Legal and Constitutional Affairs References Committee

Resolution of disputes with financial service providers within the justice system

Thursday, 28 February 2019

Committee Secretary Senate Legal and Constitutional Affairs Committee PO Box 6100 Parliament House Canberra ACT 2600

To the Committee Members of the Legal and Constitutional Affairs References Committee:

Senator Louise Pratt - Chair - ALP WA Senator Kimberley Kitching - ALP VIC Senator the Hon Ian Macdonald - LP QLD Senator Nick McKim - Greens TAS Senator Jim Molan AO, DSC - LP NSW Senator Murray Watt - ALP QLD,

and all others TO WHOM IT MAY CONCERN

Particulars pertaining to this matter, Biritz Vs NAB, are published on Bank Reform Now, and may be found at: https://www.bankreformnow.com.au/news/press-releases/nab-falsifies-court-documents.

, as an interested and aggrieved party to this matter, being a direct beneficiary to the estate of the late George Biritz, have been briefed and duly authorized by my mother Mrs. Erika Biritz, to act in a capacity to assist in the preparation of this submission for the perusal of the Members of the Legal and Constitutional Affairs References Committee.

Statement of Facts of Biritz Vs NAB are now included here below to bring the committee up to speed:

1. In 1984, Branch Manager at 18-20 Station Street Moorabbin Mr. Peter Thomas Baulch advised George Biritz that the National Australia Bank Limited (hereafter referred to as NAB) was prepared to consolidate all previous borrowings under a facility for Litchurch Pty. Ltd., which acted as Trustee for the Biritz Family Trust, providing the business with extra working capital, and that the loan should be a foreign currency loan in Swiss Francs equivalent to approximately $A 550,000.

The bank also advised Mr. Biritz that the following properties were required to be held as security on the drawn down $550,000 facility.

The properties requested by the NAB were:

i. The matrimonial residence at 3-5 Paxton Drive, Glen Waverley ii. Factory at 39 Kembla Street, Cheltenham iii. Factory at 41 Kembla Street, Cheltenham iv. Apartment 92 at Acapulco, Surfers Paradise, Queensland

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 1 of 7

The registered proprietors to those properties were Mr. & Mrs. Biritz, who consented to NAB to register mortgages against their respective titles.

National Australia Bank Limited as a Chargee registered a Debenture for a duly secured amount of $538,000 under the name of Litchurch Pty. Ltd. ACN NO. 005 513 182 at the National Companies and Securities Commission (now ASIC), the document registration NO. CO151235A. Erika Biritz being director of the company was a signatory of this document.

The NAB insisted that the Biritzs establish a Sinking Fund with the bank at Moorabbin. This fund was to generate sufficient monies to repay the principal and interest of the loan facilities. Biritz signed the monthly transfer debit with the NAB, and the bank from 18 August 1984 withdrew $10,000 every month until December 1987, monthly transfers totaling $410,000 for that period of time.

Subsequently, Biritz also paid a “top up” upon NAB's demand, a deposit to credit the sinking fund of $250,500 over and above the monthly $10,000 transfers. In total, $660,500 was stolen by the NAB from the term deposit Sinking Fund. This was just the beginning of a series of misleading and illegal activities by NAB.

In 1985 Biritz purchased another property, PART CROWN ALLOTMENT C SECTION 54 Springvale Road, Keysborough, Plan of Subdivision being registered as LP140895. The property consisted of 20 hectares with a 5- acre dam, and in 1986 Biritz arranged for plans to be drawn up for the construction of a 102 square residence. In 1987 whilst Mr. & Mrs. Biritz were on a trip around Europe, the NAB management team strategically plotted the professional and financial demise of Mr. George Biritz.

On 15 June 1987, without any authority given by anyone whomsoever, NAB transferred (illegally) all 5 properties from Mr. & Mrs. Biritz as joint proprietors to a sole/single proprietor, Mr. George Biritz, in the Land Titles Office using a fraudulent Family Court Order and registered falsified mortgage instruments over each and every title deed. The Biritz family returned from their holiday in Europe, oblivious to the impending false claims of mortgage defaults soon to be made by NAB in the Supreme Court of Victoria.

On 25 January 1991, NAB created a fraudulent Supreme Court Judgement against Axiom Pumps Pty Ltd. Erika Biritz was also a director of this company at the time (see George Biritz affidavit for more information, sworn 12 December 2002).

On 26 August 1992, NAB forced Axiom Pumps Pty. Ltd. into liquidation, due solely to the criminal conduct of the bank and its undue interference with the company.

In 1993, NAB deliberately misled ASIC using the fraudulent Supreme Court judgement and Erika Biritz was subsequently given 5 years disqualification as a director of any publicly listed company.

At 10:00am on Friday 30 June 1995, NAB thugs along with the Sherriff’s Officers of Victoria physically evicted the Biritz Family from their matrimonial home, rendering them homeless and impecunious. All personal belongings including furniture were removed from the house and left outside the property, on Springvale Rd, in the rain.

On 15 September 1993, a sworn market valuation was prepared by O’Brien’s Valuers and Property Consultants. The valuation report extends that Lot 54 Springvale Rd, Keysborough, had the potential to be subdivided into a development of 250–280 blocks of land.

The State Revenue Office of Victoria 436 Lonsdale Street, Melbourne, informed Mrs. Erika Biritz that the NAB had redirected the address of the Land Tax Assessment Notice under her name, Land Tax File No. 1260223-0. Mr. Bruce Alexander Ferrier, then Moorabbin Bank Manager, made the following land tax payments on behalf of Mrs. Erika Biritz:

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 2 of 7

i. On 18 February 1992 for assessment year 90-91, $8,481.89 ii. On 23 March 1993 for assessment year 92, $3,201.00 iii. On 7 April 1994 for assessment year 1993, $3,841.20

Even though NAB never proceeded against Mrs. Erika Biritz, between 1987 to 1995 NAB obtained possession of the Biritz's properties and allegedly sold each one of them. In order to conceal all of their criminal activities, on 22 July 1997 NAB presented Mr. Biritz with a fraudulent Federal Court Sequestration Order.

On 13 July 1998, Mr. Biritz filed an Application with the Federal Court pursuant of ORDER 35 Rule 7 sub-rule 2b. Under proceeding No. VG 7513 of 1998, Biritz sought to rescind the Sequestration Order made against his estate which the NAB had procured by fraud. During the course of proceedings His Honour Anthony Maxwell North J. made an order that by 5pm, 21 April 1999, the NAB issue accounting for all Sale Proceeds of the Biritz properties credited with the bank.

In support of this entire claim, all copies of original documents contained within a 500-page appendix volume can be viewed in the Federal Court of Australia (contact Chief Justice J. L. B. Allsop).

To make it very clear, NAB never proved any actual indebtedness by the Biritz family, yet the bank illegally took all five properties without any judgement for money. The properties were allegedly all sold but whereabouts of the Sale Proceeds are still unaccounted for to this day.

Although 20 years have passed since the Hon. North J. made his order, NAB has yet to deliver its accounting. Notwithstanding the fact that the Biritz family was made homeless and penniless, on 27 August 2007, Mr. George Biritz passed away.

2. NAB commenced legal proceedings in 1990. Between 1993 until 2002, George and Erika Biritz were forced to appear as litigants in person before the Supreme Court of Victoria and the Federal Court of Australia, seeking to rectify the systematic course of criminal conduct perpetrated by the bank against the Biritz family. This included the disappearance (theft) of some $660,500 from the Biritz term deposit sinking fund as of December 1987, NAB’s falsification of land title deeds, NAB’s production of fraudulent mortgage instruments against all 5 properties, Sales Proceeds of all 5 properties missing and unaccounted for still to this day, as well as perhaps most seriously, NAB’s generation of fraudulent Supreme Court and Federal Court Orders.

Biritz Vs NAB appeared before the following summary list of Masters, Federal Magistrates, Registrars and Justices in both the Supreme Court of Victoria and Federal Court of Australia, several cases being heard under a fraud application made by the applicant against the NAB:

Senior Master Kevin John MAHONY, Supreme Court of Victoria Master Ewan Kenneth EVANS, Supreme Court of Victoria Master Charles William George WHEELER, Supreme Court of Victoria Master Kathryn KINGS, Supreme Court of Victoria Master Philip Lawrence CAIN, Supreme Court of Victoria Justice Barry Watson BEACH, Supreme Court of Victoria Justice David Lindsey HARPER, Supreme Court of Victoria Justice Frank Hollis Rivers VINCENT, Supreme Court of Victoria Justice Robert Clive TADGELL, Supreme Court of Victoria Justice John David PHILLIPS, Supreme Court of Victoria Justice John Michael BATT, Supreme Court of Victoria Justice William Frederick ORMISTON, Supreme Court of Victoria Justice Alec James SOUTHWELL, Supreme Court of Victoria Chief Justice Marilyn WARREN, Supreme Court of Victoria

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 3 of 7

Justice Howard William OLNEY, Federal Court of Australia Registrar Jamie Wood, Federal Court of Australia Registrar John EFTHIM, Federal Court of Australia Registrar Peter SECCOMBE, Federal Court of Australia Justice Anthony Max NORTH, Federal Court of Australia Justice Shane Raymond MARSHALL, Federal Court of Australia Registrar Tim Connard, Federal Court of Australia Justice Susan Coralie KENNY, Federal Court of Australia Magistrate Murray MCINNIS, Federal Court of Australia Justice Peter Ross Awdry GRAY, Federal Court of Australia Justice Peter Cadden HEEREY, Federal Court of Australia Justice Ross Alan SUNDBERG, Federal Court of Australia Justice Raymond Antony FINKELSTEIN, Federal Court of Australia Justice James Leslie Bain ALLSOP, Federal Court of Australia Justice Ronald SACKVILLE, Federal Court of Australia Chief Justice Michael Eric John BLACK, Federal Court of Australia

Chief Justice Murray Anthony GLEESON, High Court of Australia

On 20 May 1994, Justice J. M. Batt and Justice W. F. Ormiston of the Full Bench of the Supreme Court of Australia in a written Judgement stated their dissatisfaction by the rather confused material put forward by the NAB, including the bank’s inability to produce a full and accurate statement of the Biritzs indebtedness to the NAB. The NAB were ultimately unable to provide proof of the accounting and whereabouts of the Sales Proceeds of properties pertaining to the Biritz Family estate. Consequently, a similar Order was again made in a later proceeding by the Honorable Justice A. M. North of the Federal Court of Australia, that by 5pm on 21 April 1999, NAB account for the Sales Proceeds of the Biritz properties as being credited with the bank. On this instance, the NAB committed contempt of court and failed to deliver such accounting.

To this day, the whereabouts of the Proceeds of Sale of these properties are missing – were never produced – $660,500 is missing (was stolen) by the NAB from the Biritz term deposit sinking fund, and after 8 months sitting on the case while the family were living in a hotel, Justice North disqualified himself to hear the application any further submitting to the court that he was a shareholder of the NAB. Additionally, the mortgage instruments for the $538,000 debenture by the NAB against Litchurch Pty. Ltd. were shown as still undischarged by ASIC as late as 2002.

In addition to all of this, Erika Biritz also petitioned the Office of the Attorney General, Office of the Governor General and the High Court of Australia (Chief Justice, 2 January 2006) to intervene and rectify this matter. All pleas for assistance fell on deaf ears.

On 14 August 2018, the current Prime Minister of Australia the Honorable Scott John Morrison was also personally served all relevant material pertaining to Biritz Vs NAB by Dr. Peter Brandson – Founder and CEO of Bank Reform Now. Again, it appears that Mr. Morrison is now the latest high-ranking government member in an already very lengthy list that has also failed to act.

3. We now briefly address the Terms of Reference as outlined by Legal and Constitutional Affairs References Committee into the resolution of disputes with financial service providers within the justice system.

Under reference a) whether the way in which banks and other financial service providers have used the legal system to resolve disputes with consumers… reflected fairness and proportionality, and under sub-reference ii) whether banks and other financial service providers have pursued legal claims against customers despite being aware of misconduct by their own officers or employees that may mitigate those claims:

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 4 of 7

3.1 In order to prevent the continuation of already extensive legal proceedings forced upon Mrs. Biritz to pursue the bank in relation to its extremely serious and criminal conduct, NAB commenced bankruptcy proceedings against Erika Biritz in 2001 for an amount of $14,131.25 pertaining to two cost orders. While counter costs awarded to the appellant on just four appearances in front of the Full Bench of the Supreme Court of Victoria on 20 May 1994, before the Honorable Batt J. and Ormiston J. would have far exceeded this amount – which to this day has not been recovered from NAB – not to mention a counterclaim for the theft of monies and properties pertaining to the Biritz estate being well in excess of this, bankruptcy action was nonetheless undertaken simply to silence Erika Biritz.

It should be noted that in a recent discovery of evidence provided by the NAB during Independent Arbitrations held with the former Premier of Victoria the Honorable Jeff Kennett AC, NAB stated that there remains no claims against Mrs. Biritz for any amount, yet this unconstitutional bankruptcy which was commenced by NAB on 2 July 2002 is still undischarged to this day, some 17 years later.

It should not be lost on this Committee that bankruptcy is a serious matter which punitively harms or restricts an individual’s ability to earn income or employment, engage in business, ability to travel internationally, ability to obtain future credit, as well as a loss of rights to continue legal action and etc. It is considered that NAB used the judicial system to bankrupt Mrs. Biritz for the sole purpose of keeping her in an economic and financial gulag in order to prevent her from continuing these proceedings, a tactic used to keep her silent and in a perpetual state of financial hardship which remains to this day.

3.2 In 1995, the Australian Tax Office (ATO) commenced legal proceedings against Mr. and Mrs. Biritz for failing to comply with a final notice to lodge outstanding tax returns. The matter was heard before the Dandenong Magistrates Court with a sworn testimony (statutory declaration) provided by a Certified Practicing Accountant (CPA), Dimitrios Beroukas of Bird Cameron, citing that the NAB failed to release financial records pertaining to the Biritzs in order to be able to make their returns. The court as well as the ATO stated there was no jurisdiction to investigate the bank, and the Magistrate summarily dismissed the matter.

It is clear why NAB could not produce any detailed financial records pertaining to the Biritzs, nor ever account for the Proceeds of Sale of properties pertaining to the Biritz estate, as the bank’s actions were malignant and entirely based on fraud.

3.3 Acting on behalf of the National Australia Bank during proceedings in the Federal Court of Australia under a fraud application before Justice S. R. Marshall, Barrister Anthony Schlicht stated that the NAB was keen that Mr. Biritz should stay depressed and that all of this would go away. Mr. Biritz was a medically certified suffer of depression due to unnecessary court appearances forced upon him by the NAB, this being tendered as evidence before the court. Consequently, Mr. Biritz succumb to his depression which later developed into a form of aggressive, advanced stage cancer, ultimately passing away in 2007.

3.4 Given Justice North’s decision to disqualify himself from hearing the fraud application after 8 months of sitting on it, which should have taken no more than 15 minutes of consideration, in spite of the fact that the NAB had committed contempt of court by failing to produce the Sales Proceeds as well His Honor’s virtue of shareholding, a further mention hearing came before the Honorable Justice S. R. Marshall on 16 July 1999 under proceeding no. VG 7513 of 1998. Justice Marshall dismissed the matter stating in writing that he would not intend to produce a court order. This was a serious violation of basic natural justice preventing the applicant Mrs. Biritz from lodging any appeal to rectify the fraud committed against her family by the NAB. It was clear that Justice Marshall had been placed into a difficult situation due to the previous hearing before North J., and with foreknowledge it is considered he deliberately determined to prejudge the outcome of the proceeding.

Under reference b) the accessibility and appropriateness of the court system as a forum to resolve these disputes fairly…

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 5 of 7

It should be unequivocally clear to this Committee based solely on the submission provided that the Australian Legal and Judicial System is totally useless and inept when it comes to any meaningful action or remedy that would impugn a large financial services provider (FSP) like the National Australia Bank, especially when it comes to matters of serious criminal conduct and fraudulent practices that would see any other corporation or business entity legally operating in this country wound up.

Likewise, all relevant government agencies and bodies failed to perform their basic duty in an oversite or prosecutory responsibility, including ASIC, the Office of the Attorney General and the Commonwealth Director of Public Prosecutions (CDPP).

4. As written to the Chief Justice of the Federal Court in May of 2000, the Honorable Justice M. E. J. Black, it is clear that corruption in this country has grown so widespread and sophisticated that it has undermined the very fabric of society. It is not for an ordinary member of the public, especially one who is a mother of three and a woman who appeared by herself as a litigant in person, to initiate fraud proceedings in the Federal Court of Australia against such a large FSP like the NAB, but instead for the established relevant authorities that are taxpayer funded. At all-time material this was the duty of (but not limited to) the Attorney General of Australia, the Commonwealth Director of Public Prosecutions (CDPP), ASIC, and the Australian Federal Police (AFP) under their sworn statutory obligations. It is evident that all safeguards and prevention mechanisms present both within the Australia Judicial System as well as the relevant government bodies charged with protecting consumers against malicious and fraudulent practices conducted by a large financial institution like the National Australia Bank failed miserably.

Given the egregious nature and criminal conduct perpetrated by the NAB in this matter, the submittant is petitioning this Committee for the following recommendations:

4.1 The immediate and indefinite suspension of the Australian Financial Services Licence No. 230686 of the National Australia Bank Limited (ABN 12 004 044 937).

4.2 The establishment of an autonomous, independent, Federal task-force with special powers, including necessary technical and forensic accountancy expertise, charged with immediate recovery of stolen assets by the NAB as pertaining to the Biritz Family Estate.

4.3 The immediate commencement of a full criminal investigation by the Commonwealth Director of Public Prosecutions (CDPP) into the judicial decision makers in this matter, Biritz Vs NAB, including a demand for the prosecution of Justice North and Justice Marshall of the Federal Court of Australia. It is considered that the Attorney General obfuscated his responsibilities and failed to act in these matters, to which Office the incumbent has an oath of sworn duty under the Constitution of Commonwealth of Australia.

4.4 Should this matter ever come to light and be fully and properly understood, it would shake all public trust and confidence in this system, given the financial conflict, which is criminal conduct, between individuals in banks and the Australian Government who have benefitted from these relationships, whether financially or through appointments to various positions. The Submittant is further seeking a full Federal investigation to be setup and undertaken to ascertain which serving members, whether in current or past administrations, who were intimately connected to this matter or in a position where they failed their duty and responsibility, be held to account, including being prosecuted.

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 6 of 7

Finally:

On 19 October 2018 Dr. Brandson of BRN handed the evidence to then NAB CEO Mr. Andrew Thorburn. Mr. Thorburn was told that the Biritz case was very straight forward and if not handled appropriately the bank's continued operation would be at risk. Rather than take his responsibilities seriously Mr. Thorburn initialed a process to in effect cover up this crime. As the members of this committee fully understand - concealing a crime is a very serious offence.

It is worth noting here that the vast bulk of bank victims decided to pull out of dealing with Mr. Kennett as they quite quickly became aware that the exercise by Mr. Thorburn and Mr. Kennett was aimed purely at limiting the bank's liability. The bank victims were clearly being manipulated, treated harshly and disrespected during the process.

The former CEO of the NAB Andrew Thorburn recently initiated an independent, extrajudicial arbitration into bank victims of legacy cases, which took place from November 2018 and concluded in January 2019, enlisting the assistance of the former Premier of Victoria the Hon. Jeff Kennett AC. Mr. Kennett was disqualified to sit in the capacity as a decision maker or Independent Arbiter in this matter, given his involvement with the State Government of Victoria as a former Premier from 1992 to 1999, during the time this fraud took place.

Therefore, Mr. Kennett had a serious conflict of interest to preside over such an arbitration and should have immediately disqualified himself upon learning these facts. Andrew Thorburn, NAB’s Chief Executive Officer, and Ken Henry AC, the chairman, were summarily dismissed (via “voluntary” resignation) by the bank following the findings of the final report of the Royal Commission.

The Biritz Family never received any acknowledgment, remedy, compensation or recovery of stolen monies or assets. The only compensation afforded was to the Hon. J. Kennett AC, who presumably did not undertake the arbitration simply based on his goodwill or out of the kindness of his heart. Curiously, the former Treasurer and Premier of NSW, Mike Baird, has stepped into the role as the Chief Customer Officer of Consumer Banking at NAB. It is no wonder why there is so little confidence by the Australian Public anymore in either the Australian Government or the FSPs, especially when current and former officials can so conveniently swap roles between public service and the private sector.

Yours sincerely,

Submission By: Erika Biritz

Preparation Assisted By: Dion Biritz

This document was authored by Mrs. Erika Biritz and assisted by Mr. Dion Biritz on Thursday 28 February 2019

Submission - Resolution of disputes with financial service providers within the justice system, 2019. Mrs. Erika Biritz, Re: Biritz Vs NAB Pg. 7 of 7