BARBAR v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) [1996] NSWCA 43

BARBAR v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 19 August 1996

[1996] NSWCA 43

Registrar Jupp. Dealing with the application for a stay I am going to refuse the application for a stay. Mr Evans has read the affidavit of the first appellant. That affidavit as far as I am concerned did not establish any likely prospects of an appeal being successful. There may well in due course be a Notice of Appeal with appointment which establishes some valid grounds of appeal. Mr Evans has argued that there is a missing file and that some officers in the bank may be colluding to make sure that that file is not located or remains missing. He has had the opportunity of cross-examining Mr Jones and Mr Austin but as far as I can see the evidence that they have sworn in their respective affidavits is sufficient explanation as to some of the discrepancies that Mr Barbar has asserted. I am going to dismiss the Notice of Motion for a stay.

Mr Evans made an application during the course of the morning seeking to have the application adjourned. I do not think that that is the appropriate course. There is sufficient evidence here at the moment for the applicationto be determined today and I have so determined it. That is not to prejudice any subsequent application that the appellant may wish to make seeking a stay. Any such application should not be made prior to the appellant determining what the grounds of appeal will be and filing their Notice of Appeal with appointment. As Ihave dismissed that application, the motion for a stay should be dismissed with costs.

The Notice of Motion also seeks orders in respect of the production of documents which have been discussed in a tangential way this morning.

(Discussion ensued.)

I will dismiss the motion in all respects. I will dismiss the motion filed by the respondent to set aside a subpoena. I make no order as to costs in respect of that Notice of Motion. I excuse Ms Thierjung and Mr MclIlwain from any further attendance in respect of the subpoenas served upon them.