting to gain an advantage for a client in the litigation process.

The perpetrators are varied – they can be banks, they can be people of high status in the community, they may have governmental power; however they are predominantly members of the legal profession, which includes the judiciary.

Judge Shopping” can occur at a trial or appeal level. I lean to the view that it is far more common than one might think. It would generally be difficult for a victimised litigant of this practice to detect that there had been anything untoward taking place in his litigation process.

The reason why detection is difficult is because of the highly incestuous nature of the legal profession. My consultancy experience indicates that not only can members of the legal profession engineer to have certain judges preside; they can also engineer the removal of a judge, be it at the hearing stage or during directions, the latter being most likely.

Chief Justice Paul de Jersey has claimed that my allegation that the 1991 Westpac Banking Corporation/Potts Supreme Court, Full Court Appeal, “is baseless”, refer Exhibit “JAS2”, page 4, (e). The Chief Justice is entitled to his opinion; however I am of the view, given all the facts known to me, that this Full Court hearing was representative of a “judge shopping” exercise.

From all information made available to me since that time, I am totally convinced that the “judge shopping” exercise has continued in that jurisdiction. An appropriate investigation would reveal that “judge shopping” has and is taking place in the Supreme Court jurisdiction in other Australian states.

Should judges of the Supreme Court of Queensland – or any other judges for that matter – preside over litigation involving a bank which they have represented as counsel before being elevated to the bench and may have been in receipt of a retainer from that bank?:

The classic case under this heading can be found in the Supreme Court of Queensland full court where Westpac Banking Corporation was the Appellant and Lionel James Potts and his wife, Davina Lucy Potts, were the Respondents, recited as No 657 of 1988. In this Appeal hearing, Justice de Jersey was part of the appeal bench panel where fellow judges were the Chief Justice Macrossan and Justice Dowsett. The hearing took place over four days in November 1991.

Justice de Jersey acknowledged in his letter dated 23 March 2006 that he was in receipt of a retainer from Westpac Banking Corporation prior to his elevation to the bench of the Supreme Court of Queensland in February 1985, Exhibit marked "JAS2", page 5, para 4 refers.

Justice de Jersey did not disclose that he had previously been in receipt of a retainer from Westpac to those present in the court room, which included Lionel Potts who took copious notes throughout the hearing.

All fair minded lay observers cognisant of the facts here would object. The fact of no disclosure is very worrying in my view, especially so when Chief justice de Jersey stated, refer Exhibit “JAS2”, that "from memory the fee was $1000.00 per annum" when information revealed to indicates that it was more likely to be $50,000.00 per annum.

I should also point out that in my letter to Chief Justice de Jersey dated 15 August 2002, my recommendation to the Chief Justice under (m) in part stated, "It would be my recommendation that Justice Chesterman should not hear matters with respect to Westpac Banking Corporation for obvious reasons." This recommendation automatically illustrates my thinking in this matter – a judge should definitely not preside over litigation involving a bank when he has previously represented that bank as counsel.

Chief Justice de Jersey simply wiped my recommendation under the carpet because Justice Chesterman presided over litigation involving Colin John Donkin, Plaintiff v The Official Trustee in Bankruptcy & Ors (2003), 5251 of 2002. Colin John Donkin and Another were involved in litigation where AGC (Advances) Limited, a wholly owned subsidiary of the Westpac Banking Corporation, was the Respondent, recited as federal Court of Australia, No QG 107 of 1989.

The No 5251 of 2003 litigation presided over by Justice Chesterman on 23 October 2003 makes mention in his judgement of AGC (Advances) Limited in his introductory Clause 1. One would expect Justice Chesterman to be fully aware that AGC (Advances) Pty Ltd was a wholly owned subsidiary of Westpac Banking Corporation. Leaving aside the general knowledge factor, I should point out that Chesterman as senior counsel represented Westpac Banking Corporation in all the bank's foreign currency loan litigation from 1991 to 1997 prior to his elevation to the bench of the Supreme Court of Queensland in March 1998.

It transpires that the legal representatives of AGC (Advances) limited briefed Chesterman QC as senior counsel in the QG 107 of 1989 litigation – the Company solicitor's letter addressed to Colin John Donkin's solicitor dated 28 February 1990 so confirms. It is Mr Donkin's contention that Justice Chesterman should have disqualified himself from his October 2003 Queensland Supreme Court hearing on the grounds that he may not bring an impartial mind to the resolution that he is required to decide.

I completely agree with Mr Donkin's conclusions here. However one additional disturbing issue for me is the consideration of whether the Chief Justice may have had a hand in the selection of Justice Chesterman to preside over this hearing. This is a reasonable concern considering the contents of this report to date. Chief justice de Jersey is the supervising director of the Supreme Courts, Law Courts Complex.

It is also reasonable to assume that Mr Chesterman, at some stage prior to his elevation to the bench of the Supreme Court of Queensland, was being paid a retainer by Westpac Banking Corporation in exactly the same manner as de Jersey was.

Could it be said that the acknowledged friendship factor which exists between the Chief Justice, Paul de Jersey, and Anthony JH Morris QC has tainted judicial process?:

Note: Chief Justice Paul de Jersey confirms friendship factor with Anthony JH Morris QC his letter addressed to the Hon Linda Lavarch, Minister for Justice and Attorney General dated 23 March 2006, reference page 5, Para No 3 wherein he states, “and friendly acquaintances”. Exhibit “JAS2” confirms.

The friendship factor is confirmed in earlier correspondence raised by the Chief Justice Paul de Jersey dated 14 December 1998 and addressed to AJH Morris, Esq. QC. There is an established connection between these two legal people, as noted above.

Both Paul de Jersey and Anthony JH Morris attended the Church of England Grammar School in Brisbane, so the "old school tie" comes into play. We have already seen how "touchy" Chief Justice Paul de Jersey is about the situation when he states in address, No 2285 of 1995, "Where I went to school is of not the remotest relevance to the issues here or my treatment of the trial." The Chief Justice is referring to the nine page letter signed off by JJ Doneley and addressed to him dated 3 July 1997 wherein Doneley stated, "you went to Churchie" (Church of England Grammar School).

The application of the "old school tie" is practically a day to day occurrence which is evidenced by the article titled, "old School Ties" as published in The Australian Business Magazine, March 2009, Volume 2, No 2. Chief Justice de Jersey cannot escape the fact that the "old school tie" factor is alive and well in the legal profession.

There are two incidents which I have mentioned in this report which I stall reiterate for the reader's benefit and he can decide whether the "old school tie" is involved or does it indicate the incestuous nature of the legal profession.

Mr McMurdo QC accepts the Sante and Rita Troiani brief from the Troianis' instructing solicitors and then within twenty four hours withdraws on the grounds of a previous engagement. This took place ten days prior to the NAB's Summary Judgement hearing which took place on 19 March 2001. I find the McMurdo claim implausible. I would suggest that Mr McMurdo QC has later discussed his newly acquired brief with his wife, Margaret McMurdo, who had been president of the Court of Appeal since 30 July 1998.

Margaret McMurdo undoubtedly warned her husband of certain ramifications of this brief which would have involved the Chief Justice de Jersey and National Australia Bank association and so McMurdo QC immediately withdraws. However in doing so, he apparently recommends AJH Morris QC to replace him.

Public Interest:

I strongly maintain that this report is in the public interest and that the public have a right to know the truth about what is happening in our courts, particularly our superior courts in Australia. I believe that it is difficult for a lay person to gain accurate information about court processes, as there seems to me a clear reluctance to release information.

Admittedly, Chief Justice Paul de Jersey figures prominently in this report; however this has been brought about by the Chief justice himself because he has elected to preside over much litigation where his personal bankers, the National Australia Bank are a party to the proceedings. It would seem to me that this is a rare situation.

However, I hold to the view that Chief justice de Jersey has invited my informed criticism. This is revealed to me by referring to the Chief Justice's published comments in the Courier Mail on 5 November 2006 – note the Chief justice's tabled letter in the Queensland Legislative Assembly on 30 March 2006, and I quote, "Informed criticism of judge's decisions was important and he wanted more people to attend courts to judge for themselves whether their sentences were fair.”

If we go back to October 18, 2006, we find that the Courier Mail has published Paul de Jersey's own article titled, "Judges welcome informed debate". Paul de Jersey's third paragraph is as follows, '"Constructive comment is important. Among other things, it can lead to a better appreciation of community expectations, which may then in turn inform the sentencing process.''

It is acknowledged that Paul de Jersey's comments relate to criminal court proceedings; however I contend that they also apply to civil jurisdiction.

On the question of judicial criticism, I am reminded of remarks of Margaret Marshall, Chief justice of the Massachusetts Supreme Judicial Court in Boston: "It is my view that Commonwealth (including Australian and Canadian) courts can and should tolerate a great deal more criticism of judges and the judiciary, even when a case is pending, then is presently permitted." These remarks of Margaret Marshall can be found in The Australian's published articled titled, Freedom of speech 'a must', on judges on the 21 August 2002.

Two days later, on Friday 23 August 2062, The Australian titled their Editorial of the day, "Criticism is good for judicial conduct".

The Honourable Paul de jersey AC, Chief Justice, has delivered many speeches since his elevation to his current position in February 1998, 1 would now like to inform the reader of some of his pertinent comment as contained in those reports.

In the Chief justice's speech delivered to the Queensland Young Lawyers' Seminar on the.26 September 2002, he made the following remark, "Understanding the legal aspects of complex financing these days, for example, seems to require mathematical acuity. How to succeed?''

There can be no doubt that the Chief Justice's comment here is correct; however did he apply that acuity to the NAB's v Sante & Rita Troiani Summary Judgement proceedings, I ask? Did he also apply that acuity in the Bernstrom v NAB litigation?

Chief Justice Paul de Jersey delivered a speech to Opening of the Law Year 2003: Alice Springs, on the 5 February 2003 at Alice Springs. The Chief Justice said, "Ours is a grand profession.”

The Chief Justice is trying to tell and convince all and sundry that the legal profession is magnificent, it is top draw, it is beyond reproach. That surely is the legal joke of the century. One only has to refer back to my quoted Reader's Digest, July. 2008 issue with reference to the ‘Who do we Trust?’ segment and we find that the 'judges' are ranked 20 out of a list of 40. It is certainly not a ranking that would take one into the 'grand arena'. The half way ranking speaks for itself – the legal profession have a long way to go to attain 'grand' status.

Chief Justice Paul de Jersey informed the Institution of Engineers 2003 Breakfast Series on 5 March 2003 in his speech titled, "Times Change: The Professions Endure" that, "That places us in a privileged position in society …". There is absolutely no doubt that they are in a privileged position; however the fair minded lay observer would question their entitlement to be there. How the judiciary can preserve its independence when all their members come from the legal profession, I don't know.

The Hon P de Jersey AC, Chief Justice, delivered a speech to the Bar Practice Course final lecture titled, "The 'fit and proper' criterion: indefinable, but fundamental" and saw fit to reiterate an extract from the High Court judgement of Clyne v The New South Wales Bar Association (1960) 104 CLR 186, 198-201 which stated, "A barrister does not lie to a judge who relies on him for information."

My twenty years experience of being involved in bank litigation in some way indicates that if a barrister was not a capable liar and bent the truth whenever it suited himself and his clients, he would discharge himself from ever being elected to the bench.

The personal effect of bank perpetrated "sting'' operations on their victims:

This report would not be complete without a mention of the trauma experienced by victims and members of their families. The emotional and long term effect is incalculable. The numerous case histories which have been brought to my attention over the past twenty years usually indicate that the victims are aged in their fifties. They have all accumulated wealth through hard work in their lifetime and it is too late to initiate a restart at that stage in their life; they then become recipients of the aged pension and dependent on the taxpayer for a livelihood.

Their lives have been shattered by bank employees and sometimes those employees’ co-conspirators through their acts of treachery. Some consider suicide while admittance to a hospital for related stress is not unknown. What has happened and what should have happened never leaves them. It is not possible to wipe out those tragic events which have resulted in impecuniosity from one's mind.

It is interesting to note that in Sydney solicitor's February 2009 Newsletter, their feature article deals with, "Is your bank making you ill?" It certainly can, in more ways than one.

Recommendations:

(1) The State Government of Queensland should institute a full inquiry into Supreme Court of Queensland litigation where banks are participants. The emphasis of course should be on the four major banks.

This inquiry would incorporate a statistical examination of Supreme Courts records since computerisation of all processes (in the early 1990s).

The aim of the exercise is to ascertain whether there is any evidence which may indicate that one or more particular judges was/were listed with unusual emphasis when compared with fellow court members.

(2) A further investigation on the lines of (1) above should be conducted which would apply specifically to the Chief Justice Paul de Jersey commencing from the time that Supreme Court records were computerised.

(3) The inquiry would have a need to investigate whether the Chief Justice was able to nominate the litigation on which he would preside.

(4) The Inquiry would have a need to investigate on how many occasions Anthony JH Morris QC has acted as counsel where his client's opponent was the National Australia Bank over the past twenty years.

(5) The Inquiry would have a need to investigate on how many occasions Anthony JH Morris QC was representing clients as per (4) above and at the same time was representing the National Australia Bank as counsel. It may be necessary to also search the District Court of Queensland in this respect.

(6) The inquiry would have a need to investigate whether there was any perverse association between Anthony JH Morris QC and a member judge on the Supreme Court of Queensland bench.

(7) The Inquiry would delve into the matter of whether a decision handed down by a judge or judges on the Supreme Court bench has been contrived and involves the National Australia Bank as a litigant. In other words could a favourable decision have been pre-arranged.

(8) A bank's ability to file for Summary Judgement should be terminated. This means that a victim of a bank "sting" operation could never be subject to bankruptcy proceedings without having his day in court at the outset of the action.

At this initial hearing, the bank's victim would have access to the bank's discovered documents as appropriate.

(9) In all bank litigation, the court, through the judge so selected to preside, would need to obtain the services of an expert witness who had a banking background of the prescribed appropriate standard.

The judge would have access to a panel of banking experts who were on standby for the purpose and had previously been selected by a panel of three, where only one member would have a legal background.

It should not be necessary to have a panel for each jurisdiction.

(10) All jurisdictions would be required to hold a "Public Register" wherein all pecuniary interest details would be recorded for each judge and all direct members of his family.

(A 'public register' is referred to in Ebner v official Trustee in Bankruptcy (2000) HCA 63; 205 CLR 337, 176 ALR 6, Clause 171 refers.

and

Clenae Pty Ltd & Ors v Australia and New Zealand Bank Limited, No M2 of 2000, decision handed down 7 December 2000, Clause 54 refers.)

The "Public" Register would be held in the custody of the court registrar and would be made available for a litigant and his legal advisors once the judge presiding to be was named. This "Public" Register would disclose all banking account/s current conduct arrangements.

(11) Bearing in mind the contents of recommendation (10) it would follow that a judge would not be selected to preside over a hearing where a bank that was named as a party to the proceedings was recorded in the Register as the judge's principal banker.

(



This recommendation would have precluded the Chief Justice Paul de Jersey from residing over the numerous hearings involving his personal bankers, the National Australia Bank.)

(12) No judge should be permitted to tamper or "doctor" transcripts of proceedings. At all times, prior to the commencement of any hearing, it will be the judge's responsibility that all procedures are in place for the transcript of proceedings.

The unusual happenings which were subsequently revealed concerning transcript of proceedings on the Chief Justice's watch should not be tolerated. Justice Muir's remarks concerning the omission of his remarks relating fraud involving banks should also not be tolerated.

(13) The authorised expert witness as proposed in recommendation (9) would be required to examine all the bank's discovered documents with a view to ensure that no documents had been withheld. Discovery would include all bank manuals as appropriate.

(14) Special attention would need to be given to ensure that a bank's demand or default debt stated to be due would need to be supported by exhibited documentation – bank statements, etc.

These bank statements would clearly need to be identified to determine whether they were issued in the normal course of business through the bank's mainframe computer or whether they were Shadow Ledger statements.

It would also be necessary that where a bank raised a Certificate of Indebtedness, it should be subject to the appropriate exhibits to demonstrate how the amount said to be due was arrived at.

(15) It is of paramount importance that a bank discover all Realisation Accounts which are opened at a bank's discretion. As it presently stands the process is such that the courts will not permit these records to be discovered. The process, as it stands, enables a bank to engage in deceptive process which will go undetected. A bank may open more than one realisation account if it chooses to do so.

(16) If a bank decides to commence a Shadow Ledger record without issuing demand, default notices etc within thirty days of commencement, then the bank must advise their debtor or guarantor/s that they have done so. The bank should hold an acknowledged record that this has been done.

This means that the Wide Bay Brickworks Pty Ltd situation could not eventuate in the future. In the Wide Bay Brickworks Pty Ltd situation, the NAB commenced the Shadow Ledger record in February 1996 and the Managing Director and majority shareholder with his wife did not become aware of this until I informed them sometime in 2005.

(17) Once litigation commences and the parties are before the court, His Honour should not recommend that the parties proceed to mediation unless specialised circumstances are involved and that the discovery process has been finalised well before the mediation commences. The bank's victim must have sufficient time to examine the bank's discovered documents. This is in an endeavour to stamp out "dirty tricks".

(18) A judge must disclose in the “Public” Register details of all retainers he received prior to his elevation to the bench and should never be selected to preside over a hearing where a party to the litigation has paid His Honour certain monies by way of a retainer.

(19) The sale of a debtor's or third party guarantor's assets is a perennial problem and virtually raises its ugly head in virtually all case histories. The banks have the situation "stitched" up because standard precedent says that the Receiver and Manager appointed is the agent of the mortgagor and not the bank. At the same time what is not readily known is that it is normalised practice for the bank to indemnify the Receiver and Manager so appointed against any action which may be taken against him in the administration of his receivership.

This whole situation was alluded to in Justice Spender's judgement delivered on 12 March 2002 where the parties were, National Australia Bank v Freeman (2002) FCA 244; 12 March 2002. Justice Spender stated, "The unreality of the situation is a matter which has troubled me on a number of occasions".

My experience is that generally the sale of borrower assets under value enables the bank to gross up the debt owing to ensure that bankruptcy proceedings can be instigated if need be.

I find that the judiciary's continuance to hide behind this judge made rule to be totally unrealistic. I would describe Justice Spender's decision in the Freeman case as spineless.

There has to be a fair set of procedures laid down which would entail the bank's victim to be entitled to raise a valuation from an independent registered valuer. A bank could not sell the subject property if it was outside, say, a ten per cent difference unless he went to court and sought ratification. As the system stands at the moment, the latitude is clearly unconscionable in my view.

(20) The question of bad debt write off by a bank and thereby gaining a taxation deduction (involving the victim of a bank “sting” operation) needs to be investigated with the view of whether the write off is illegitimate from the Australian Taxation Office applied law. Does the deduction breach the Crimes Act 1914? If the answer is in the affirmative, then it must also be a breach of the Income Tax Assessment Act 1936 (as subsequently amended).

(21) I refer to Exhibit "JAS1" herewith both generally and in particular the 'Conclusion' appearing on pages 39 & 40.

The Shadow Ledger process as applied by banks, in particular the National Australia Bank, needs to be subject to a full investigation as to its legality and a court's readiness to accept the system which its members apparently do not fully understand.

The two shadow ledger processes instigated by the NAB with respect to the Doneley Family case history and the Sante and Rita Troiani case history are ones of total contrast and should be subject to detailed examination.

In the Doneley Family case history the Shadow Ledger is held to be current for six years after the NAB issued Formal Demand with the final outstanding balance said to be legitimate – it is a paperless entry. In my view this is not a legitimate Bad Debt Recovery.

In the Troiani case history we find that the NAB commences the Shadow ledger procedure in February 1996 and does not issue their Formal Demand until August 1999, some forty two months later. During this time the NAB is conducting a dual accounting system and concealing that Shadow Ledger system from Sante Troiani, Managing Director of Wide Bay Brickworks Pty Ltd. This is financial thuggery of unlimited dimension I would suggest.

The foregoing clearly indicates why a thorough investigation is needed.

(22) The elected inquiry members should investigate why Chief Justice Paul de Jersey elects to delete his oath of office which he swore to on the 17 February 1998.

What is his reason for so doing, and have any other members of the Queensland Supreme Court contrived a similar practice?

I commend the foregoing recommendations for your consideration and conclude by reproducing a paragraph comment of Dr. Evan Jones, Political Economy, University of Sydney, in his submission to the Senate Standing Committee on Economics (Inquiry into the Provisions of the Trade Practices Legislation Amendment Bill (No.1) 2007), dated 9 July 2007, as follows:

"In the meantime, bank malpractice corrupts not merely bank culture. Bank malpractice potentially corrupts bank staff, the legal system, the judiciary, the magistrature, receivers and managers, valuers, real estate agents, the Insolvency Trustee, the Tax Office, the various police forces, Members of Parliament and governments.''







Signed

John A SALMON

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