BERNARD MADIGAN v THE COMMONWEALTH BANK OF AUSTRALIA [2002] NSWCA 88

New South Wales Court of Appeal

CITATION : BERNARD MADIGAN v THE COMMONWEALTH BANK OF AUSTRALIA [2002] NSWCA 88 FILE NUMBER(S) : CA 40015/01 HEARING DATE(S) : 11 March 2002 JUDGMENT DATE : 11 March 2002

PARTIES : Bernard MADIGAN v THE COMMONWEALTH BANK OF AUSTRALIA JUDGMENT OF : Mason P at 1; Meagher JA at 19; Powell JA at 20

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40015/01

MASON P MEAGHER JA POWELL JA

Monday 11 March 2002

BERNARD MADIGAN v COMMONWEALTH BANK OF AUSTRALIA JUDGMENT

1 MASON P: The claimant, Mr Madigan, seeks a review of the decision of Registrar Irwin. The registrar gave reasons on 3 December 2001 for concluding that an appeal that had been lodged was incompetent. 2 The proceedings in this Court arise out of proceedings in the District Court which involved the trial of the issues presented by a further amended cross-claim. That cross-claim had been filed in proceedings commenced in the Supreme Court by the Commonwealth Bank against Mr Madigan. Those proceedings as between the bank and Mr Madigan were resolved and the cross-claim remitted to the District Court for trial. 3 The trial took place over a number of days before her Honour Judge Ainslie-Wallace who gave judgment on 15 December 2000. Her Honour dismissed the cross-claim and ordered the cross-claimant to pay the bank's costs of the action. Subsequently in the judgment given on 9 March 2001 she ordered that costs be paid on an indemnity basis. 4 The amended notice of appeal pursuant to which the claimant invokes this Court's jurisdiction is at page 116 of the red appeal book. It was filed on 13 August 2001. Several affidavits were filed in essence in response to the bank's claim that the appeal was incompetent. One of those affidavits, the affidavit of Mr Madigan sworn 4 September 2001, was treated by common agreement as the affidavit purportedly in compliance with part 51 rule 8. 5 That rule provides that where an appeal to the Court of Appeal is restricted by reference in any Act to a specified amount or value the appellant shall within the time limited for instituting the appeal file and serve on each necessary party an affidavit stating facts which show that the restriction does not apply. The relevant restriction (this being an appeal brought from a verdict and judgment of the District Court) is to be found in s127 of the District Court Act. In essence, it must be shown that the matters in issue in the appeal involve a claim by a party to the appeal against the other party to the appeal exceeding $100,000. 6 The Court has had the benefit of a statement which was read to the Court and provided to us today in which Mr Madigan explains clearly the basis of his several complaints against the bank. He has provided us with a history of his involvement including his input to the Martin inquiry and has referred to a number of issues which he has raised in places other than the Court concerning banking practice generally and the practice of the Commonwealth Bank in particular. 7 This Court is not a Royal Commission and does not have a general remit to involve itself in wide ranging inquiries. It can only proceed according to the jurisdiction conferred upon it by statute. That jurisdiction in cases such as the present in turn is affected by the jurisdiction of the Court from which the appeal has been brought. I mention that fact because two of the matters raised by Mr Madigan are entirely outside the civil jurisdiction of the District Court. They are the claim for a penalty under Pt 4 of the Trade Practices Act which is a matter within the exclusive jurisdiction of the Federal Court and the allegations of criminal misconduct which Mr Madigan made. The allegations were made in terms which would not be permissible and they have been made by a member of the legal profession. I do no more than record that they are allegations which have nothing to do with the matter at issue, namely the competency of this appeal and are allegations which the Court has not troubled Mr Lanser to respond to because they have nothing to do with the matters before the Court. 8 Rule 8 as I have indicated required the appellant in his affidavit to state facts which show that the relevant restriction did not apply. This means facts which show the legal cause of action invoked in the proceedings below and invoked in the appeal. The Court is not concerned with the tenability of those facts at this stage of the proceedings. Rather, its concern is to see whether the affidavit upon which the appellant invokes the jurisdiction of the Court states facts which the Court can be satisfied that that appellate jurisdiction has been duly invoked. 9 The Registrar in his reasons dealt paragraph by paragraph with the amended notice of appeal and the arguments tendered both orally and in the several affidavits filed before him which form part of this Court's record in the present application. Nothing that has been raised in writing or in the claimant's submissions persuades me that there is any basis for reviewing the registrar's decision or his conclusion that the appeal has not been shown to be competent. 10 The affidavit of 4 September contains a paragraph, (par 22) to which our attention was particularly drawn. That paragraph purports to quantify the value of the civil claim brought by Mr Madigan in his own right in the proceedings below and which he seeks to maintain in this appeal. It is elaborated in annexure K to the affidavit which is found at page 160 of the red book. As Mr Madigan confirmed in his submission this morning, the springboard for his claim for damages is the contention that the bank wrongly debited an account which may or may not have been a closed account at the time (I will assume it was closed) with the sum of $65 being the cost of a transcript of proceedings in the Supreme Court at some earlier stage in this litigation. 11 Judge Ainslie-Wallace dealt with this at pages 41-2 of her judgment. Annexure K to the claimant's affidavit explains the basis upon which the claimant contends that this wrongful debiting became the basis for a quantified claim for damages, $105,940.44. It states in part, "if the Court finds that: the bank had no right to seize and retain deposits made to an account after it was closed, and