Bakarich v Commonwealth Bank of Australia (No 2)

The appeal before the Court of Appeal of New South Wales concerned the final orders to be made in proceedings between Anthony George Bakarich and the Commonwealth Bank of Australia. The dispute had previously been the subject of a decision in principle by the Court of Appeal in 2007, but certain questions had been remitted for inquiry and report to the court below. Following the answering of these questions, only one member of the original appellate bench remained available, raising the issue of reconstituting the court to deliver final judgment.

The primary legal issues before the Court of Appeal were whether it possessed the power to reconstitute its bench to hear the final aspects of the appeal, and whether a prior application to re-open the original appeal constituted an abuse of process. The court was required to consider the implications of a judge's absence from the original appellate bench and the appropriate procedural mechanisms for concluding matters where the original composition of the court could not be maintained.

The Court of Appeal determined that section 45AA of the Supreme Court Act was insufficient to empower the reconstitution of the bench in this instance. However, it held that it was appropriate to constitute a new bench to hear the final orders, distinguishing this situation from the more acute considerations that apply when an original trial court hears all aspects of a matter to conclusion. The court also found that the grounds argued in the recent application to re-open the appeal were not substantially different from those previously considered, leading to the conclusion that the application constituted an abuse of process. Consequently, the appeal was dismissed, and Mr. Bakarich was ordered to pay the costs of the appeal and the costs of the proceedings before Bryson AJ on referral.