Martin & Anor v Commonwealth Bank of Australia S213/2000 [2001] HCATrans 619 (23 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S213 of 2000

B e t w e e n -

FREDERICK EDWIN MARTIN and LORRAINE BEVERLEY MARTIN

Applicants

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 2.41 PM

Copyright in the High Court of Australia

MR F.E. MARTIN and MRS L.B. MARTIN appeared in person.

MR T.M. THAWLEY: If the Court pleases, I appear for the respondent. (instructed by L.E. Taylor Solicitor)

MR MARTIN: My wife had polio as a little girl, and she has been disabled - - -

KIRBY J: Yes, I read of that. Now, you are the applicant, and do you realise that you have 20 minutes to persuade the Court - - -

MR MARTIN: Yes.

KIRBY J: We have received the documentation and we have read that. So you do not have to go over the material that is already in the documents. This is your chance to say anything that you want to say to the Court orally.

MR MARTIN: Have you accepted these - - -

KIRBY J: Yes, we have received some additional materials.

MR MARTIN: The thing is there are factors in the law which, I believe, support our case that was not taken into consideration originally because I am only a layman and no legal aid. I appear under forced circumstances in that the finances have limited me - the Bank originally took all our money from our road accident in high interest, when the interest went through the roof, and we have not been able to defend ourselves in this respect, through lack of finance.

The other thing is that come to my notice too is that it is possible to have a jury if the Court allows it. I believe that for the absolute justice in the nation and that, that if I am privileged or allowed to, to ask the Court for an informed jury to judge this case. Now I do not know what the law is. I have listened to the - - -

CALLINAN J: Mr Martin, I think you might have been in the courtroom this morning when Mr Wilson made his application.

MR MARTIN: Yes.

KIRBY J: You might have heard what Justice McHugh said about there being - - -

MR MARTIN: An absolute ruling that you can having a jury - - -

KIRBY J: No. Well, no absolute entitlement to a jury. Do you remember that?

MR MARTIN: Yes, but by the same token, I understand though that if the Court decides in an instance that they could make it as they so wished, because they have got the power.

CALLINAN J: The usual practice, Mr Martin, is for a person to apply, if he or she wants a jury and then if the other side does not want it, to make an application for the jury to be dispensed with, but there has to be an application made at the right time before there can be a jury. In some cases you cannot have a jury anyway.

MR MARTIN: In this we are totally ignorant. We thought that we go before two Judges and then, if we are fortunate enough to pass that issue, we go on to Canberra before seven Judges. Therefore, this opportunity I would say did not occur to us until we - - -

CALLINAN J: Are you suggesting that you would like this application before us heard by a jury, is that what you - - -

MR MARTIN: Yes, but - - -

CALLINAN J: There is no power for that, because the application here is governed by an Act of Commonwealth Parliament made within power, and there is simply no provision at all for a jury in this sort of application, Mr Martin.

MR MARTIN: This is partly - with the family here, because my wife gets upset if I have not taken any opportunity that may have been there.

CALLINAN J: Yes, I am just explaining to you - - -

MR MARTIN: And I appreciate that, your Honour. I wanted to get that clear so that my wife knows for sure.

CALLINAN J: The Judiciary Act 1974 , under which this application is made, does not have any provision - does not admit of a jury.

MR MARTIN: The other thing is of course, my wife has got experience in all this and she has written out, with my help - she has asked different questions, like we would have to ascertain the absolute truth of these matters. She has got some pages here, and I would like her to read them out. Is there a microphone that she can - - -

KIRBY J: Yes. Your wife can remain seated if that is easier for her.

MR MARTIN: Yes.

KIRBY J: Would she like a glass of water?

MR MARTIN: Yes, I will get that. Also, will she be able to speak loud enough for the - - -

KIRBY J: I think so. If we cannot hear her we will say so.

MR MARTIN: Thank you, your Honour, I appreciate that. I hope to speak after, but if I take up all the time of this - - -

KIRBY J: That is all right.

MRS MARTIN: It is 18 years since Fred had his road accident, but the biggest accident we consider is what happened in the Commonwealth Bank late in 1984. Went there to pick up child endowment, a lousy $12. Only for that, we would not have gone near the Commonwealth Bank. My husband banked with the ANZ Bank. Was in terrific pain, too restless to sit in the car, so Fred came to meet me in the Bank. Because the manager of the Commonwealth Bank, we understand, was overseas at that time. We were told by the manager's secretary that there was a special officer, who we cannot name, but Judge Sperling acknowledged that such a very important officer did exist.

And advised us that we could get a loan on my husband's road accident. He said, "Go and see the chief loans officers of this Bank, and say the acting manager has sent you". This grabbed my attention, and I immediately acted on it. I was onto my husband all the time. The landlord wanted to sell the place we were renting, as soon as it was finished being renovated at 624 Chapple Lane, Broken Hill. Unfortunately, having the appearance of looking like new but denying the power and quality thereof. Unbeknownst to us, it had a demolition order on it, because they could not demolish while we were living in it.

No one came from the Commonwealth Bank to see what they had given a loan on, or what they intended giving a loan on. Since we got married I have always managed the family income: running the house, paying the bills, buying groceries et cetera et cetera, and balancing the family budget; being married 10 and a half years, with money being paid every Tuesday with the New South Wales Electricity Commission, Broken Hill branch. Then, unfortunately, my husband had the road accident, 7 June 1983. From then on life became hell. We were only on social security. When the Bank loan was approved, and they knew we had the road accident, we were only on low money. We had to wait six and a half years for the case to go into court. It was a bad thing getting that loan. Running a whole house, running a car. I need a car to get around, having had polio as a small girl. Educating and clothing two small children, and a Bank loan to repay. Money would not stretch.

When the court case was finalised in the latter half of 1989, the interest was still going on. We did not get a cent out of our court case, and we were still left owing the Commonwealth Bank $15,000 which they would not let us out of, still accumulating interest, and they expected us to pay large amounts out of our social security which we could not do. We had to do something; by taking legal action. That is why we are here now. We make no apologies to the Commonwealth Bank. It is terrible that we are still involved, after 18 years. I should know, I have lived through it. Is there no justice in the world?

MR MARTIN: You have heard first hand from my wife, of the terrible experience. I only wish there was a legal care card, because when I wanted to have a solicitor represent me, my wife said that we just cannot afford it. "Our children need shoes and clothing" and when they did not have it they sent the children home. On the very time we went into the actual accident court, the New South Wales Supreme Court, those children had been sent home from the headmaster, or the one in charge anyway, the assistant headmaster. They were not allowed to come back to school until they had a decent pair of shoes on, and I asked the wife, "What are they doing today? We've been waiting three weeks to go into this court" and she said after the court, when she has got the time, "and it's payday today, it's pension day. I've got to buy the clothing that the school requires and they'll go back to school." They were hanging around the Local Court amongst people that we knew used drugs and other things, and I said, "We better get them up in the back of the court and have them there so we can keep an eye on them."

After a while my barrister around and saw them up the back of the court, and he very angrily marched out with his solicitor and took my wife and children and said, "Take them home. They are not allowed to sit in the back of the court. You are not going to try and encourage favour or some kind of sympathy from the judge". I felt there on the spot I wanted to say, "I'm not going to have you as a barrister any more. I've had it. I'm going." But I had been waiting three weeks with tremendous pain, and the pain was still persistent at that time. That did not know how to manage pain in those days. I tell you to sit in those corridors for three weeks just waiting for a court case of a road accident to come up, was hell in itself, let alone having to put up with the financial side of the family being disrupted.

KIRBY J: All of these are reasons why you are in a very hard way. I understand that. If I could legally help you I would do so. You see, you are seeking leave to appeal to this Court. It requires special leave because this is the highest Court. We can only do what we can do in a number of cases. In your way stands a decision by Justice Sperling, who said that he found that your evidence, "was transparently contrived." That was the impression which the trial judge made. The principles of law restrain appellate courts from disturbing decisions which are based on such findings, because we do not see the witnesses. So that is the problem in this Court or any other appellate court becoming involved in your case.

MR MARTIN: The other thing is that the Bank gave us this loan on the never-never, and at the end of - we received a loan from the workers' compensation signing that we have paid it back, when it was heard in court that the GIO paid because you are only allowed to accept one insurance pay-out, from one company or source.

Now, at the end of that time we were going straight on social security. I told the loans officer, Michael Conrad, the facts. In court he swore on oath, and answered, that he actually juggled the figures to make it look and deceive the actual Bank - - -

KIRBY J: These are points that you put to Justice Sperling, or were put on your behalf.

MR MARTIN: Yes.

KIRBY J: He believed the bank and disbelieved you. He said your evidence was contrived, made up. Now, I cannot put myself in the position of Justice Sperling because I was not there.

MR MARTIN: No.

KIRBY J: But that is what the trial judge concluded. It is very difficult, I can tell you. I have sat in appeals now for 16 years and it is very difficult to overcome findings of that kind.

MR MARTIN: The thing is in itself that court case, we say, Judge Sperling made the wrong decisions because all these facts were known. It was a loan which was, according to even the Trade Practices Act and everything else - not being a solicitor, I could not bring these things forward because I did not know them. I was not out of the woods in those - when it went before Sperling in the last week in November 1998, I did not know that under the Trades Act here, Chapter Three, if you turn to book 2 - have you got that, your Honour? The judge should have taken this into consideration because of the fact that he had the facts before him on these things, that this was so. That is No 2. I turn to - I seem to have lost my way here. I do not know how I have got that mixed up. Anyway, No 2 is Chapter Three, Part IVA of the Trade Practices Act, Fair Trading Practice. Have we go that page?

KIRBY J: Yes.

MR MARTIN: Have you got a copy - - -

MR THAWLEY: I do not have a copy of it.

MR MARTIN: Was not a copy supposed to be given to - - -

KIRBY J: I am not sure. No, I do not think we have that. Anyway, you tell us what - - -

MR MARTIN: I submitted four copies to the High Court. Anyway, I can read it as - - -

KIRBY J: Just a moment. I think I have got the - - -

MR MARTIN: Okay then. Now:

Section 51AA of the Trade Practices Act 1974 (Cth) is a new section which provides that a "corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of unwritten law . . . of the States and Territories". It does not create a new head of consumer protection law, but extends the remedies available under the Act to unconscionable conduct which is recognised in the equitable principles applied by the courts . . .

Section 51AB of the Trade Practices Act 1974 (Cth), which reproduces in identical form the former s 52A, proscribes "unconscionable conduct" by a corporation in connection with the supply of "consumer" goods and services -

which I understand that lending money would be a service too. Now, on page 44:

The Trade Practices Act 1974 (Cth) and the Fair Trading Acts of the states and territories are the most recent in a long line of statutes giving the courts jurisdiction to review a contract or conduct which is `unjust', `unfair' or `unconscionable'.

If we turn to page 46(n):

The Fair Trading Act 1974 provisions are not limited to `a corporation', and extend to any "person". The restriction of s 51AB to "corporations" arises from the limited legislative power of the Commonwealth Parliament, under the Australian Constitution. The Trade Practices Act (Cth) does, however, extend to individuals in certain circumstances. The following terms used in s 51AB are defined in the Act: `corporation', `supply', `goods', `services' and `conduct'. The terms `corporation' is defined in terms which conform to s 51(xx) of the Constitution.

And then the fact of deceit - this is actually on page 8054 (o) [17.140] there, you will see it down the page, in the number 3 item.

KIRBY J: Yes.

MR MARTIN:

There is no juridical objection to holding a corporation vicariously liable, in a proper case, for a fraud committed by one of its servants, despite the fact that fraud, or deceit, may involve the formation of a motive or intent, a mental process which is within the powers of a nature person but might seem difficult to attribute to an artificial entity such as a corporation.

KIRBY J: We are familiar with all these principles, and your time is about to expire. Is there anything important that you have not said, that you want to say to the Court?

MR MARTIN: Yes, here. In page 8058, do you see that?

KIRBY J: Yes

MR MARTIN:

Lawrie v Commonwealth Trading Bank of Australia [1970] Qd R 373 was an interesting case decided by the Full Court of the Supreme Court of Queensland in 1970 in which a fraud was practised by one of the bank's . . . engage in the form of deception he had adopted derived from his position as a bank officer. This enabled him to make contact with his victims, lent credibility to what he said to them, and made it easy - - -

KIRBY J: Yes, we are aware of that, but that is quite a different case to your case. Your time is up, Mr Martin. Is there anything else that you wanted to say that you have not put in writing, because we have read your written material.

MR MARTIN: Yes, that when they actually gave the loan too, the Bank knew that it would take a long time for this case to come up in court. Only once a year did we have Supreme Court, in June.

KIRBY J: Yes, we know that - - -

MR MARTIN: And we had a lot of accidents and everything else to do, and it meant that if you wanted to get a case through court - they were putting us under pressure all the time to settle out of court for a low amount. Now, the Bank - - -

KIRBY J: I think we understand all that.

MR MARTIN: The Bank never made any way of provisions - - -

KIRBY J: You had your trial before Justice Sperling - - -

MR MARTIN: I almost got kicked out of the court then, I was lucky that the witness witnessed the accident and he had not gone to India. He had been there for another 12 months. If he had not been around, my case would have been kicked out of court. There would be no case, no money whatsoever, and the Bank left themselves open to all that, because unconscionably they gave me a loan which could not be supported financially and - - -

KIRBY J: Yes, we understand your contention there and we have read the documents. Thank you very much, Mr Martin. The Court will not need the respondent's assistance.

The applicant, who is not legally represented, has appeared today with his wife. He seeks to challenge a judgment entered by the Court of Appeal of the Supreme Court of New South Wales. That judgment refused, in effect, to intervene in an earlier judgment entered in the Supreme Court by Justice Sperling. His Honour, in reaching his conclusion at the trial adverse to the applicant, made findings on credibility which were adverse to him. He said:

However, the evidence given in reply was transparently contrived. It left me without confidence in the reliability of anything Mr Martin had said.

That finding would effectively stand in the way of this Court's disturbing the judgment of Justice Sperling. In any case, the claim in negligence which was made by the applicant against the Bank was not made until considerably later, after the Bank made a demand on the applicant for the balance owing on the applicant's account with the Bank.

On the applicable law the judgment by Justice Sperling in favour of the Bank was clearly open to his Honour. The applicant became out of time in challenging that judgment in the Court of Appeal. About a year after the appeal was deemed to be dismissed under the Rules of the Supreme Court of New South Wales the applicant sought an extension of time from that court. That application was dismissed. The applicant then sought orders setting aside the orders of dismissal. The Court of Appeal then became involved. It refused to set aside the orders of dismissal. It is in those unpromising circumstances that the applicant has sought special leave to appeal to this Court.

Against the background which I have described there is no foundation upon which the applicant can have special leave. The applicant claims hardship, and in this respect he is supported by a statement which was read to the Court by his wife. It may well be that there is hardship. However, that does not provide a legal basis for the intervention of this Court. Accordingly, the application for special leave to appeal is dismissed. The applicant must pay the Bank's costs.

MR THAWLEY: Your Honour, the respondent does not seek costs. I should have - - -

KIRBY J: Thank you. The order of the Court is the application is dismissed.

Your application has been dismissed, Mr Martin, but the Bank has not asked for costs.

MR MARTIN: What about the previous costs that is - - -

KIRBY J: It only does not ask for costs in this Court. It will be for you to negotiate with the Bank about the previous costs.

MR MARTIN: Now they know that I am dead there is no point in sending me bankrupt, because the house itself has got a demolition order against it. It is not worth anything.

KIRBY J: Anyway, they have not asked for costs, so the order is made that your application is dismissed.

AT 3.08 PM THE MATTER WAS CONCLUDED