Rafidi v Commonwealth Bank of Australia Ltd

The appeal concerned orders made by consent between Iyad Rafidi and the Commonwealth Bank of Australia Ltd. Mr. Rafidi sought to challenge these consent orders and the trial judge's refusal to reopen them. The matter came before the Court of Appeal of New South Wales, constituted by Basten JA and Emmett AJA.

The primary legal issues before the Court of Appeal were whether leave to appeal was required pursuant to section 101(2)(c) and/or section 101(2)(e) of the *Supreme Court Act 1970* (NSW) in relation to the challenge to the consent orders and the refusal to reopen them. The Court was also required to determine whether the appeal, if lodged without the necessary leave, was incompetent, and consequently, whether the notice of motion filed in the appeal was also incompetent. A further issue was whether the consent to the orders was vitiated by the unsuccessful party's subsequent request for the trial judge to refer the matter to the Attorney-General for investigation of prosecution, and whether such a request was justified.

The Court determined that the orders made by consent were final orders, and therefore, an appeal against them required leave pursuant to section 101(2)(c) of the *Supreme Court Act 1970* (NSW). The refusal by the trial judge to reopen the consent orders was also considered an interlocutory decision, requiring leave to appeal under section 101(2)(e) of the Act. As no leave to appeal had been granted, the Court found that both the notice of motion and the appeal itself were incompetent. The Court also noted that the request for referral to the Attorney-General was made after the consent orders were entered and was not a condition of the consent, nor was it a matter that vitiated the consent itself.

Consequently, the Court of Appeal dismissed the notice of motion filed in the appeal and the appeal as incompetent, and also dismissed the summons seeking leave to appeal. Iyad Rafidi was ordered to pay the costs of the Commonwealth Bank of Australia Ltd in both proceedings in the Court of Appeal.