The Age today has the following.

Celebrity cavoodle defamation case triggers dramatic legal falling out

It all started with a cavoodle named Oscar.

Oscar is a very special boy, a “celebrity dog” worth an estimated $20,000 with his own Instagram account, and an unfortunate knack of kicking off protracted legal disputes involving his paw owners.

In 2021, a custody battle over Oscar between Sydney barrister Gina Edwards and her former friend Mark Gillespie led to a series of stories on Nine’s A Current Affair. Last year, Edwards successfully sued Nine, owner of this masthead, for defamation, with Federal Court judge Michael Wigney ruling that the stories had depicted her as a “dog thief”.

Nine was ordered to pay Edwards $150,000 in damages, plus her legal costs, around $1.2 million all up. But the costs issue has become the source of a spectacular falling out between Edwards and her lawyers Giles George, run by top defamation solicitor Rebekah Giles.

A Federal Court hearing on Thursday, which should’ve been an administrative post mortem to resolve costs issues arising from Edwards’ case against Nine, became the scene of a whole new legal dogfight, as the plaintiff, representing herself, took on her former lawyers.

Edwards has complained to the Law Society of NSW, alleging that Giles George didn’t follow legal professional rules in relation to their costs agreement.  An additional complaint to the Office of the NSW Legal Services Commissioner about Giles George was closed on receipt. Meanwhile, Edwards told the court on Thursday that the firm, known for its PR-forward approach to client representation, had billed her for briefing journalists about the case.

Giles George, meanwhile, is seeking to intervene in the all-but-concluded defamation case, arguing that Edwards’ costs should be paid by Nine to the court directly, rather than their former client. Giles declined to comment, although it’s understood she denies Edwards’ allegations.

The costs spat between Giles George and Edwards is set to continue in March.

Spare a thought for poor Oscar, who probably has no idea the amount of drama he’s caused.

All lawyers should be ashamed.  A petty tiff over a petty insult, if litigated at all, should be determined in a morning by a magistrate with no prior hearings, pleadings, or witness statements.  Damages could in fact capped at say, $20,000, and costs at, say, $5000.  That would still make any such action at best problematic, but damages at about twice the level of average earnings for such a trifle are absurd, and costs of $1,000,000 are obscene.

All we lawyers should therefore be ashamed.  The word ‘squalor’ is inadequate.  Jack Cade may have had the answer.

About twenty or so years ago, a colleague, a graduate of Cambridge who lives and practises here, gave me a mild remonstrance, to use an English term, for describing an AO opera as ‘world class’.  She said that sort of cringe had gone out with Gough, and that we were more than capable of standing on our own two feet without looking over our shoulder at what was happening in Europe or the U S. 

She was dead right.  We had shed the cringe – at least in that weasel world of ‘culture.’ 

And in some areas of art and literature, only Australians could serve our felt needs.  Obvious examples are Arthur Boyd, Tim Winton, Chris Wallace-Crabbe, and Patrick White.  (The drama inherent in high level sport is on a different plane.  Names like Bradman, Landy, Barassi, Peter Thompson and Freeman are in another world.  And here, we like to show our colours.)

My ruthlessly cut-back library is full of art books – mostly on Australian art.  They are there und used mainly for the artwork, and not the commentary.  Talking about art, someone said, is like dancing about architecture.  Ultimately you are faced with the premise that there is something that can be analysed logically.  Why?  Would it make sense to ask the creators of the Pieta or Eroica or Ode to a Nightingale what they meant?   Would we not insult the artist or demean ourselves? 

OK – I have got some help in following Turner, Janacek, Louis Armstrong, and Benjamin Britten from reading about them.  I have also derived pleasure and insight from three or so contributors to the oceans of print on Shakespeare – which I have added to – but it is a long time between drinks.

One exception is the just published Nolan’s Africa by Andrew Turley.  It is an outstanding account of Nolan’s work in Africa, and of his motivation and technique in general.  The depth of scholarship and research is obvious and the photographic sources are in my view essential to the contemporary Australian home.

Nolan brushes up well in a suit.  He looks like the young headmaster of a progressive school.  He occupied a difficult position in Oz – like Patrick White with whom he fell out venomously – a supreme intellect and the capacity to hand it out in spades.  Those people make Oz voters worried.  They like their politicians to stay well within the mediocre – and they get what they want.  Barry Humphries and our great cartoonists are rare exceptions.

And then we can get snaky with those who succeed overseas.  Kenneth Clark, the prince of snobs, stirred up the green eyes of the also rans back home by referring to the ‘reckless innocence’ of a ‘genius.’

And the artists don’t come from the Murdoch side of politics.  We get this from the author on the last page.

Today the themes of the African paintings resonate: genocide, dehumanisation of the poor, racial disenfranchisement, the decline of the West, nationalism, and a political shift to the Right, while nature, the environment and our own existence are threatened by escalating changes in climate and biodiversity.

Nearly forty years ago, Nolan said:

I am beginning to see how the imbalance in the spread of the earth’s resources causes famine and war and see the planet poised in a kind of mutually assured destruction.  This madness must be so frightening to the young.

The great painter Sydney Nolan was, therefore, what we used to call a humanist.  He was a man who could go from painting the evil of Auschwitz to the screaming agony of shot game at Serengeti.

About fifty years ago as a fledgling barrister, I acquired my first Nolan work on paper for what was then the huge price of $350 – Burke on a camel.  Three days later, Robert Hughes on ABC TV, said that Nolan had become a ‘sausage grinder.’  That stung.  Was Burke sitting a bit oddly on that bloody camel?

But I now know[GG1]  that the journalistic barb was unwarranted then, and completely unfounded now.  I say that not because I am fortunate in what I hold, but because for what it is worth, in my view, Nolan and Emily are the two greatest painters that this nation has produced – by the length of the bloody straight at Flemington.

In th result, I would change the remarks I made about Nolan in my Curated Library books.

The Introduction to this luxuriant tome by Edward Capon verges on hagiography, but the following makes sense to me.

‘Nolan is the best known, the most familiar, name in the history of modern Australian art….And yet he remains something of an enigma….Nolan introduced the human drama into the hitherto unpopulated but defining image of the Australian landscape.  Much as he used the Australian landscape as the setting for his explorations and excursions into the human condition, it was not that natural landscape, but the human landscape that drove and sustained his curiosity and imagination….I always sensed with Sid and his restless pace and curiosity that fear of stillness and contemplation….He was a restless soul who tended to believe in the ultimate transience of all things which left, inevitably, the void of melancholy in its wake.  It is a condition that is powerfully demonstrated in his work.’

That sounds about right. That is a little unnerving.  The French philosopher Blaise Pascal memorably said that, ‘All of humanity’s problems stem from man’s inability to sit quietly in a room alone.’  

If you ask most Australians who was our greatest artist, the answer would probably be Nolan.  But if you asked artists who was our greatest painter, the answer might well be one of two artists dealt with in this series – Williams or Boyd (the latter in this volume). 

But let’s leave all that grandstanding to God and the successors to Mr Capon.  Nolan exploded like a flare over a very bleak horizon, and he was one of those champions who helped us shake off that ghastly cringe of ours. 

And as one relieved soldier in Hamlet said, ‘For this relief, much thanks.’

---

 [GG1]

On page one of The Black Book of Communism, we read: ‘The United States remains heavily influenced by a culture of violence deeply rooted in two major historical tragedies – the enslavement of black Africans and the extermination of Native Americans.’

The first function of government is to preserve the peace.  The founders knew this.  Put to one side the Declaration’s remark about all men being created equal – as banal as ‘Man is born free’ – and focus on the law in the Constitution.  Its stated purpose is ‘to form a more perfect Union, establish Justice, ensure domestic Tranquillity…. and general Welfare’. 

The U S has not been able to contain its inherited culture of violence.  We cannot speak of tranquillity when every school is a potential killing ground.  In a real sense, the United States is a failed state.

And the main culprits are the Supreme Court justices, who preach about the primacy of life and sanction the execution of prisoners. 

‘Where be your gibes now? …. Not one now to mock your own grinning?’

Yours truly

Best wishes for Christmas and the New Year

The head of KPMG Law’s government practice has joined Holding Redlich, as the mid-tier firm seeks to capitalise on a shake-up of the public sector legal market.

After firms were excluded from parts of the Commonwealth legal services panel, the historically Labor-aligned outfit says it is well-positioned to take advantage and expects to hire a swag of government partners from rival firms.

Philip Jones-Hope says government clients are looking for trusted advisers, not salespeople.  

Philip Jones-Hope, who will bring a team of lawyers from the consultancy’s now-defunct legal offering, is the most recent hire as part of Holding Redlich’s plan to achieve growth through specialisation after an unsuccessful effort to expand into broader corporate practice areas.

Mr Jones-Hope told The Australian Financial Review the government’s post-PwC focus on external spending had flowed across to law firms and national firms with “a good story to tell” were best placed to take advantage.

“The refresh of the panel was very much consistent with the narrative from the government. There was a high concentration of services in the top end of town, and there was a willingness and appetite from the government to get value for money.

“Firms that have a good [public sector] pedigree, a good story to tell in terms of pro bono work and culture, and represent value for money – that’s the focus of the refresh of the panel, particularly when you look at some of the areas top-tier firms aren’t represented in,” he said.

Corrs Chambers Westgarth, King & Wood Mallesons and Minter Ellison were all excluded from the panel to varying degrees in August, in a change that has triggered movement among government specialists across firms.

Holding Redlich was appointed to all divisions of the panel.

Your taxes at work – for those who have a good story to tell.  “Baa, baa black sheep….’.

Passing Bull 398 – Bullshit in the Law

The head of KPMG Law’s government practice has joined Holding Redlich, as the mid-tier firm seeks to capitalise on a shake-up of the public sector legal market.

After firms were excluded from parts of the Commonwealth legal services panel, the historically Labor-aligned outfit says it is well-positioned to take advantage and expects to hire a swag of government partners from rival firms.

Philip Jones-Hope says government clients are looking for trusted advisers, not salespeople.  

Philip Jones-Hope, who will bring a team of lawyers from the consultancy’s now-defunct legal offering, is the most recent hire as part of Holding Redlich’s plan to achieve growth through specialisation after an unsuccessful effort to expand into broader corporate practice areas.

Mr Jones-Hope told The Australian Financial Review the government’s post-PwC focus on external spending had flowed across to law firms and national firms with “a good story to tell” were best placed to take advantage.

“The refresh of the panel was very much consistent with the narrative from the government. There was a high concentration of services in the top end of town, and there was a willingness and appetite from the government to get value for money.

“Firms that have a good [public sector] pedigree, a good story to tell in terms of pro bono work and culture, and represent value for money – that’s the focus of the refresh of the panel, particularly when you look at some of the areas top-tier firms aren’t represented in,” he said.

Corrs Chambers Westgarth, King & Wood Mallesons and Minter Ellison were all excluded from the panel to varying degrees in August, in a change that has triggered movement among government specialists across firms.

Holding Redlich was appointed to all divisions of the panel.

Your taxes at work – for those who have a good story to tell.  “Baa, baa black sheep….’.

As I remarked to colleagues, I was told I was introduced to Dixon as a child.  I recall both my meetings with Lord Denning.  But Tom Hughes was the most towering presence I have known.  And he was so graceful to me as his junior counsel or instructing solicitor.

His kind is no more.

It is all very sad.

I set out below two extracts from my memoire, Confessions of a Barrister.

*

In the ‘90’s, some of us would get to look back on some aspects of what were always called the ‘excesses’ of the ‘80’s with something like fondness.  Corporate litigation, especially takeovers’ litigation, since then in substance abolished, was very good for Melbourne’s private schools.  That litigation saw a lot of fees to lawyers pay for their kids’ education, and the boards or committees of St Cath’s and Melbourne Grammar should have been duly grateful – even if some of their members or their friends got sued as part of the melee.  The biggest takeover spawned the biggest takeover litigation and it became the biggest show in town. 

The battle for BHP, one of the biggest if not the biggest companies in Australia, led to litigation that was more financially consequential and emotionally fraught than any I have been in.  Hinch attracted huge publicity, but it was like a quiet stroll along a country lane compared to the battle for BHP.  It was as if the whole Melbourne Establishment saw itself as being on trial, and it responded like a tiger snake that a bush walker had accidentally stumbled on.

Robert Holmes a Court was intent on taking over BHP.  He was from W A, and not an establishment figure.  He was not trusted here – he was loathed.  Neither fact affected him.  He had the sharpest mind and coldest heart of any businessmen that I have acted for.  BHP was attacking him in court, and with some success.  The judge was Ken Marks, and he did not appear to have much time for the pursuer.  Arthur Robinson instructed Steve Charles and Ray Finkelstein.  Blakes were acting for Holmes a Court, through my friend Geoff Hone, who I think had instructed Alan Goldberg.  Holmes a Court got sick of being on the defensive.  He wanted to go on to the attack, and he instructed different lawyers to do just that.

Shortly before Easter 1986, Robert Heathcote, a mate at Arnold Bloch Leibler, and probably Melbourne’s leading commercial litigation solicitor, rang me.  He asked me if I could drop everything and devote Easter to preparing to attack BHP.  I agreed, and went down to Discurio to buy some Thelonious Monk and Charlie Mingus, so that the Easter would not go entirely unmarked.  I think that the rest of the team was not yet settled, but the great Tom Hughes of Sydney was a certain starter. 

Tom was from Sydney and was unquestionably Australia’s leading silk.  (He had been Attorney – General for the Commonwealth in the ‘60’s.)  I had not appeared with or against Tom, but I was in awe of his reputation.  In that teachers’ libel action that I mentioned, Bill Gillard had just fought a case against Tom, and Bill could not stop talking about it!  He could not get over the power of Tom’s gaze.  (I think that this was about the time Tom had appeared for a footballer who was affronted that the press had carried a photo of him which highlighted his penis and made him look stupid.  The journalist told Tom he or she had not thought much about that part of the image, which led Tom to ask: ‘What did you think it might be – a duck?’)  The days after Easter promised to choc-full of action.

I put in over seventy hours over Easter, and Diana [secretary] and I came up with detailed advice and a draft statement of claim against the BHP directors.  I will not go into detail, but if a shareholder complains that the directors have failed the company, the proper plaintiff should be the company, and you have to steer around this.  As I recall, our case was that the directors were more worried about their jobs than the value of the shares.  The first writ issued.  It would take a big book to describe a short war, but I will mention aspects that reveal something of the lawyers.

We were with the client at the other end of Collins Street – Tom Hughes, Ron Merkel, Robert Heathcote and I – when a young lawyer with his shining schoolboy face chose to call to serve a couple of writs.  They were flowing around like confetti.  Protocol dictated that you ask the solicitors whether they will accept service.  I am not sure why that did not happen here, but when this man’s arrival was announced, Holmes a Court said quietly to his staff: ‘Lock him up.’  He took the view that this man was trespassing and that he could effect a citizen’s arrest.  Well, after some strained time, Tom advised Robert to get Robert Heathcote to accept service.  Tom said this kind of thing might not look too good.  Copies were made of the writ and we leafed through them under this glorious show of aboriginal art. 

Holmes a Court went first.  ‘You go to the movies.  There is a good director.  Anthony Hopkins and Helen Mirren.  Then you start the movie and it’s a flop.  Here you have the Queen, the Chief Justice.  Even God gets a go.  Then you look inside and it is a flop.’  He really was that cool.  I realised later how he nearly drove Geoff Hone mad.  You had no way of predicting him, and precious little chance of restraining him.

Ron Merkel and I were sent to ask Ken Marks to step aside because of adverse remarks that he had made about our man.  Under the modern practice, judges in control of lists have tended to get down into the arena much more often than would have been considered proper in the time of Tom Smith.  Ken Marks was a very voluble man on the bench.  You were not left wondering for long what might be in his mind.  I think he may have called our bloke ‘a paper shuffler’. 

Anyway, Merkel made the application, and the reception was as frosty as what we were getting at the bar table.  We were feeling like barbarians at the gates of Rome.  Then the judge said, with some heat on this occasion: ‘How do you know what happened, Mr Merkel?  You were not even there.’  Muffled cheers from the home team.  To his eternal credit, Merkel looked Ken straight in the eye and said: ‘We are in as good a position to know what went on as the Full Court will be.’

We were making an application to a court of law based on evidence, and the rules of court.  In the course of his reply, Steve Charles referred to The Age that morning.  It was not in evidence.  Before we could get our objection out, the judge said: ‘I was wondering when someone was going to raise that.’  Merkel might be the most unfazeable advocate I have seen, but he said to me that morning that there was something very bad about the atmosphere in that court.  Once again, the system was showing faults under stress.  That kind of exchange would have been unthinkable in front of someone like Tom Smith.  We have to be careful that a loss of formality does not become something worse.

Holmes a Court was asked by the press what he thought of his opposite number, the CEO of BHP, one of our defendants.  He said that Loton was ‘basically honest.’  What happens when you step outside the ‘basic’ bit?  Tom Hughes took Holmes a Court to dinner at the Melbourne Club.  The Yiddish word is chutzpah.

Holmes a Court told us to sue BHP for misleading conduct.  It was not without its problems, but it was worth a go.  We applied for an injunction and it came on before Reggie Smithers, a judge of whom I was very fond.  (Peter Rashleigh and I had won a case before him – for a landlord!)  Tom wrote out in longhand a note of his argument.  He said to me that ‘I think I will tell his Honour that the big Australian had become a victim of its own stubborn pride.’  He said he would get me to read the affidavits, but I said that the judge would want to hear from him.  (As would the press!) 

So, there I was at last, watching the great man in action.  He is beyond question the most imposing advocate I have ever seen.  It was a real privilege to be there.  Sadly, over lunchtime, Cliff [Pannam] persuaded them to stop the flow of blood and give us an undertaking.  I think that BHP won at the trial, but this was little more than a feint by the cavalry.

I mentioned that Tom Hughes made a long hand note of his argument.  Daryl Dawson had taught me to do the same.  It is a way of testing your own intellectual honesty – you look to see the breaks or weak points in the reasoning.  You cannot just hide behind a cloud.  Michael Black had the same view.  Peter Buchanan insisted on writing out his pleadings.  Computers have a lot to answer for.  I pass this on as a tip, and a good one.

Finally, I mention an incident that happened, I think, after I had gone back to Blakes.  There were lawyers milling around someone’s chambers including Alan Goldberg, Frank Callaway, and sometimes Geoff Nettle (still a junior).  Robert Heathcote came in in some slight agitation.  One of our (Holmes a Court’s) brokers had received in error the details of what may have been referred to as John Elliott’s battle plan for his defence of BHP.  It was something that Holmes a Court would dearly like to see, but could he make use of confidential material sent by mistake? 

We wondered and pondered.  Frank Callaway delivered a lecture on Lord Cairns’ Act.  It was brilliant and irrelevant.  Then Tom came in – Senior Counsel.  ‘Simple.  Send it straight back.  Or man’s credit would not survive.’  ‘Thanks, Tom.  Will you tell Robert?’  ‘No one need tell Robert anything.  We cannot advise the broker.  Send him off to a competent silk.  If his advice cuts across mine, ask him to get in touch.’  There you have the authority and wisdom of experience.  It was an immense thrill to have worked with Tom Hughes.

The matter settled.  I, and I suspect Geoff Hone thought that the deal was illegal, but the parties were exhausted, and a blind eye may have been turned on those lying back and thinking of Australia.  Neil Young spent days documenting the deal.  The consequences of his intervention would come back to haunt John Elliott and me, but by then I had moved on.

*

Although this memoir is about the law, I have so far avoided citing authority.  Perhaps I may be forgiven one citation so near to the end.  It is from a priceless little monograph by Professor Harry Frankfurt of Princeton University On Bullshit.  The professor said: ‘Bullshit is unavoidable wherever circumstances require someone to talk without knowing what he is talking about.’   Since I have referred to politicians, I may add that Professor Frankfurt cites a remark that is the credo of politicians: ‘Never tell a lie when you can bullshit your way through.’  And since it may be objected that I have taken objection to things done in all sincerity, I may say that Professor Frankfurt also says at the very end of this little book, ‘Our natures are, indeed, elusively insubstantial – notoriously less stable and less inherent than the natures of other things.  And insofar as this is the case, sincerity itself is bullshit.’

But enough of my grouching.  Lists are at best inconclusive pub games, but here goes.  My worst mistake?  Entering the court of the Rocket [Crockett] arse-first.  My most corroding moment?  Being pulled up by Ginger [Southwell] and my client’s being denied justice.  My most gratifying moment?  Repelling the dark raider at the gates of the co-op [Pivot].  My proudest moment?  Being invited to a living wake by a dying man whom I had dealt with adversely [UFU].   Toughest fighter?  Alan Cornell (with apologies to Jack Hedigan).  Luckiest lawyer?  Lucky Jim [Saunders, English law clerk at Blakes] (he being promoted to our professional rank for this purpose).  Best lawyer?  Allen Stewart and Brian Shaw.  (This is the only joint award – if you think that politics might be involved, you are dead right.  I have not straddled this profession for forty years without learning some self-defence.)  Best judge?  Tom Smith.  Best equity lawyer?  Jim Merralls.  Best commercial counsel?  Alan Archibald or Geoff Nettle.  Best advocate before a jury?  Jeff Sher.  Most imposing lawyer?  Tom Hughes.  Lawyer I would go to if my life or my house were on the line?  Neil McPhee. Best judgment? Brown v School Board of Education (the school bus case in the U S).

Writing on X Gaetz said: “I had excellent meetings with senators yesterday. I appreciate their thoughtful feedback — and the incredible support of so many. While the momentum was strong, it is clear that my confirmation was unfairly becoming a distraction to the critical work of the Trump/Vance transition.

‘There is no time to waste on a needlessly protracted Washington scuffle, thus I’ll be withdrawing my name from consideration to serve as attorney-general. Trump’s DOJ must be in place and ready on day one. I remain fully committed to see that Donald J. Trump is the most successful president in history. I will forever be honoured that president Trump nominated me to lead the Department of Justice and I’m certain he will save America.’

What follows is a submission to the Banking Ombudsman.  If a bank, could be diagnosed as insane, Bendigo would win the prize.

Bendigo Bank and Gibson

Submission of former customer

I refer to and adopt my previous submissions.  I recount them here in response to a suggestion made in the conciliation conference.

The dispute turns on an entry in the bank’s accounts on 22 December 2023 .  It shows  a transaction on Mastercard for nearly $5000 to an outfit called World Remit.   I had never dealt with that outfit -if it exists. 

After about five months delay, the bank told me it would require me to pay that amount.  I later learned that the bank relied on an industry code that I had never heard of, but which the bank says was part of my contract.

‘Bendigo Bank does not have a legal right to take action on these dispute claims.  We are bound by Mastercard Scheme regulations as Mastercard is the provisioner of the cards.  As detailed in your decline letter, we do not have recovery rights via the Scheme process due to the nature of how the transactions were processed.’

Later

‘The bank did not debit your Mastercard account. Your credit card ending in x6178 was a Bendigo Bank Mastercard.  Your card details and one-time passcode were utilised to make a payment to Worldremit. The transaction appears to be the result of your interaction with a company called IT support. Bendigo Bank have no recovery rights for the transaction and therefore we cannot reimburse you for this value.  Bendigo Bank cannot recover the funds as the transaction was performed via Mastercard Identity Check, a one-time password (OTP) was sent via SMS to your mobile number that ends with #583, the OTP was entered into the payment process to authorise the transaction. If a transaction is performed via this method Bendigo Bank is unable to raise a chargeback claim via Mastercard.’

Later:

‘That is correct the Bank has no recovery rights for this transaction as we are bound by Mastercard schemes.  I cannot assist you any further as previously stated so please escalate to AFCA if you wish to take this further’.

The bank offers to go half and half.  The dispute is therefore around $2500.  That is a symptom of madness in at least one party.

Nearly twelve months on, I still do not understand what is the case for the bank.

But what I do know now is that the bank refuses to cover me because its New York overlord refuses to cover the bank. 

Banks are not allowed to behave that way. 

The bank says that a deal they have struck with Mastercard, which the bank never told me of, prevents the bank from acting in my interests as a customer of the bank.

That is plainly unlawful, and that should be the end of this petty dispute.

What is the question?

The bank says the question is whether I can recover my loss from it.  That is wrong.  I have not sustained any loss.  There is merely a disputed entry in the bank’s books of account.  The bank paid out the crooks.  The question is whether it can recover its loss from me. 

I have made it clear that if it wants to do that, it will have to do so by an order of a court.  The bank simply refuses to say what it will allege for that purpose.  Just as it refuses to say whether it has taken legal advice.  The clear inference is that it has not.  This is at best insulting.  It is also very worrying.  Everything about this bank suggests it believes its word is law.

The bank is on the wrong tram

From the beginning, the bank has proceeded on the footing that the only relevant law is contained in the ASIC code (the ePayments Code).  For reasons I have given, I dispute that I am bound by it.  (I had never heard of it before.)  You will see immediately that this reliance comes at least in part from the fact the bank is asking the wrong question. 

But it is deeply troubling because it creates at least the impression that the bank operates outside the law.  (Someone who does that is called an ‘outlaw’.)  Part of that law, labelled ‘fiduciary’, is that the bank must show to me loyalty and good faith , and avoid conduct where its interests conflict with its obligations to me.  The bank has consistently failed to act accordingly.

A term of the contract?

Courts have long been wary of purported self-executing ordinances, especially where the party seeking to rely on one is a massive conglomerate that has infinitely more bargaining power.  Until the bank said it had resolved our ‘dispute’ – which I was unaware of – I had not heard of the ePayments Code. 

Neither would most Australians.  Even fewer would have read them and even fewer again would have understood them.  And hardly any person in the land would in any real way have agreed to be bound by them.  For a court to hold that as a matter of law, I had agreed to be bound by the terms of the Code would, I suggest, involve reverting to the role of ‘fiction’ in the ancient meaning of that term. 

The relevant law is stated in Cheshire and Fifoot, Law of Contract (12^th Aus. Ed.) par 3.21 and Carter and Harland, Contract Law in Aus. (4^th Ed) 616-617.  For present purposes, it is enough to refer to Olley v Marlborough Court [1949] 1 KB 532 and Causer v Brown [1952] VLR 1.  (The second text cites the English case as authority for the proposition that where a guest signs in at reception at a hotel, a notice in the room did not state a term of the contract because it was not brought to the guest’s attention before the contract was formed.)

The Code Napoléon provides (in Art.1134) as follows:

Contracts legally made have the force of law between those who have made them.  They cannot be revoked but by their mutual consent, or for the causes which the law authorises.  They must be well and faithfully fulfilled.

The common law is to the same effect.  But finding a legally binding contract requires a finding of fact – that in fact, the parties have agreed.  Fiction is not enough.  And that finding of fact should not be made lightly if as a result people are found to have put their house on the line. 

I may here say that so far, the bank has not produced any evidence of a communication from it to me that has the effect of binding me to the terms of a document I had never heard of.

Now, this point can be argued.  But the bank just refuses to deal with it.  Yet it is assumed to have been determined in its favour in everything it says – ad nauseam.  The emperor has not noticed it may not be wearing any clothes.

And this issue – whether the Code formed part of my contract with the bank – is a very different to the issue of the failure of the bank to inform me, as its customer, of the Mastercard agreement, and the effect of that agreement on the bank’s capacity properly to act for me as its customer.

Estoppel

I was invited to restate my position.  I did so.  Because it is fundamental, I will repeat it.  Estoppel by representation operates to prevent a party from departing from a representation of existing fact if the other party has acted on reliance upon it, and it would be unfair to that party to allow the other to resile from it.  (If authority is needed, I may refer to Cheshire and Fifoot, above, par 2.1 ff.)  You cannot have your cake and eat it.

It is common ground that when the criminals got to me, the bank’s website indicated that I had incurred a liability to the bank in respect of a transaction involving ‘World Remit’.  Acting on the faith of that representation, I conducted myself in the manner I did.  The bank now wishes to contend that no liability arose until I acted as I did in reliance on the bank’s representation.  Among other things, that would not be fair and the law would not allow it.  That result accords with common sense and accepted notions of fairness.  And it is fatal to the bank.

Misleading conduct and breach of duty

Another way to put that is to say that in publishing the suggestion that I had incurred a liability to the bank in respect of a transaction involving ‘World Remit, which the present contention of the bank must now refute, the bank acted unlawfully by engaging in misleading and deceptive conduct, and was negligent, and in breach of its duty properly to account to me. 

The primary obligation of a bank is to account to its customer in good faith.  In the well-known case of Lord Chedworth v Edwards (1802) 32 ER 268, 269, Lord Eldon said that ‘it is one of the first duties of an agent certainly to keep a clear account and to communicate the contents of it.’  The bank is not doing so here – or in the instance where it kept collecting insurance premiums for years on a property of mine that had been sold and for which the bank had held the Certificate of Title.  (It unilaterally offered to repay a fraction of what was owed.)  Here the bank must set out each phase of its dealings with the entity named in its accounts.  It refuses to do so.  It then gives various statements of its position.  It has failed ‘to keep a clear account and to communicate the contents of it.’

Once again, I suggest that if the bank refuses to deal with these allegations, all of which have been squarely raised before, the bank should be taken to have admitted them.  The bank may be unable or unwilling to submit to the law – presumably, without claiming to be above it – but that cannot be the case with the Authority.

I hear the mantra that the Authority seeks a result that is ‘fair’.  It must do so according to law, bearing in mind the sage observation that he who sits under a palm tree knows not where the nut may fall.

Breach of fiduciary duty

There is now a substantial argument about breach of fiduciary duty – apart from that referred to above on the nondisclosure of the contract between the bank and Mastercard.

The bank says it records material for one purpose and then uses it for another – in its interests and against the party to whom it owes obligations of loyalty, good faith, confidentiality, and secrecy. 

The bank took five months to respond to me.  Then it said it was against me when it had not warned me that it was labouring away for months for that purpose.  Then it said it could not accommodate me because it had obligations to a third party multinational that precluded it from doing so.  Can you imagine a clearer case of breach of duty by a fiduciary by the entry into obligations that conflict with its obligations to the customer?

Then it handed over to the Authority a recording of what I have said to it, although I had received the usual warning about ‘quality and training purposes’, and I was not asked if I would waive my right to secrecy.  Instead, the bank has ignored my request that it hand over every document it holds that would be discoverable.  The bank has ignored that, and the Authority is silent.

The bank now has to face the allegation that it cannot be trusted to deal with its customers in good faith.

An unrepresented litigant

We are in the ludicrous position where the customer is legally represented but the bank is not.  That is rude to me and my representative.  To put it at its lowest, it is not helpful for the Authority.

Unconscionability

On all those grounds, the bank has acted unconscionably within the terms of the relevant law and its position is legally untenable. 

As we have seen, this dispute is about less than $5000.  The bank has offered to split the difference.  No sane person goes to law over such a sum.  The studied obduracy of the bank shows it has no understanding of the role of a bank, and a sadly wrong notion of untouchability.

Retribution

Finally, reference was made to the possibility of my suffering a credit downgrade, if the Authority was against me, and I continue to refuse to hand over my money to the bank.  There is no way to put talcum powder on the rear of that bull, but if the bank prefers the cartel to a court, the response will be immediate and apt.

The Authority

As I have remarked before,if the Authority takes the view that it would be fair to require a 79-year-old pensioner to pay nearly $5000 to a bank because that bank cannot get it from its American partner (the fabulously wealthy Mastercard), then that is a conclusion that the customers of the bank should hear about – sooner rather than later. 

Nor have I overlooked the fact that in its relentless campaign over effectively $2,500, the bank relies on the contribution of ASIC, an organ of the federal government created to protect us from crooks.  The bank evidently regards the Code as a bomb shelter from which it need not emerge.

The conduct of the bank

As and when Australians ever get to look at the Code, after they get over their surprise, they may think that it puts the bank in a position where it is a judge in its own cause.  Just as this bank did when it was found collecting insurance premiums on a house which, to the knowledge of the bank, I had sold – just as some corporations collected life insurance premiums – almost literally over dead bodies.

And that is just how the bank is acting in this case.  ‘We have the protection of the Code and we pay homage to Mastercard.  So, don’t bother us with the law.  Our team are not here to deal with the law.  Their concern is industry practice.’

The Authority must repudiate that bank-skewed world view.

By employing people to confront customers of the bank in this way, the bank violates its obligations to me and other customers to act towards us diligently, loyally, and in good faith.  Worse, it violates obligations it owes to its staff.

Here is a complete denial of business decency.  ‘Professional conduct’ dies on our lips.  Miss Longmuir of the CBC looked after my parents and me for thirty years.  She would think she had landed on Mars. 

In short, this petty fiasco shows the decline and fall of banking in Australia.

Finally, Mastercard

We work to connect and power an inclusive digital economy that benefits everyone, everywhere by making transactions safe, simple, smart and accessible. Using secure data and networks, partnerships and passion, our innovations and solutions help individuals, financial institutions, governments and businesses realize their greatest potential. Our decency quotient, or DQ, drives our culture and everything we do inside and outside of our company.

Oh, Mastercard, Mastercard, where be your DQ now?