Letter to The Executive Producer of Today Tonight

21 February 2006

Mr Craig McPherson
The Executive Producer
Today Tonight

Re: Bernard Madigan Story

Dear Sir

I refer to the story broadcast on Friday 17 February about the late Bernard Madigan and would like to express disappointment at the misleading way in which the story was reported.

The imputation by Today Tonight that Mr Madigan, of his own volition, routinely paid out his mortgage with the Bank which then improperly charged him a $65 fee and that his pursuit, on principle, of the impropriety of this exploded into a crushing liability for legal costs and, by implication, catalysed his death is false and misleading.

Bernard Madigan’s history with the Bank began in 1998 when a Magistrate ordered him to repay a deceptively obtained overdraft of $4,169.75 and awarded court costs against him.

Later that year Mr Madigan made a false Statutory Declaration to the Land Titles Office, claiming to have lost his Certificate of Title to a property over which he had given the Bank an unregistered mortgage. In that Statutory Declaration he expressly denied that the Certificate was held as security by any financial institution. He then used the fresh Certificate issued to him to sell the Bank's security without its knowledge.

The Supreme Court granted the Bank an injunction preventing Mr Madigan from spending the proceeds of the sale until the debt was paid. It was the Court's intervention which caused Mr Madigan to repay the mortgage debt

Mr Madigan then brought a claim against the Bank alleging unconscionable conduct, breaches of the Banking Code of Practice, the Consumer Credit Code and the Anti-discrimination Act and theft of money from his account (including a fee of $65).

After a two week hearing a District Court judge dismissed all Mr Madigan's claims, describing his evidence as "disingenuous and contradictory" before finding that "the Bank's actions were precipitated by the deliberate conduct of Mr Madigan in selling the property in what can easily be regarded as an underhand way."

The judge also held that the $65 fee (a relatively minor component of Mr Madigan's action against the Bank) was authorised by the terms of his mortgage. The much-vaunted "mistake" the Bank conceded related to the date (only) of the fee and the judge expressly held that "nothing turns on the date."

Mr Madigan was ordered to pay the Bank's costs on an indemnity basis and it is this unpaid costs order for which Mr Madigan was declared bankrupt.

Mr Madigan unsuccessfully sought to appeal the District Court decision in the Court of Appeal and the High Court. Both courts awarded costs against him. He agitated his claims again before two Federal Court Magistrates, again without success.

Mr Madigan's arguments have, therefore, been entertained and dismissed by a Local Court magistrate, a District Court judge, four judges of appeal of the New South Wales Supreme Court, two High Court judges and two Federal Court magistrates.

Outside the judicial process the Banking Ombudsman, the New South Wales Police, the New South Wales Law Society, the Legal Services Commissioner and even the Parliamentary Joint Standing Committee of the Parliament of Australia dismissed his complaints. A local branch officer of the Bank even found it necessary to obtain an Apprehended Violence Order against him.

The Bank has incurred costs greater than it can ever recover from Mr Madigan or his estate in defending itself, its employees and its solicitors against his relentless crusade.

The Bank believes the story was a breach of the Commercial Television Industry Code of Practice as well as section one of the Journalistic Code of Ethics which states:

"Journalists commit themselves to report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. They do not suppress relevant available facts, or give distorting emphasis."

The Bank feels the story broadcast by Today Tonight on 17 February is a complete distortion of the true facts and it requires a retraction and an apology, in forms acceptable to it, to be broadcast without delay.


Yours faithfully,

Bryan Fitzgerald
General Manager, Media and Issues Management
Communication, Community and Reputation.