Serobian v Commonwealth Bank of Australia
[2011] NSWCA 55
•10 March 2011
Court of Appeal
New South Wales
Case Title: Serobian v Commonwealth Bank of Australia Medium Neutral Citation: [2011] NSWCA 55 Hearing Date(s): 10 March 2011 Decision Date: 10 March 2011 Jurisdiction: Before: Tobias JA at [1]; [14]; [16]
Macfarlan JA [2]
Handley AJA [15]Decision: The notice of motion dated 23 August 2010 is dismissed with costs.
[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: APPEAL - civil - application for rehearing and to set aside orders dismissing appeal - principles on which a rehearing may be ordered - application dismissed
Legislation Cited: Supreme Court Act 1970
Uniform Civil Procedure RulesCases Cited: Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 273 ALR 118
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429
Burrell v R [2008] HCA 34; (2008) 238 CLR 218
Elliott v R[2007] HCA 51; (2007) 234 CLR 38Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 to date (loose-leaf service)
Category: Procedural and other rulings Parties: Shahen Serobian (First Applicant)
Christine Serobian (Second Applicant)
Commonwealth Bank of Australia (Respondent)Representation - Counsel: Counsel:
Christine Serobian in person (Applicants)
P Dowdy (Respondent)- Solicitors: Solicitors:
Henry Davis York (Respondent)File number(s): CA 2009/298401 Decision Under Appeal - Court / Tribunal: - Before: Hammerschlag J - Date of Decision: 24 April 2009 - Citation: Commonwealth Bank of Australia v Shahen Serobian [2009] NSWSC 302 - Court File Number(s) SC 50219/2007 Publication Restriction:
Judgment
TOBIAS JA : I will ask Macfarlan JA to give the first judgment.
MACFARLAN JA : By a judgment delivered on 10 August 2010 ([2010] NSWCA 181) this Court dismissed with costs an appeal brought by the present applicants, Mr Shahen Serobian and Mrs Christine Serobian, against a decision of Hammerschlag J delivered on 24 April 2009 ([2009] NSWSC 302).
Before the Court now is a notice of motion filed by the Serobians on 23 August 2010 seeking various orders, including an order for the rehearing of the appeal. The Serobians also implicitly seek an order setting aside the order dismissing their appeal. The Court has power to make such orders as the notice of motion was filed within fourteen days of delivery of the judgment and therefore necessarily of its entry (see the Uniform Civil Procedure Rules r 36.16(3A) and compare Burrell v R [2008] HCA 34; [2008] 238 CLR 218 where no comparable rule was applicable). Whether the Court should exercise its discretion to do so is of course another matter.
The circumstances in which a power to reopen a proceeding may be exercised by a superior court of record were described by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, in the following passage to which the High Court referred with approval in Elliott v R [2007] HCA 51, [2007] 234 CLR 38 at [31] - [32]. What Mason CJ said was:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases" (176 CLR 300 at 303).
See also Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 273 ALR 118 at [6]
In large measure, the submissions made by the Serobians in support of their notice of motion constituted arguments as to why the Court should have reached different conclusions from those contained in its judgment of 10 August 2010. In my view none of the matters raised by the Serobians indicate that the Court proceeded upon a misapprehension of the facts or relevant law. Their submissions simply involved an attempt to reargue their appeal. As Mason CJ pointed out, this is not permissible.
Accordingly the Serobians' contention that the appeal should be reopened should be rejected.
Some other matters raised in the Serobians' notice of motion, affidavit and submissions require mention.
First the Serobians sought a stay of the judgment of 10 August 2010. However their submissions do not reveal any proper basis on which such a stay could be granted.
Secondly the Serobians seek "[a]n order and relief under Defamation Act 1974", upon the basis that the Court's judgment of 10 August 2010 has caused their family considerable embarrassment and hardship. However absolute privilege attaches to statements made in the judgment and in any event any claim for damages for defamation would have to be pursued in separate proceedings.
Thirdly the notice of motion also seeks "an order to use [t]he Corporation Act 2001 and orders and relief under this Act". No sensible basis for the making of any such order has been advanced.
Fourthly the Serobians complain that Sackville AJA should not have sat on the appeal because he had previously heard a stay application made by the Serobians. The Serobians rely simply upon the fact that his Honour heard that application and not upon anything that his Honour said in the course of determining it. That fact is insufficient to have required his Honour to disqualify himself (as to the relevant principle, see most recently British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429).
Finally the Serobians seek a review of an order made by Registrar Schell refusing to allow them to file a summons for judicial review under Supreme Court Act 1970 s 69, to challenge the decision of Hammerschlag J of 24 April 2009. That decision was the subject of the appeal to this Court that was dismissed on 10 August 2010. As Registrar Schell pointed out, the challenge was misconceived (see the annotations in Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date (loose-leaf at 10 March 2011) at [s 69.40]), and such right of challenge as the Serobians had was by way of appeal to this Court. This was a right that they exercised, albeit unsuccessfully. There was no error in Registrar Schell's decision.
For these reasons I consider that the notice of motion dated 23 August 2010 should be dismissed with costs.
TOBIAS JA : I agree.
HANDLEY AJA : I also agree.
TOBIAS JA : The order of the Court will be that proposed by Macfarlan JA.
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