Responding to the financial abuse of older people - Loddon ...

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79. BFSO, above n 71, p. 21. 80. Australian Bankers’ Association, Code of Banking Practice cl 22. 81. BFSO, above n 71, p. 21. 82. BFSO, above n 71, p. 22. 83. BFSO, above n 71, p. 22. 84. Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 6 (table 1 items 2 and 3) and Part 2. 85. Foley v Hill (1848) 2 HL Cas 28 at 35 per Lyndhurst LC. 86. BFSO, above n 71, p. 14. 87. Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 409 at 418, per May LJ. 88. Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 331 at 349, per Alliott LJ. 89. ‘(1) a bank is entitled to treat the customer’s mandate at its face value save in extreme cases; (2) a bank is not obliged to question any transaction which is in accordance with the mandate, unless a reasonable banker would have grounds for believing that the authorised signatories are misusing their authority for the purpose of defrauding their principal or otherwise defeating his true intention; (3) it follows that if a bank does not have reasonable grounds for believing that there is fraud it must pay; (4) mere suspicion or unease do not constitute reasonable grounds and are not enough to justify a bank in failing to act in accordance with a mandate; (5) a bank is not required to act as an amateur detective.’ 90. Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 409 at 439, per Parker LJ. Parker LJ also said, at 439, that expressions ‘such as that a paying bank must pay under its mandate save in extreme cases, or that a bank is not obliged to act as an amateur detective, or that suspicion is not enough to justify failing to pay according to the mandate, or other like observations which are to be found in the cases, are no more than comments on particular facts or situations and embody in my view no principles of law. Furthermore, what would or might have been held to be a breach of duty at one time may not be a breach of duty at another.’ 91. Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 409 at 441, per Parker LJ. 92. BFSO, above n 71, p. 14; see also Macmillan Inc v Bishopgate Investment Trust plc (No 3) [1995] 1 WLR 978 per Bowen LJ and Steyn J. 93. BFSO, above n 71, p. 14; see also Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 409 at 437, per Parker LJ. 94. BFSO, above n 71, p. 23. 95. Cheques Act 1986 (Cth) s 33(1). 56
96. Cheques Act 1986 (Cth) s 33(2)(a)(i). 97. Compare: National Westminster Bank Ltd v Barclays Bank International Ltd [1975] QB 654 at 666 per Kerr J. 98. Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 6 (table 1 items 2 and 3) and Part 2. 99. See for example: http://www.citibank.com.au/global_docs/pdf/RC_Additional_ Signatories.pdf (accessed 9 April 2008). 100. Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 6 (table 1 items 2 and 3) and Part 2. 101. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 per Brennan J at 505–6; Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 745; Sim v Stretch (1936) 52 TLR 669 at 671; Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; Byrne v Deane [1937] 1 KB 818 at 833; Miller v David (1874) LR 9 CP 118; Myroft v Sleight (1921) 90 LJKB 883; Tolley v JS Fry & Sons Ltd [1930] 1 KB 467 at 479. 102. Defamation Act 2005 (NSW) s 27; Defamation Act 2005 (Vic) s 27; Defamation Act 2005 (Qld) s 27; Defamation Act 2005 (WA) s 27; Defamation Act 2005 (Tas) s 27; Defamation Act 2005 (SA) s 25; Defamation Act 2006 (NT) s 24; Civil Law (Wrongs) Act 2002 (ACT) s 137. 103. NSW, Vic, Qld, WA and Tas Acts, s 25; SA Act s 23; ACT Act s 135; NT Act s 22. 104. NSW, Vic, Qld, WA and Tas Acts, s 26; SA Act s 24; ACT Act s 136; NT Act s 23. 105. NSW, Vic, Qld, WA and Tas Acts, s 26; SA Act s 24; ACT Act s 136; NT Act s 23. 106. NSW, Vic, Qld, WA and Tas Acts, s 31; SA Act s 29; ACT Act s 139B; NT Act s 28. 107. NSW, Vic, Qld, WA and Tas Acts, ss 28 and 29; SA Act ss 26 and 27. 108. Horrocks v Lowe [1975] AC 135 at 149. 109. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 at 196. 110. Adam v Ward [1917] AC 309; [1916-17] All ER Rep 157; Mowlds v Fergusson (1940) 64 CLR 206; [1941] ALR 238. 111. Toogood v Spyring, Roberts v Bass, Bashford v Information Australia (Newsletters) and Adam v Ward are all leading authorities for this proposition. 112. Kearns v General Council of the Bar [2003] 2 All ER 534 at 547. 113. [2005] SASC 151. 114. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 at 255–6. 115. Watt v Longsdon [1930] 1 KB 130. 57
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Responding to the financial abuse o
Page 3 and 4:
Responding to the fi nancial abuse
Page 5 and 6:
Contents Preface ..................
Page 7 and 8:
Preface In a paper given in Novembe
Page 9 and 10:
1. Introduction and Scope This repo
Page 11 and 12:
2. Glossary In this report: • ‘
Page 13 and 14: impose an obligation to protect a c
Page 15 and 16: 4. Code of Banking Practice 4.1 Sum
Page 17 and 18: 5. Office of the Public Advocate 5.
Page 19 and 20: 5.4 Administration orders (a) If th
Page 21 and 22: nevertheless be able to guess the s
Page 23 and 24: ‘general duty of confidentiality
Page 25 and 26: capacity’. 48 As a result, any fi
Page 27 and 28: in reporting abuse to a third party
Page 29 and 30: y or on behalf of an enforcement bo
Page 31 and 32: Reporting requirements are in two c
Page 33 and 34: to assist bank employees in identif
Page 35 and 36: 7. Confidentiality 7.1 Summary (a)
Page 37 and 38: Additionally, the following particu
Page 39 and 40: 7.6 BFSO scheme (a) The BFSO scheme
Page 41 and 42: (e) Where a representative of a cus
Page 43 and 44: (c) The fiduciary relationship aros
Page 45 and 46: Indeed, the duty to honour a custom
Page 47 and 48: suspicious transaction. These terms
Page 49 and 50: The common law has formulated the t
Page 51 and 52: 9.6 Contextual truth A defence of c
Page 53 and 54: (d) whether the opinion was honestl
Page 55 and 56: equires that the duty and interest
Page 57 and 58: 10. Recommendations On the basis of
Page 59 and 60: Notes 1. Julian Gardner, Uncovering
Page 61 and 62: 34. Instruments Act 1958 (Vic) s 12
Page 63: 69. Mandatory reporting may give re
Page 67 and 68: Schedule 1: Office of the Public Ad
Page 69 and 70: Schedule 1: Office of the Public Ad
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