Bakarich v Commonwealth Bank of Australia

[2010] NSWCA 130

New South Wales

Court of Appeal

CITATION:	Bakarich v Commonwealth Bank of Australia [2010] NSWCA 130
HEARING DATE(S):	On the papers
JUDGMENT DATE:	2 June 2010
JUDGMENT OF:	Hodgson JA
DECISION:	(1) Mr Bakarich’s application to re-open the appeal fixed for 13 August 2010. (2) This application to proceed on material provided in accordance with the directions made on 15 December 2009, as modified on 23 March 2010, and on no other material. (3) Direct that no subpoenas be issued in relation to this application.
CATCHWORDS:	PROCEDURE - Application to re-open appeal - What directions appropriate.
LEGISLATION CITED:	Supreme Court Act 1970 s46(4)
CATEGORY:	Procedural and other rulings
CASES CITED:	Bakarich & Ors. v. Commonwealth Bank of Australia [2007] NSWCA 169 Bakarich v Commonwealth Bank of Australia [2004] NSWSC 283
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)
FILE NUMBER(S):	CA 2005/270113
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT JUDICIAL OFFICER:	Nicholas J
LOWER COURT DATE OF DECISION:	20 April 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	Bakarich v Commonwealth Bank of Australia [2004] NSWSC 283

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2005/270113

HODGSON JA

2 JUNE 2010

Allan John BAKARICH and 5 others v COMMONWEALTH BANK OF AUSTRALIA

Judgment

1 HODGSON JA: On 18 May 2010, I set down Mr Bakarich’s application to re-open this appeal for 13 August 2010, on the basis that it would be heard in accordance with previous directions I had made.

2 On 27 May 2010, I received a communication from Mr Bakarich, referring to an affidavit of his dated 26 May 2010 which, according to my previous directions, cannot be relied on at the hearing of his application to re-open the appeal.

3 I take it from this material that Mr Bakarich wishes to challenge my previous directions. I see no basis in the material to alter my directions, and in my opinion the appropriate course now is for me to confirm my previous directions in a more formal judgment, so that Mr Bakarich can, if he wishes, seek a review of those directions pursuant to s 46(4) of the Supreme Court Act 1970. Since the hearing date is still over nine weeks away, there is time for him to do this, if he acts promptly.

4 I will briefly outline the history.

5 On 20 April 2004, following a lengthy first instance hearing, Nicholas J gave judgment in proceedings in which Mr Bakarich, together with members of his family (his late mother Mary and his brother Allan) and associated companies had sought relief against the Commonwealth Bank of Australia (the Bank) in respect of certain guarantees and a mortgage.

6 Nicholas J 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.

7 An appeal against the Bank from that decision was heard over three days by Santow JA, Campbell JA and myself in April 2007. On 13 July 2007, we delivered our decision ([2007] NSWCA 169), in which we decided that relief was available under the Contracts Review Act 1980 to Mr Bakarich’s late mother and his late brother, if it were shown that such relief would have utility. The problem was that Mr Bakarich would remain fully liable to the Bank under his guarantee, and it appeared that he was the person most interested in the estates of his late mother and his late brother.

8 Following further evidence and submissions, the following orders were made on 24 April 2008:

1. That the proceeding be remitted to a single judge of the Equity Division of the Court in order to consider the following questions:


(a) To what extent, if any, were the sums paid to the respondent on 2 July and 22 October 1993 beneficially owned by Allan and/or Mary or sums which otherwise count as payments by Allan and/or Mary?

(b) What proportion of the sums paid by Allan and/or Mary related to the obligations of Demson guaranteed by them respectively in the 18 August 1989 guarantee and 12 September 1989 mortgage?

(c) To what extent, if at all, are the estates of Mary and/or Allan insolvent?

(d) What relief, if any, should be granted to Mary's and/or Allan's estates under the Contracts Review Act ? If relief is granted, what is the quantum of that relief?

(e) What conditions should be placed on the granting of relief to Allan and/or Mary?

(f) Is the respondent entitled to restitutionary relief from Tony, ABI and Vitlern with respect to any amount required to be repaid to Mary and/or Allan?

2. Costs reserved pending the outcome of the inquiry.

9 Very substantial material was prepared and filed pursuant to those orders, and the matter was being case managed by Bryson AJ.

10 However, on 24 July 2009, Mr Bakarich filed a notice of motion seeking among other things that the orders made by Nicholas J on 20 April 2004 and 3 May 2005 be set aside, and that the orders made by the Court of Appeal on 13 July 2007 be set aside. Bryson AJ referred that notice of motion to the Court of Appeal.

11 The matter came before me on 1 September 2009. On that occasion, Mr Bakarich was present in court, but was represented by a barrister Mr R G Keller.

12 It became apparent in discussion that Mr Bakarich was seeking to re-open the appeal on the basis of submissions not made and evidence not led on the appeal concerning bias or apprehended bias of the primary judge and other matters, and also that Mr Bakarich was seeking to issue subpoenas. I expressed a tentative view that subpoenas should not be issued for the purposes of the application to re-open the appeal, but that if that application was successful and there was to be a further hearing of the appeal, appropriate subpoenas might then be permitted. I also expressed the view that the application to re-open should not be dealt with by one judge, but that it could with the consent of the parties (in the absence of Santow JA) be heard by myself and Campbell JA pursuant to s 45AA of the Supreme Court Act.

13 On that day I gave the following directions:

1. I note that I am treating the Notice of Motion dated 24 July 2009 as a Notice of Motion for the Court of Appeal to re-open the hearing of the appeal from Justice Nicholas.

2. I direct that Mr Bakarich file and serve all affidavit material on which he wishes to rely in support of that Notice of Motion on or before 15 September 2009 and that the Bank file and serve material on which it wishes to rely in relation to that Notice of Motion on or before 29 September 2009.

3. I stand the matter over for further mention before me on 6 October 2009, at 9.30am.

4. I direct that in the meantime the inquiry before Justice Bryson not proceed.

5. I direct that in the meantime no subpoena be issued in relation to this Notice of Motion.

6. At the next mention before me, the question of issue of subpoenas for the purpose of the Notice of Motion to re-open the appeal can be debated and I would expect that the parties be in a position then to indicate whether they consent to the application to re-open being heard by Justice Campbell and myself pursuant to s 45AA of the Supreme Court Act .

14 The matter was again before me on 1 October 2009. On that day Mr Bakarich was self-represented. He sought and was granted an extension of time to put on material. The question of issue of subpoenas was again discussed, and I again indicated the tentative view that, as Mr Bakarich was seeking a considerable indulgence in re-opening the appeal, he should show that this was justified on the basis of material he had himself, without the assistance of subpoenas. However, I left open the possibility that Mr Bakarich might convince me that he should be allowed to seek some additional material by subpoena. No objection was raised to the application to re-open being heard by myself and Campbell JA.

15 On 15 December 2009 there was a further mention of the matter. Mr Bakarich was again self-represented. There was extensive discussion of the question whether subpoenas should be permitted, focussing particularly on an allegation by Mr Bakarich that the Bank had stolen $400,000. I indicated to Mr Bakarich that if he wished to pursue this allegation for the purposes of his application to re-open the appeal, there should be a draft of an amendment to the statement of claim to raise this allegation, and I indicated also that I would maintain the order that no subpoenas issue. I made the following directions:

I note that Mr Bakarich’s evidence in chief is now complete except for some additional documents that he wishes to locate.

I direct that any such additional documents be served by 5 February 2010, together with any proposed amendment to the Statement of Claim.

I direct that the Bank’s evidence in response be filed and served by 26 February 2010.

I direct that any evidence from Mr Bakarich, which must be strictly in reply to the Bank’s evidence, be filed and served by 12 March 2010; and also by that date, I direct that he provide written submissions of no more than ten pages.

I direct that the Bank provide written submissions of no more than ten pages on or before 19 March 2010.

I appoint 25 March 2010 for the hearing. That will be a half day appointment and Mr Bakarich will be allowed two hours to present the case.

16 Subsequently, the hearing date was changed to 26 March 2010.

17 I was on leave from the Court during the months of February to April 2010. However, I arranged to be present with Campbell JA for a directions hearing on 23 March 2010, with a view to ensuring the matter could go ahead on 26 March 2010, and I arranged to be available for the hearing on 26 March 2010. Campbell JA was due to go on leave for the months of April to June 2010.

18 On 23 March 2010, Mr Bakarich was represented by a solicitor Mr D Quinn. Material to be relied on at the hearing of the application to re-open was identified. There was no draft amendment to the statement of claim pursuing the $400,000 allegation, and as far as I could see no material in support of that allegation. On that occasion, having regard to the particular allegations made by Mr Bakarich concerning the primary judge, Campbell JA disclosed certain matters and Mr Quinn undertook to get instructions as to whether Mr Bakarich would seek to have Campbell JA disqualify himself.

19 On 26 March 2010, Mr Quinn made an application to Campbell JA to disqualify himself. Campbell JA declined to do so, giving detailed reasons subsequently: [2010] NSWCA 43. The Court then enquired whether Mr Bakarich still consented to the matter being dealt with by two judges; and having got instructions, Mr Quinn indicated he did not. Accordingly the hearing on that day did not take place, and the matter was stood over for mention before me on 18 May 2010.

20 On that day, Mr Bakarich was again represented by Mr Quinn; and the application to re-open the appeal was fixed for hearing on 13 August 2010 before Campbell JA, Macfarlan JA and myself.

21 By his affidavit of 23 May 2010, Mr Bakarich indicates that he is seeking to issue subpoenas and seeking a much wider inquiry than contemplated by the directions I have made. I am not prepared to accede to this, but I give this judgment in order to give Mr Bakarich the opportunity to seek a review of my directions.

22 For those reasons, I make the following confirmatory orders:

(1) Mr Bakarich’s application to re-open the appeal fixed for 13 August 2010.

(2) This application to proceed on material provided in accordance with the directions made on 15 December 2009, as modified on 23 March 2010, and on no other material.

(3) Direct that no subpoenas be issued in relation to this application.


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