COMMONWEALTH BANK OF AUSTRALIA v RIGG [1989] NSWCA 43

COMMONWEALTH BANK OF AUSTRALIA v RIGG

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 17 August 1989

[1989] NSWCA 43

Mahoney JA The plaintiffs sued the Bank in respect of certain financing transactions carried out between them. The Bank cross claimed against the plaintiffs in respect of two matters: a claim for $750,000 plus interest, based on a bill of exchange alleged to have been drawn by the plaintiffs; and an amount of $288,747.88 plus interest, alleged to be due on a guarantee of the liabilities to the Bank of a certain company.

The Bank sought summary judgment on its cross claims. On 19 April 1989 Young J gave judgment for the Bank for $1,215,038.48. The plaintiffs have appealed against that judgment.

The Bank has now applied to this Court for an order striking out the appeal or giving judgment for the Bank upon it; alternatively, it has asked for an expedited hearing of the appeal.

In support of the Bank's application that the appeal be disposed of summarily, Mr Emmett QC has argued that the power of the Court to make the order sought may be derived from the Rules relating to summary judgments generally or from the Court's inherent power to prevent abuse of process. Mr Garnsey, for the plaintiffs, submitted that there was no power to make such an order as is sought. There was no significant argument in relation to the Court's power in this regard and authorities were not referred to.

Iam prepared to accept that the Court has power, in some cases, to dismiss an appeal which, to take an example, has so obviously no prospect of success that to allow it to remain current would be to allow an abuse of the Court's process. Whether, in disposing of an appeal in this way, the Court is to be seen as exercising a particular and special power or merely as disposing of an appeal after argument, but argument of a summary kind, need not for present purposes be pursued.