Bakarich v Commonwealth Bank of Australia (No 3)

[2012] NSWCA 391

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bakarich v Commonwealth Bank of Australia (No 3) [2012] NSWCA 391

Hearing dates:

14 November 2012

Decision date:

14 November 2012

Before:

Campbell JA

Decision:

Application to recuse refused.

[Note: 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.]

Catchwords:

COURTS AND JUDGES - recusal of judge for ostensible bias - where necessary - requirement of demonstrating logical connection between facts giving rise to application and the possibility of bias - no such connection demonstrated - application refused

Cases Cited:

Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390

Category:

Interlocutory applications

Parties:

Anthony George Bakarich as Executor of the estate of the late Mary Patricia Bakarich (First Appellant)
Anthony George Bakarich as Representative of the estate of the late Allan John Bakarich (Second Appellant)
Anthony George Bakarich (Third Appellant)
Vitlern Pty Limited (Fourth Appellant)
A Bakarich Industries Pty Limited (Fifth Appellant)
Commonwealth Bank of Australia (Respondent)

Representation:

Counsel:
A Bakarich, in person (Appellants)
DFC Thomas (Respondent)
Solicitors:
A Bakarich, in person, (Appellants)
Commonwealth Bank of Australia (Charles Tilley), (Respondent)

File Number(s):

2005/270113

Judgment

1. CAMPBELL JA: At a hearing on 13 November 2012 I announced that I would refuse an application made by Mr Anthony Bakarich that I decline to sit in a matter that was listed for hearing before the Court that day. These are my reasons for taking that course.

1. The circumstances that are relevant to the hearing that was before the court on 13 November 2012 are set out in a judgment of Basten JA, Macfarlan JA and myself that is delivered today: Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390. I will not repeat those matters here, and I will adopt the abbreviated references to past judgments used in those reasons.

1. The basis upon which Mr Bakarich contended that I should not sit was in large part identical with the basis upon which he contended, in 2010, that I should not sit on the application to re-open the proceedings before Nicholas J and the 2007 Appeal Judgment. The reasons that I gave in 2010 for declining his application (Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43: "the 2010 Recusal Judgment") are equally applicable to his present application. I will not repeat those reasons here. Indeed, if anything, those reasons are somewhat stronger, because of the lapse of two and a half years since then.

1. As well, the 2010 Recusal Judgment had adverted at [14] to the necessity of identifying why the facts that form the basis on which it is alleged there is ostensible bias, might actually lead the judge to decide the case other than on its merits. At [28] the 2010 Recusal Judgment pointed out that Mr Bakarich had not identified a logical connection between the matters to which he pointed, and a conclusion that those matters might lead to me not deciding the case on its merits. Notwithstanding that, his present application still does not identify any such logical connection.

1. There is one additional element in Mr Bakarich's submissions about why I should have declined to sit on 13 November 2012. It is that in the 2010 Recusal Judgment, I had referred to myself as having had, in the period from 1991 to 1995, chambers on the sixth floor of Wentworth Chambers. Mr Bakarich expressed concern that I had referred to Wentworth Chambers, when his objection to Nicholas J sitting had depended upon Nicholas J and Mr Sackar having shared chambers in Selborne Chambers.

1. The explanation for that verbal discrepancy is that the building owned by Counsel's Chambers Limited at 174-180 Phillip Street, Sydney, is, functionally, a single building, but the half of the building closer to 174 Phillip Street is known as Selborne Chambers, while the half that is closer to 180 Phillip Street, Sydney is known as Wentworth Chambers. My chambers, in the 1991-1995 period, were at the Wentworth Chamber end of the sixth floor of that building, while the chambers of Mr Sackar and Nicholas J were at the Selborne Chambers end of that floor. The Wentworth Chambers end and the Selborne Chambers end of the sixth floor operated as a single set of chambers. Once that is understood, the reason why I referred to Wentworth Chambers is apparent.

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Decision last updated: 30 November 2012