RAJSKI v BAINTON [1991] NSWCA 232

RAJSKI v BAINTON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SAMUELS, MAHONEY and HANDLEY JJA 18 February, 6 September 1991

[1991] NSWCA 232

PRACTICE AND PROCEDURE — Appeal from decision of Judge dismissing action as frivolous and vexatious — Appeal heard and judgment delivered dismissing appeal — Order dismissing appeal not entered — Application by appellant for order dismissing appeal to be set aside on the grounds that the Court failed to consider some of the appellant's arguments in the hearing of the appeal and misunderstood others.

Held

The application was competent under RSC Pt 40 r 9(1) and under the Court's inherent jurisdiction; State Rail Authority v Codelfa Construction Pty Ltd (No 2) (1981) 150 CLR 29 and Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 applied; but the jurisdiction was to be exercised sparingly. In the circumstances the claimant had failed to establish any case for the exercise of the Court's jurisdiction to review its own orders.

Taylor v Taylor (1978-79) 143 CLR; State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (No 2) (1981) 150 CLR 29; TJM Products Pty Ltd vA & P Tyres Pty Ltd & Ors (1987) 17 FCR 390; Wentworth v Rogers & Ors (No 9) (1987) 8 NSWLR 388; Yore Contractors Pty Ltd v Holcom Pty Ltd & Anor (Rogers CJ CommD, 13 July 1989, unreported); The New South Wales Bar Assn v Smith (Court of Appeal, 4 July 1991, unreported), cited.

Samuels and Handley JJA. On 18 September 1986 Leszek John Rajski ('Rajski') filed a statement of claim seeking damages, interest and costs from Russell John Bainton ("Bainton') one of Her Majesty's Counsel. The cause of action upon which Rajski relied was conspiracy to abuse the process of the court and to pervert the course of justice. Bainton, in June 1984, had been briefed by Allen Allen & Hemsley ('Allens'), a firm of solicitors acting for a company, Tectran Corporation Pty Ltd ('Tectran') in proceedings against Raybos Australia Pty Ltd, ('Raybos'), a company controlled by Rajski, and against Rajski himself. The statement of claim asserted that Bainton became aware after he was retained that the allegations made by Tectran were false, but, notwithstanding that knowledge, agreed with various other persons to do everything necessary to represent to the court that Tectran was acting bona fide in the carriage of its proceedings. By that means Bainton sought to abuse the process of the court and to pervert the course of justice in order to force Raybos and Rajski into forensic submission.