Anthony George Bakarich v Commonwealth Bank of Australia

[2013] HCASL 124

ANTHONY GEORGE BAKARICH

v

COMMONWEALTH BANK OF AUSTRALIA & ORS

[2013] HCASL 124
S7/2013

1. Proceedings were brought in the Equity Division of the New South Wales Supreme Court by the applicant and others against the first respondent ("the Bank") arising out of guarantees which had secured loans to a Bakarich family company.  At first instance the claims of all the plaintiffs failed.  On appeal the Court of Appeal (Hodgson, Santow and Campbell JJA) upheld a claim under the Contracts Review Act 1980 (NSW) in relation to the guarantees given by Mary and Allan Bakarich. By the time of the appeal both Mary and Allan Bakarich were deceased. Judgment was delivered by the Court of Appeal in July 2007. Subsequently, the Court made orders remitting the proceedings to a single judge of the Equity Division to determine questions concerning the utility of granting a remedy in favour of the estates of Mary and Allan Bakarich.

2. The remitted proceedings came before Bryson AJ for hearing.  In the course of those proceedings, the applicant filed a Notice of Motion seeking to have the orders of the primary judge and the Court of Appeal set aside.  He sought to agitate allegations of fraud, collusion, tampering with transcripts, dishonesty by the first respondent in the conduct of the case, ostensible bias of the primary judge and improper behaviour by senior counsel for the Bank.  The application was refused[1] ("the 2010 re-opening judgment"). 

   [1]Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314.

3. On 15 December 2011, Bryson AJ delivered his answers to the questions posed by the Court of Appeal.  The answers revealed the inutility of granting relief to the estates of Mary and Allan Bakarich. 

4. The Bakarich parties filed a Notice of Intention to Appeal from Bryson AJ's decision on 23 December 2011.  However, no Notice of Appeal against the decision was lodged.

5. In March 2012, the Bank wrote to the Registrar requesting that the original appeal be relisted so that the Bank could seek an order that it be dismissed with costs.  By May 2012, Hodgson JA had retired from the Court and Santow JA was deceased.  The Court of Appeal was reconstituted (Basten, Campbell and Macfarlan JJA) and on 30 November 2012 it made orders dismissing the appeal with costs. 

6. The applicant applies for special leave to appeal.  He has provided a satisfactory explanation for the short delay in filing the application.  The requirements of the Rules respecting the time for filing the application should be dispensed with.

7. The applicant's proposed grounds are no more than the assertion of facts concerning his health and the conduct of the proceedings before the primary judge and the Court of Appeal (as originally constituted) which were rejected in the 2010 re-opening judgment.  No question suitable for the grant of special leave is identified.  The application does not engage with the decision from which leave to appeal is sought.  The final orders made by the Court of Appeal were inevitable in light of the answers given by Bryson AJ, which stand unchallenged.  If special leave to appeal were granted the appeal would have no prospects of success. 

8. The application is dismissed.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler