Bakarich v Commonwealth Bank of Australia - [2010] NSWCA 314

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314

FILE NUMBER(S):
2005/270113

HEARING DATE(S):
13 August 2010

JUDGMENT DATE:
26 November 2010

PARTIES:
Anthony George Bakarich as Executor of the estates of the late Mary Patricia BAKARICH and Allan John BAKARICH, Anthony George BAKARICH, VITLERN PTY LIMITED (ACN 003 060 679), A BAKARICH INDUSTRIES PTY LIMITED (ACN 001 317 577) (appellants)
COMMONWEALTH BANK OF AUSTRALIA (respondent)

JUDGMENT OF:
Hodgson JA Campbell JA Lindgren AJA

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
APPLICANT appeared in person
T F BATHURST QC/ D F C THOMAS (respondent)

SOLICITORS:
Commonwealth Bank of Australia (John Lanser) (respondent)

CATCHWORDS:
PROCEDURE – Application to reopen hearing of appeal – Alleged improper conduct in conduct of litigation – Principles to be applied.
COURTS and JUDGES – Judges – Disqualification for bias – Tests for – Whether disclosure adequate – Whether objection waived.

LEGISLATION CITED:
Family Law Act 1975 (Cth) s 121

CATEGORY:
Principal judgment

CASES CITED:
Bakarich & Ors v Commonwealth Bank of Australia [2007] NSWCA 169
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 130
Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287
Bryant v Commonwealth Bank of Australia [1996] HCA transcript 84 (heard on 21 February 1996)
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Finance Sector Union v Commonwealth Bank of Australia [1995] IRCA 691
Hawkins v Commonwealth Bank of Australia [1996] IRCA 236
Healey v Commonwealth Bank of Australia [1998] NSWSC 678
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Multiplex Constructions Pty Limited v Irving (No 2) [2005] NSWCA 1
Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288
Re Polites (1991) 173 CLR 71
S & M Motor Repairs Pty Limited v Caltex Oil (Australia) Pty Limited (1988) 12 NSWLR 358
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423

TEXTS CITED:

DECISION:
Application to reopen the appeal is dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2005/270113
HODGSON JA
CAMPBELL JA
LINDGREN AJA
26 NOVEMBER 2010

Allan John BAKARICH and Ors v COMMONWEALTH BANK OF AUSTRALIA

Judgment

THE COURT: The Court is dealing with an application by the appellants to reopen the appeal in this matter, which had been heard on 17 – 19 April 2007 and in which a reserved judgment had been delivered on 13 July 2007 ([2007] NSWCA 169).
That appeal had been brought from a decision of Nicholas J given on 20 April 2004. This decision was given after a 17 day hearing, in November and December 2003, of proceedings in which Mr Tony Bakarich, together with members of his family (his late mother Mary Bakarich and his late brother Allan Bakarich) and associated companies had sought relief against the Commonwealth Bank of Australia (the Bank) in respect of certain guarantees and a mortgage. The primary judge found that the plaintiffs failed to establish any of their claims, and on 3 May 2005 he ordered that there be judgment for the Bank and ordered the plaintiffs to pay the Bank’s costs on an indemnity basis.
In its decision of 13 July 2007, the Court (Hodgson, Santow and Campbell JJA) decided that relief was available under the Contracts Review Act 1980 to Mr Bakarich’s late mother and late brother, if it were shown that such relief would have utility. The difficulty was that Mr Bakarich would remain fully liable to the Bank under his guarantee, and he was the person most interested in the estates of his late mother and his late brother.
Following further evidence and submissions, orders were made on 24 July 2008 directing an inquiry by a judge of the Equity Division. Substantial material was prepared and filed pursuant to those orders; but on 24 July 2009 the appellants filed a notice of motion which in substance sought to reopen the hearing of the appeal; and that is the application with which the Court is now dealing.
There were a number of directions hearings before Hodgson JA between 1 September 2009 and 2 June 2010, the effect of which were summarised in a judgment which he gave on 2 June 2010 ([2010] NSWCA 130). This was that the Court would first conduct a hearing in which it would decide whether or not there should be a further hearing of the appeal, and that the appellants should not be permitted to issue subpoenas for the purpose of that hearing. If the Court decided that there should be a further hearing of the appeal, appropriate subpoenas might then be permitted for the purposes of that hearing.
The application to reopen the appeal was heard on 13 August 2010. Mr Bakarich was self-represented, and spoke on behalf of all appellants; and the Bank was represented by Mr Bathurst QC and Mr Thomas of counsel.
Principles to be applied
Because final orders have not been made and entered, the Court has a discretion to reopen the appeal. As regards the principles to be applied, we would adopt the following discussion of them by Ipp JA in Multiplex Constructions Pty Limited v Irving (No 2) [2005] NSWCA 1 at [15] – [24]:
[15]Multiplex submits that the scope of the discretion is to be discerned from the following remarks of Mason CJ in Auto Desk Inc v Dyason (No 2) (1993) 176 CLR 300 (at 301 to 302):
The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard … [T]hese statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders.
See also Smits v Buckworth (No 2) (NSWSC, 14 November 1997, unreported per Young J).
[16]Multiplex, in contending that the Court's discretion should be exercised in its favour, points out that the new issue is one of pure statutory construction "arising from a provision of the Act different to the provision to which the Court's attention had previously been drawn". According to Multiplex, s 151E(3) was overlooked in the authorities previously cited to the Court. No evidence would be required to be adduced in connection with the point now raised and, Multiplex argues, the appeal would not have been conducted differently had the section earlier been drawn to the Court's attention. Multiplex argues that, should the Court allow the new argument to be raised, no party would suffer any appropriate prejudice.
[17]Royal, in opposing Multiplex's argument, points out that Multiplex has not offered any explanation for its failure to raise the s 151E(3) argument. In regard to Multiplex's reliance on Auto Desk Inc v Dyason (No 2), Royal points out that in that case (at 303) Mason CJ emphasised that the jurisdiction to reopen a judgment is not to be exercised "simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put".
[18]Moreover, Royal draws attention to the fact that, in making the remarks relied upon by Multiplex, Mason CJ was in dissent. In this regard, Brennan J (at 309) in Auto Desk Inc v Dyason (No 2) observed:
It is one thing to reopen an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had an opportunity to argue. In that event, natural justice is denied and it can be said that the Court's jurisdiction to hear and determine the matter is not exhausted. But that is not the present case. Here the ground on which the appeal was determined had been argued in the courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law. In University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 (at 483) this Court said:
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The decision of this Court in the present case was not given in ignorance or forgetfulness of some statutory provision or of some critical fact. To entertain an application to reopen an appeal after judgment in order to consider further argument on an issue already decided would be to subvert the finality of litigation and to invite interminable arguments about the importance of the legal questions to be recanvassed and the correctness of the answers to those questions already given.
[19]Dawson J (at 317) expressed similar views and cited Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 (at 684). His Honour stressed that the jurisdiction to reopen a judgment that had been pronounced would be exercised cautiously, bearing in mind the public interest in the finality of litigation.
[20]In Wentworth v Woollahra Municipal Council the High Court said (at 684) that the circumstances in which the Court would reopen a judgment which it had pronounced were "extremely rare" and "[t]he public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution".
[21]The English Court of Appeal in Robinson v Fernsby [2003] W.T.L.R 529 has recently considered the scope of the Court's discretion to reopen a judgment already handed down. In that case, May LJ followed the majority in Stewart v Engel (2000) 3 All ER 518 where it was held that the exercise of the jurisdiction required proof of exceptional circumstances. May LJ pointed out:
Once a judgment has been handed down or given, there are obvious reasons why the Court should hesitate long and hard before making a material alteration to it.
The "obvious reasons" to which his Lordship referred involved the strong public interest in the finality of litigation.
[22]In Robinson v Fernsby May LJ said, further:
The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive a summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the Court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case.
[23]I would add that the Court of Appeal in Gravgaard v Aldridge and Brownlee (per May and Arden LLJ) Times, December 2, 2004 followed Robinson v Fernsby.
[24]In the light of the approach enunciated in these authorities, I see no good reason to allow the new issue now to be raised. This is not a case where there is any suggestion of an inadvertent denial of procedural fairness (see Auto Desk Inc v Dyason [No 2] at 314). Multiplex has had a clear and full opportunity to place before this Court all the submissions that it wished to make at the appropriate time. Full and detailed oral argument took place before judgment was delivered. The omission to raise s 151E(3) earlier was due solely to the conduct of Multiplex itself. The argument now raised is simply an afterthought and a contentious one at that. In the circumstances of this case, to allow the new point to be raised would subvert the appeal process itself: see Noga v Abacha (2001) 3 All ER 513. Accordingly, I would refuse to allow Multiplex to raise the new argument based on s 151E(3).
Ultimately, the question is whether, notwithstanding the public interest in finality of litigation, the interests of justice would justify reopening the appeal. In considering that question, we will have regard particularly to whether or not any or all of the matters now sought to be raised appear to be of real substance, and whether or not there is a satisfactory explanation for their not being raised when the appeal was argued.
Issues
The principal issue now sought to be agitated is that of alleged ostensible and actual bias of the primary judge, based on his relationship with Mr Sackar QC (senior counsel for the Bank before the primary judge), Mr McCulloch (a junior counsel for the Bank before the primary judge) and the Bank itself, and also on the way the primary judge conducted the hearing.
Other issues sought to be raised concern the use of files from the Family Court of Australia, omission of documents from the joint tender bundle, alleged manipulation of the transcript, other alleged improper and/or dishonest conduct by the Bank and its legal team in the conduct of the litigation, and alleged improper and/or dishonest conduct of the Bank in relation to its dealings with the appellants. Some of these other issues are relied on as supporting the claim of bias against the primary judge, especially the use of files from the Family Court, and an alleged contrast with this of the primary judge’s approaches to calls for production of Bank files and to the leading of evidence from a proposed witness for the appellants Mr Rae.
Because of the significance given by the appellants to issues concerning the Family Court files, we will deal with this first. Then we will deal with alleged bias of the primary judge, the joint tender bundle issue, the transcript issue, the conduct of the litigation, and the dealings of the Bank with the appellants.
Family Court files
The issue concerning the Family Court files must be considered having regard to s 121 of the Family Law Act 1975 (Cth). As at 10 November 2003 (and until 14 January 2004) this section provided as follows:
121 Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2)A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a)it contains any particulars of:
(i)the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii)the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b)in the case of a written or televised account or an account by other electronic means – it is accompanied by a picture of the person; or
(c)in the case of a broadcast or televised account or an account by other electronic means – it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4)A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.
(5)An offence against this section is an indictable offence.
(8)Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9)The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the display of a notice in the premises of a court that lists proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i)a separate volume or part of a series of law reports; or
(ii)any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person.
(10)Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note:Powers to make Rules of Court are also contained in sections 268, 37A, I09A and 123.
(11) In this section:
court includes:
(a)an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b)a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
electronic means includes:
(a)in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b)in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

A 2003 amendment to that section, taking effect from 14 January 2004, related to s 121(9)(da), which is immaterial to this case, and added s 121(9)(g), which is as follows:
(g)Publication of accounts of proceedings, where those accounts have been approved by the Court.
A file of Family Court proceedings between Mr Bakarich and his former wife was subpoenaed from the Family Court, and was produced to the court constituted by the primary judge. The primary judge granted access to the file to both parties. The file was accompanied by a letter from the Family Court asserting that the file should not leave the custody of the Supreme Court and that the Supreme Court ought not permit photocopying of any part of the file. Counsel for the Bank applied to uplift the file and make copies. The primary judge suggested that the Bank’s legal representatives speak to the author of that letter; and he was later advised that junior counsel had spoken to the Registrar of the Family Court, that the Registrar had agreed that the file might be released to the parties’ legal representatives with two provisos, namely that any photocopy taken be returned to the file and destroyed at the end of the case and that the file or copy not be released from the possession of the parties’ legal representatives. The Bank’s junior counsel accepted those conditions, and the primary judge permitted the file to be uplifted on that basis.
Subsequently, Mr Bakarich was cross-examined on material in the file, and the primary judge made adverse findings on Mr Bakarich’s credibility on the basis of that cross-examination.
A ground of appeal which was at one stage included in the appellants’ notice of appeal was as follows:
1.The trial judge erred in his interpretation of the Family Law Act, 1975 as amended and in particular s.121 of the Act by granting the parties legal representatives access to a Family Court of Australia file involving the First named Appellant and his former wife, making orders in respect of the said file and admitting into evidence material from the said file concerning the First named appellant and his associated business entities.
Prior to 1 August 2006, Dr Birch (senior counsel then retained for the appellants on the appeal), advised that s 121 did not apply to other proceedings and did allow these issues to be raised in other court proceedings: see appellants’ 24.7.09 tender bundle 260. Following that advice, this ground was deleted.
Mr Bakarich on behalf of the appellants now makes the following allegations:
(1)The Bank illegally included Family Law Court files in their tender bundle;
(2)The primary judge was twice advised by the Family Court that he was not entitled to the file but he persisted and thereby obtained the file;
(3)The primary judge thereby enabled Mr Sackar to abuse Mr Bakarich’s family on the basis of proceedings concluded 20 years earlier;
(4)The primary judge’s adverse findings were contrary to the findings of the Family Court concerning Mr Bakarich;
(5)The primary judge’s assistance to the Bank in this respect contrasted with his treatment of evidence proposed to be called from the appellants’ witness Mr Rae and efforts on behalf of the appellant to obtain files from the Bank.
We note also that, after receiving Dr Birch’s advice, Mr Bakarich on 7 March 2008 wrote to ICAC alleging that the primary judge committed many breaches the Family Law Act and committed crimes for which he should be held accountable: 24.7.09 tender bundle 299 – 306.
Mr Bakarich produced no evidence that the Family Court files had been included in the tender bundle. In the affidavit where he complains about their use (24.7.09, par [51]), he refers to all the documents as having MFI numbers, this being inconsistent with their being in the tender bundle. The transcripts do not support any suggestion that the Family Court advised the primary judge he was not entitled to the file: the files were produced by the Family Court in response to the subpoena, albeit with a note concerning their use. What the primary judge did concerning that note (that is, suggested that the Bank’s legal advisers contact the Family Court) was entirely proper. It is true that the Family Court documents relied on were created up to 17 years before the trial, but the events with which the proceedings before the primary judge were principally concerned occurred over 14 years before the trial, and some of the Family Court documents on which Mr Bakarich was cross-examined were created only about six months before those events. The matters on which Mr Bakarich was cross-examined were relevant to his credit, and the fact that the Family Court judge took a favourable view of Mr Bakarich in no way precluded the primary judge from reaching the view that Mr Bakarich’s answers in cross-examination reflected badly on his credibility.
In our opinion it is clear that there was no breach of the Family Law Act. Under s 121(11) “court” includes the Supreme Court of New South Wales; and even if production to parties to a court case for the purposes of that case can be considered dissemination to the public or a section of the public within s 121(1) (a matter on which we express no opinion), what actually happened was plainly within the exemption provided by s 121(9)(a).
Mr Bakarich complains that in contrast, the primary judge resisted production of evidence for the appellants from Mr Rae on the basis of likely bias in favour of the appellants, referring to an exchange that took place on p 460 of the transcript:
HIS HONOUR: That might be so. I simply do not know. Just sidestepping things for a moment, if there is going to be an issue about disqualification in relation to the expert, I know that there has been consideration of these sort of questions by, for example, Austin J, who did something about it - I can't remember when, but there are a number of unreported decisions on those sorts of considerations, and if there is to be a real argument about that, I would welcome the parties looking at it, and I'm sure they will, but there is certainly some unreported material in this division, and no doubt elsewhere, on this sort of thing.
MR POWELL: We have not received the objections yet, but I've been told what they will say, so, yes --
HIS HONOUR: There are some rulings out there, and I would welcome them.
MR POWELL: There is another possibility of course, your Honour, and I don't say this is likely to occur, but, for example, if your Honour ruled that because of Mr Rae's closeness to the plaintiffs, or some of them, he was not qualified as an expert, it may be that Mr Rae would still be able to give some evidence that he purports to give, not as an expert but --
HIS HONOUR: Let's wait until that comes. You mentioned lack of independence arguably. That then suggested to me that if there is going to be some contest on that basis, it will be appropriate to look at some consideration of principles and I would ask for help on that when the time comes.
That exchange could not reasonably be understood as resistance by the primary judge to evidence of Mr Rae on the basis of bias. The primary judge was simply indicating that if such objection was taken, he would be assisted by reference to authority. The decision apparently taken by the appellants’ legal representatives not to read Mr Rae’s evidence could not, on the basis of this material, reasonably be supposed to flow from resistance by the primary judge.
A further complaint is that when the appellants’ counsel called for the production of Bank documents, especially concerning an alleged misappropriation of $15,000 on 18 October 1988, and the Bank did not produce them, the primary judge did not pursue the matter. However, when documents are called for without the prior issue of a subpoena or notice to produce, the only obligation is to produce documents if they happen to be in court; and if the party does not then produce them, there is nothing a judge can or should do unless a subpoena or notice to produce is issued and called on.
In our opinion, this discussion shows that there is no basis whatsoever in Mr Bakarich’s complaints concerning the Family Court files; so that quite apart from the point that this matter was raised and then abandoned, it could not possibly be a basis for reopening the appeal. In our opinion it also shows that Mr Bakarich is prepared to make extremely serious allegations without there being any basis for his doing so. We do not doubt that Mr Bakarich genuinely believes that he has been very seriously wronged, and believes that the primary judge and the Bank have misconducted themselves. However, in the case of the Family Court files, it is apparent that there is no reasonable basis whatsoever for these beliefs; and it is notable that, even after receiving the correct advice from Dr Birch that there was no breach of the Family Law Act, Mr Bakarich was prepared to complain to ICAC that the primary judge had committed crimes against the Family Law Act for which he should be held accountable.
Alleged bias
It is convenient first to set out a chronology of events relevant to the complaint of bias arising from the relationship between the primary judge, on the one hand, and Mr Sackar, Mr McCulloch and the Bank on the other.
Prior to his appointment to the Supreme Court in early 2003, the primary judge had represented the Bank in a number of cases. These included Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287 (heard on 22 May 1995), Bryant v Commonwealth Bank of Australia [1996] HCA transcript 84 (heard on 21 February 1996), Healey v Commonwealth Bank of Australia [1998] NSWSC 678 (heard on 30 November 1998), Finance Sector Union v Commonwealth Bank of Australia [1995] IRCA 691 (heard in August 1995), and Hawkins v Commonwealth Bank of Australia [1996] IRCA 236 (heard in March and August 1995 and January and February 1996, in which Mr Sackar was also briefed for the Bank).
From 1971 until his appointment, the primary judge was a member of the Sixth Floor Wentworth Chambers. Mr Sackar was also a member of that Floor, at least from 1 July 1986, and Mr McCulloch was a member of that Floor, at least from 30 January 1998.
The primary judge was a director of Counsel’s Chambers Limited (owner of the Wentworth Chambers and Selborne Chambers building) from 24 August 1994 to 26 November 1999; and Mr Sackar was also a director of that company from 29 March 1995 to 19 July 2000. Although Mr Bakarich alleged that the primary judge held and still holds 12,000 shares in that company, we accept as reliable information from the general manager of that company that the primary judge (through a private company) held 4,500 shares in that company, which were sold on 18 March 2003, since which date neither the primary judge nor his private company has held shares in Counsel’s Chambers Limited. Mr Bakarich states in his affidavit (par 9) that Mr Sackar and Mr McCulloch “held and continue to hold 6,000 shares each” in that company.
The primary judge, Mr Sackar and Mr McCulloch are still shareholders in Denman Chambers Pty Limited. There are 15 ordinary shares in the issued capital of that company of which his Honour, Mr Sackar and Mr McCulloch hold one share each, the remaining 12 shares being held by others. The primary judge was a director of that company from 1 July 1986 to 18 March 2005; and Mr Sackar was a director of that company from 1 July 1986 at least until 5 June 2009. Mr McCulloch was a director and also secretary of that company from 30 January 1998 until at least 5 June 2009. However, we accept as reliable information from the clerk of Sixth Floor Selborne Wentworth Chambers that Denman Chambers Pty Limited operated as a service company for the administration of the Sixth Floor Wentworth Chambers for a period of time prior to 1 January 1997, and that it has not operated as a service company or in any other capacity since prior to January 1997. We note that the search of that company as at 5 June 2009 discloses that strike-off action was in progress.
Prior to his appointment to the Supreme Court, the primary judge acquired various properties in the Liverpool Plains area, including substantial properties acquired in 1987 and 1991. In October 2001, he sold four properties in that area. For many years prior to his appointment, the primary judge and Mr Sackar were in partnership in a cattle stud business. The cattle were maintained on the properties owned by the primary judge, until the properties were sold; and after disposal of those properties, they were agisted on the stud manager’s property.
On 5 February 2003 at the swearing-in ceremony of the primary judge, Mr Tobias QC (as he then was) speaking on behalf of the Bar Association of New South Wales said this:
For many years you have been a commercial breeder of Aberdeen Angus cattle in partnership with you colleague, John Sackar QC, and you have both bred, vicariously that is, the grand champion bull at the Sydney and Brisbane shows in 1994 who, not surprisingly, then answered to the name of Magistrate.
On 11 June 2003, the proceedings brought by the appellants against the Bank were fixed for hearing on 10 – 28 November 2003, with a pre-trial directions hearing fixed for 10 September 2003.
By 10 September 2003, the primary judge had been identified as the judge allocated to hear the case, and the pre-trial directions hearing took place before him. At that pre-trial directions hearing, Mr Randall Powell appeared for the appellants, and Mr McCulloch appeared for the Bank. The following exchange occurred:
MCCULLOCH: Might I inquire, your Honour is appointed as the trial judge?
HIS HONOUR: Yes.
MCCULLOCH: In this matter I appear with Mr Sackar and I informed my learned friend of the relationship between Mr Sackar and yourself. It was obvious my client has nothing to say. It is a matter for your Honour and Mr Randell, [sic: Powell] and his client more particularly, he has not had an opportunity to obtain any instructions. I will say no more at the moment.
HIS HONOUR: I have no difficulty in you explaining or inviting Mr Sackar to explain to Mr Powell the nature and extent.
MCCULLOCH: I have been given a one line summary.
POWELL: I am being led by Mr Gross.
HIS HONOUR: No problems of confidentiality of mine, you have the detail. I had better look at that too.
MCCULLOCH: Provided your Honour does not feel any embarrassment from your Honour's perspective.
HIS HONOUR: I don't.
MCCULLOCH: Only apprehended bias, but if Mr Sackar attempted to contact Mr Gross during liberty to apply, and may I invite your Honour, if your Honour feels any difficulty on reflection to raise it with the parties when your Honour sees fit.
HIS HONOUR: I don't think it needs to be raised any more. Raise it with your respective clients and make sure they don't have any difficulty. I have no difficulty with any confidential arrangements that there might be, that is if there is any. I ask you to deal with it urgently, meaning getting someone else to deal with it.
POWELL: I am sure Mr Coles and I won't have any problem, given the history of this matter.
HIS HONOUR: Take it up with your client. If there is an appearance problem, then we had better know early. Don't wait worry about three days notice. Come back urgently if there is the slightest concern. Do not worry about the three days notice because the importance will be to get someone else to do it.
The reference to “Mr Gross” in that discussion appears to be a mistake for “Mr Coles”, who is in fact referred to later in the discussion.
On the same day, that is 10 September 2003, Mr Sackar sent the following letter to the stud manager of the cattle herd:
Have had a long talk with Henric and we have decided to get rid of the rest of the herd as soon as is possible, say mid October, through the sale yards on a staggered basis perhaps.
Henric and I really need to do this because it is becoming a bit of a problem. For example, today I had a matter listed before him and had to disclose to my opponent that Henric and I were still business partners. Henric is currently deciding whether he should sit on the matter. It therefore has the potential to be professionally difficult. I will try to call you again tomorrow morning at home.
The reference to “Henric” is a reference to the primary judge.
On 12 September 2003, an email was sent to the primary judge from Anna Bentivoglio (the primary judge’s associate) in the following terms:
Subject: Mark McCulloch telephoned
Re Bakarich v CBA
Mr McCulloch advised that there is no opposition from the Plff to Justice Nicholas hearing this matter
Mr McCulloch has already advised Mr Powell
The October 2003 issue of the Australian Law Journal (77 ALJ 641-642) contained a report of the primary judge’s appointment to the Supreme Court. That report included the following:
With a rural background – his father became a grazier near Tumut after the Second World War – his Honour has maintained an interest in the land. He has a property at Mt Irvine and in partnership with John Sackar QC has bred Aberdeen Angus cattle commercially. He is, and has been for many years, a councillor of the Royal Agricultural Society of New South Wales.
It will be recalled that the partnership with Mr Sackar had also been referred to in the course of his Honour’s swearing in ceremony on 5 February 2003 (see [32] above).
In his evidence in support of the present application, Mr Bakarich asserts that he was not contacted by Mr Powell or Mr Coles in respect of the issues raised on 10 September 2003; but that he received a telephone call from his solicitor Mr Wijesinghe, after his solicitor had faxed him a copy of the article that appeared in the October ALJ issue, set out above. According to Mr Bakarich, the telephone conversation proceeded as follows:
Mr Wijesinge said to me            "I am faxing to you a copy of what I had mentioned to you earlier about Justice Nicholas and Mr Sackar buying cattle together. I want you to acknowledge that you have b seen the article and does it cause you any concern"
I said to Wijesinge  "I do not like them doing the case together"
Mr Wijesinge  "I assure you that if it was any more than buying cattle together it would have to address it in writing ".
I said."I buy steel with clients who I don't even know so allow things to proceed as long as this is all there is"
Mr. Wijesinge  I will make it clear to them that if there is anything more than the cattle buying then they would be obligated to disclose it to us. They are obligated to disclose to us it is not our responsibility to search for information".
Mr Bakarich further asserts that the matter was not raised again with him by anyone until a conference that occurred in Mr Coles’ chambers on 7 November 2003, that is, just before the commencement of the hearing on 10 November 2003. According to Mr Bakarich, the following conversation occurred at that conference:
Mr Wijesinge to Mr Coles What do you think about the article about Justice Nicholas and Mr Sackar buying cattle together".
Mr Coles."I am sure there is nothing in it If there was anything more then they would have to put it in writing".
Mr Coles to me. “I have had some success before His Honour recently. If there was anything more than the cattle business then they would have to disclose it in writing"
I said"I am not happy but I accept it on the basis of what I have been informed from reading the Law Journal article".

After the hearing of the evidence in the case and before judgment, on 17 December 2003 Mr Sackar sent the primary judge a cheque for $61,499.50, which was presented for payment by the primary judge on 19 December 2003.
The primary judge delivered judgment on 20 April 2004 and made final orders on 3 May 2005.

On 22 June 2005, Mr Bakarich wrote to Mr Coles QC asking a number of questions, although the letter did not refer to the bias point. Mr Coles replied to that letter on 24 June 2005.

The notice of appeal with appointment filed on 29 August 2005 included the following ground:
The trial judge erred in departing from the appropriate procedure for a judicial officer in hearing a cause of action involving the parties in circumstances when counsel appearing for the respondent had business dealings with the trial judge and in the circumstances the trial judge should have disqualified himself from hearing the cause of action.
(That ground was retained unaltered in an amended notice of appeal with appointment filed on 31 March 2006.)
On 21 September 2005, the Bank’s solicitor wrote to the appellants’ solicitor a letter referring to the second ground of appeal which was set out in the letter. The letter stated:
“I draw to your attention the following:
1.Mr Sackar QC (to whom I assume appeal ground 2 is intended to relate) expressly raised with Mr Coles QC in some detail the association between him (Mr Sackar) and the trial judge.
2.Mr Sackar QC and Mr Coles QC agreed that Mr Coles QC would obtain instructions from the plaintiffs as to whether the plaintiffs wished to take any objection to the trial judge's hearing the proceedings, in which case steps would be taken to seek to have the proceedings heard by another judge.
3.I understand that Mr Coles QC sought instructions from the plaintiffs and was expressly instructed that the plaintiffs took no objection to the trial judge's hearing the proceedings.
4.Mr Coles QC conveyed his instructions from the plaintiffs both to Mr Sackar QC and also in Court to the trial judge. -
5.Mr Coles QC has indicated to Mr Sackar QC (in a telephone conversation on Friday, 16 September 2005) that he is prepared to discuss the matter with you and confirm the course of events which occurred in order that you may be fully informed.
I request that you immediately verify the above with Mr Coles QC and, upon confirmation of those events, withdraw ground 2 from the proposed appeal.”
On 22 March 2006, the appellants’ solicitor wrote as follows to the Bank’s solicitor:
I note that in paragraph 4 of your letter of 21 September 2005 you assert that Mr Coles QC conveyed instructions from the plaintiffs "both to Mr Sackar QC and in Court to the trial judge". My copy of the transcript does not reveal that any such discussion took place. Are you able to provide me with a copy of any transcript disclosing the relevant conversation or conversations?
Secondly, paragraph 2 of the same letter rather suggests that there existed at the time of the trial matters of sufficient significance for the issue of apprehended bias to arise. I would be grateful if you might set out the substance of such matters, and in particular whether at that time His Honour and Mr Sackar QC in fact had a commercial relationship of whatever nature, or owned any property jointly.
On 20 April 2006, the appellants’ solicitor again wrote to the Bank’s solicitor:
I refer to my telephone conversation with your Mr Lanser this morning and advise I have been advised by counsel who appeared on 31 March 2006 that your Mr Lanser sought a direction from the registrar that the appellants reply to alleged repeated requests made by letter for the appellants' representative to confer with Mr Coles QC in relation to the issue of apprehended bias. Mr Lanser suggested that the appellants were delaying responding and being evasive. Counsel appearing for the appellants then said that the request that the appellants' representative confer with Mr Coles QC is not really an answer to the appellants' request for particulars of the business dealings where the suggestion is that the full extent of the dealings were not made known to the appellants. I am informed that the registrar declined to give the direction sought by Mr Lanser.
I have replied to your letters and I note that you find my replies unsatisfactory.
My inquiries at this time would indicate that the disclosure said to be relied upon by the opponent was not in fact made to Mr Coles QC.
On 26 April 2006, the appellants’ solicitor again wrote to the Bank’s solicitor:
The appellants' counsel has spoken to Mr Coles QC. At this stage the result of that that discussion has not permitted me to conclude that the bias point is without merit. Further inquiries of Mr Coles and others relevant to the issue are being actively pursued.
In order to properly advise the appellants as to the prospects of the bias point, I thought it important to ascertain the true facts of the matter.
Please indicate whether at the time of the hearing of this matter any form of commercial relationship existed between His Honour and Mr Sackar QC, and if it did, provide a precise statement as to what constituted such a relationship.
On 4 May 2006, the Bank’s solicitor wrote to the appellants’ solicitor as follows:
1.On 21 September 2005 I sent you a letter which, albeit not in affidavit form, particularised discussions that, on my instructions, took place between your clients' counsel, Coles, QC, and the Bank's counsel, Sackar, QC, prior to the trial.
2.After seven months, numerous reminders (oral and written) and a direction of the registrar of the Court of Appeal, my letter remains, substantively, unanswered. The best you are now prepared to do in responding is to say that "enquiries of Mr Coles and others relevant to the issue are being actively pursued." Not all that actively, I am entitled to infer.
3.You say your counsel has "spoken" to Coles, QC. What you eschew saying is that the contents of my letter of 21 September 2005 have been put to Coles, QC with a request that he:
(a)confirm such discussions took place; or
(b)deny such discussions took place; or
(c)say that there were discussions, but to a different effect, and provide his version of those discussions.
4.Then, having filibustered for so long, you require that I "provide a precise statement' (my emphasis) of any commercial relationship which existed between Sackar, QC and Justice Nicholas at the time of the hearing. I respectfully suggest that you are in something of a glass house to be pressing for this precision from my client, in the wake of seven months of sophistry from yours.
5.Consistently, and not surprisingly, your submissions on appeal fail to address the bias point at all (despite its being the second ground of appeal in the amended notice of appeal).
Forward from here
In the circumstances, the Bank has no alternative but to seek the advice of other senior counsel about an appropriate way of ensuring the appellants, having raised the bias issue, properly discharge their obligation to detail it in their submissions so that the Bank is aware of the case it has to meet. Inevitably, this may delay dealing with other substantive issues canvassed in the appeal, but that will be a situation of your clients' own making.
On 30 June 2006, the Bank’s solicitor sent to the appellants’ solicitor a draft affidavit of Sackar QC, which the Bank intended to file if the appellants pursued ground 2. That draft affidavit contained the following assertions attributed to Mr Sackar:
1.In about August 2003 I was briefed on behalf of the Commonwealth Bank to appear in a matter against a Mr Alan John Bakarich and Others. I cannot now recall the precise date upon which I was briefed. The first day I charged for work was the 5^th August (see attached).
2.At some point after receiving the brief, at a time which I cannot now recall precisely. Mr Justice W H Nicholas was allocated to hear the trial.
3.As at this date the Judge and I were in the process of winding down the activities of a cattle stud which he and I had been partners in for some 12 or 13 years previously. The decision to dissolve and discontinue the partnership was made I believe sometime prior to the Judge's appointment in February 2003. The process had slowed because of advice we had received from the Stud Manager as to best time to dispose of the various cattle. The herd comprised some 350 stud animals. All that was required was the sale of cattle and distribution of proceeds.
4.The arrangement between myself and Justice Nicholas was as follows. He had owned land at WilIow Tree which I believe he had disposed of prior to his appointment. After disposal of the land the cattle were agisted on the stud manager's property for a time.
We jointly owned the herd. We met the purchase price of cattle and vets fees etc, 50/50 and shared 50/50 in the sale proceeds. I made a contribution to the Stud Managers salary of I think one-third.
We operated a joint bank account at the Commonwealth Bank which we operated until he was appointed. Thereafter I controlled the cheque book and attended to writing of all cheques, although the account was in joint names -see Annexure “A” hereto.
5.When I was informed that Justice Nicholas was to hear the case I believe I informed my instructing solicitor Mr Tim Evans of Shaw McDonald and my juniors Mr Mark McCulloch and Mr Tom ThawIey that the Judge and I were still In the process of winding down a cattle stud. I resolved immediately to inform Mr Bakarich's Counsel whom I knew to be Mr Bernard Coles QC.
6.I had a conversation with Mr Coles the substance of which was to the following effect; I now cannot recall the precise date but it seems it was on 10^th September 2003 – see Annexure “B" hereto).
JRS: Bernie, as you know this matter has been fixed before Henric Nicholas and I should tell you that he and I still technically partners in a cattle stud. We are in the process of winding the operations down and finally selling the remaining cattle. We have a joint bank account and I hope in the very near future the arrangements will be concluded and our business relationship will come to an end. I just thought you should know that so that you can obtain some instructions as to what course, if any your client wishes to take.
BC: John, I believe that as a matter of public knowledge the business association between you and the Judge was mentioned at his swearing in I think – see Annexure "C" hereto.
JRS: That is certainly true, but I thought you should know that it is continuing at least to the point of our finalising the arrangements between us and I just wanted you to know that they are not yet final although I expect they will be finalised very soon and of course I will keep you informed as to the progress but I was concerned that you know precisely what the situation was.
BC: John, obviously I will have to get instructions. I personally don't think there should be a problem about it but I will have to speak with the client and I will get back to you as soon as I can.
7.I now cannot recall the circumstances in which the issue was raised with the Judge but I have a clear recollection that a special directions hearing was arranged inter alia, for the purposes of determining whether an application would be made for the Judge to disqualify himself. I recall being told that the directions hearing took place on a Wednesday. I did not attend. I believe Mr McCulloch attended.
8.I now cannot recall the precise day, however Mr Coles QC telephoned me back I believe a day or two after our original conversation and an exchange to the following effect took place:
BC: John, I have discussed matters with my client, he is not very happy but I have told him that I think Henric is the right judge for him and I have also told him that I have just had a very significant victory before the Judge and that I think he will do a good job. As I say he is not happy but he has accepted my advice.
JRS: Well look thank you for getting back to me Bernie, as I say I just thought you should know that. In any event as I say we are in the throes of finalising arrangements and I would expect to have them finalised before the trial commences. I will keep you posted.
BC: Look there is really no need to do that, but thank you.
9.I recall, again without being able to indicate the precise day but before the commencement of the trial (10 November), having the following conversation with Mr Coles. Although I cannot recall the precise date of the conversation, the sale notice (see Annexure “D" hereto) indicates the last sale of cattle was 23 October and it would have been shortly after that:
JRS: Bernie I thought I would just ring to tell you that the cattle have all been sold and I will be sending the Judge a cheque for his share of the proceeds in due course which will finalise our business dealings. I thought you should know that.
BC: Thank you for ringing. See you later.
10.No application was made either before or during the trial for the Judge to disqualify himself.
11.The first time I understood the issue was to be agitated at all was when I saw the Notice of Appeal in this matter (Ground 2).
12.It appears I sent a cheque to Justice Nicholas on I believe the 17^th December which he appears to have banked on the 19^th December – see Annexure “E” hereto. I cannot recall why I did not send him the cheque immediately following the receipt of payment in respect of the sale of the last cattle. However, I recall there was a GST issue which had to be sorted out and that this issue took some time to resolve.
13. Proceeds were from the sale of cattle as follows:

Date of Sale

28 August 2003

From Wesfarmers 11 head

$31,700.35

30 Sept 2003

From Wesfarmers 6 head

$5,234.40

17 October 2003

From Wesfarmers 118 head

$102,649.42

21 October 2003

From Wesfarmers 12 head

$7,050.62

23 October 2003

From Landmark 22 head

$14,270.43

14.Proceeds were received by direct deposit on various dates after each of the sales. The last amount was received by me on 13 November 2003.

15.After various adjustments etc. I sent a cheque for $61,499.50 to the Judge as I say probably on about 17 December 2003.

On 25 July 2006, Dr Birch SC, senior counsel briefed for the appellants on the appeal, gave a written advice, directed particularly to the ground of appeal relating to alleged bias. Paragraphs 12 – 17 of that advice were as follows:
12.I have myself spoken with Mr Coles QC. He recalls that there was a discussion, that it related to the business relationship between the Judge and Mr Sackar QC in regard to cattle, but does not recall the details. Mr Coles believes that the business of obtaining instructions from the Bakarich parties was at least in. part undertaken by Mr Ajit Wijesinghe who was the solicitor then with key responsibility for the conduct of the matter.
13.I understand that my instructing solicitor has been unable to obtain a detailed statement from Mr Wijesinghe who in any event says that part of the process of obtaining instructions was undertaken by another solicitor who now resides in Hong Kong.
14.Mr Bakarich says that in September 2003 Mr Wijesinghe told him that he was aware the judge and Mr Sackar had bought cattle together. It appears this knowledge may not have been a result of any disclosure from Mr Sackar QC.
15.Mr Bakarich consulted Mr Banfield who was not then the solicitor acting in the matter. Mr Banfield said that Nicholas J had a reputation as an honest and good person.
16.Mr Bakarich says that on 7 November he had a meeting at the chambers of Mr Coles. Also present were Mr Powell, Mr Wijesinghe, Mr Tyson and Ms Alex Steel. This was a preparatory meeting. At this meeting towards the end Mr Wijesinghe said to Mr Coles – "What about the article I read about these two buying cattle together.” Mr Bakarich said that Mr Coles replied – “If it had any substance we would have been advised in writing about it.” Mr Coles said – “Do you want to make an issue out of what Ajit has read?” Mr Bakarich said that he did not see the sense of it. Mr Bakarich said he believes that if there was more to it something would have been disclosed.
17.Mr Bakarich is not aware of any written record of the meeting. Mr Bakarich says that he was not expressly asked to consent to his abrogation of his right to a court hearing free of any apprehension of bias. I assume he means that he was not asked to consent to a court hearing at which the judge had some commercial relationship with the counsel for the Bank.
The advice went on to assert that the ground of appeal related to apparent bias had little or no prospect of success, and that to pursue it may have some negative consequences; and the advice recommended that this ground be deleted.
According to Mr Bakarich, following his receipt of Dr Birch’s advice, referred to above, Dr Birch said he would refuse to do the case if Mr Bakarich persisted in the claim of bias and also in the claim concerning alleged contravention of s 121 of the Family Law Act; and in fact this is confirmed by a letter to Mr Bakarich from his then solicitor dated 3 August 2006. Mr Bakarich says he was compelled to withdraw these grounds because he could not find another barrister at that stage and he had already paid Dr Birch a lot of money.
On 8 August 2006, senior counsel for the appellants handed up a further amended notice of appeal which was filed in court and which omitted ground 2.
On 11 August 2006, the appellants’ then solicitor wrote to Mr Bakarich advising him of the filing of the further amended notice of appeal and enclosing a copy.
As noted at [1] above, the appeal was heard on 17, 18 and 19 April 2007 and judgment on the appeal was delivered on 13 July 2007.
In written submissions prepared by Mr Quinn, then acting as solicitor for the appellants, in support of the application to re-open the appeal, it was submitted that this was a case in which the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions before him, referring to Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. It was submitted that the “two mights” test was satisfied, because (1) the primary judge had represented the Bank in a number of cases, briefed by the Bank’s lawyers, (2) both counsel acting for the Bank were co-directors with the primary judge in public and private companies, (3) the primary judge was in partnership with the Bank’s senior counsel and was paid $61,499.50 by him between the hearing and the judgment, and (4) any disclosure by the primary judge and/or by the Bank and its counsel was grossly inadequate.
We should also note that Mr Bakarich has made a submission that the primary judge, Mr Sackar and Mr McCulloch were together involved in a travel business. However, the Court has not been referred to any evidence supporting that allegation.
In our opinion, no basis is shown for reopening the appeal to consider the allegation of bias.
In our opinion, the circumstance that the primary judge represented the Bank on a number of occasions while he was a barrister was not a circumstance such that the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues. The evidence does not suggest that the primary judge’s representation of the Bank indicated a relationship that was of the order of that considered in S & M Motor Repairs Pty Limited v Caltex Oil (Australia) Pty Limited (1988) 12 NSWLR 358; and the majority of the Court of Appeal in that case held that the trial judge did not err in not disclosing his relationship with Caltex and in not disqualifying himself. Kirby P in dissent held that the trial judge in that case should have done so, but did so on the basis of the duration and intensity of the judge’s connection with Caltex (at 375). The evidence does not suggest a connection of that kind in this case.

Accordingly, in our opinion, it was not necessary for the primary judge in this case to have disclosed that he had, when a barrister, acted for the Bank on a number of occasions between 1995 and 1998: cf Re Polites (1991) 173 CLR 71.
In our opinion also, the common membership of the primary judge, Mr Sackar and Mr McCulloch of Sixth Floor Wentworth Chambers could not possibly be a basis for assertion of apprehended or actual bias; and the circumstance that the primary judge and Mr Sackar were both directors of Counsel’s Chambers Limited during the period March 1995 to November 1999 similarly could not do so, as it merely showed that both were taking responsible roles in the administration of a large building of counsel’s chambers. Denman Chambers Pty Limited was a service company operating in connection with the Sixth Floor Wentworth Chambers and has not functioned since January 1997; and in those circumstances, the common directorship and shareholding of the primary judge, Mr Sackar and Mr McCulloch could not give rise to any reasonable apprehension of bias.
However, the business relationship of the primary judge and Mr Sackar, if not known or disclosed, could have given rise to an apprehension of bias.
There is no basis in the evidence for questioning the assertion in Mr Sackar’s draft affidavit that, prior to the directions hearing on 10 September 2003, he and the primary judge had agreed to terminate their partnership, that all that remained to be done to that end was to sell the cattle and divide the proceeds, and that the cheque sent by Mr Sackar to the primary judge was a result of this process. It is plain that the appellants’ legal advisers knew that a partnership had existed between the primary judge and Mr Sackar, and knew the general nature of that partnership.
Mr Bakarich’s evidence concerning the lack of disclosure to him of the business relationship between the primary judge and Mr Sackar could be considered as weighing against the assertion in Mr Sackar’s draft affidavit as to his conversation with Mr Coles; but no evidence has been led from any of the appellants’ legal advisers either to support Mr Bakarich’s evidence or to contradict the assertion in Mr Sackar’s draft affidavit. In any event, even if Mr Bakarich’s evidence on this were to be accepted in its entirety, in our opinion his legal advisers knew enough of the relationship between the primary judge and Mr Sackar for them to be in a position to waive any objection to the primary judge on the ground of his partnership with Mr Sackar. Even if they did not know all the details, they knew of the substance of the relationship, they knew they could ascertain more details by asking the primary judge or Mr Sackar, and the details now disclosed do not suggest they were ignorant of any significant matter. The appellants are bound by the waiver by their legal representatives of such an objection: Smits v Roach [2006] HCA 36; (2006) 227 CLR 423.
The withdrawal of the ground of appeal on the advice of Dr Birch constituted a further waiver by the appellants of this objection. It would not matter if Mr Bakarich had felt obliged to withdraw the ground because of pressure from his legal advisers. He and the other appellants would still be bound by the conduct of their legal representatives, at least unless it were shown that there was some material matter not known to the legal representatives. The evidence does not support any finding that there was any material matter not then known to Mr Bakarich or the appellants’ legal representatives.
In his affidavit in support of the application to reopen under the heading “DIFFERENT MANNER OF DEALING WITH WITNESSES AND THE ENQUIRY AND INTERROGATION BY HIS HONOUR”, Mr Bakarich quotes certain passages from the transcript of the trial which he submits demonstrate bias by the primary judge against the appellants and in favour of the bank. In our view the passages demonstrate nothing more than an attempt by his Honour to elucidate and test evidence and, at least in one case, an acceptance of a witness’s testimony adverse to the appellants’ case at trial. The passages quoted do not support a conclusion of reasonable apprehension of bias.
Joint Tender Bundle
Prior to the hearing before the primary judge, the appellants’ legal representatives had prepared a Tender Bundle of documents, and the Bank had prepared a separate Tender Bundle of documents. During the hearing, the Bank’s legal advisers prepared a Joint Tender Bundle of documents, which was used by the primary judge.
Mr Bakarich complains that, of about 1600 pages in the appellants’ tender bundle, only 825 appeared in the Joint Tender Bundle. After the hearing, the Bank did not return the originals of the appellants’ documents, which the Bank had lost. Mr Bakarich complains in particular that many of the documents referred to by Mr Coles QC in opening the case for the appellants before the primary judge, did not appear in the Joint Tender bundle.
In our opinion, this cannot be a ground for reopening the appeal.
The problem was identified by the appellants’ solicitor in preparing for the appeal hearing, but no appeal ground was raised. There were in fact multiple copies of many documents, and Mr Bakarich has been unable to identify any document which had been included in the appellants’ Tender Bundle of which an exact copy, including any handwritten annotations, did not appear in the Joint Tender Bundle. A fortiori, he has been unable to identify any omitted document which could have had a material bearing on the case.
The appellants were represented by experienced senior and junior counsel at the trial, and it is unlikely in the extreme that any material document was not considered by the primary judge because it was not included in the Joint Tender Bundle.
Integrity of the transcript
The transcript was prepared by Computer Reporters Pty Limited.
Mr Bakarich contends that the transcript did not accurately record what occurred at the hearing, and also that there were “illegal changes” made to it. He refers to the following extract on page 221 of the transcript:
MR SACKAR: There are two transcript matters. The first one is at 163, line 15. It reads:
Steve might have taken your brother off.
My recollection was I said "your mother off".
MR COLES: That is my note.
HIS HONOUR: On page 163, line 15, the word "brother" should be deleted and in lieu thereof insert the word "mother".
MR SACKAR: The only other one, 207, line 46. The word is "kindrson" –it was "you are that kind of person".
HIS HONOUR: That is what I have. I might be missing something – line 46?
MR SACKAR: Page 207.
HIS HONOUR: It reads "that you are that kind of person".
MR COLES: Can I just ask, by way really of verification, does page 207 of your Honour's copy end on line 47, which is the next line?
The transcript records no answer to Mr Coles’ question but proceeds immediately to further cross-examination of Mr Bakarich. Mr Bakarich expresses concern to this Court that the primary judge already had the requested changes implemented, and that the primary judge ignored Mr Coles’ question.
Mr Bakarich also referred to page 801 of the transcript, which records him as giving the following answer to a question:
No, sorry, I don’t. What I said was Steve Bakarich had a loan of $400,000 and it’s got $256. That’s how it finished up. I don’t know how all that come around.
Mr Bakarich says he did not say that Steve Bakarich had a loan of $400,000, and he says this was introduced into the transcript illegally to assist the Bank’s case.
Mr Bakarich also contends that the transcript omits reference to what he contends were three false affidavits asserting that Mr Bakarich attended the meeting at the Bank on 15 March 1990, when records proved he was in Singapore at that time; that it omits a statement by Mr Sackar asserting that records could not identify one Neil (who was later clearly identified as Neil Gill); and that it omits a statement volunteered by a Bank witness Ms Garland suggesting she had been prompted as to the evidence she should give.
Some of these matters were raised in Mr Bakarich’s letter to Mr Coles of 22 June 2005; and Mr Coles’ reply of 24 June 2005 included the following:
1.The Court Reporting and transcription arrangements were made between the solicitors for the respective parties prior to the hearing.
2.To the best of my recollection a daily transcript for each day upon which evidence was taken at the hearing was made available, generally late in the afternoon or early evening, or sometimes early the following day.
3.It is likely that on some days, particularly early in the hearing, transcript corrections would have been noted the following morning before the resumption of evidence.
4.However, as often happens in relatively lengthy hearings and as I think probably happened in the present case, the task of agreeing on transcript emendations was committed for discussion and agreement to junior counsel, who may have prepared an agreed schedule of corrections.
Transcripts are generally not perfect; and as set out in Mr Coles’ letter, it is usual practice for counsel to suggest corrections to the transcript as a trial proceeds, and often such corrections are agreed between counsel. What appears on page 221 of the transcript is an ordinary example of this procedure. The primary judge’s statement suggesting that he had already a copy showing the correct version does not suggest any prior communication between Mr Sackar or some other Bank representative and the primary judge, or any other impropriety: indeed, the exchange indicates the contrary. The absence of any recorded response to Mr Coles’ question does not suggest any irregularity: if Mr Coles had not been satisfied about the matter, he would surely have spoken up.
The reference in the transcript to a loan of $400,000 may or may not be an accurate record of what Mr Bakarich said. Even if it were not, it cannot reasonably be suggested that this materially affected the primary judge’s decision; and any suggestion that this was a deliberate and dishonest manipulation of the transcript is fanciful in the extreme.
The other alleged omissions from the transcript relate to matters that, if they were material, could have been taken up by the appellants’ counsel at the hearing. It appears that the three affidavits referred to by Mr Bakarich were not read, and that may be because Mr Sackar accepted that the deponents were wrong in their assertions. “Neil” was in any event subsequently identified, and if this was important to the case it could then have been followed up. Ms Garland was cross-examined, and if there was anything significant that she volunteered in court before giving evidence, this could have been dealt with in cross-examination.
In our opinion, none of the matters raised by Mr Bakarich suggest any irregularity or impropriety, and they do not justify reopening the appeal.
Conduct of the litigation
Mr Bakarich claims that the Bank and its legal representatives were guilty of abuse of process and dishonesty in the conduct of the trial and that bias was displayed by the primary judge in permitting this to happen.
We have already referred under other headings to the principal matters relied on: the non-production of documents in response to a call for them, the alleged prompting of Ms Garland, the three affidavits, and the denial that there were records identifying who “Neil” was. Mr Bakarich also referred to late service of affidavits, and to differences between signed and unsigned copies of an affidavit by Mr Newton.
In our opinion, none of these allegations justifies reopening the appeal. In addition to reasons already given, if there were any substance to any of these matters, they were in our opinion matters which should have been taken up at the trial. They are not matters that could themselves have supported an appeal; and even if they were, they are not matters which, not having been relied on in the appeal, could justify reopening the appeal.
Bank’s dealings with appellants
Mr Bakarich claims that the evidence before the primary judge established that on 18 October 1988 the Bank without authority withdrew $15,000 from an account of A Bakarich Industries Pty Limited and put it into an account of Celsius Airconditioning Pty Limited, a company owned by Steven Bakarich and his wife; but no finding to that effect was made by the primary judge and no relief was given in respect of it.
Mr Bakarich also claims that the Bank without authority paid out amounts totalling $400,000 from the account of Demson Pty Limited, after Mr Bakarich had in January 1990 instructed the Bank to contact him before approving any transaction on that account; and also claims that he can prove other improper conduct by the Bank.
Mr Bakarich also claims that forensic evidence is now available that would show that all the documents relied on by the Bank were executed on the same occasion in September 1989 contrary to the findings of the primary judge and to the findings of the Court of Appeal.
More generally, Mr Bakarich claims that the Bank dealt improperly with the appellants’ funds to prop up the business of his brother Steven, and misrepresented to Mr Bakarich that this was a successful business, so as to obtain the benefit of guarantees and security from the appellants.
In our opinion, none of these matters could justify reopening the appeal.
The claim concerning $15,000 was a ground of appeal, but no submissions were advanced in respect of it. No explanation for this is advanced which could justify reopening the appeal to deal with this matter.
The claim concerning payment of money from the account of Demson Pty Limited was adverted to in the final version of the appellants’ statement of claim (pars 7G to 7K), but apart from an allegation of misleading conduct (par 7R) no cause of action based on this claim was formulated. The claim does not appear to have been supported before the primary judge, and was not included in any notice of appeal and was not raised in the hearing of the appeal. There is still no formulation of any cause of action in respect of this claim, no significant evidence has been provided (for example evidence showing that the Bank was bound to act on Mr Bakarich’s instruction or that any person authorising the payments did not have authority to do so), there is no evidence that evidence to prove this case is now available which was not available at the trial, and no explanation is given for not supporting this claim at the trial or on appeal.
The circumstance that forensic evidence might now, if permitted, support Mr Bakarich’s claim that all documents were executed on the one occasion, could not justify reopening the appeal. Whether or not the evidence would support that conclusion is entirely speculative; and even if it did provide some such support, it is unlikely in the extreme that it could overcome the consideration referred to in par [75] of the original judgment, namely that two guarantees in evidence were in fact executed, were dated 18 August 1989, bore identification T/LS 14(U) and were initially stamped to $527,000; and that on 29 August 1989, two documents dated 18 August 1989 bearing that identification were sent to the Bank’s Branch Securities to be stamped to $527,000.
The more general complaint was litigated at the trial and on appeal. No evidence has been provided which was not reasonably available at the trial, let alone at the appeal, which could materially affect the decision.
Conclusion
The matters raised by the appellants, considered individually and considered for their cumulative effect, do not justify reopening the appeal. As we said previously, we do not doubt that Mr Bakarich sincerely believes he has been very seriously wronged, but the case he has made out falls far short of what is required to displace the public interest in the finality of litigation, or to justify reopening the hearing of the appeal.
For those reasons, the Court orders: the application to reopen the appeal is dismissed with costs.
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LAST UPDATED:
2 December 2010

Date of Sale
28 August 2003	From Wesfarmers 11 head	$31,700.35
30 Sept 2003	From Wesfarmers 6 head	$5,234.40
17 October 2003	From Wesfarmers 118 head	$102,649.42
21 October 2003	From Wesfarmers 12 head	$7,050.62
23 October 2003	From Landmark 22 head	$14,270.43