Foreign Currency Loan Fiasco in 1980s: Dwyer v Commonwealth Bank of Australia - 3

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School of Economics and Political Science
Working Papers

In the early 1980s, in the first flush of financial deregulation, three of Australia’s four major banks embarked on a strategy of marketing loans denominated in foreign currencies to small businesses and farmers. Devaluation of the Australian currency, especially against the Swiss franc, saw an escalation of principal owed in Australian dollars by such borrowers. The resulting crisis produced a wave of litigation against the banks. Some of the court judgments favoured the borrowers, albeit these judgments were in a minority. Legal precedent, judicial culture and the superior resources of the banks proved formidable obstacles to borrower success in the court system, not least against the Commonwealth Bank of Australia. This paper examines the judicial experience of one litigation in particular – that of Dwyer & Anor v. Commonwealth Bank of Australia. The thrust of Dwyer, although not identical, is representative of the experience of foreign currency loan borrowers in the Australian courts.

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Table of Contents

Bank Fraud Exposed - Money out of YOUR Pocket!

Bank Fraud in Australia is Systemic - part 2 - part 3

Banking Inquiry Speech by Senator John Williams in the Australian Federal Senate

The Foreign Currency Loan Experience in 1980s Australia: Dwyer v Commonwealth Bank of Australia -  2 - 3 - 4 - 5

The Quade Appeal on Decision vs CBA - 2 - 3 - 4 - 5 - 6 - 7

Paul McLean is Back to Expose Bank Fraud

Paul McLean is Back to Expose Bank Fraud

Bank Fraud in Australia Is a Step Toward Controlling the Economy and the People

Bank Fraud in Australia Is Systemic and Affects All Australians

The Banks and Small Business Borrowers: case studies of adversity

by Evan Jones

1  - Introduction
2 - Goonans
3 - Paul Buckman
4 - The Walter family
5 - The McMinns
6 - Lynton Freeman
7 - Ross Delahunty
8 - Keith Smith
9 - The Somersets
10-Conclusion

Articles by Evan Jones

The NAB and Its Publicity Grabs

Innovation at the NAB and Grab

NAB accused of dirty tricks in Queensland

Bank Fraud and John Howard

Australian Four Pillars Bank Policy

Document Discovery and the Australian Courts

Final Warning: A History of the New World Order

Banks Behaving Badly

When the Bankers became Con-men

NABbed - an overcharging scandal involving the biggest Australian bank

A Case Study in the Adverse Small Business Environment in Australia

The Walter Family and the National Australia Bank - part 2

The Victorian Courts  - part 2

The Industry and the Federal Authorities

The State of Victoria and the Bracks Government

The NAB and the New Public Relations Program

The Regulators, the Law and Bank Malpractice - part 2

Conclusion and References

Tony Rigg -Never in Default

1 - NEVER IN DEFAULT - Rigg

2 - Fraudulent Swiss Franc loans

3 - Insider Trading within a Secret Society

4 - Corrupt Receiver and Illegal Eviction

5 - Collusion in Government

6 - Commonwealth Bank Code of Practice

7 - Pioneer in Steel Structure Building

8 - Summary of Argument on Appeal from Federal Court

9 - Brief for Joanna Gash, Federal MP from Gilmore

Steve Heinrich's Last Submission to Federal Court

Wilfred Taylor

Corporate Australia

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3 RESPONSIBILITY
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5 The judge brings his learning to bear on the case

As a necessary complement to a consideration of Sackar’s cross-examination,
the Dwyer case requires commentary on the contribution of the presiding judge, Acting Justice Staff. It is not an impressive contribution. His Honour appeared to be somnolent through Sackar’s long-winded cross-examination, tolerating diversion and abuse of the witness.3 [In fact, his nose was red when the court convened and remained literally somnolent and incapacitated throughout the hearing.]

3 In the subsequent Court of Appeal hearing, Defence Counsel John Sackar plays the legal club card to good effect (1995a: 55): ‘Bearing in mind the transcript indicates that his Honour kept an active eye on what was going on before him, he made crucial findings on active issues’.

When Dwyer’s counsel addressed His Honour, on the eighth day of the hearing (1991a: 365) regarding the length of the cross-examination, His Honour replied that Mr Sackar should be allowed to ‘probe the matter’.

Staff AJ came alive on the ninth day during Sackar’s attempt to deny
admissibility of a number of key paragraphs in Baird’s written submitted Statements (p.403). They relate to the 1 August meeting, to Baird’s claims of being denied adequate information, and that his advice to Dwyer would have been negative if adequate information had been supplied. His Honour did not accept all of Sackar’s objections, but concurred with many of them. If Baird had memories unacceptable to the Bank’s counsel, then he wasn’t allowed to bring them to the Court.

In particular, Sackar objected to paragraph 51, a three-page list (with sub-sections (a) to (i)) of what adequate information for prospective foreign currency loan borrowers would have entailed (Baird, 1991). This objection induced an exchange between Dwyer’s counsel, Pembroke, and His Honour that transcends the formal impartiality of the bench and captures the essence of the trial (1991a: 404ff.).

[Pembroke] “The case is not merely that a misrepresentation was made. The case is that a misrepresentation – or several – were made and that there were omissions. Mr. Baird, the solicitor, says if these omissions or any one of them had been brought to his attention he would have counseled his client not to take up the transaction …

[Staff AJ] “As I recollect it, mere silence is irrelevant. In general there is no duty to speak. “The Court of Appeal [in Mehta –v- Commonwealth Bank] made
it quite clear that the reason for their observation to that effect was that on the facts there wasn’t any reason to think that Dr Metter (sic) assumed that what he was being told was a full and complete explanation. “The Court of Appeal said there was no duty at law to speak.

[Pembroke]  “Yes, but if you speak, as the bank did in this case, if you give a formal representation then you are saddled with a duty. What was spoken was a partial explanation. It is a very major part of the whole case and I would address your Honour on that. …

[Staff AJ] The inference from the whole of the evidence will be that Mr Dwyer would have accepted that advice [a full explanation] and so would his mother, the other borrower.

[Pembroke] “There is no evidence that Mr Dwyer would have accepted Mr
Baird’s advice.

“The evidence of Mr Dwyer about this looked at overall is fairly clear. He called along his solicitor to assist him, to explain if need be what was being put to him by the bank. …

[Staff AJ] “Having regard to the way Mr Pembroke puts the case, I think I will admit this material [par.51]. I have grave doubts about its admissibility but it can be debated at the end of the case and if I am persuaded it has some relevance, so be it and, if not, I will just discard it. Certainly I would not treat is (sic) as corroborative of anything that was said at the meeting in the absence of direct evidence from Mr Baird.”

His Honour admits the crucial paragraph but denies its bearing. Pembroke and Staff AJ had both read the Mehta judgment but had contrasting interpretations of its meaning. Staff’s appropriation of Mehta is allowed to retire and is not brought forth again from its slumber.

His Honour made a curious and related intervention on the eleventh day, during Sackar’s attempt to clarify from a Baird Statement how many meetings and on what dates Baird may have met with staff of International Currency Services, a finance broker. His Honour (1991a: 484):

“We all know how these statements come to be prepared. They are
not the witness’s own words. All I will say is that I think the other
evidence demonstrates the imperfection of the witness’s [Baird’s]
recollection abundantly.”

The substance of the witness’ recollection in this instance was inconsequential to the case, a product of one of Sackar’s diversions. But evidently, this diversion produced another black mark against Baird’s credibility. His Honour declined to comment on his estimation of the quality of recollection embodied in the swathe of unsworn statements from bank officers offered up by the Bank, some of which differed markedly, and on fundamental issues, from the sometimes strongly-held memories of Dwyer.

6 The judgment

We come now to His Honour’s judgement of the 18 October 1991 (Dwyer v Commonwealth Bank of Australia, 1991b). It is a judgement of extremely low quality and reflects poorly on the integrity of the office to which Mr Staff had been elevated (albeit in an Acting capacity). Of the 10 page judgement, the first seven are central to the case, constituting a mere 2000 words. There are errors of fact. There are generalisations made on speculative grounds. There is no legal argument or discussion of legal principles or precedent. There is no
consideration of context. There is no consideration of Bank policy in the light of bank discovered documents, and no contemplation of what bank officers might or might not have said.

The judgement centres on the denial of credibility to the account ofDwyer and Baird. Dwyer is said to have been committed to the obtaining of a foreign currency loan, to have been committed to the view that the risks were trivial, and thus no information from Commonwealth Bank or advice from Baird would have dissuaded Dwyer from this path.

The bias of the judgement is compounded by a range of statements of factual detail which are not supported by the evidence, or (more typically) whose significance is not transparent but is open to alternative interpretations.

• [Westpac] had for some time pressed the Dwyers to reduce the amount of their indebtedness by the sale of one or other of the properties. Mr Dwyer, had, however, resisted the Bank’s efforts … (1991b: 2)4. Geoffrey Dwyer proceeded to sell his residence in 1983, and exchanged contracts. The sale fell through because Dwyer’s solicitor had not brought the heritage listing of the residence to the buyer’s attention.

• Mr Looke filled out for Mr Dwyer an application for an unhedged foreign currency loan in Swiss francs which was submitted to Westpac. (p.2)5. Dwyer acted as a go-between for Looke’s proposal for a bank-mediated loan of ‘not less than $US10,000,000.00’ for a collective of prospective customers in US dollars to Westpac. The solicitor’s letter to Westpac reads: ‘The loan and all interest and capital repayments are to be made in the (sic) United States dollars’ (Roe et. al., 1982: 1).

• Subsequently, an application was made by Mr Dwyer to the defendant for an unhedged foreign currency loan, in Swiss francs… (p.2). But ‘unhedged’ is a furphy. A fully hedged foreign currency loan had no advantages over a domestic loan. A foreign currency loan, as offered by all relevant institutions to small business borrowers, was de facto unhedged.

• Mr Dwyer conceded in his evidence that there was no question of him considering the [CBA] on-shore option as against the FCL option and that the only question which he had then to consider was the option of a simulated FCL as against an FCL. (p.3). Dwyer conceded nothing of the sort.

• [Dwyer’s recollection of the content of the 1 August meeting] being inconsistent in a number of respects with the contemporaneous notes which Mr Baird took of the discussion … (p.3).But Dwyer and Baird differed on the role of graphs in the meeting, an inconsequential aspect. The interpretation of graphical ‘evidence’ is discussed below.

• [Dwyer’s recollection] was in my opinion fashioned so as to …discount the fact that he was receiving important warnings and explanations from the Bank’s officers. (p.4). But where is the evidence for such warnings and explanations?

• … I cannot be satisfied that Mr Dwyer would have relied upon or accepted such information or advanced as the Bank would have tendered and in reliance upon it … to put in place some stop-loss mechanism (p.5). But a stop-loss mechanism was not offered as it was then unavailable (of which more elsewhere)

• It is noteworthy that the written material indicates that Mr Dwyer, whenever he applied for a loan, applied for an unhedged Swiss franc loan. (p.6). Incorrect.
In support of the general thrust, there is presented the usual canard that
Dwyer could not possibly be ignorant of foreign exchange fluctuations
‘having regard to his dealings in his export and import business over many years’. The experience of a small trader with foreign currency is in discrete parcels, albeit Dwyer had had a disastrous experience with a fluctuation in the gold price. A debt roughly commensurate with the Dwyer family’s total assets and entirely denominated in a foreign currency of unknown variability is of a different qualitative order.

Moreover, His Honour did not take into account the fact that the Australian dollar was not floated until December 1983 (indeed, not fully floated even then), and that relative currency movements during 1985 and after were now of a different order to that prevailing beforehand.

In addition, His Honour declined to investigate the origins of the Dwyer CBA loan, rejecting a priori as improbable Dwyer’s account (as outlined above). Said Staff J (1991b: 7):

“I could not accept him or his mother’s evidence of the conversations alleged to have been had with Mr. Gerathy at times when Mr. Gerathy was absent from Australia, nor did I consider it probably that Mr. Gerathy would have given the unqualified assurances alleged having regard to his apparent lack of information as to the plaintiff’s financial position.”

Improbable it was, but not unrealistic. This author has advice from a retired bank manager of many years’ experience that it is not unusual for senior bank officers to initiate a loan on the basis of personal connections, with approval not subject to conventional procedures. Dwyer insisted ‘That’s what happened.’ As Dwyer did not approach the CBA for a loan, yet was met with an approval, on what grounds could the ridiculing of the Dwyers’ explanation rest? As this significant issue was pursued anew by Defence Counsel during the
Appeal, it will be revisited below.

His Honour’s temper is encapsulated in his judgement of Mr David Baird, suburban solicitor. ‘Mr Baird was an honest witness but had a very imperfect recollection and in many case, no recollection at all. His lengthy hesitations and his tortured facial expressions, made it obvious to me that he often had no recollection and was seeking to reconstruct.’ (p.6)

In general, Staff’s judgement is reprehensible in its sloppiness and impropriety. It puts at risk the reputation of the Australian judicial system as a vehicle for justice.

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