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Healthy female "dog" to breed with Parson Russell Terrier, to produce ASSISTANCE DOGS.   Rochedale South QLD 4123
I wish to breed from my Parson Russell Terrier. He is a trained assistance dog. He has a wonderful nature. The breed of his mate could be varied or a cross; eg Parson Russell Terrier, Jack Russell Terrier, Beagle, Bull Terrier, Bull mastiff, Staffy, and/or Fox Terrier plus many others. She does not need to be "pedigreed". I am very protective of my dogs. She will become very valuable to me and become one of my assistance "dogs". If we can assist each other, please contact me on my contact form, including your email address and your landline phone number so I can phone you to discuss. 

Because I am disabled and have an LLB [so therefore understand the Law surrounding disabilities and assistance dogs] I am now branching out to providing Assistance dogs to disabled persons [even if disabled in only a minor way and so not even realizing it]. This is not a business proposition but rather just a very necessary service I can offer to the community.
Many people have a disability and do not realize their ailment or "problem" is by law, the Disability Discrimination Act 1992 (Cth) [DDA], classified as a "disability". This is especially so for people getting on in years, and who have a dog, and are maybe moving to accommodation where they are told they cannot take their dog. In a majority of cases, those people cannot be legally forced to surrender their animal/dog.
I will be assisting those person who already have dogs, but are being forced, unlawfully, to dispose of them because maybe they are moving accommodation. I can train your existing dogs to be assistance dogs and provide the documentation as required by the Disability Discrimination Act 1992 (Cth) [DDA]. I do not intend to charge for this, but just maybe cover some marginal costs.

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


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Publications by John Alfred SALMON: retired Bank Manager, [for NAB].

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

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


After examining thousands of pages of documentation which principally relates to Wide Bay Brickworks Pty Ltd over the past four years, I am completely satisfied that Wide Bay Brickworks Pty Ltd and its founding Managing Director, Sante Troiani, are the victims of a mammoth “sting" operation. That "sting'' operation commenced well before Sante Troiani, as Managing Director of WBB, decided to transfer the company’s banking business to the National Australia Bank in November 1994.

The authority to proceed with that "sting" operation came from the highest echelon of the National Australia Bank, the Board Room. The aim and intention of this “sting" operation was to ensure that WBB ceased to be an effective opposition to Boral in Bundaberg and its environs. (This has since been achieved; the NAB appointed Receivers and Managers to WBB in August 1999.) It is my belief that Boral in the early 1990's was one of the NAB's most vital customers in Australia. The NAB and Boral had two common directors, while a third Boral Director was the former Managing Director of the NAB, Nobby Clark.

The "sting" operation could be described as a carefully designed plan so that the purpose could be achieved. As I have stated above, inducement was crystallised in November 1993.

The second phase was represented by a chronology of events instigated by the NAB.. However it is fair to say that there needed to be a time frame factor which would culminate in the appointment of Receivers and Managers by NAB. At that time the effective obliteration of WBB as an effective opposition was virtually complete.

Once the NAB made it progressively aware to the selective few that that the eventual demise of WBB had the imprimatur of the highest echelon of the NAB, their task of acquiring co-conspirators along the way was made relatively easy. Those cohorts acquired came from WBB's own employees, WBB's external auditor of many years` standing and certain principals of legal firms who gave advice to Managing Director Sainte Troiani with respect to WBB's activities. According to Sante Troiani, he alleges that certain family members also turned renegade.

The NAB knew full well that the third phase of their designed plan would be represented by the legal processes which would be mounted by either party along the way. The NAB’s aim and finality of process was to have both Sante Troiani and his wife, Rita Cesarina Troiani, declared bankrupt in the Federal Magistrates Court of Australia.

The following pages will deal in some detail with the circumstances surrounding the Summary Judgement handed down by Chief Justice Paul de Jersey in favour of the NAB.

The reader will readily pose the question at this stage, what was the chronology which the NAB instigated which enable them to successfully appoint Receivers and Managers in August 1999 as per the second phase?

The NAB's actions in this regard comprised many facets and one of those facets the bank decided to implement is commonly known as the 'Shadow Ledger System'. In this regard I am exhibiting herewith marked "JAS1" extract pages from a Submission Paper authored jointly by Dr Evan Jones, University of Sydney, and myself, dated 25 March 2008. The exhibited pages will explain the Shadow Ledger system and one of the four case studies has been devoted to the Troiani case, pages 29 to 35 inclusive refers. The highlighted issues of the shadow ledger concept as it relates to WBB and Third Party Guarantors Sante Troiani and Rita Cesarina Troiani are as follows.

* Sometime before February 1994, the NAB had declared certain borrowing facilities approved on account of WBB as 'non-accrual'. This declaration may have taken place anytime in 1993. It follows that in all probability the NAB has raised a Bad & Doubtful Return in the name of WBB.

* From February 1994 onwards, the Managing Director of WBB, Sante Troiani never sighted a bank issued statement for the WBB No 2 Account, where the said indebtedness was represented by the two matured commercial bills.

* The NAB set up a dual purported statement record for the No 2 Account where a statement issued by the NAB was first sighted by Sante Troiani in January 2001. Sante Troiani had no idea that this document represented a 'shadow hedger' record and it was from these style documents that the indebtedness said to be owing to the NAB by WBB was transposed to the bank's issued Formal Demand notices.

* The NAB issued Formal Demand on the 4 August 1999 stating amount owing with respect to the WBB No 2 Account as $6,278,936.40.

On this day the NAB's mainframe computer statement for the No 2 Account as at 4 August 1999 recorded an amount owing at $3,160,673.76. The NAB's mainframe computer statements for the No 2 Account from commencement in February 1996 to 31 August 1999 were filed in the Supreme Court for the NAB's Summary Judgement hearing. Sante Troiani had realised by December 2000 that it was of vital importance that the bank should prove how their alleged indebtedness was arrived at. Troiani’s efforts in this regard fell on deaf ears.

The third phase of the NAB's "sting” operation is represented by the legal process concerning the bank's instigated Summary Judgement hearing. The NAB must win at all costs in this regard, and to ensure that success they must have a pliable legal team who are prepared to engage in a process to achieve the desired aim.

It is my contention that the judiciary was compliant to the NAB's cause and in the action before us we have the Chief Justice, Paul de Jersey, handing down a decision in favour of his personal bankers, the National Australia Bank. What must also be realised at this point is that no transcript of proceedings was ever made available by the court relative to the Summary Judgement hearing held on the 19 March 2001.

What also must be pointed out is that Sante and Rita Troianis' counsel, AJH Morris QC, was aware that the Chief Justice's personal bankers were the NAB, the Plaintiff in this litigation.

The reader will see from the following pages that I hold a strong view that the Chief justice has pre-determined his judgement. I will now illustrate all the surrounding circumstances which have taken place and are relevant to the decision of the Chief Justice handing down a decision in favour of the National Australia Bank on the 22 March 2001.

* * *

The series of events which took place from 1 March 2001 to 19 March 2001, the latter date being the day of the Summary Judgement Hearing, cited as S7759/2000, which took place with the Chief Justice, Paul de Jersey, presiding as revealed in the litigation file of the instructing solicitors for Sante Troiani and Rita Cesarina Troiani, the first and second defendants respectively during the said period.

The correspondence apparently did not come into the possession of the first and second defendants until 2003.

(a) Sante Troiani raised a letter addressed to his instructing solicitor under date of 3 March 2001 expressing concern that the capacity of the court would be severely restricted due to the fact that they would not be in possession of the relevant facts, and further the National Australia Bank was asking the court to accept the validity of the alleged debt said to be owing to the bank when the said debt had not been proven to the satisfaction of Sante Troiani and Rita C Troiani.

There was a need to immediately ascertain all information in view of the fact that the National Australia Bank had served a bankruptcy petition on both Sante Troiani and Rita C Troiani. The conclusion of Sante Troiani at the time was that the National Australia Bank was seeking to deliberately pervert the course of justice.

(b) Sometime during the first week in March, Sante Troiani met with his instructing barrister, Michael Amerena, to express dissatisfaction with Amerena's recent opinion that he Amerena, was not prepared to amend the pleadings concerning a conspiracy allegation and if a claim as such was made, it would then make an arguable case much harder to win.

(c) The Troianis' instructing solicitor's correspondence indicates that by the 12 March 2001 the services of counsel, namely P D McMurdo QC, had been engaged on behalf of his clients. McMurdo was further advised that he had instructed his Brisbane agents to deliver to him four volumes of documents in the matter titled:

Two volumes in relation to the Application for Summary Judgement.

One volume for defence of the claim by the National Australia Bank.

One volume in relation to the proposed Third Party Proceedings.

McMurdo was further informed that discussions should take place with respect to further requirements, the settled affidavit and any additional affidavit with respect to the Third Party Proceedings.

(d) The instructing solicitor's facsimile message of the 15 March 2001 indicates that a Consent Order was sent to the Registrar of the Supreme Court requesting an adjournment of the 57759 of 2000 matter from 16 March 2001 to 19 March 2001.

(e) The instructing solicitor's letter addressed to A J H Morris QC, Barrister-at-Law under the date of 16 March 2001 indicates that his services as counsel have been engaged on behalf of his clients. Two affidavits accompanied this letter, both related to the appointment of the receiver/managers.

The instructing solicitor raised a further letter dated 16 March 2001 addressed to Morris as counsel enclosing a draft affidavit for settling where the deponent to be was Sante Troiani.

(f) As soon as Sante and Rita C Troiani were informed that the services of AJH Morris QC had been engaged on their behalf, they immediately drove to Brisbane to meet with him. This meeting took place in his chambers in the MLC building in George Street, Brisbane, on Tuesday the 13th March 2001.

Morris informed Sante Troiani and Rita C Troiani that it was difficult to beat a bank. Concluding discussions took place in the coffee shop situated at the ground level of the MLC building.

(g) The court hearing before the Chief Justice, Paul de Jersey, commenced at about 10.30 am on the 19 March 2001. Sante Troiani was present with his instructing solicitor and counsel AJH Morris QC. Leave was sought to file additional material which was granted. The Chief Justice adjourned the court at midday with his judgement reserved.

(h) On the 19 March 2001 after the Summary judgement hearing had taken place, counsel Morris addressed a letter to Suthers Lawyers covering a spread of two pages and proceeds to say in chronology as follows:

I consider that Mr & Mrs Troiani have only slight prospects of succeeding against the National Australia Bank at trial.

There was no evidence that the National Australia Bank had given directions or instructions to the receiver/managers.

On 3 September 1999, Byrne J handed down a judgement in favour the National Australia Bank, the plaintiff and Wide Bay Brickworks Pty Ltd, the defendant, recited as S7395 of 1999 where the plaintiff bank was seeking summary judgement declaring the validity of the bank's appointment of receiver/managers to the defendant on the 6 August 1999. Sante Troiani gave evidence at the trial hearing in his capacity as Managing director of Wide Bay Brickworks Pty Ltd.). Troiani contradicted the bank’s claim that WBB had breached the bank’s securities when it granted a Bill of Sale to Queensland Rail on 5 May 1998. The fact was that the Bill of Sale would never have been executed by WBB if the bank had adhered to the terms and conditions contained within the provisions of the specific Loan Agreements between the parties. Troiani had sought legal advice before executing the Bill of Sale and was advised that it was in order to do so.

(This was of critical importance. It was therefore a sufficient basis in law to appoint receiver/managers. It can therefore be concluded that the losses suffered by the company, WBB, or by Sante Troiani and Rita Troiani were in no way attributable to the conduct of the National Australia Bank.)

(i) On the 20 March 2000, Sante Troiani wrote to his independent advisor, Colin Walker, who had been assisting him since September 1999 and stated, "I don't believe that Tony Morris knew anything about WBB and the millions of dollars taken by NAB".

Sante Troiani proceeded to say:

If we win the hearing we lose against the NAB. I can't see where the last $50,000.00 spent has taken us to. This is a fast cover up by the bank. In my 27 years in bricks, I'm definitely certain that the company (WBB) made money continuously. I can't prove this without every statement. I will not liquidate the company because that is what the bank wants. I don't believe in injustice. Now we are certain that justice doesn't exist.

(j) Suthers Lawyers raise a letter under date of 21 March 2001 addressed to Sante Troiani advising him that they have been informed by Tony Morris's office that a decision in the matter will be handed down at 10.00 am tomorrow. The letter proceeded to say, "There is nothing you can do in attending the hearing yourself."

(k) Sante Troiani, accompanied by his two independent advisors, Messrs Colin Walker and Michael Bailey, motored to Brisbane to hear the Chief justice's decision scheduled to be handed down at 10.00 am on the 22 March 2001.

The Chief Justice convened the court at the scheduled time and after a few minutes adjourned the court for discussion between the parties.

Outside the courtroom, Sante Troiani and his two advisors were told by counsel Morris QC that their presence in any future proceedings would not be necessary. On hearing these words, the group decided to return to Bundaberg.

On the return trip, the group decided to make a stop in Maryborough and call on their instructing solicitor, Rod Suthers of Suthers Lawyers, who had control of the action and acquaint him with what had taken place.

As soon as the group was ushered in to Rod Suthers' office, he made the opening remark, "You idiots, why didn't you go back to court, de Jersey reconvened the court, handed down his decision and you've lost on all counts." Suthers then proceeded to say, "I have a copy of the judgement here, it has been faxed by Tony Morris."

Sante Troiani was flabbergasted on hearing these remarks. Tony Morris had given his group absolutely no indication that the Chief Justice, Paul de Jersey, was likely to hand down his decision shortly after their departure from the Supreme Court precinct.

Tony Morris raised a covering facsimile transmission at the time of sending Chief Justice de Jersey's decision to Rod Suthers. The significant content of Morris's transmission is as follows:

"I had a short discussion with Mr Troiani following the handing down of the judgement." (Statement 1.)

"The Chief Justice refused to grant a stay, considering that there was no basis for the bank to be held out of a judgement to which it is rightly entitled." (Statement 2.)

"His Honour struck out the Third Party Proceedings.'' (Statement 3.)

All Morris statements, 1 to 3 above, are false and this fact is confirmed by Sante Troiani and his two advisors, Colin Walker and Michael Bailey.

(l) Sometime during the last quarter of 2006, Sante Troiani handed to me two items of interest which both relate to circumstances surrounding the Summary Judgement proceedings before the Chief justice, Paul de Jersey.

The first is represented by a four page document titled, "National Australia Bank -v- Troiani - First and Second Defendants' Outline of Submissions", together with a one page attachment marked "page 2". This document indicates that it was prepared by Anthony JH Morris QC and was handed up to the Chief Justice at the court hearing held on 19 March 2001.

(I am unable to say when this document came into the first and second defendants' possession, however I can definitely lay claim to the fact that there is no record of this document in the Supreme Court No 7759/2000 file and a copy was not in the possession of the defendants at the time of their appeal to the Supreme Court of Appeal in November 2001 concerning the de Jersey decision handed down on 22 March 2001.)

This four page document contains seventeen clauses which are recorded under two headings, Summary Judgement and Material. The document is dated 19 March 2001.

The single page document marked 121 records what has taken place under three headings, viz:

Pay the sum claimed.

Do not pay the sum claimed.

Do not pay the sum claimed but make an arrangement with the bank in satisfaction of the debt.

The second is represented by a three page letter raised by Anthony J H Morris QC addressed to Sante and Rita Troiani under the date of 19 August 2004 and is in acknowledgement of the Troianis' letter dated 18 August 2004.

I have never sighted a copy of Sante Troiani's letter of the 18 August 2004. My recollection is that I did not receive a copy of the Morris letter until some time during the last quarter of 2006.

I was introduced to Mr & Mrs Troiani for the first time in mid-2004 by their solicitor at the time who I had been acquainted with for over thirty years. Since that time I was in regular contact with Sante Troiani until his passing in October 2007. During that approximate three year period, Sante Troiani would regularly give me documents for assessment.

The Morris letter reveals that the Troianis apparently made remarks in their letter as follows: "denied natural justice", "were kept away from the case when it was most urgent for me to be present", "we were misrepresented and advised" and "was prearranged".

The whole drift of the Troianis' can be gleaned from the comments of Morris when he states as follows:

11. Your assertion that something was "prearranged" is entirely mischievous. If you are suggesting that I conspired with the Chief Justice of Queensland to give you a copy of the Chief Justice's decision "which was untrue and not completed". and then send you away whilst other matters were dealt with in your absence, that suggestion is rejected as being utterly absurd.

13. Finally, I reject the suggestion that anything which I did had the effect of destroying you financially. You were destroyed financially because your business failed, and you owed money to the National Australia Bank which you could not pay. The truth of the matter, as confirmed by the decision of the Court of Appeal, is that you had no arguable defence whatsoever in respect to your liability to the bank for the sum in excess of $3.45 million.

14. Your claims that you were "not given the opportunity at the vital stage of the hearing before the Chief Justice, Paul de Jersey [the preliminary hearing which took place on 19 March 2001] to rebut vital matters influencing the Chief Justice's final decision", and that I "kept you away from the case when it was most urgent for [you] to be present", are again entirely without foundation.

The foregoing remarks as reiterated in the Morris letter gives a fairly clear indication as to the state of mind of Sante Troiani after he had been acquainted with the procedural facts which took place on the 22 March 2001.

The author's comments on the pertinent issues raised in this chapter.

I am satisfied that Sante Troiani, the First Defendant, and his advisors did their utmost to squarely present the issues at hand to his instructing solicitors. The critical issues were acknowledged by Sante Troiani by the end of December 2000. His emphasis at all times was correctly stated as, "we must have discovery".

It can be seen that "discovery" permeates correspondence, including the National Australia Bank's instructing solicitors right through to early March 2001. I have never known a bank to give "discovery" of their records in a Summary Judgement proceeding.

The general thrust of the Summary Judgement proceedings as far as the bank is concerned revolves around the fact that Sante Troiani and his wife, Rita C Troiani, have no defence and whatever defence they do raise will be struck out.

Why the instructing solicitors for both parties refer to the matter of National Australia Bank "discovery" is not known; it certainly appears to me that it is nothing more than a charade. The fact is that, other an odd bank statement or two, the bank's solicitors discovered zilch. We also have the fact that Sante Troiani as Managing Director of WBB was not permitted access to company records.

It is obvious that the bank's legal team are pulling out all stops to ensure that the desired Summary Judgement succeeds and they will never ever be called upon to enter into the "discovery" process and therefore the scandalous, deceptive, misleading conduct, all aggregating to criminal conspiracy on the part of the bank, never comes to light.

This outcome is exactly what happened, right through to Troianis' bankruptcy. The Troianis applied for NAB discovery in every jurisdiction, and they were refused on each occasion.

Sante Troiani sends a Facsimile Transmission Sheet to his solicitor with the covering question, "Rod [Rod Suthers of Suthers Lawyers], is this really a statement". This is the Shadow Ledger record for the No 2 Account 66 158-5675 raised by the bank on a plain (no letterhead) A size sheet recording transactions from 28 02 96 to 30 04 98. Monthly bank interest amounts so charged do not commence until 30 04 97. Anybody coming into possession of a document of this nature would say, "what is this?". It would never enter their mind that it was raised by WBB's bankers and represents part of the bank's records.

If the bank had provided the ongoing statements which recorded succeeding transactions from 30 04 98 to 31 08 99, Sante Troiani and his advisors may have realised that the bank's Formal Demand stated debt for $6,278,936.40 on the 4 August 1999 had been transposed from this type of record. It would have most probably prompted them to take the time and carry out further investigations concerning this document.

The fact is that the bank did not produce the relevant record, thereby preventing Sante Troiani and his legal team from ever ascertaining how the Formal Demand debt as mentioned in the previous paragraph had been arrived at. Sante Troiani and his advisors had brought to the notice of his instructing solicitor that there was a serious matter of establishing the veracity of the bank's claimed debt as per the WBB No 2 Account 66 158-5675.

The bank was making sure that their opponents were not afforded the opportunity to ascertain how the said debt claimed had been arrived at.

The bank's solicitors also saw fit to include in their client's Amended Statement of Claim filed in the court on 1 March 2001 a decision handed down by Byrne J (in which WBB was the first defendant and Sante Troiani gave evidence on behalf of his company) where the plaintiff bank received a judgement in their favour on 3 September 1999 concerning the matter of WBB giving Queensland Rail a Bill of Sale without the National Australia Bank's consent. Why not plead this issue in the bank's original claim filed in the court on 6 September 2000? The bank's aim of course was to thwart their opponents in any manner possible. This of course is standard procedure for the bank's legal team.

The bank alleged in their Application filed in the court on 1 March 2001 that the defendants are engaged in conduct described as 'vexatious' and/or 'frivolous' and/or 'abuse of process of the court' as referred to in UCPR No 171. The inclusion of this rule by the bank’s legal team means that the defence so filed represents unjustified harassment to the bank’s claim and therefore the defence filed in the court should be classified as no defence by the court and should be struck out. The introduction of UCPR NO 171 indicates to me that the bank and their legal team are pulling out all stops to ensure that a victory will be achieved preemptively in this Summary Judgement hearing.

In my twenty years of investigating the case histories of victims of bank "sting" operations, I can say that these allegations, as per UCPR No 171, have only been instigated by the bank when they realise that their victim continues to persist in litigation in an endeavour to seek justice. The victim progressively acquires knowledge along the way from which he is able to deduce that he is a victim of a "sting'' operation, hence the persistence.

I found that the bank's ploy of pleading vexatiousness, etc., will typically win the day. The victim could well be restricted to seeking the leave of the court before he can commence fresh litigation. The Troiani situation, as revealed above, indicates that the bank is so anxious to keep secret all the facets of the WBB "sting" operation that they have resorted to, the bank's legal team aim to place before the court that the Troianis' defence should be struck out in the initial litigation.

A good example of the bank's generalised practice can be construed by citing the Federal Court of Australia judgement of Spender J of 7 May 2004 in L N F Freeman -v-National Australia Bank No Q45 of 2004. Spender sees fit to record in his judgement the detailed chronology of twenty litigation proceedings involving the Appellant.

The Spender J judgement records that the relevant chronology commenced on 25 September 2000 with litigation instigated by the bank in the Supreme Court of Queensland. Two further matters are recorded as being filed in the Queensland Supreme Court Registry. Freeman sought special leave to appeal to the High Court of Australia with the remaining sixteen matters listed in the judgement as being conducted in the Federal Court of Australia.

Mr Freeman continued to file Applications in various jurisdictions until the 30 June 2005 when the National Australia Bank as First Applicant sought Orders pursuant to Federal Court Rules to have the Respondent, L N F Freeman (by then a bankrupt) declared a vexatious litigant. (Recited as QLD 145 of 2005 with judgement handed down by Spender J on the 22 December 2005.)

The National Australia Bank's Application was strongly supported by the Respondent's Trustees in Bankruptcy. Judge Spender ordered that Mr Freeman was not to commence any further proceedings without the leave of the court against the Applicant or his Bankruptcy Trustees and if there were any other court proceedings in the court, they were to be discontinued unless an Appeal was mounted. Spender's judgement was spread over fifteen pages.

The litigation treatment of LNC Freeman in the various jurisdictions needs to be contrasted with that of Sante Troiani and his wife, Rita Cesarina Troiani, the First and Second Defendants, who have been alleged to be vexatious in the National Australia Bank's first instigated instance of a litigation dispute. What also needs to be stressed is the fact that the First and Second Defendants have been caused to defend this court process as indirect parties, and not direct as LNC Freeman was in all instances. The Troianis were being forced into litigation as Third Party Guarantors. The reader must wonder what is the National Australia Bank concealing here?

This section would not be complete without comment on the matter of counsel selected to represent the Troianis at the bank's Summary Judgement hearing. In all there were three senior counsel who all happened to be QCs.

Correspondence in my possession indicates that Barrister-at-Law, Michael Amerena QC, had been briefed by December 2000 and his services were apparently abruptly terminated by Sante Troiani in the beginning of March 2001, shortly after Amerena had released his Memorandum of Advice to Sante Troiani dated 26 February 2001.

Further correspondence indicates that Barrister-at-Law, PD McMurdo QC, had been appointed by 12 March 2001 to replace Amerena. Within twenty four hours we have PD McMurdo QC being replaced by AJH Morris QC on 13 March 2001.

I cannot recollect when I became aware of all counsel appointments as mentioned above. However I can say that all facts were well known to me prior to the end of the 2006 calendar year.

With all these facts in mind, allied with my knowledge gleaned in bank litigation over the past thirteen years, I posed the following questions to Sante Troiani:

(i) Did you know that the National Australia Bank was the personal bankers of the Chief Justice, Paul de Jersey?

(ii) Did you know that your counsel, Tony Morris, often represents victims of the National Australia Bank "sting" operations and that the victims always seem to lose?

I then proceeded to inform Sante Troiani that, in my view, there seemed to be some untoward relationship between the Chief Justice, Paul de Jersey, and Tony Morris.

Sante Troiani was utterly astounded when I informed him of this information. Sante Troiani was absolutely devastated. He told me that if had known of this information prior to the commencement of the NAB's Summary Judgement hearing, he would have done everything in his power to have the Chief Justice removed from the bench.

I further informed Sante Troiani that sometime in the late 1980s or early 1990s, I became aware that AJH Morris represented a client of Suthers Lawyers with Rod Suthers attending. In this instance the Suthers' clients had instigated legal action against the National Australia Bank. The bank was named as the First Defendant.

I think it appropriate if I digress to inform the reader how I acquired my knowledge of this litigation which took place in the Supreme Court of Queensland in late 1987 before Justice Dowsett. It also transpires that sometime in 1991, I telephoned Rod Suthers to acquaint him of the fact that his clients were one of three victims of an NAB "sting" operation and, if the real facts were known and presented in the court, his clients would have won hands down.

Sometime in the late 1980's I agreed to act as a consultant for Norman Rowley and his wife, Thelma Marion Rowley, who had mounted an action in the Federal Court of Australia against the National Australia Bank as Respondent, recited as G161 of 1987. Norman and Thelma M Rowley had been induced to execute a Guarantee and Indemnity in favour of the National Australia Bank for $30,000.00. My investigations revealed that my clients here were the third victims of the Respondent bank where the first and second victims had also been induced by the bank to execute a Guarantee and Indemnity for $30,000.00.

The first victims of National Australia Bank entrapment were Frederick O'Connor and his wife Walburga O'Connor and were represented by AJH Morris. Walburga O'Connor was a Philippine national who had no command of the English language. Their Supreme Court of Queensland trial hearing took place in late 1987 with Justice Dowsett presiding. This litigation is recited as No 1661 of 1987 with Antony McLean Duddy as Second Defendant and his wife, Lee Duddy, as Third Defendant. Justice Dowsett delivered his judgement in the New Year in favour of the National Australia Bank. During the trial hearing justice Dowsett issued instructions from the bench that no one present in the court room was permitted to take notes.

The second case history concerns a Mrs Sheppard who was induced by NAB Bank Manager, KR Thomson, and Branch Accountant, LR Corby, to also execute a Guarantee and Indemnity for $30,000.00 in favour of Antony McLean Duddy and Lee Duddy trading as a registered firm, L.T.D. Contracting Services. Mrs Sheppard gave the bank a registered mortgage over real estate property in her name as collateral security to support her Guarantee and indemnity for $30,000.00.

Within two months after Mrs Sheppard executed the Guarantee and Indemnity for $30,000.00, she called at the bank to confirm that her security would be released on 21 October 1986 as promised by his customer, Antony Lee Duddy. Mrs Sheppard further pointed out to manager, K R Thomson, that "Tony Duddy has a lot of people suing him"; she further pointed out to him that she had sought advice from her solicitor and he advised that she had been very foolish.

Bank discovered documents revealed that the bank had cancelled the Sheppard Guarantee and Indemnity for $30,000.00 in December 1986. 1 was later advised by the instructing solicitor for Norman and Thelma Rowley that Mrs Sheppard's solicitor had a personal association with bank manager, K R Thomson, and by virtue of that association he agreed to cancel the Sheppard Guarantee and Indemnity for $30,000.00 and release the collateral security.

By the end of February 1987, the trading account of L.T.D. Contractors had been conducted on an irregular basis for over 92 days. On each of those days the account classification was "C", meaning that portion of the debt on each day was unsecured. The National Australia Bank held no direct security from either Antony McLean Duddy or Lee Duddy.

Branch Manager Thomson was under constant pressure from his Regional Manager, Roger Kent, to the effect that no further excesses were to be permitted. Further financial accommodation should not be approved without additional security, It was following this situation that Norman Rowley and Thelma Rowley were induced to execute a Guarantee and Indemnity in favour of Antony McLean Duddy and Lee Duddy for the sum of $30,000.00 on 18 March 1987.

As soon as my services as Consultant were engaged by the Rowleys' instructing solicitors, I had access to all the National Australia Bank's discovered documents plus the transcript of proceedings for the Frederick and Walburga O'Connor trial hearing conducted on the 13 November 1987.

I quickly realised that there were many critical issues relating to the National Australia Bank's conduct of the account L.T.D. Contracting services that for various reasons were never brought to the attention of justice Dowsett. Some of these are as follows:

The account of L.T.D. Contracting Services was conducted on an irregular basis for 97.25% of the time from 29 October 1986 to 28 April 1987. This means that the account name appeared in weekly watch list computer printouts and that the manager would have been required to regularly report on that irregularity to his Regional Manager, Roger Kent.

Critical Customer Interview Records/Diary Notes were proven to be a total fabrication. The interviews as stated never took place as described.

Many responses by the National Australia Bank's two principal witnesses, Bank Manager K R Thomson and Branch Accountant LR Corby, in examination and cross examination were either false or misleading.

For example, manager Thomson, in examination-in-chief by the bank's counsel, responds with this answer, "If a customer were under pressure from creditors I would expect to see his name coming up in Dunn's Gazette with creditors taking judgements against him. I didn't see any of them at that time although I was aware that he had liquidity problems.'' Bank counsel: Did you consult the Dunn's Gazette? KR Thomson response: "We receive it every week."

Perusal of page 4 of the Dunn's Gazette dated 9 May 1986 reveals that James Hardie & Co Pty Ltd had taken out a District Court Plaint against Antony McLean Duddy on account of L.T.D. Contracting Services on 28 April 1986 for the sum of $23,756.00.

In December 1987, Frederick O'Connor heard that Bank Manager, K R Thomson had been sacked. Since he had been a customer of the National Australia Bank for many years he decided to call on Thomson at the bank in Maryborough seeking confirmation of the rumour.

Frederick O'Connor asked Thomson straight out, "why did they sack you?" Thomson responded by saying that he was not given a specific reason, but he was told he had to go. Thomson proceeded to say, "I may be here until January". Frederick O'Connor then put to Thomson, "It would have been over the Duddy account" and Thomson replied, "yes". Frederick O'Connor deposed to the foregoing dialogue in his affidavit executed on the 4 March 1991.

With the foregoing facts in mind, which I had been able to determine from the information available to me at the time, I considered that if the real facts had been placed before the court in the Frederick and Walburga O'Connor litigation trial hearing, then they should never have lost.

During the Norman and Thelma Rowley consultancy, it was revealed to me that Antony McLean Duddy and Lee Duddy, the second and third defendants respectively in the O'Connor litigation, should have been named in the recital of the Rowley litigation and were not mentioned. Only the bank was named as First Defendant.

I immediately realised that the most probable reason for this was because Anthony Duddy had a lengthy criminal record and, as a witness for either party, the image he so portrayed would reflect very unfavourably as far as the National Australia Bank's good name and public image was concerned.

Antony McLean Duddy's rap sheet was handed to me in the course of my reporting on the events from a banking point of view to the instructing solicitors. The rap sheet revealed that Antony McLeod Duddy had a lengthy criminal record spanning over thirteen years. Duddy had been named in fourteen offences, convicted in twelve felonies including willful murder, and sentenced to life imprisonment. It is fair to say that Antony McLeod Duddy, the Second Defendant in the O'Connor Supreme Court of Queensland trial, was an habitual criminal.

The Rowley pre-trial hearing process seemed to be proceeding smoothly until AJH Morris interviewed Antony McLeod Duddy who would be expected to be called as a witness in the Rowley trial. It so transpired that the Rowleys' instructing solicitor and myself were both interviewed by AJH Morris in his chambers. Following this discussion I was introduced to Antony McLeod Duddy who was then interviewed by Morris.

From that moment onwards, the litigation process progressively came to a halt. The Rowley's instructing solicitor seemed to absent himself from the scene overnight. There was to be a second and third instructing solicitor with all involved passing the file on.

I periodically telephoned Norman Rowley to ascertain if there had been any developments; Rowley's response was always in the negative. I asked Norman Rowley if he had attempted to contact Morris. His response was that although he had telephoned many times, Morris was never available to speak with him and would not respond to any messages left.

The whole litigation had come to a halt and, as a consequence, it was playing on the minds of both Norman and Thelma Rowley. The last I heard of this case history was that Norman Rowley advised that he had addressed a letter of concern about the status of his case to the Registrar of the Federal Court in Brisbane. I was never informed of the Registrar's response and I assume that the litigation lapsed with each party meeting their own costs.

The whole situation disturbed me, and from that moment onwards I was left with a very unfavourable impression of Barrister-at-Law, AJH Morris, who was eventually to be appointed a QC.

It can be seen that there were highly unsavoury factors involved. When I reflect back on this litigation now, I realise that it would have been a major embarrassment to the National Australia Bank if Antony McLeod Duddy and Lee Duddy, trading as L.T.D. Contracting Services, were recited in the Rowley Federal Court litigation. The fact was that they should have been and I would say that the decision to ensure that the Antony McLeod Duddy and his wife were not named as formal defendants in the litigation was a decision most probably made by Morris.

Any fair minded lay observer would proffer the question; did Barrister-at-Law, AJH Morris, breach his Oath of Office? Was he all about protecting the National Australia Bank from serious embarrassment which would surely have eventuated if the Rowley Federal Court trial hearing had taken place?

Sometime after the Rowleys' Federal Court litigation had come to a standstill, I felt the need to telephone Rod Suthers of Suthers Lawyers to acquaint him in brief with my findings concerning both my clients, the Rowleys, and Rod Suthers' former clients, the O'Connors.

I would have told Rod Suthers the salient features of my investigating of the National Australia Bank / L.T.D, Contracting Services saga. I probably would have told him that banks have a bag full of dirty tricks in litigation, especially the National Australia Bank. While I cannot be sure, my records indicate to me that this conversation most probably took place sometime during the June quarter of 1991.

It was with the aforementioned information in mind, together with other litigation proceedings which I had knowledge of where there was an involvement of the National Australia Bank and AJH Morris QC, why I put the questions and comments I did to Sante Troiani.

One final matter which should not be left without comment is why did PD McMurdo QC withdraw from the Troiani brief within twenty four hours or thereabouts?

I telephoned Rod Suthers in Maryborough who is now apparently enjoying semi-retirement and put this specific question to him. Rod Suthers' response was that McMurdo simply telephoned him on the 13 March 2001 and apologised to him, saying that he could not continue with the brief because he had simply overlooked another engagement which he was committed to and that was that. Rod Suthers would have to engage the services of alternate counsel at this late stage.

I told Rod Suthers, "you couldn't believe that?", and he responded by saying, "what could I do?"

I knew full well that there was certainly a story behind McMurdo's decision to discontinue with the brief. It is my belief that Philip McMurdo mentioned his just agreed brief as counsel for Troiani to his wife, Margaret McMurdo, who happened to be President of the Court of Appeal of the Supreme Court of Queensland and was appointed in July 1998.

Thus McMurdo's wife had been in her judicial position for nearly three years and it would therefore have been well known to her that her immediate superior, the Chief Justice Paul de Jersey, had a "fixation" about certain matters processed through the Queensland Supreme Court in all the various jurisdictions.

Margaret McMurdo would have almost certainly advised her husband to drop the brief, irrespective; and that is what he simply did. The legal profession has no qualms when it comes to matters of this nature. I have spoken to many people since this matter of the McMurdo reneging came to my attention, and they all unhesitatingly agree that that is certainly most likely what happened.

And so, Sante Troiani and his wife Rita Cesarina Troiani as First and Second Defendants were left with AJH Morris QC to represent them.

The author's comments in Chief Justice Paul de jersey's Summary Judgement decision delivered on the 22 March 2001.

The National Australia Bank was seeking Orders from the Chief justice that the debt as per the bank's Formal Demand of 4 August 1999 standing at $6,278,936.40 be formally declared a legal debt owing to the bank.

The judgement initially brings to the reader's notice the fact that the bank's first registered mortgage debenture was breached when the company (WBB) granted a Bill of Sale to Queensland Rail on the 5 May 1998. This is confirmed by the judgement of Byrne J on 3 September 1999 wherein it was determined that the bank was entitled to appoint receiver/managers to WBB and affirmed to that appointment.

It so transpires that Byrne J's Judgement and Order in this Supreme Court of Queensland litigation, described as No 7395/99, forms part of the bank's evidence and is found in the Exhibit marked "El" of the Affidavit of David Waters filed on the 2 March 2001. The Byrne J judgement is spread over nine pages.

I take it that the Chief Justice de Jersey would have read this material in detail and in doing so he would have immediately realised that Byrne J in coming to his decision confirmed that he had to satisfy himself that the bank had not engaged in any unconscionable conduct concerning the $7,450,000.00 Commercial Bill Facility the NAB had approved on behalf of WBB on 12 November 1993.

Byrne J found that the bank had not engaged in any unconscionable conduct regarding the bank's conduct of the Commercial Bill Facility for $7,450,000.00 on behalf of WBB.

The Chief Justice would have been well aware that in the litigation before him the bank was being sued on the outstanding debt applicable to the Commercial Bill Facility for $7,450,000.00. This facility became fully drawn in mid 1995; that liability had been progressively reduced and was described in the bank's books as No 2 Account 66 158-5675. The debt on this account was said to be $6,278,936.40 on the 4 August 1999, the date on which the bank issued Formal Demand.

The Chief justice would have had the opportunity to refer to the bank's Statement of Claim – Amended, filed on the 1 March 2001, wherein the pleadings under the Commercial Bill Facility, Variation to the Bill Facility and Default under the Bill Facility were alleged to be subject to factual determination by the bank.

It would have been revealed to the Chief Justice in this document description that the bank provided financial accommodation to WBB by way of a "Commercial Bill Facility with Account No 66 158-5675 (Bill Account) pursuant to an approval advice dated 12 November 1993. The maximum face value of the Bills was $7,450,000.00. The expiry date of the Bill Facility was not stated.

The bank's approval advice dated 12 November 1993 could have been sighted by the Chief Justice by referring to Exhibit marked "RLI 1" contained in the affidavit of David Waters filed by the bank on 2 March 2001.

If by chance the Chief justice had perused this Exhibit "RLI 1", he would have noticed that there was no mention of Account No 66 158-5675 (Bill Account) and further no specific expiry date was mentioned. However the Chief Justice would have been able to subsequently glean from the David Waters exhibit referred to on pages 11 to 16 that the 'End of availability period was 31 12 1999'.

In the bank's Statement of Claim – Amended, it referred to Variations to the Bill Facility pursuant to conditions which were contained in eight letters, with the initial date being 5 February 1996 and flowing through to 23 January 1998. All these letters were raised by the bank and addressed to the Directors of WBB with the exception of the letter dated 23 January 1998 which was addressed to the Manager of WBB.

If by chance the Chief Justice read this material which covers thirty pages, he would have realised that there is no specific reference to the $7,450,000.00 Commercial Bill Facility, with the exception of the final letter dated 23 January 1998 which records that there is a payout figure applying to: "FDA (Fully Drawn Advance Account) 661585675 $6,356,155.00."

When the Chief justice came to Exhibit marked "RLI 34" of the Waters Affidavit listed under section 'Demands and Defaults', he would have sighted a copy of the bank's Formal Demand dated 4 August 1999 where the sum due at $6,278,936.40 was in respect to an account styled, 'Overdraft In Reduction Account No 66 158 5675'. The Chief justice would have then wondered, what is going on here? In one of the bank's exhibits the account is styled 'FDA', while in another it is styled 'Overdraft In Reduction Account'.

If by chance the Chief justice had been able to discern the confusion he was presented with by the foregoing facts, it was further exacerbated by his recall of the bank's WBB approval letter of the 12 November 1993 wherein it was stated that the bank had approved a Multi Option Facility for $7,450,000.00 which incorporated a Commercial Bill Facility for $7,450,000.00 and an FDA Loan for $7,450,000.00.

Clause 8 of the Waters Affidavit stated that the FDA Loan Conditions were subject to monthly interest repayments plus an annual fixed repayment of principal amounting to $827,778.00 which was due on the last day of December each year with the first principal repayment due on 31 December 1995.

On the bank's part, there is no end to creating a state of confusion concerning the actual status of the sum due when the bank sees fit to mature the two outstanding Commercial Bills for $3.45m and $4.0m in February and March 1996 respectively. This was done by debiting the face value of the Bills to a new Number 2 Account in the name of Wide Bay Brickworks Pty Ltd. The Chief Justice could have seen what had taken place with respect to the February 1996 Bill for $3.45m when he read the Waters' Exhibit marked "RLI 16".

My experience indicates that when a bank matures a borrower's outstanding Commercial Bills as outlined above, then it is normal practice to describe the account in the bank's records as, 'Past Due Bills Account' or 'Matured Bills Account'. However, in these instances, the bank has determined the status of the borrower's account as 'Non Accrual'.

The Chief justice should have been cognisant of the material described above after he had examined the bank's relied upon material and before he had the opportunity to read the judgement of Byrne J, recited as National Australia Bank -v- Wide Bay Brickworks Pty Ltd - BC9906613 - 3 September 1999, referenced in the Waters Affidavit as Exhibit marked "E 1".

The pertinent issues illustrated in Exhibit "E 1" are as follows:

The Commercial Bill Facility was approved with a limit of $7,450,000.00 where the availability period attracted an expiry date of 31 December 1999. His Honour Justice Byrne, in the 7395/99 litigation, sees fit to reiterate counsel for the bank's bar table address that the Bill facility fell into 'disuse'. His Honour proceeds to say, "until recently (May 1999) the facility was neither cancelled by the bank nor called on by the defendant". As at May 1999, the Bill Facility debt was $6,196,535.96. Sante Troiani as Managing Director of WBB therefore construed that there was a draw down margin still available amounting to $1,330,000.00 – i.e. Commercial Bill Facility Limit $7,450,000.00 minus $6,120,000.00, the rounded debt.

Sante Troiani rightly maintains that if he had been made aware that the sum of $1,330,000.00 remained available for drawdown, then WBB would never have executed a Bill of Sale in favour of Queensland Rail. When this argument was presented to Byrne J in the No 7395/99 hearing, Byrne found this contention to be patently false. The bank was not obliged to act under the facility except on request.

In the 7395/99 hearing, Sante Troiani gave evidence from the witness box as follows: “the bank by its conduct represented to me that the bill facilities were no longer in place.” This statement was completely true; the bank had cancelled the bill facility in February and the facility’s status was surreptitiously changed and retained until the bank appointed receiver/managers in August 1999. However, Justice Byrne disputed Troiani’s evidence on this major issue. It was a major error of judgement on Byrne’s part, perhaps by design.

Any fair minded lay observer presented with all the alleged facts as outlined above would come to the conclusion that a further investigation is needed to establish the real status of the sum due as per the bank's Formal Demand of 4 August 1999. That could only be revealed from the bank being ordered into a formal discovery process by the court. As it presently stands, the situation represents a total mishmash.

The Chief Justice would have realised at this stage that if he hands down a decision in favour of the bank, then it is only a question of time before Sante Troiani and his wife Rita C Troiani suffer the ignominy of bankruptcy.

At this early stage in my critique, the Chief justice's decision is foremost in my mind, and I wonder on what basis he reached his decision in favour of the bank. This is especially so, because the Chief Justice comes to the conclusion, as per Clause (3) of his judgement, that the bank has prima facie established that Sante Troiani and Rita Cesarina Troiani as Third Party Guarantors owe the bank the sum of $5,329,703.90.

This amount was gleaned from the contents of the affidavit of David Waters, a manager of the bank, sworn on the 19 March 2001 and filed by leave at the hearing date on 19 March 2001.

The sum owed to the bank as mentioned in the foregoing paragraph can be reconciled from court filed documents with the sum due originating from the bank's issued Formal Demand dated 4 August 1999 with the established amount stated at $6,278,936.40 with the nominated account stated as No 66 158-5675.

By referring to the bank's Amended Statement of Claim, filed 1 March 2001, by reference to Clause 22 can be found the opening indebtedness claimed under the Guarantee and Indemnity as at 7 October 1999 being $6,360,067.00. When the bank's nominated daily interest accrual amount is capitalised, then the debt said to be owing as per the bank's Amended Statement of Claim is correct. This reconciliation of the debt is all contained in the WBB No 2 Account 66 158-5675 which was originally represented by the bank as maturing the two WBB outstanding Commercial Bills in February and March 1996 for $3,450,000.00 and $4,000,000.00 respectively.

The vital question of course is, how did the Chief Justice satisfy himself that the said amount claimed by the bank was a legal and justified debt as sworn in the Waters' affidavit? It is patently obvious that the Chief Justice takes this critical issue no further because the next clause in his judgement states, "I turn to the matters upon which the respondents seek to rely by way of defence."

For the Chief Justice to come to the definitive position regarding the amount sought by the bank pursuant to their Guarantee and Indemnity raises many questions for any fair minded lay observer who becomes aware of the salient features of this Summary Judgement litigation.

In virtually all case histories of which I have some detailed knowledge over the last twenty years, the bank will rarely discover their former borrowers’ mainframe computer statements. This situation similarly applies to the shadow ledger statements. These events make it very difficult for the bank’s opponent and legal team to establish the veracity of how the sum sought by the bank has been arrived at.

The modus operandi of the NAB in the Troiani case is very interesting from the point of view that their Amended Statement of Claim specifically highlighted 'Default under the Lease facility' with a further sub-title 'Default under the Lease and Bill Facility'. Lease matters and breaches were allocated commentary contained within five clauses.

The bank did not sue for the recovery of any residual amount outstanding under the lease facilities. However when one refers to the Affidavit of David Waters filed on 2 March 2001, we see that he considers it appropriate to exhibit six pages of the Customer Lease Statement which reveals Contract No 4718179787 and marked Exhibit "I 11".

From the information above, we see that the bank is not prepared to inform the court or the Troianis or their legal team how the amount as stated in their Formal Demand of 4 August 1999 was arrived at, yet they exhibit their customer statements for the leasing contract where recovery is not sought.

I had several discussions with the former Managing Director of WBB and he advised me that he could not recall ever sighting the Exhibit marked "I 11". I pointed out to Troiani that the bank had debited the leasing account for the sum of $3,984,550.90 on 28 May 1999. This transaction increased the balance outstanding from $4,060,425.79 to $8,044,976.69. Sante Troiani, as First Defendant and Managing Director of WBB, had no knowledge of this debit transaction.

As I have indicated above, Sante Troiani and his advisors had strong concern as to the validity of the alleged sum due, vide the bank's Formal Demand of 4 August 1999. As a consequence the bank's instructing solicitors were requested to discover their bank statements for the WBB for account No 66 158-5675. Success in this regard was achieved in January 2001 with receipt of bank statement pages numbering 1 to 25 issued out of the bank's mainframe computer. These records show that the first transaction took place on 29 February 1996 with the final debit transaction taking place on 25 September 2000.

The critical question is, what was the balance outstanding as at 4 August 1999? By an examination of page No 20 issued on the 10 August 1999 with the commencing balance shown as debit $3,160,673.76 as at 30 June 1999, it reveals that there are no recorded transactions listed on this page. This means of course that the balance as at 4 August 1999, the identical date to the issue of the bank's Formal Demand, was $3,160,673.76.

When it is recalled that Formal Demand was issued on 4 August 1999 for the alleged sum due amounting to $6,278,936.40, we have the mammoth difference amounting to $3,118,262.64.

Any judge, any fair minded lay observer who became cognisant of this fact, and the judge should have been, would have readily realised that an explanation was called for. There were too many conflicting facts as far as the Commercial Bill Facility was concerned. In my view, when the importance of this act is realised, it automatically means that the judge presiding should have been able to determine that there is a triable issue here.

The Chief justice would surely have perused this exhibit. When he perused bank statement page number 18 he would have seen that the bank processes a credit for $2,000,000.00 on 29 March 2000 with the recorded notation, 'Bad Debt Write-Off'.

This would have been further confirmation for the Chief Justice that he should deliberate here with extreme caution. He was not a banker; he was presented with a plethora of different facts concerning the Commercial Bill Facility. For instance, the Chief Justice would or should have read Clause 14 of the affidavit of the First Defendant, Sante Troiani, filed on 19 March 2001. In that affidavit Troiani deposed to the fact that the No 2 Account (66 158-5675, a for value account) was set up and operated by the bank, with the bank controlling all debit and credit transactions as detailed on the bank statements. Troiani, as Managing Director of WBB and (with his wife) principal shareholder, never sighted any statements for this account prior to the bank’s appointment of receiver/managers. This in essence is confirmed by the bank because these records had been subject to an internal instruction, “DO NOT POST REFER MANAGER”. This situation applied to the twenty five pages of issued bank statements for the No 2 Account which were exhibited to Sante Troiani’s affidavit.

Clearly, and irrespective of any subsequent issues for determination in this Summary Judgement hearing, the Chief Justice Paul de Jersey should have had absolutely no hesitation in referring the dispute between the parties to full trial procedure. That would be the conclusion of all fair-minded lay observers who became cognisant of the forgoing facts.

Asset Sales

The next issue dealt with by the Chief justice was the question of property sales by the receiver/managers on an under value basis which formed part of the bank's secured property. He pointed out that the Property Law Act, Section 85 and 420A of the Corporations Law, required reasonable care and was a prerequisite in selling these securities.

The Chief Justice then quoted the precedent, Commonwealth Bank of Australia -v- Muirhead (1997) 1 Qld R 567, which deems that a bank's debenture states that the receiver/managers are agents for the mortgagor (WBB) and are solely responsible and that's the end of the story. He concluded by saying, "Their case on this material insufficiently arguable to justify its going forward.'' This means that the Chief Justice has struck out the Troiani’s defence on the grounds that the covenants of the bank’s securities state that the receiver/managers appointed is the agent of the mortgagors (the Troianis) in these matters. Thus the bank is excluded from any responsibility with respect to sales of property on an under value basis.

That was game, set and match as far as the Chief Justice was concerned. Over twenty years in building up a business from scratch, achieving an annual net profit of just on $1 million and employing 130, it is all sold within nine months by the receiver/managers following their appointment.

Briefly, Sante Troiani's affidavit filed on the 19 March 2001 disclosed the following information with respect to the sale of WBB's assets by the receiver/managers.

In June 1996, the bank endeavoured to induce the company (WBB) to sell its assets to Boral Ltd for $18 million. WBB's Financial Statements for the year ending 30 June 1997 record company gross assets at $79 million and net assets at $60.5 million. Clause 22 of the Troiani affidavit indicates to the court that he verily believes that the receiver/managers sold WBB for $3,132,000.00. Records in my possession indicate that the receiver/managers acknowledge that they sold the WBB business for $3,779,440.00.

At either price, this is a gift, a Christmas gift; it is most certainly not a genuine sale. The purchasers have been made millionaires overnight and I hold the view that the transaction represents part of a fraudulent process.

Another property owned by WBB which was an out of town (Bundaberg, Queensland) property which held the company's clay reserves and contained 73.81 hectares was sold by the receiver/managers on the 22 March 2000 for $797,500.00. WBB held a valuation for this property which recorded $2,524,950.00 raised in April 1998.

Sante Troiani also highlighted in his filed material before the Chief Justice that the receiver/managers had sold two properties for $145,000.00 and $380,000.00 on the 7 November 2000 and the 14 September 2000 respectively. It was Sante Troiani's view that a fair market value assessment at the time of sale would have been $480,000.00 and $1,000,000.00 respectively.

Both Sante Troiani and his wife Rita were astute investors when it came to real estate investment. In the mid 1990's they, with WBB, were the registered proprietors of over twenty individual properties spread throughout various parts of Queensland. Three of these properties were subject to registered subdivision and these contained an aggregate 42 allotments which could have been sold individually in the future.

Experience indicates that bank victims of "sting" operations are not only at a complete disadvantage with the receiver/managers appointed being formally the agent of the mortgagor, they are mostly unaware that the bank will indemnify the receiver/managers in any future litigation matters which he may become involved. There can be no doubt that experience indicates once again that all sales are under the control of the bank – the banks run the show.

De Jersey makes no reference to Standard Charter Bank Ltd -v- Walker and Anor (1981 S. No.941) where, on appeal by the defendants, it was held, "that a receiver realising assets under a debenture owed a duty both to the borrower and to a guarantor of the debt to take reasonable care to obtain the best price that the circumstances permitted." It was further stated, "and he also had a duty to take reasonable care in choosing the time of the sale.

Any fair minded lay observer would say that this most certainly did not happen in the de Jersey 22 March 2001 judgement.

It is appropriate that I point out the lack of common sense in the bank/receiver/asset sale situation. I refer you to Federal Court of Australia litigation between the National Australia Bank -v- LNC Freeman, Q 7001 of 2001, where the bank as Applicant was seeking a sequestration order against the estate of Freeman as Respondent.

The sale of Freeman's grazing property was the subject of much debate. By referring to Exhibit "JAS1", page 23 which relates to 'The Freeman case', it will be seen that from an initial market value established at $2,000,000.00, Freeman's property was sold for $770,000.00.

His Honour Justice Spender sees fit to say in his judgement of 12 March 2002:

“The unreality of the situation in fact is a matter which has troubled me on a number of occasions, but the authorities to which I will refer make it plain that I ought to accept that the contractual term is effective, so that the receiver appointed by the mortgagee, exercising power expressed in the bill of mortgage, is acting as agent for the mortgagor. Not withstanding what might be thought the unreality of the situation, the legal position is that, if there was negligence in the conduct of the sale, Mr Freeman would have an action against the receiver. Almost certainly, the receiver will have received an indemnity from the bank, but the legal characterisation of his right in respect of any claimed sale under value is legally a claim against the receiver and not against the bank.”

This is a dastardly attitude on the part of Justice Spender and it is further exacerbated when it becomes known that Justice Spender drew on the two precedents of Muirhead (mentioned above) and NAB -v- Troiani and Ors (2001), QSC 077, the litigation presently under review.

It also affirms to my long held view concerning the incestuousness nature of the legal profession, that it means protect your mates at all costs even though it leads to bankruptcy for the bank's victims. Doesn't the judiciary realise that sale of bank securities on an under value basis is used as a tool by banks to engineer bankruptcy against their victims?

The fact is that the legal profession creates precedents, so let them undo the process.

When I first discussed de Jersey's judgement with Sante Troiani, I can well remember his remarks, "I had all the bank's team against me, they're cheats." In saying those remarks, Sante Troiani was cognisant of the contents of the Memorandum of Advice raised by Barrister-at-Law, Adrian Heyworth-Smith for Wide Bay Brickworks Pty Ltd on 2 December 1999. He advised his client as follows.

Under the sub-heading of Obligations of the receiver he states, "But he must not recklessly sacrifice the interests of the company". Under the sub-heading, "The receiver and his Solicitors he stated, "In this case, Messrs Mallesons appear to be acting for both the receivers and for the Bank. That is unusual and, I think improper." Under the sub-heading, Corporations Law Provisions he states, "He (receiver) has important duties to act honestly carefully, diligently, and above all not improperly." Sante Troiani knew full well that the obligations, as outlined by his barrister, had been cast asunder by the bank's appointed receiver.

Overdraft payable on demand

One of the issues emphasised in His Honour's judgement was the fact that an overdraft is made available, "at all times at the discretion of the bank". He then proceeded to say that it was "payable on demand".

Sante Troiani claimed in his evidence that the WBB overdraft was $1.1m following variation by the bank.

This figure was eventually reduced to $312,000.00 in 1997. This facility at the $312,000.00 level was reduced by the bank on the instructions of their Bundaberg District Commercial Manager on 20 minutes notice, thereby reducing the overdraft to nil. Clause 15 of the bank's affidavit so refers. This authorisation to reduce the overdraft appears to have been originated by G M Shannon, Manager Asset Structuring Unit of the bank, sometime between the 30 June 1997 and the 1 August 1997.

It is Sante Troiani's contention that the bank's action in cancelling the company's overdraft in this manner was unconscionable. He considers that the bank's actions were contrived and my investigations support this view. I would have thought on the surface that the bank's action to issue cancellation of the overdraft in the manner in which they did indicated a hidden plan of entrapment.

My banking knowledge in consultancy reveals that the cancellation of a borrower’s overdraft on an ‘overnight’ basis is a ploy which they readily put into play because the NAB knows full well that technically an overdraft is payable on demand (although commerce would come to a halt if this clause in the typically overdraft contract were to be regularly invoked). What the NAB also knows is that is that if an argument is presented in litigation concerning the cancellation or reduction, the judiciary will uphold their action in this regard. My view is confirmed if one refers to Clause (17) of the summary judgement of the Chief Justice on 22 March 2001 wherein he states (citing an NAB Exhibit): “The overdraft was however available ‘at all times .. at the discretion of the bank’.”

Surely the information here revealed would indicate that there is a serious argument which should be subject to trial.

When the Chief Justice claimed to peruse Exhibit "D" of the bank's affidavit, he would have seen no doubt that the debt in the No 2 Account 66 158-5675, represented by the two matured WBB Commercial Bills, was progressively being reduced from the 9 January 1997 onwards. In the 1997 calendar year, the debt was reduced from $7,450,000.00 down to $5,971, 410.66. Sante Troiani as Managing Director of WBB at all times was under the impression that his company had to make provision for monthly interest and that no reduction of principal was necessary as per normal procedures for this Commercial Bill Facility.

If this was the case, then it is obvious that the bank has restructured WBB's financial program midstream, without acknowledgement and to the clear detriment of the company. It follows, of course, if the bank had adhered to the original contracted arrangements, then the giving of a Bill of Sale to Queensland Rail would not have been necessary.

One thing is certain here – on the evidence before the Chief Justice he should have readily been able to discern that there were serious issues to be tried.

Sale of the bank's securities and related matters

Sante Troiani and his wife Rita alleged that the bank failed to give credit for the proceeds of certain sales and that this claim was denied by the bank. From all the documentation I have seen, I have not sighted any evidence where the bank has shown the actual receipt and destination of proceeds where such sales were under the control of the receiver.

The Troianis' instructing solicitors were concerned about this matter, and this issue was raised in correspondence with the bank's legal team. One such document sought was the bank's statements for the WBB Realisation Accounts where monies received are appropriated. Discovery was denied with the response contained in letter of 7 February 2001, "Any realisation account that may be run by our client is an internal accounting procedure and is not relevant to the issues in dispute and as such, is not required to be disclosed.'' The fact was, of course, the information sought was very vital and this is just another, indeed crucial, instance of the bank exercising their financial muscle and concealing their treacherous conduct.

In the same letter as mentioned in the previous paragraph, it is further stated by the bank's solicitors that documents sought will be made available in the discovery process. This type of response appears in other letters raised by the bank's solicitors. The fact is, of course, that discovery never takes place.

The Chief Justice seems to hold employees of the National Australia Bank on the highest pedestal in the land in so far as integrity is concerned. My experience of the past forty years clearly indicates that they are experts in deception when it comes to any involvement in litigation process.

The Troianis made the complaint in their filed material of the lateness in the bank's discovery of two amended statements of claim. The last of these was on 1 March 2001 which only allowed the Troianis eleven working days to assess the implication of this vital document. The Chief Justice readily dismissed this complaint, pursuant to UCPR 292, which included the words, "at any time". That was that.

Given what I have stated above, the bank succeeded in their Summary Judgement Application in terms of-UCPR 171. The bank's application in this regard was filed on 1 March 2001.

This Rule 171 relates to "Striking out pleadings" and contains three sections. Rule 171 (2) states that the court, at any stage of the proceeding, may strike out all or part of the pleading. Rule 171 (1) pre-states that pleadings may also be struck out if they "disclose no reasonable cause of action or defence" or "is unnecessary or scandalous" or "frivolous or vexatious" or "otherwise an abuse of process of the court".

Chief Justice de Jersey ordered on 22 March 2001 that:

“ … the Applicant (NAB) have judgement against the first and second respondents (Troianis) pursuant to Rule 292 in the total sum of $5,333,452.24.

The first and second respondents pay the applicant its costs.

The respondents' application for a stay refused.”

And so, Sante Troiani and Rita C Troiani, being the respondents, have lost all their assets built up over a lifetime without even a trial hearing taking place before the court.

Concluding comment

At the time of the Summary Judgement hearing, the Troianis may or may not have known that their former bankers had them on the ropes and that the next move was to deliver the knock out punch before the count would then begin. Chief Justice de Jersey would have been well aware of this situation.

The Chief justice would have also been aware that if he handed down a decision in favour of the plaintiff bank the appeal process would have been difficult for the Troianis because of their state of impecuniosity.

In deliberating on his decision, de Jersey had a plethora of material to study and examine and, quite frankly, I find it difficult to conceive that he was able to come to a decision so expeditiously.

The critical issue for me is why wasn't the Chief Justice able to come to the conclusion that there was a triable issue here. The obvious contentious issues surrounding the bank's approval and process of the WBB Commercial Bill Facility for $7,450,000.00 are extensive. The conflictions are patently obvious, even to a non-banker, and most definitely the Troianis should have been given the benefit of the doubt here. Quite frankly I don't think that there is any doubt.

There is also the matter for determination by de Jersey concerning the sale under value by the receiver/managers of assets belonging directly and indirectly to the Troianis. It can be described in two words – scandalous and fraudulent. Surely the Chief justice can realise that the bank is in command of the overall exercise and selling assets on an under value basis is an assured means of guaranteeing bankruptcy. You can't tell me that de Jersey doesn't know what his personal bankers are up to.

It is my view that any fair minded lay observer would come to the same decision as I have when presented with the facts which we have here. I would like to remind the reader that the filed affidavit of David Waters on 2 March 2001 exhibited a document marked "RLI 1" which is the bank's approval letter dated 12 November 1993. This document also approves a Bill Facility amounting to $1,200,000.00 for Wide Bay Brickworks Pty Ltd and was never made available to the company.

Assuming that this line of credit was at all times available to the company, then the company was never in default with respect to any facility. After studying all court documents available to the Chief Justice, I am also convinced that WBB was never in default from January 1997 onwards, right up to 4 August 1999 when the bank issued their Formal Demand.

In my mind, the Chief Justice's decision gives rise to a hidden agenda. Any fair minded lay observer could fairly pose the question, does the Chief Justice Paul de Jersey have a bent that is biased towards the bank, the National Australia Bank, his personal bankers?

Precedent Litigation

I think that the reader should be made aware of some of the Summary Judgement litigation decisions, etc., that have come to my notice for comparison purposes in coming to my concluding position that it appears on the surface that the Chief Justice has shown bias in favour of the National Australia Bank.

Dixon in Dey v Victorian Railway Commissioners (1949) 78 CLR 62, at 91, 92, in which the court said:

The principles upon which that jurisdiction is exercisable are well settled. A case may be very clear indeed to justify the summary judgement intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But one it appears that there is a real question to be determined whether of fact (as in the present case) or law that the rights of the parties depend on it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process... In my opinion it is of more importance to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose.

General Steel Industries Inc v Commissioner for Railways (NSW) (1964)112 CLR 125. Barwick CJ said:

... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not properly deprived of his opportunity for trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of jurisdiction should be reserved for those cases where argument is necessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed ...

In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 the Court stated:

... The power to order summary or final judgement is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried ...

In Webster v Lampard (1993) 177 CLR 598 at 603 the High Court emphasised:

... the need for 'exceptional caution' in granting summary judgement ...

In Mannings v Australian Government Solicitor (1994) 68 ALJR 169 at 171 per Dawson J, Upheld on Appeal at (1994) 68 ALJR 429, stated:

In granting summary judgement 'great caution' was necessary.

In National Australia Bank Ltd v Voloshin (2000) NSWSG 84 11227/99, the Judgement of 25 Feb 2000 stated that the bank advanced to the defendant the sum of $425,000.00 in February 1998. Clause 7 of the judgement states that the power to order summary judgement must be exercised with "exceptional caution" and "should never be exercised unless it is clear that there is no real question to be tried". The decision in this hearing saw the court dismiss the NAB as plaintiff's Notice of Motion. The NAB was ordered to pay costs with the defendant to file an amended defence and cross claim within 21 days.

In Webster & Anor v Lampard (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ reinforced the rigorous testing, stating at p 602:

The power to order summary judgement must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried.

Westpac Banking Corporation v Russell - BC 200005802 in the Supreme Court of Queensland before Ambrose J No 52979 of 2000 Judgement delivered 2 October 2000:

This involved the bank seeking possession of the land where the evidence revealed that the respondents owed the sum of $170,000.00 following the purchase of an investment unit. His Honour's Order was that, due to the various contentious issues, he adjourned the bank's application for summary judgement, "pending full disclosure between the plaintiff and the defendant of all documents relating to the issue of agency between the bank and HMS and the defendants.''

Westpac Banking Corporation v Rodale Pty Ltd - BC 2000404521 in the Supreme Court of Victoria before Byrne J No 8165 of 2003 (2004) VSC 226 Judgement delivered 2 July 2004.

The bank sought summary judgement against three defendants where the demand amounted to $1,369,912.79. Collateral security over the matrimonial home was given by the second guarantor as wife of the third named defendant. After stating the facts which took place, His Honour ordered that he will allow the appeal of the second named defendant and grant unconditional leave to defend. The bank's appeal was dismissed.

National Australia Bank v William McMinn and Wilma Helen McMinn in the Supreme Court of Queensland No 5580 of 2001:

The bank sought summary judgement against the defendants as guarantors to their company for a demanded debt amounting to $1,572,764.23. The plaintiff obtained a judgement by default in August 2001; they then proceeded with bankruptcy proceedings in the Federal Magistrates Court.

The McMinns defended the bank's petition and were successful in convincing the Federal Magistrate that there were triable issues in the dispute and it was referred back to the Supreme Court of Queensland for further deliberation.

The defendants filed their material immediately in Queensland Supreme Court Registry and the initial hearing took place before the Chief Justice, Paul de Jersey on 30 November 2001. De Jersey ruled that the McMinns' defence w

as not of the required standard; however due to the fact that they were unrepresented; he adjourned the Application to 12 December 2001.

The Application was heard before Justice Muir on 25 January 2002 and he handed down his decision on 7 February 2002 which gave leave to the McMinns to defend the proceedings conditionally. This meant that in due course the Plaintiff Bank would need to enter into the formal discovery process which they did. (I have sighted all such discovered documents.)

Commonwealth Bank of Australia v Clune - BC200702398 in the Supreme Court of New South Wales 12890/2006:

On the 11 August 2006 a default judgement was entered against the first defendant in the sum of $901,373.10. The judgement saw fit to reiterate General Steel Industries v Commissioner for Railways (NSW) 1964 CLR 125 as per above. The judgement Order set aside the judgement made against the defendant on 11 August 2006. The defendants were granted leave to file an amended defence and amended cross claim within 14 days.

Jessup v Lawyers Private Mortgages Ltd & Ors (2006) QC 003 - Judgement handed down on 30 January 2006 by Chesterman J:

This litigation is also about procedure and Summary Judgement. One of His Honour's opening remarks records, "Nothing in the UCPR, however, detracts from the well established principle that issues raised in proceedings will be determined summarily only in. the clearest of cases."

His Honour felt the need to reiterate Clause 14 as contained in his judgement, AVS Catering Pty Ltd v Brisbane Broncos Corporation Pty Ltd (2005) QSC395 of 1 September 2005 when he said:

The only safe principle to apply when dealing with applications... for summary judgement is one that I expressed in Gray...(A) claim-which has 'no real prospect of succeeding' is one which is 'hopeless' or one which is 'bound to fail'. Any other approach runs the risk that judgement will be given undeservedly, as a trial would have demonstrated.

Those who see in the terminology of the rule 'a new philosophy' have yet to give content to it, and to explain why it values expedition more highly than justice. Likewise, those who profess to be able to determine, summarily, whether a claim has a real prospect of success, or only a fanciful one, have yet to describe how they do so.

There is a very interesting point which I wish to highlight concerning Chesterman's judgement which he delivered on the 7 November 2005.

As customary, Chesterman J saw fit to record sixteen legal precedents, one of which was Bernstrom v National Australia Bank (2003) Qld R 469. This precedent case history is recorded in some detail in Appendix (d) where it will show that Chief Justice Paul de Jersey delivered this judgement in favour of the National Australia Bank for the sum of $296,901.07. It goes without saying that Chesterman J accepts his Chief Justice's decision at face value.

Chesterman J would have also been aware that the Chief Justice Paul de Jersey handed down a judgement in favour of the National Australia Bank in their Summary Judgement Application against Sante Troiani and Rita Cesarina Troiani on the 22 March 2001 for the sum of $5,329,703.90.

One would think that given the extent of quantum involved in de Jersey's NAB/Troiani judgement that Chesterman J would most definitely see fit to record this case history in his citation, but the fact is that he didn't. Is there a special reason to be construed from this? I think so.

It so transpires that Sante Troiani and his wife decided to appeal the de Jersey judgement of the 22 March 2001. The hearing took place in the Supreme Court of Appeal on 22 November 2001, recited as No 3447/2001. The presiding judges were Thomas JA, Atkinson J and Chesterman J. The transcript of proceedings covers 30 pages with the hearing being adjourned.

I hold a copy of the transcript of proceedings and it reveals a disturbing state of affairs where the fair minded lay observer would realise that the Appellants, Sante Troiani and his wife, had been denied due process. That fair minded lay observer would also be of the view – how could a very successful businessman be in the predicament which he and his wife faced as unrepresented litigants?

I would suggest that Chesterman J would have been very disturbed and had strong reservations concerning the Summary Judgement of the Chief Justice where de Jersey handed down his judgement in favour of his personal bankers. In the circumstances, Chesterman J may have felt it prudent not to record the NAB/Troiani/de Jersey Summary Judgement in the decision he handed down on the 7 November 2005.

It can readily be construed from above that Chief Justice Paul de Jersey has made the determination that the first and second defendants' filed material clearly indicates that their case is prima facie 'hopeless' and that 'it is bound to fail'. In other words they have no defence. Quite frankly, this is ludicrous and any fair minded lay observer would reasonably ask the question, what is the state of mind of the Chief justice?

The Chief Justice knows full well that when he hands down his judgement in favour of the plaintiff bank, his personal bankers, that the referee is closely reaching the knockout point and actual knockout will mean bankruptcy in due course in the Federal Magistrates Court.

In my view, if a full independent audit was taken of the Chief justice's decisions before and since that elevation, then I would say that the NAB/Troiani decision would receive a very low ranking indeed.

What does de Jersey's judgement mean to the Troianis? Sante Troiani arrived in Australia in 1956 from Italy. Hard work was his motto. He had been engaged in many occupations when he commenced the brickworks, virtually from scratch in the mid 1970's. During these intervening years he had steadily built up his 'nest egg'.

WBB was progressively expanded and, by the mid 1990's, net profit had reached $1 million net annually, derived from a turnover of in excess of $14 million. Shares in WBB were sold for $2.50. All this was lost overnight, and I believe that it is principally due to the Summary Judgement decision of de Jersey.

I came to the conclusion as soon as I was presented with the NAB's issued Shadow Ledger statement records sometime during the final quarter of 2005 that the defendants and their company, WBB, were the victims of a NAB "sting" operation. De Jersey's decision went a long way to ensure that his personal bankers' "sting'' operation was consummated.

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