Commonwealth Bank of Australia v Rafidi - [2021] FCCA 96

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH BANK OF AUSTRALIA v RAFIDI

[2021] FCCA 96

Catchwords:
BANKRUPTCY – Creditor’s petition – whether Court should go behind judgment entered by consent – relevant considerations.

PRACTICE & PROCEDURE – Application to delay delivery of judgment.

PRACTICE & PROCEDURE – Application for transfer of matter to the Federal Court of Australia – relevant considerations.

PRACTICE & PROCEDURE – Notice to produce – refusal to produce – whether to order production – relevant considerations.

Legislation:

Bankruptcy Act 1966 (Cth), s.52

Federal Circuit Court Act 1999 (Cth) ss.3, 39

Federal Circuit Court Rules 2001 (Cth) rr. 8.02, 15A.17

Cases cited:

Commonwealth Bank of Australia v Rafidi [2016] NSWSC 1931

Rafidi v Commonwealth Bank of Australia [2019] FCA 620

Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96

Corney v Brien (1951) 84 CLR 343

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Katter v Melhem (No 2) [2014] FCA 1176

Petrie v Redmond [1943] St R Qd 71

Harrison v Charalambous [1999] FCA 902

Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502

Commissioner of Taxation v Day (2007) 164 FCR 250

Australian Competition and Consumer Commission v Australian Safeway Stores

Pty Ltd (No 2) (2001) 119 FCR 1

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507

Applicant:

COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124

Respondent:

IYAD RAFIDI

File Number:

SYG 2832 of 2019

Judgment of:

Judge Cameron

Hearing date:

28 August 2020, 13 November 2020

Date of Last Submission:

13 November 2020

Delivered at:

Sydney

Delivered on:

28 January 2021

REPRESENTATION

Counsel for the Applicant:

Ms E. Holmes

Solicitors for the Applicant:

Dentons

Solicitors for the Respondent:

Mr T. Hall of Hall Partners

ORDERS

The respondent’s interim applications filed on 12 August 2020 and 7 October 2020 be dismissed.
The matter be listed for directions on 12 February 2021.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2832 of 2019

COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124

Applicant

And

IYAD RAFIDI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The respondent, Mr Rafidi, guaranteed loans that were made to his business by Bankwest, the predecessor in business of the applicant (“CBA”). The loans were called in, unjustifiably Mr Rafidi says, following which he failed to satisfy a demand or demands that Bankwest made on him as guarantor. As a consequence of that failure, Bankwest brought proceedings against Mr Rafidi in the Supreme Court of New South Wales (“NSW Supreme Court”). Mr Rafidi cross-claimed but on 4 November 2016, consent judgment for $9,331,605.09 was entered against him in favour of CBA. On 1 November 2019 CBA presented a creditor’s petition seeking the sequestration of Mr Rafidi’s estate on the ground that he had failed to comply with a bankruptcy notice that required him to satisfy that judgment debt.
In his second notice stating grounds of opposition to the creditor’s petition, Mr Rafidi has alleged, implicitly relying on s.52(2)(b) of the Bankruptcy Act 1966, that there is “sufficient cause” for the Court to not make a sequestration order. That sufficient cause is said to be found in the allegations made against CBA in NSW Supreme Court representative proceedings brought against it by Peter Gower Walsh as a representative plaintiff (“Class Action”). Mr Rafidi has deposed that he is a member of the plaintiff class. Mr Rafidi contends that this Court should go behind the consent orders of 4 November 2016 and dismiss the creditor’s petition on the basis that “there is reason to doubt [that he] is in fact” indebted to CBA, and that until the allegations made in the Class Action are determined:
… the matters alleged in those proceedings are an other [sic] sufficient cause as to why a sequestration order ought not (in the proper exercise of the Court's discretion) be made against the Respondent …
In written submissions filed on 25 August 2020 CBA summarised Mr Rafidi’s general position as follows:
… The members of the class represented by the plaintiff in the Class Action are former customers of Bankwest (now part of the Commonwealth Bank of Australia) who had commercial lending facilities with Bankwest. [Mr Rafidi] maintains that his account was wrongly placed in the asset management section of the bank (non-performing loans) for ulterior reasons not connected with ability to meet loan repayments.
The class extends to bank customers and those who guaranteed the obligations of such customers.
[Mr Rafidi] maintains that he is such a class member having guaranteed the performance of a company known as Brick & Block Company Pty Limited.
I adopt that summary.
Mr Rafidi has served on CBA a notice to produce requiring production of, relevantly:
The documents produced under orders for discovery by the Applicant in the "Representative Proceedings" 2016/86790, presently before the Supreme Court of New South Wales, and to which the Commonwealth Bank of Australia is the named Defendant …
CBA opposes production.
The matter has now come before the Court to consider two interim applications filed by Mr Rafidi. In the first, filed on 12 August 2020, he sought the following orders:
(1)An order directing the Commonwealth Bank of Australia to comply with the Respondent’s notice to produce, by providing to the solicitors for the Respondent the records referred to in that notice in these (creditors petition) proceedings within 7 days;
(2)Alternatively, an order that the Commonwealth Bank of Australia produce, in these proceedings, the whole of the documents produced by it under discovery in Supreme Court proceedings 2016/86790 (in the State of New South Wales) and that it produce those records and documents to the solicitors for the Plaintiff within 7 days;
(3)An order transferring these proceedings to the Federal Court of Australia;
(3A)An order that upon their transfer, that the orders for transfer be accompanied with a notation to the effect that these proceedings refer to common facts and issues to the facts and issues arising in proceedings numbered 2016/86790 before the Supreme Court of New South Wales (in Sydney), and that in the event those proceedings are transferred to the Federal Court of Australia (to be dealt with by that Court in the State of Victoria), that common facts and common issues arising in both proceedings may justify these proceedings being heard and determined together with those proceedings.
In the second interim application, which was filed on 7 October 2020, Mr Rafidi sought the following orders:
1.An order reserving the delivery of judgement for a period of 3 months or such other period as this Court thinks fit concerning the application of Mr Rafidi as was listed for hearing before this Court on 28 August 2020 and that was filed by him on 13 August 2020, and in which he seeks orders concerning the transfer of these proceedings to the Federal Court of Australia;
2.An order that the USB stick submitted to chambers on the 21 September 2020, the content of which is set out in the Schedule, be received as evidence on the application filed 13 August 2020 and on this application;
3.An order for the purposes of Section 52(5) of the Bankruptcy Act 1966 Cth that the Court extend time for the consideration of the matters subject of the Applicant’s petition until the date that is 24 months from the date of its presentation, being the 31 October 2021;
On 25 August 2020 CBA filed a notice stating grounds of opposition to Mr Rafidi’s first interim application in which it alleged that:
a)the documents sought in the notice to produce are irrelevant to this proceeding because:
i)Mr Rafidi is estopped “from benefitting from any success of the representative in those proceedings”;
ii)even if not estopped, to “access any relief in the class action”, Mr Rafidi would need the consent judgment to be set aside but he has already exhausted all avenues open to him to achieve that; and
iii)Mr Rafidi has already put into evidence the pleadings from the Class Action which are sufficient to ground a submission that there exists for the purposes of s.52(2)(b) of the Bankruptcy Act some other reason why a sequestration order should not be made. Introducing the documents sought has no legitimate forensic purpose and any documents relevant to this proceeding should be sought more precisely.
b)the quantity of documents sought is immense and the notice to produce fails to comply with r.15A.17 of the Federal Circuit Court Rules2001 (“FCC Rules”) because it does not call for the production of a specified document;
c)Mr Rafidi has failed to identify whether any of the factors in s.39(3) of the Federal Circuit Court Act 1999 (“FCCA Act”) or r.8.02 of the FCC Rules apply to this proceeding and has therefore not justified his request for transfer. Mr Rafidi has also not provided any reason why the transfer application was not made on or before the first court date on 20 February 2020;
d)the transfer of this proceeding to the Federal Court would result in unnecessary delay; and
e)for the reasons set out in (a) above, the facts and matters in issue in this proceeding are not genuinely also in issue in the Class Action.
The parties made various objections to material each other wished to adduce as evidence. After some time-consuming debate on the first listing of this interlocutory dispute, they agreed that rulings on objections to affidavit evidence would be made without further oral hearing. At the second listing, documents which had not been tendered by Mr Rafidi on the first occasion were added to the evidence before the Court. The parties’ written objections to each other’s proposed evidence and my rulings on those objections are Attachments A and B to these reasons.

Legislation

Section 52 of the Bankruptcy Act relevantly provides:
52 Proceedings and order on creditor’s petition
(1)At the hearing of a creditor’s petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b)service of the petition; and
(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…
(2)If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a)that he or she is able to pay his or her debts; or
(b)that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition.
…
(5)The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor’s petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order.
Section 3 of the FCCA Act relevantly provides:
3 Objects
…
(3)The other objects of this Act are:
(a)to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and
(b)to enable the Federal Circuit Court of Australia to use streamlined procedures; and
(c)to encourage the use of a range of appropriate dispute resolution processes.
Section 39 of the FCCA Act relevantly provides:
39 Discretionary transfer of proceedings to the Federal Court or the Family Court
(1)If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.
…
(3)In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a)any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d)the interests of the administration of justice.
…
Rule 8.02 of the FCC Rules relevantly provides:
8.02 Transfer to Federal Court or Family Court
(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
…
(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c)whether the proceeding will be heard earlier in the Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e)the wishes of the parties.
Rule 15A.17 of the FCC Rules relevantly provides:
15A.17 Notice to produce
(1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2)Unless the Court otherwise orders, the party given notice to produce the document at the hearing.

RESPONDENT’S EVIDENCE

Mr Rafidi swore an affidavit on 17 April 2020 in which he relevantly deposed that he had guaranteed a commercial facility that Bankwest had provided to a company known as BBC, of which he was a director. On 10 June 2009, the BBC Facilities were transferred to Bankwest’s Credit Asset Management Department. The facilities were brought to an end by Bankwest and a call was made against him under the guarantee, following which Bankwest brought the NSW Supreme Court proceedings against him. He consented to the judgment that was entered against him in those proceedings.
CBA acquired Bankwest in October 2008 and on 1 October 2012, all of Bankwest's business, rights and obligations were transferred to CBA.
Mr Rafidi deposed that, on the basis of allegations raised in the Class Action, he opposes the making of a sequestration order against him. He deposed that he is a group member for the purposes of the Class Action, because was a guarantor of a loan in the commercial loan book of Bankwest at the time of the purchase of Bankwest.
On 12 August 2020 Mr Rafidi’s solicitor, Andrea Lee, swore an affidavit in which she relevantly deposed that Mr Walsh had been unable to produce on subpoena certain documents that CBA had discovered in the Class Action. Annexed to Ms Lee’s affidavit was a copy of the notice to produce served on CBA which relevantly seeks production of the following documents:
1.The documents produced under orders for discovery by the Applicant in the “Representative Proceedings” 2016/86790, presently before the Supreme Court of New South Wales, and to which the Commonwealth Bank of Australia is the named Defendant;
Ms Lee deposed that CBA had not answered that notice to produce.
On 11 November 2020 Ms Lee swore a second affidavit and annexed a notice of motion filed by Mr Walsh in the Class Action seeking the transfer of the Class Action to the Federal Court. The motion was returnable on 27 November 2020 but I have not been advised of the outcome of that listing. Also annexed was Mr Walsh’s affidavit in support of the notice of motion, sworn on 10 November 2020, which in turn annexed an earlier affidavit sworn by him on 25 September 2020. In those affidavits, Mr Walsh variously deposed that:
a)the issues raised by this matter and the Class Action were “identical”;
b)he was aware of Mr Rafidi’s proposal that this matter be transferred to the Federal Court;
c)Mr Rafidi falls within the definition of “Group Member” for the purposes of the Class Action;
d)“Where heard together, both proceedings will formulate a single cause of action against [CBA] and in circumstances where the loans written by BankWest were written across a number of jurisdictions across Australia”;
e)he had instructed the solicitors acting for him in the Class Action to file the notice of motion but they had failed to do so and he had asked them to cease acting for him but no notice of ceasing to act had been filed;
f)the Class Action is funded by a litigation funder and the solicitors acting for Mr Walsh in that matter have not kept him fully abreast of the proceedings including, when the present firm took over from the previous firm, changing counsel, including senior counsel, without consultation; and
g)he wants to change solicitors.
Mr Walsh also swore an affidavit in this proceeding on 24 August 2020 in which he relevantly deposed that:
a)he resides in Melbourne and instructs a firm of solicitors in Melbourne to advise him as well as firm of solicitors in Brisbane to represent him in the Class Action;
b)CBA discovered documents in the Class Action under conditions of confidentiality;
c)he received a subpoena in this proceeding which required him to produce the documents he produced in discovery in the Class Action as well as the documents CBA discovered. He does not have a copy of CBA’s documents because they were provided to the Brisbane firm confidentially;
d)the Class Action was commenced by a company that later dropped out as the lead plaintiff and was replaced by ARG, the company whose obligations he guaranteed under the Bankwest facility agreement to which the Class Action relates; and
e)had he been the lead plaintiff when the Class Action was commenced, he would not have given instructions that it be commenced in the NSW Supreme Court as he does not live in that State or have any connection to it.

APPLICANT’S EVIDENCE

CBA’s solicitor Justin Bates swore an affidavit on 18 June 2020 setting out the history of CBA’s NSW Supreme Court proceedings against Mr Rafidi, including events subsequent to the settlement of that case on 4 November 2016. Amongst other matters, Mr Bates deposed that Ball J dismissed an application by Mr Rafidi to set the consent judgment aside: Commonwealth Bank of Australia v Rafidi [2016] NSWSC 1931. Annexed to Mr Bates’s affidavit was a copy of Burley J’s reasons for refusing Mr Rafidi’s application to set aside the bankruptcy notice the non-compliance with which grounds the present creditor’s petition: Rafidi v Commonwealth Bank of Australia [2019] FCA 620. Justice Burley recorded at [34] that an application for leave to appeal from Ball J’s decision not to set aside the consent judgment was dismissed in Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96.
Mr Bates swore a second affidavit on 25 August 2020 in which he relevantly deposed that the Senior Legal Counsel, Disputes Legal at CBA, Ben Brown, had informed him that more than 4,000 documents were produced by CBA during discovery and that confidentially orders were made in respect of certain discovered documents with the effect that they were available for review only by the plaintiffs’ counsel and solicitors.

A copy of the further amended statement of claim in the Class Action was annexed to Mr Bates’s second affidavit. It describes the represented class as:
i.The borrowers, who fall within the definition of “small business” customers contained in the Banking Code of Conduct, and who entered into facility agreements with BankWest prior to 19 December 2008, and whose loan facilities were the subject of a review by BankWest after 19 December 2008, and that were subsequently placed into the Credit Asset Management (CAM) division of BankWest; or
iiguarantors under the said facility agreements where entered into with BankWest prior to 19 December 2008.
Relevantly, the amended statement of claim alleges that Bankwest acted unconscionably towards those class members who were guarantors and seeks damages in that regard, as well as an order restraining CBA from enforcing or seeking to rely on the guarantees.

SUBMISSIONS

Mr Rafidi’s submissions

Transfer to Federal Court

The basis of the application to transfer this matter to the Federal Court was the alleged commonality of the issues in this proceeding and the issues in the Class Action and the desirability that those issues be decided only once. That, it was contended, could be achieved by them being heard in one court, which could only be the Federal Court, and in association with each other. Mr Rafidi argued that both this proceeding and the Class Action dealt with behaviour by CBA which was alleged to have adversely affected both him and the Class Action’s plaintiff class:
I think it’s impossible to get away from the fact that the matters for determination in the class action are the matters for determination on this bankruptcy matter.
Mr Rafidi argued in his written submissions that he was a member of the class represented by Mr Walsh because he had been a guarantor of one of the facility agreements the subject of the Class Action.
His solicitor submitted:
I really see this creditors petition, if it progresses to hearing, as a running through of all of the class action evidence, the whole lot of it. I think that becomes unavoidable, because that is Rafidi’s defence, essentially, to the matters that he couldn’t run because he was closed out on the pleadings in the court in which judgment was obtained against him.
Mr Rafidi also submitted that the Federal Court was the appropriate forum for a long and complex case and that this matter should be transferred to that Court because:
a)the proceeding was complex and would “go on for quite some time” as:
i)he proposed to call as witnesses those individuals who will give evidence for the plaintiff in the Class Action; and
ii)his defence in this proceeding is to be based on the matters alleged by the plaintiffs in the Class Action;
b)this matter was a substantial piece of litigation involving an alleged debt of $9,331,605.09, interstate witnesses, “interests arising in the proceedings beyond the interests of the parties” and matters “beyond the issue of the petition itself” and so was of a kind normally heard in a superior court.
Notwithstanding his claim to be a member of the class represented by Mr Walsh in the Class Action, in his written submissions in reply to CBA’s written submissions, Mr Rafidi conceded that he:
… would be estopped form [sic] seeking to benefit from the outcome of the representative proceedings which is the reason why he has to plead the same matters in his defence as he now does;
That is to say, he was estopped from “seeking to benefit from the outcome” of the Class Action but not from raising or relying on the allegations made in the Class Action.

Postponement of ruling on Mr Rafidi’s interim application

Mr Rafidi’s second interim application also sought delay in the delivery of judgment on this interlocutory dispute but he did not file written submissions in support of that prayer. His address to the Court on this issue was limited to submitting that:
All that we wanted to do was make your Honour aware that Mr Walsh has filed his application to transfer the proceedings and to provide your Honour with a sealed copy. The interim application has provided us the opportunity to do that. We say in those circumstances that it would be appropriate, meaning no disrespect to your Honour, to withhold the delivery of judgment on the transfer application until that application can [be] dealt with.

Notice to produce

Mr Rafidi conceded in addresses that a notice to produce ought to identify documents with specificity and was not a substitute for discovery.He said in his written submission in reply that he was not seeking discovery, simply the production of documents that had already been produced in the Class Action and would help him to mount his defence in this case.
In response to CBA’s objections to production, discussed later in these reasons, Mr Rafidi expressed in his address on the first day his willingness to limit production under the notice to:
… the documents produced under discovery that go to the pleaded system in the representative proceedings, and the documents … that concern the case of the lead applicant. We’re not interested in documents that concern the case of other group members in the representative proceedings …
…
… We simply seek that the notice to produce be dealt with in a pragmatic way, and that the documents that Mr Rafidi would seek to rely upon that are clearly referable to the system of placing loans into the credit asset management department and writing them off are produced for consideration in this action wherever it might be heard.
He submitted:
… it is not as if they do not have them

CBA’s submissions

Application for transfer to the Federal Court

CBA submitted that a transfer of this matter to link it in the Federal Court with the Class Action was pointless because “Mr Rafidi cannot benefit from any success in the Class Action …”. It was submitted that this was because any claims of the sort prosecuted in the Class Action upon which Mr Rafidi would now like to rely in this case had either been raised, or out of reasonableness ought to have been raised, in Mr Rafidi’s cross claim in the NSW Supreme Court proceedings.On that basis, it was argued, Mr Rafidi would be prevented from raising those points, either by Anshun estoppel, issue estoppel or the doctrine of res judicata or because doing so now would be an abuse of process.
It was also argued that the judgment behind which Mr Rafidi invited the Court to go was not one which concerned the merits of the parties’ cases regarding his guarantee but was a consent judgment that represented the parties’ agreement to resolve that litigation. Quite apart from it being that agreement that would have to be impugned, not the CBA’s claim on the guarantee which it resolved, CBA observed that Mr Rafidi had unsuccessfully taken the matter to the New South Wales Court of Appeal (“NSW Court of Appeal”) and had exhausted his rights to have the consent judgment set aside.
CBA also submitted that:
a)Mr Rafidi’s claims that this matter was one of factual complexity involving the evidence of numerous witnesses was not borne out by his conduct, in that the only evidence filed by or for him addressing the creditor’s petition was his own affidavit;
b)although r.8.02(2) of the FCC Rules provides that an application for transfer should be made on or before the proceeding’s first court date, that had not occurred in this case; and
c)the possibility that the Class Action would be transferred to the Federal Court was speculative. CBA observed that although Mr Rafidi had argued that there were facts and issues that were common to this proceeding and the Class Action, he had not adduced any evidence to suggest that there is a prospect that the Class Action would be transferred to the Federal Court.
More generally, CBA submitted that Mr Rafidi had failed to identify whether any of the criteria for transfer to the Federal Court set out in the FCC Rules or the FCCA Act apply to this matter and had therefore not provided any basis for this proceeding to be transferred to the Federal Court.

Postponement of ruling on Mr Rafidi’s interim application

Noting that in the period between the first and second listings of this interim application Mr Walsh had applied to the NSW Supreme Court to transfer the Class Action to the Federal Court, CBA contended that Mr Rafidi wanted to delay the determination of the present interim application until the outcome of Mr Walsh’s notice of motion was known. CBA submitted that the resolution of the case had already been delayed by the late making of the present application for transfer and a postponement of the Court’s ruling on the present application would only delay it further.
CBA also argued that as, in any event, the Class Action had no practical implications for Mr Rafidi, delaying judgment on the interim application until it was known whether the Class Action would be transferred was pointless, costly to the parties and inconsistent with the objectives of this Court.

Notice to produce

Objectionable for seeking discovery

CBA referred to r.15A17(1) of the FCC Rules, quoted earlier, and drew attention to the fact that that rule permits a party to require production of “specified document[s]” and argued that although a notice to produce was not an alternate route to discovery, in substance that was what Mr Rafidi sought.
It was further submitted that if any particular documents were relevant to this proceeding, Mr Rafidi should seek them more precisely.

The Class Action documents sought were irrelevant to this proceeding

CBA submitted that even if the Class Action were successful, the documents sought were irrelevant to this proceeding because:
a)Mr Rafidi had already tried and failed “to run the same points” in the following proceedings between him and CBA:
i)NSW Supreme Court proceedings 2011/00251728 (which was the action on his guarantee); and
ii)Federal Court proceeding NSD 374 of 2017 (which was Mr Rafidi’s application to set aside the bankruptcy notice antecedent to this proceeding); and
so Anshun estoppel, issue estoppel and the doctrine of res judicata prevented him from being benefiting as a member of the class represented in the Class Action;
b)even if Mr Rafidi was not estopped from benefitting from any success of the representative in the Class Action proceedings:
i)as a guarantor, the only relief sought in those proceedings that was applicable to someone in his circumstances was having his guarantee stayed or set aside;
ii)on 4 November 2016 judgment for $9,331,605.08 plus interest and costs on an indemnity basis was entered by consent against him in the NSW Supreme Court proceedings;
iii)to access any relief in the Class Action, he would first need that judgment set aside; and
iv)Mr Rafidi had already unsuccessfully sought leave to appeal from the NSW Court of Appeal and had therefore exhausted all avenues to have it set aside; and
c)production of the documents in question would serve no legitimate forensic purpose because:
i)the plaintiff’s pleadings in the Class Action were sufficient to argue that there exists for the purposes of s.52(2)(b) of the Bankruptcy Act some other reason why a sequestration order should not be made and so the more than 4,000 documents ostensibly falling within the scope of the notice to produce would not “assist the Court in assessing the merits or otherwise of the applicant’s alleged claim as a class member”; and
ii)in any event, the Court would not embark on a parallel determination of those proceedings in this proceeding.

Compliance would be unduly onerous

CBA submitted that the solicitors it had retained in this proceeding were not retained in the Class Action and it ought not be put to the additional costs that would be incurred if its solicitors in this case had to review the more than 4,000 documents it had discovered in the Class Action.

Confidentiality Orders

CBA also relied on the fact that the NSW Supreme Court had made confidentiality orders in the Class Action proceedings with certain discovered documents only available for review by the plaintiff’s counsel and solicitors.
CBA argued that before seeking discovery of the same documents in this proceeding, Mr Rafidi ought first to make an application to the NSW Supreme Court to have those orders varied. To do otherwise would be an abuse of process.

CONSIDERATION

Delay in ruling on the respondent’s interim application

Mr Rafidi asked the Court to delay its judgment on his interim application for three months from an unspecified date so that Mr Walsh’s transfer application could be dealt with by the NSW Supreme Court. Delaying a ruling on the present interim application would be contrary to the Court’s duty to deliver judgments as expeditiously as possible and no compelling reason has been advanced to justify the delay sought, particularly as is quite unclear when Mr Walsh’s notice of motion will be heard and determined.

Transfer to the Federal Court

Before granting a creditor’s petition the Court should satisfy itself that there is indeed a debt owing and, to that end, may go behind a judgment said to support the service of a bankruptcy notice: Corney v Brien (1951) 84 CLR 343 at 347-348 and 356ff; Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 at 143 [37]-[38], 147 [54]; Katter v Melhem (No 2) [2014] FCA 1176 at [69]-[79].
In support of his application for transfer, Mr Rafidi submitted:
The Respondent was sued on his contract of guarantee. If the relief claimed in the representative action proceedings were granted in respect of contracts of guarantee, it would follow that at the creditors petition stage, the Court in bankruptcy would go behind the judgement.
However, that is not necessarily the case. Although in the context of creditor’s petitions the Court looks with suspicion on consent judgments and default judgments: Ramsay Health Care v Compton at 151 [69]; that is in order to:
… prevent creditors from being defrauded by collusive or dishonest proceedings by friends of the debtor, or other people. (Petrie v Redmond [1943] St R Qd 71 at 76, per Latham CJ, Rich and McTiernan JJ agreeing).
In Katter v Melhem (No 2) Wigney J relevantly said at [73] that where judgment has been entered in pursuance of a compromise, grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened because it is the compromise that is the foundation of the judgment, not the claim that was compromised. His Honour said:
Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not generally be reopened. The presumption in such circumstances is that it is difficult, although not impossible, to impugn the compromise. One instance where the Court may go behind a judgment in these circumstances is where both parties knew the original claim was not a bona fide claim and the judgment or compromise was obtained by dishonesty known to both parties. If, however, counsel had full knowledge of all relevant facts, and no suspicion of unfairness or impropriety in the compromise arises, a court may decline to go behind a judgment submitted to on the advice of counsel.
The fact that the debtor may have been pressured by his legal advisers to compromise the claim, despite the merits of his defence, will not generally be sufficient to warrant going behind the judgment entered pursuant to that compromise. That will particularly be the case where the judgment creditor was unaware of, or was not implicated in, the alleged undue pressure. …
… the mere fact that the compromise may not have been “in accordance with the true merits of the claims made” will not be sufficient to impugn the compromise. Such a circumstance alone will therefore not warrant the Court going behind the judgment. (at 74] - [76]) (references omitted)
See also Harrison v Charalambous [1999] FCA 902 at [9] and Rafidi v Commonwealth Bank of Australia [2019] FCA 620 at [16]ff.
In this case, the NSW Supreme Court judgment was entered by consent and Mr Rafidi has advanced nothing which tends to impugn that compromise. In any event it is apparent, as CBA submitted, that Mr Rafidi has exhausted his rights to have that judgment set aside. He applied to the trial judge, Ball J, to set his consent orders aside but his Honour declined to do so and the NSW Court of Appeal dismissed an application for leave to appeal from that decision.
Even if the question had not been settled by that litigation, or by the subsequent application to set aside the bankruptcy notice and the appeal from that decision, Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26, Mr Rafidi has not sought to demonstrate why the allegations made and the evidence to be adduced in the Class Action would cast any doubt on a judgment to which he consented. In those circumstances, whatever arguments Mr Rafidi might have, or have had, in connection with his guarantee are presently irrelevant by reason of the compromise of the action on that guarantee. In other words, the Class Action is not relevant to this proceeding and there is no merit in transferring this matter to the Federal Court so it might perhaps be heard in association with it.
Given that conclusion, it is not necessary to consider whether Mr Rafidi is prevented by issue estoppel from relying in this proceeding on the allegations made in the Class Action or prevented by the doctrine of res judicata from reagitating causes of action which have merged in the consent judgment: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508; Commissioner of Taxation v Day (2007) 164 FCR 250 at 255 [15]-[19]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) (2001) 119 FCR 1 at 265-268 [1148]-[1154].
CBA also raised the possibility that Anshun estoppel would prevent Mr Rafidi from raising issues or causes of action that had not merged in the consent judgment but which, out of reasonableness, ought to have been raised in Mr Rafidi’s cross claim in those earlier proceedings: Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at 517-518 [22]. If there is such an issue or cause of action which has not merged in that judgment it was for Mr Rafidi to identify it so its relevance to this interlocutory dispute could be considered. The fact that he did not, suggests that there was no additional issue requiring consideration. I will proceed on the basis that indeed there was none.
As referred to earlier, the FCCA Act and FCC Rules prescribe certain matters as ones to which regard must be had when deciding an application for transfer to the Federal Court. In that connection I find that:
a)it was not demonstrated that this proceeding involves questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
b)no evidence was adduced to suggest that:
i)if the proceeding were transferred it would probably be heard and determined at less cost and with more convenience to the parties than if it were not transferred;
ii)the proceeding would be heard earlier in either this Court or the Federal Court;
iii)particular procedures appropriate to the proceeding were available in one court but not the other;
iv)an associated matter was pending in the Federal Court; and
v)the resources of this Court were not sufficient to hear and determine this proceeding;
c)the parties disagreed on whether the matter should be transferred; and
d)for the reasons given in the preceding paragraphs concerning the significance of the consent judgment and the irrelevance of the Class Action to that judgment, the interests of the administration of justice do not weigh in favour of the transfer of the proceeding.

In short, Mr Rafidi has not persuaded me that this is a matter which ought to be transferred to the Federal Court. In those circumstances the question does not arise whether such an order ought to be annotated as sought in prayer 3A of Mr Rafidi’s application in a case filed on 12 August 2020.

Production of documents

Mr Rafidi sought an order requiring CBA’s compliance with his notice to produce or, alternatively, an order requiring production of the documents he sought. The demand for documents discovered in the Class Action is misconceived because, for the reasons given in relation to the requested transfer of the matter, the matters in issue in that case are not, at least while Mr Rafidi’s Supreme Court consent judgment stands, relevant to this proceeding.
Further, it appears from Mr Walsh’s evidence that all the documents discovered by CBA in the Class Action are being treated by his Brisbane solicitors as falling within the NSW Supreme Court’s confidentiality order. This Court would be loath to take a step that would compromise the effectiveness of that order. Before an order for production of those documents would be made in this proceeding, the issue of the confidentiality of the documents sought would need to be addressed in more detail than has been the case in this interlocutory argument.
Finally, I am not persuaded that production of the documents in question would be unduly onerous, were it to be ordered. The documents have already been identified and produced and no search for them would be necessary. A consideration of more than 4,000 documents for the purpose of production would not be unduly time-consuming or difficult. The fact that that would duplicate work done in the Class Action is not relevant while the two proceedings are not linked in a fashion similar to that sought by Mr Rafidi.

Leave to adduce further evidence

In his second interim application, filed on 7 October 2020, Mr Rafidi sought leave to adduce evidence which he had largely failed to tender at the first listing of this interlocutory dispute on 28 August 2020.
Those documents were admitted as Ex.R3 at the second listing of this interim application, subject to rulings on admissibility. Those rulings are particularised in attachment B to these reasons.

Extend the life of the creditor’s petition

Mr Rafidi sought an order under s.52(5) of the Bankruptcy Act that:
… the Court extend time for the consideration of the matters subject of the Applicant’s petition until the date that is 24 months from the date of its presentation, being the 31 October 2021 …
An order to that effect was made on 23 October 2020.

CONCLUSION

The relief sought in Mr Rafidi’s two interim applications is either otiose or to be refused.
In those circumstances, the interim applications filed by Mr Rafidi on 12 August 2020 and 7 October 2020 will be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 28 January 2021

ATTACHMENT A

APPLICANT’S OBJECTIONS TO RESPONDENT’S EVIDENCE
READ IN SUPPORT OF HIS INTERIM APPLICATION DATED 13 AUGUST 2020
Affidavit of Iyad Rafidi sworn on 17 April 2020

OBJECTIONS DEALT WITH IN COURT ON 28 AUGUST 2020
Para	Part	Objection	Response	Ruling
[14]-[22]	Whole.	Refer transcript.	Refer transcript.	Rejected on the basis that the documents speak for themselves. Read as a submission.
[25]	Whole.	Refer transcript.	Refer transcript.	Words ‘transferred to Credit Asset Management’ not read. Balance read subject to s.136 of the Evidence Act 1995 limitation as evidence of Mr Rafidi’s interpretation of the word ‘asset’.
[26]	Whole.	Refer transcript.	Refer transcript.	The words from ‘I made no’ to ‘Bank against me’ rejected as a conclusion about legal effect of consent judgment. Read as a submission.
Para	Part	Objection	Response	Ruling
[27]	Whole.	Refer transcript.	Refer transcript.	Rejected. Read as a submission.
[28]	Whole.	Refer transcript.	Refer transcript.	Rejected as a bare assertion and a conclusion. Read as a submission.

OBJECTIONS DEALT WITH BY WRITTEN SUBMISSIONS
Para	Part	Objection	Response	Ruling
[24]	Whole. “The loans the Commercial Loan Book of BankWest” … “with the intent that they be realised (as a BankWest asset)”.	Pleading referred to speaks for itself. Vague and insufficiently precise. Bare assertion, conclusion, unfairly prejudicial. Mr Rafidi cannot give evidence of the Bank’s intention.	Rejected. The pleadings in the Supreme Court proceedings would speak for themselves had they been adduced in this interlocutory proceeding. No basis for the reception of the proposed secondary evidence concerning the contents of those documents has been demonstrated. Further, the evidence concerning the applicant’s intentions is hearsay evidence not covered by s.75 of the Evidence Act 1995.
Para	Part	Objection	Response	Ruling
[30]-[35]	Whole.	The pleadings speak for themselves.	See 30-32, see annexed; See 33-34, see annexed; See 35. See Defence to Statement of Second Cross Claim.	Rejected. No basis for the reception of the proposed secondary evidence concerning the contents of the documents has been demonstrated.
[36]	First sentence.	Should be limited to evidence of this witnesses’ understanding of what an “Invoice Discounting Facility” is – s.136 of the Evidence Act 1995.	The witness can say what an invoice discounting facility is if he had such a factility. [sic]	Admitted under s.136 of the Evidence Act 1995 as evidence of the witness’s understanding of “Invoice Discounting Facility”.
[37]	Whole.	Document would speak for itself if it was authentic. The authenticity of this document was challenged by the Bank at trial (at which Mr Rafidi consented to judgment) and the Bank objects on the basis that it is not authentic. Excluded under s.135 of the Evidence Act 1995.	This application is interlocutory. The respondent can give this evidence. Alternatively, the Respondent can serve every document on the application.	Rejected. No basis for the reception of the proposed secondary evidence concerning the contents of the document has been demonstrated.
[38]	Whole.	Document speaks for itself.	This application is interlocutory. The respondent can give this evidence. Alternatively, the Respondent can serve every document on the application.	Rejected. No basis for the reception of the proposed secondary evidence concerning the contents of the document has been demonstrated.
Para	Part	Objection	Response	Ruling
[39] and [40]	Whole.	Bare assertion / conclusion. Unfairly prejudicial – these issues, like the authenticity of the 4 February 2009 letter, were at the heart of the dispute between the parties in which Mr Rafidi consented to judgment.	This application is interlocutory.	Admitted under s.136 of the Evidence Act 1995 as evidence of the basis of Mr Rafidi’s opposition to the creditor’s petition.
[43]	“although when it had been transferred to CAM, it was a complying facility”.	Bare assertion / conclusion. Unfairly prejudicial – these issues, like the authenticity of the 4 February 2009 letter, were at the heart of the dispute between the parties which Mr Rafidi settled by consent.	Submission.	Rejected. Treated as a submission.
[44]	“and in which the performing loan facilities of BBC and that were operating within terms and within arrangements were transferred to the realisations Department of BankWest known as CAM and were written off”.	Bare assertion / conclusion. Unfairly prejudicial – these issues, like the authenticity of the 4 February 2009 letter, were at the heart of the dispute between the parties which Mr Rafidi settled by consent. Not evidence Mr Rafidi is in a position to give.	First 2 sentences are not controversial. Third sentence is a fact. It is was [sic] the proceedings were about. The fact that the name was changed is a matter of record. The words objected to may be read as a submission.	Rejected. Treated as a submission.
[45] – [48]	Whole.	Mr Rafidi cannot give evidence of proceedings to which he was [not] a party. The Court documents (which the Bank does not have) speak for themselves.	45&46, Not controversial. 47. Refer Orders and pleadings. Application is interlocutory. These matters are not controversial. Refer also	Rejected. Section 75 of the Evidence Act 1995 does not apply to this hearsay evidence. No basis for the reception of the proposed secondary evidence concerning the contents of
Para	Part	Objection	Response	Ruling
Walsh affidavit. 48. Orders and pleadings speak or themselves. Refer also Walsh affidavit.	documents has been demonstrated.
[47]	“because of the representative action proceedings to which Mr Walsh was and is the lead applicant”.	Bare assertion. Unfair purported summary of the reasons for a judicial decision.	It was by consent. There is no judicial decision.	Dealt with by preceding ruling.
[49]	“For the reasons as arose in the proceedings concerning Mr Wash (proceedings no. SYG3205 of 2015”	Unclear, vague. (See previous objection) Unfairly prejudicial.	Orders speak for themselves. Read as a submission.	Rejected. In light of the rejection of [45]-[48], too lacking in probative value to be relevant. Treated as a submission.
[50]	Whole. “By transferring the BBC facilities to CAM when they were not in default”.	Full of unfairly prejudicial material. Bare assertion / conclusion. This was at the heart of the dispute between the parties which Mr Rafidi settled by consent.	Read as a submission.	Admitted under s.136 of the Evidence Act 1995 as evidence of the basis of Mr Rafidi’s opposition to the creditor’s petition. Treated as a submission.
[52]	“and although at the date of transfer they had been performing customer loans”.	Bare assertion / conclusion Unfairly prejudicial - this was at the heart of the dispute between the parties which Mr Rafidi settled by consent.	Not read.
Para	Part	Objection	Response	Ruling
[54] and docu-ments provided in May which purport to the an exhibit to this affidavit [sic]	Whole.	This is not sufficient to provide a basis for the tender of those documents and does not comply with the requirements for exhibiting documents.	Mr Rafidi relies on the emails subject of separate tender. It would be a waste of time and effort to have everyone re-swear their affidavits.	Rejected. Relevance.
[61]	Whole.	The Bank opposes the leave referred to being given. The affidavits are irrelevant, have not been filed, and Mr Rafidi is well out of time, it being well past the deadline imposed by the Court for the filing of his evidence.	The Bank has had the documents and the email since about the time that the affidavit was sworn. Re Swearing [sic] all the affidavits and re serving [sic] all the materials once again would be a waste of time. The documents were served contemporaneously to the evidence of Mr Rafidi.	Rejected. Relevance.

Affidavit of Andrea Lee sworn on 12 August 2020

OBJECTIONS DEALT WITH BY WRITTEN SUBMISSIONS
Para	Part	Objection	Response	Ruling
[4]	“Common questions or issues”.	Conclusion – to the extent there are genuinely any common questions or issues between the bankruptcy proceedings (concerned with whether there is in truth a true debt owed by Mr Rafidi) and the class action proceedings (concerned with the issues in those proceedings) is a matter for the Court.	Refer the Creditors Petition Pleadings and the Representative Action Pleadings for determination of the common issues. It is not understood that this is really controversial. A Solicitor can probably give the evidence of common issues in pleadings.	Rejected. Conclusion.
[5]	Whole.	Conclusion / unfairly prejudicial / Court documents speak for themselves – the Bank was not privy to these proceedings and is not in a position to say more. The Court documents in respect of Mr Walsh’s proceedings should speak for themselves.	The Bank is a party - of course they are privy. They are the party.	Rejected. Conclusion. Further, no basis for the reception of the proposed secondary evidence concerning the contents of the documents mentioned has been demonstrated.
[6]	Whole.	Inadmissible opinion. Bare assertion. Ms Lee gives no basis for the bare assertion (which is also opinion) in this paragraph and is not in a position to give this opinion evidence.	The Court can make this determination. A solicitor can give evidence as to her personal knowledge and she has done so I tis [sic] not understood that this issues [sic] is controversial.	Rejected. Inadmissible opinion.

Para	Part	Objection	Response	Ruling
[9]	Whole.	The documents should speak for themselves. This witness is not in a position to know what the deponent had access to independently of what is contained in the relevant affidavit. Whilst Ms Lee says she was “informed and believe” she has not said by whom she was informed and on what basis she believes.	This is a matter of record. The Bank is aware of it. Refer Mr Walsh affidavit. Refer the pleadings in those proceedings.	Rejected. Hearsay. Source of information has not been identified: s.75 Evidence Act 1995.
[10]	Whole.	The bankruptcy documents should speak for themselves. Whilst Ms Lee says she was “informed and believe” she has not said by whom she was informed and on what basis she believes.	The application is interlocutory. It is not understood to be controversial.	Rejected. Hearsay. Source of information has not been identified: s.75 Evidence Act 1995.
[12]	Whilst Ms Lee says she was “informed and believe” she has not said by whom she was informed and on what basis she believes. Ms Lee is not in a position to give evidence of what Mr Walsh “would do”.	Refer Walsh affidavit also, and the matter is not controversial, refer Walsh affidavit.	Rejected. Hearsay. Source of information has not been identified: s.75 Evidence Act 1995.
[17]	Whole.	Opinion / legal conclusion – whether or not documents are relevant is a matter for the Court (and is denied by the Bank).	Read as submission by solicitor.	Rejected. Treated as submission.

Para	Part	Objection	Response	Ruling
[23]	Whole.	Bare assertion / opinion Unfairly prejudicial. Ms Lee is not, as set out above in earlier objections, in a position to assert that there are common facts and issues, or that the two matters are “based on similar or substantially the same facts”. These are matters for the Court. Ms Lee is certainly not in a position to say that if these proceedings were transferred to the Federal Court that they would be heard and determined “in the one proceedings”.	Just a matter of common sense.		Rejected. Inadmissible opinion.
[24]	Whole.	Opinion. Unfairly prejudicial Bare assertion. This is clearly not a matter in respect of which Ms Lee can give evidence.	This is a matter of common sense. How is this unfair - to save the Bank money? How is it prejudicial - to whom? In What way? This objection makes no sense.		Rejected. Inadmissible opinion.
[26]	“that he be afforded the same opportunity as was Mr Walsh and that”.	Vague and uncertain. It is not clear what “the same opportunity” means, or that Mr Walsh’s position was relevantly the same.	Read that Mr Rafidi wants the opportunity to argue the claims arising in the class action in opposition to the creditors petition served against him.		Rejected. Relevance. No probative value.

Affidavit of Peter Walsh sworn on 24 August 2020

OBJECTIONS DEALT WITH BY WRITTEN SUBMISSIONS
Para	Part	Objection	Response	Ruling
[5]-[7]	Whole.	In addition to the Bank’s general relevance objection, these paragraphs are irrelevant in the absence of production of the document referred to. That documents should be produced (and indeed Mr Walsh has waived privilege by giving the evidence which appears in these paragraph).	Walsh can give this evidence he is a party.	Rejected. Relevance.
[16]	First sentence Whole.	Bare assertion / legal conclusion / unfairly prejudicial. Unfairly prejudicial / conclusion / bare assertion. Could be limited under s.136 to evidence of Mr Walsh’s arguments, although that would seem to be particularly irrelevant	Deponent can give this evidence. It was a construction draw down loan. Walsh can say this. Walsh can give evidence as to what the event of default actually was. He was a party to the loan as guarantor.	Admitted under s.136 of the Evidence Act 1995 as evidence of the basis of Mr Walsh’s proceeding against the applicant.
[18]-[20]	Whole.	Court documents speak for themselves.	Refer the pleadings and read as a submission.	[18] and [19]: Admitted under s.136 of the Evidence Act 1995 as factual background to Mr Walsh’s proceeding against the applicant. [20]: Rejected. Treated as submission.

Para	Part	Objection	Response	Ruling
[21]-[22]	Whole.	S.136 – submission / limited to evidence of Mr Walsh’s contention (which is irrelevant, and on that basis should be excluded).	Submission.	Rejected. Treated as submission.
[24]-[25]	Whole.	Hearsay, inadmissible opinion / conclusion / bare assertion / unfairly prejudicial.	Submission. As to 24, the deponent can give evidence as to what he was told because that motivates his support to move the action.	[24]: Rejected. Treated as submission. [25]: Rejected. Treated as submission.
[26]	Whole.	Conclusion / inadmissible opinion / bare assertion. Whether or not there is an overlap is a matter for the Court. It is certainly not a matter for Mr Walsh who provides no basis for his assertion.	Submission from the pleadings.	Rejected. Treated as submission.
[29]	Whole.	S.136 limited to evidence of Mr Walsh’s state of mind (which is irrelevant and, on that basis, this paragraph should be excluded).	State of mind, but evidence as to the bona fides of Mr Walsh's position as he holds this belief as his honest belief.	Rejected. Inadmissible opinion. Relevance.

RESPONDENT’S OBJECTIONS TO APPLICANT’S EVIDENCE
READ IN OPPOSITION TO HIS INTERIM APPLICATION DATED 13 AUGUST 2020
Affidavit of Justin Bates sworn on 18 June 2020

OBJECTIONS DEALT WITH BY WRITTEN SUBMISSIONS

Para

Part

Objection

Response

Ruling

[9] – [23]

Relevance – what is before the Court is a transfer application and an issue in relation to production of documents. That is all. This is not a strike out application and nor is it an application to say Mr Rafidi cannot run certain arguments at a hearing. At the same time, none of it is controversial and it is not controversial that applications were made to attempt to amend pleadings. The representative action pleadings were not before the Court at trial and were not relied upon. Those arguments are to be relied upon now as Mr Rafidi is entitled to do.

These paragraphs are relevant to these matters because:

(a) They are relevant to establishing that BBC and/or Mr Rafidi would be estopped from pursuing any claim as a group member in the class action and/or it would be an abuse of process to allow him to do so. Mr Rafidi clearly accepts that any claim of the kind pursued in the class action insofar as it relates to him or the debt of BBC (which underlies the call on his guarantee) should properly have been run in his Supreme Court proceedings against the Bank;

(b) Mr Rafidi’s prospects of success in any such claim even if he was allowed to pursue it are extremely low given his earlier failed attempts to plead a viable claim.

Admitted as relevant to the estoppel and abuse of process arguments.

Para	Part	Objection	Response	Ruling
[24] – [51]	Relevance but none of these paragraphs go to the question of transfer and nor do they say anything other than that this matter comes to Court with a history of litigation. As well that may be.	Paragraph 24 to 29 are relevant for the reasons set out above in respect of paragraphs 8 to 23. Paragraphs 37 to 47 are relevant because: (a) they provide another factor against the transfer of these proceedings on the basis that they be heard together with the class action proceedings: Mr Rafidi attempted to raise these very same arguments in his application to set aside the bankruptcy notice (the failure of which he also unsuccessfully appealed to the Full Federal Court) without having them heard with the class action, despite the fact Mr Hall was the solicitor on the record in the class action and Mr Rafidi’s solicitor throughout, and the class action proceedings were issued in 2016; (b) they further illustrate the unlikelihood of success of Mr Rafidi’s arguments since they describe yet further failed attempts to make the arguments sought to be pursued in the class action proceedings;	Paragraphs 24 to 34 admitted as relevant to the estoppel and abuse of process arguments. Paragraphs 34 to 47 admitted under s.136 of the Evidence Act 1995 as factual background to the present proceeding. Paras 48 to 51 admitted under s.136 of the Evidence Act 1995 as relevant only to the mandatory consideration prescribed by s.39(3)(d) of the Federal Circuit Court of Australia Act 1999, namely whether a transfer of the proceeding to the Federal Court would be in the interests of the administration of justice.
Para	Part	Objection	Response	Ruling
(c) they illustrate the delay that has already been caused to the Bank by Mr Rafidi’s failed attempts to raise these issues both in the proceedings which underpin the Bank’s bankruptcy petition and in the bankruptcy proceedings themselves, as a result of which, this Court would be slow to transfer the proceedings thereby causing yet further considerable delay. Paragraphs 48 to 51 are relevant because the cost and delay already occasioned by Mr Rafidi’s conduct of the underlying Supreme Court proceedings and the Federal Court bankruptcy proceedings is relevant to whether or not an order for transfer should be made thereby causing further delay and cost.

Affidavit of Justin Bates sworn on 25 August 2020

OBJECTIONS DEALT WITH BY WRITTEN SUBMISSIONS
Para	Part	Objection	Response	Ruling
[10]	Objection as hearsay or admit subject to weight – refer affidavit of Peter Walsh 24 August 2020;	Hearsay evidence is admitted on interlocutory applications. Paragraph 10 should, therefore, be admitted.	Admitted. Section 75 Evidence Act 1995.
[11]	Objection as to Relevance – this is the Bank’s action. They are the ones that perceive some benefit in bankrupting Mr Rafidi.	Admitted under s.136 of the Evidence Act 1995 as relevant to the mandatory consideration prescribed by s.39(3)(d) of the Federal Circuit Court of Australia Act 1999.
[12] – [14]	Relevance.	Paragraphs 12 to 14 are relevant because the cost and delay already occasioned by Mr Rafidi’s conduct of the underlying Supreme Court proceedings and the Federal Court bankruptcy proceedings is relevant to whether or not an order for transfer should be made thereby causing further delay and cost.	Admitted under s.136 of the Evidence Act 1995 as relevant to the mandatory consideration prescribed by s.39(3)(d) of the Federal Circuit Court of Australia Act 1999.

ATTACHMENT B

APPLICANT’S OBJECTIONS TO EXHIBIT R3 TENDERED ON 13 NOVEMBER 2020

OBJECTIONS DEALT WITH BY WRITTEN SUBMISSIONS
“Exhibit R2”
Description	Objection	Response	Ruling
A1	Mr Rafidi’s affidavit sworn 17 April 2020.	See attachment A.	See attachment A.	See attachment A.
A2.1, A2.2	List of exhibits to Mr Rafidi’s affidavit sworn 17 April 2020 (Word and PDF versions).	No objection subject to relevance.	Admitted.
A	Fourth Further Amended Statement of Cross Claim filed 230816.	No (further) objection on the basis that this document is admitted pursuant to s.136 only as evidence of the matters that were pleaded in the Fourth Further Amended Statement of Cross Claim, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
Description	Objection	Response	Ruling
B	Defence to the Fourth Further Amended Statement of Second Cross-Claim filed 7 September 2016.	No (further) objection but the Bank accepts that it would be treated by the Court in the same manner as document A.	Already admitted as part of exhibit R1.
C	Further Amended Reply Filed 290716.	No (further) objection on the basis that this document is admitted pursuant to s136 only as evidence of the matters that were pleaded in the Further Amended Reply to the Amended Defence to the Amended Statement of Second Cross Claim, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
D	Undertakings 280616.	No (further) objection.	Admitted.
E	Affidavit of Iyad Rafidi 07082014, page 1 to 79.	Object: a. Object on the basis that the affidavit is irrelevant, highly unfairly prejudicial and itself littered with inadmissible evidence.	Rejected. Section 135 Evidence Act 1995.
Description	Objection	Response	Ruling
b. If it is to be admitted, it should be admitted only with a s.136 evidence of an affidavit which was filed in Supreme Court proceedings 2011/251728 but was itself subject to a large number of successful objections. c. The exhibit is also objected to on the same basis and, if it is to be admitted at all, should be done so only with a s.136 limitation that it is admitted only as evidence of the exhibit to an affidavit which was filed in Supreme Court proceedings 2011/251728 but was itself (ie the affidavit and the exhibit) subject to a large number of successful objections. d. For the avoidance of doubt, if the Court is minded to admit this material without the s.136 limitation sought, the Bank respectfully reserves its right to object on a paragraph by paragraph basis to the affidavit and a document by document basis to the exhibit. In the interests of time and cost, it has not done so in this document given the strength of the more wholesale objections and the case management imperatives of this Court.
Description	Objection	Response	Ruling
e. Also for the avoidance of doubt, the Bank objects to this affidavit being relied on by Mr Rafidi as self-standing [sic] evidence in these proceedings for the reasons described in objection to paragraph [61] above. [ie, in written objections filed 1 September 2020 to Mr Rafidi’s affidavit sworn 17 April 2020]. In the event this Court did allow Mr Rafidi to read these affidavits in these proceedings, the Bank would have numerous objections to its contents and to the documents in the exhibit.
F	Affidavit of Iyad Rafidi 07082014, page 80 and following.	[The objections made in relation to document E were repeated.]	Rejected. Section 135 Evidence Act 1995.
G	Affidavit Of Youssef Chahine 061016.	[The objections made in relation to document E were repeated.]	Rejected. Section 135 Evidence Act 1995.
Description	Objection	Response	Ruling
H	Affidavit of Yousef Chahine sworn 31 July 2012.	[The objections made in relation to document E were repeated.]	Rejected. Section 135 Evidence Act 1995.
I	Allen Capital BBC Solvency Report Final March 2014.	Object on the basis that the document is manifestly irrelevant. It is also not supported by any sworn evidence by its author and highly unfairly prejudicial. To the extent the Court is otherwise minded to admit it, it should be limited under s136 as evidence of a report which was relied upon by Mr Rafidi and/or Brick & Block Company Pty Limited in Supreme Court proceedings 2011/251728, and not as evidence of the opinion of the author or the facts stated therein. If the Court is minded to admit this material without the s.136 limitation sought, the Bank respectfully reserves its right to object on a paragraph by paragraph basis to the report. In the interests of time and cost, it has not done so in this document given the strength of the more wholesale objections and the case management imperatives of this Court.	Rejected. Relevance.
Description	Objection	Response	Ruling
J	Expert 's Report by Peter Nicholas Girdis 8 June 2016.	[The objections made in relation to document I were repeated.]	Rejected. Relevance.
K	Email Enclosing McGrath Nicol Report.	The Bank has been unable to identify this document but it would rise or fall with the document “L”.	Rejected. Relevance.
L	Independent Business Review from McGrath Nicol dated 29 June 2009.	[The objections made in relation to document I were repeated.]	Rejected. Relevance.
M	Supplementary Independent Business Review from McGrath Nicol dated 3 Jul [sic].	[The objections made in relation to document I were repeated.]	Rejected. Relevance.
N	BBC submissions.	[The objections made in relation to document I were repeated.]	Rejected. Relevance.
Description	Objection	Response	Ruling
O	Further Amended S of C 140716.	No (further) objection on the basis that this document is admitted pursuant to s.136 only as evidence of the matters that were pleaded in the Further Amended Statement of Claim in proceedings 2016 of 86790, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
P	Defence (28.10.16) (filed).	No (further) objection on the basis that this document is admitted pursuant to s.136 only as evidence of the matters that were pleaded in the Defence in proceedings 2016 of 86790, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
Q	Sworn affidavit of Peter Walsh 12 May 2017.	[The objections made in relation to document E were repeated.]	Rejected. Section 135 Evidence Act 1995.
R	Affidavit of Lincoln Daley 12-05-2017.	[The objections made in relation to document E were repeated.]	Rejected. Relevance.
Description	Objection	Response	Ruling
S	Expert report of Chris Holland - 28 July 2017.	[The objections made in relation to document I were repeated.]	Rejected. Relevance.
T	Report of B Debenham - 27 July 2017.	[The objections made in relation to document I were repeated.]	Rejected. Section 135 Evidence Act 1995.
U	Report of Bruce Arnold - 28 July 2017.	[The objections made in relation to document I were repeated.]	Rejected. Section 135 Evidence Act 1995.
V	Letter to Ashurst 180416.	Particularly irrelevant.	Rejected. Relevance.
W	Notice stating grounds of opposition to petition 180416.	No (further) objection on the basis that this document is admitted pursuant to s.136 only as evidence of the matters that were contained in the Notice in proceedings SYG3205 of 2015, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
Description	Objection	Response	Ruling
X	Affidavit of Peter Gower Walsh 180416.	Document has not been provided to the Bank but likely to b [sic] objectionable on the same basis as document “Y” below.	Rejected. Relevance.
Y	Sworn Affidavit PW – 250516.	[The objections made in relation to document E were repeated.]	Rejected. Relevance.

Apposite Emails

Description

Objection

Response

Ruling

a. Two email chains between the parties’ legal representatives and the Court; and

b. Mr Rafidi’s objections to CBA’s evidence on this interim application.

The CBA does not understand why Mr Rafidi has sought to tender the ‘Apposite Emails’ bundle given the nature of the documents but does not oppose their tender subject to relevance.

Rejected. Relevance.

Proposed pleadings for tender
Description	Objection	Response	Ruling
1	Emails Enclosing Pleadings For Tender 08092020.	Document 1 is an email from Mr Rafidi’s legal representative to the Court. The CBA does not understand the reason for the tender of Documents 1, 6 and 7 given the nature of those documents, but does not oppose their tender subject to relevance.	Rejected. Relevance.
2	Defence to the Fourth Further Amended Statement of Cr .. [sic]	Document 2 is a duplicate of Document B of the Exhibit R-2 Documents. The CBA does not oppose the tender of Documents 2 and 5 on the basis that they are dealt with subject to the same rulings as on the Objections to their counterparts contained in the Exhibit R-2 Documents.	Admitted. Already admitted as part of exhibit R1.
2 [sic]	Fourth Further Amended Statement of Cross Claim filed 230816.	Admitted. Already admitted as part of exhibit R1.
Description	Objection	Response	Ruling
3	Amended Defence to the Amended Second Cross Claim - 14_8_1...	Document 3 should be admitted pursuant to s.136 only as evidence of the matters that were pleaded in the Amended Defence to the Amended Statement of Second Cross-Claim, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
4	Further Amended Statement of Claim (Walsh, ARG &. CBA) 130716.	Document 4 should be admitted pursuant to s.136 only as evidence of the matters that were pleaded in the Further Amended Statement of Claim, and not as evidence of the truth of any of the allegations contained therein.	Admitted as evidence of what was pleaded.
5	Defence (Walsh ARG &. CBA) (28 .10 .16).	Document 5 is a duplicate of Document P of the Exhibit R-2 Documents. The CBA does not oppose the tender of Documents 2 and 5 on the basis that they are dealt with subject to the same rulings as on the Objections to their counterparts contained in the Exhibit R-2 Documents.	Admitted as evidence of what was pleaded.
6	Rafidi's responses to CBA's objections.	Document 6 is Mr Rafidi’s responses to the Objections. The CBA does not understand the reason for the tender of Documents 1, 6 and 7 given the nature of those documents, but does not oppose their tender subject to relevance.	Rejected. Relevance .
Description	Objection	Response	Ruling
7	CBA Email 07092020 Not Object Or Consent.	Document 7 is an email chain between the parties legal representatives and the Court. The CBA does not understand the reason for the tender of Documents 1, 6 and 7 given the nature of those documents, but does not oppose their tender subject to relevance---------	Rejected. Relevance.