Cachia v Grech
[2009] NSWCA 232
•30 July 2009
New South Wales
Court of Appeal
CITATION: Cachia v Grech [2009] NSWCA 232 HEARING DATE(S): On the papers
JUDGMENT DATE:
30 July 2009JUDGMENT OF: Hodgson JA; Ipp JA DECISION: Application for leave to appeal is dismissed with costs. CATCHWORDS: PROCEDURE – Application for leave to appeal – Need to show reasonably arguable case of error, and that there is a reasonable prospect of substantive relief being obtained. LEGISLATION CITED: Legal Profession Act 2004 ss 317, 319, 327 CATEGORY: Procedural and other rulings PARTIES: Laurence CACHIA (claimant)
Henry GRECH trading as Grech Partners Solicitors (opponent)FILE NUMBER(S): CA 40071/09 COUNSEL: A T S DAWSON (opponent) SOLICITORS: Laurence CACHIA self-represented (claimant)
Colin Biggers & Paisley (opponent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 04319/08 LOWER COURT JUDICIAL OFFICER: Murrell SC DCJ LOWER COURT DATE OF DECISION: 9 December 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Cahcia v Grech [2008] NSWDC 288
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40071/09
DC 04319/08
30 JULY 2009HODGSON JA
IPP JA
1 THE COURT: On 9 December 2008, Murrell SC DCJ determined proceedings brought by the applicant (Mr Cachia) against the respondent (Mr Grech) challenging a decision of the Consumer Trader and Tenancy Tribunal (CTTT), by affirming that decision.
2 Mr Cachia seeks leave to appeal from the primary judge’s decision. The parties agreed that the leave application be determined on the papers.
Circumstances
3 In about 2004 Mr Cachia, through real estate agents Dwyer and Eden Realty Pty Limited, leased to a tenant property owned by him. The tenant damaged the property.
4 Mr Cachia instructed Mr Grech to take proceedings in the Local Court against the agent, on the basis that the agent had acted wrongly in various ways in connection with leasing the property to the particular tenant. Mr Grech subsequently, by an email dated 15 April 2005, terminated the retainer, referring to Mr Cachia not wishing to retain a barrister despite their advice.
5 Mr Cachia represented himself in the Local Court proceedings, and lost. Mr Cachia appealed to the Supreme Court, and that appeal was dismissed.
6 Mr Cachia then brought proceedings in the CTTT against Mr Grech, claiming damages on the basis that his work was unsatisfactory and that he had wrongly terminated the retainer. The CTTT dismissed this claim with costs.
7 Mr Cachia appealed to the District Court, and it was in disposing of this appeal that the primary judge made the decision which Mr Cachia seeks to challenge.
Issues
8 The draft notice of appeal contains ninety-seven grounds, some of them containing several sub-grounds. It would not be appropriate in an application such as this to review all these grounds individually. What we will do is to isolate issues that in our opinion could conceivably have some substance.
9 One is the claim that in various ways Mr Cachia was denied procedural fairness by the CTTT, and that the primary judge did not adequately address this issue and/or decided it wrongly.
10 Another is the claim that the primary judge erred in not holding that the CTTT erred in law in deciding that Mr Cachia, to succeed against Mr Grech, had to prove he would have been successful against the real estate agents in the Local Court proceedings but for the acts of Mr Grech (and also in suggesting there was an issue estoppel against such finding).
11 Another is the claim that the primary judge erred in various respects in not holding that the CTTT erred in law in holding to the effect that Mr Grech was entitled to terminate the retainer, and that his work was not otherwise proved to be unsatisfactory.
12 Another is the claim that the primary judge erred in not holding that the CTTT had failed to decide some issues, including an issue whether a Client Service Agreement submitted to the CTTT was false and a fabrication of evidence.
Decision
13 It is important to keep in mind that for leave to appeal to be granted in a case such as this, the Court must be satisfied not merely that there is a reasonably arguable case of error, but also that there is a reasonable prospect of substantive relief being obtained.
14 In our opinion, there is no reasonably arguable case that the primary judge erred on the question of denial of procedural fairness. There is no substance in the contention that, because the Tribunal Member knew of a complaint made by Mr Cachia about him, he should have disqualified himself. It was not shown that the Tribunal Member had not read the relevant material in the case, including Mr Cachia’s submissions: particularly in the case of lengthy and repetitive submissions by unrepresented litigants, it cannot be expected that a tribunal, having read all the material, will assimilate all the material to the extent of complete immediate familiarity with all of it. Mr Cachia’s complaint that he was denied the opportunity to make final submissions is not a reasonably arguable ground of appeal: submissions were received from him in the witness box, concluding with what must be expressed reliance on his lengthy written submissions. When Mr Cachia later sought to make more submissions, he was permitted to do so.
15 As regards the admission of documents after the close of the case, without cross-examination of the maker of the documents, it is to be noted that the documents were relied on as communications not as secondary evidence of other facts, and that the documents had already been marked for identification and Mr Cachia had been cross-examined on some of them. Mr Cachia has not referred this Court to any particular one or more of those documents so as to give rise to any reasonable prospect of a finding that the admission of those documents may have been in any significant way prejudicial to him.
16 In our opinion, to the extent that the CTTT referred to issue estoppel, there was no basis for any issue estoppel: the previous case was between different parties. However, it does not appear that the CTTT acted on any view about issue estoppel. Also, we do accept that it would have been sufficient, on the question of causation of loss, for Mr Cachia to show that, by reason of some actionable fault of Mr Grech, he had lost a valuable chance of success in the previous proceedings; so that it was not absolutely necessary for him to show he would have succeeded in the proceedings. However, Mr Cachia has provided no material to this Court to suggest that he did have an appreciable chance of success in the previous proceedings, which was lost through default of Mr Grech.
17 In our opinion, the questions of whether Mr Grech was entitled to terminate the retainer because of actions of Mr Cachia and whether Mr Grech’s work was shown to have been negligent or otherwise unsatisfactory were essentially questions of fact; and in our opinion no reasonable prospect has been shown of establishing that the primary judge was wrong in finding no error by the CTTT on those questions.
18 As regards the question whether the Client Services Agreement was false and a fabrication, it does appear that this question was raised in the CTTT; so that the contrary statement in par [21] of the judgment of the primary judge appears incorrect. However, this Court does not appear to have been provided with any copy of this allegedly fabricated document, or any material showing how it was used before the CTTT or what significance it may have had; so in our opinion the applicant has shown no basis on which this Court can reach a view that there is in this matter arguable ground for overturning the decision of the CTTT or an arguable basis for some substantive relief on appeal. The CTTT does not appear to have relied on this agreement, and it is not apparent what if any relief the applicant sought in relation to it: cf Legal Profession Act 2004 ss 317, 319, 327.
Conclusion
19 In our opinion there is no substance in other matters raised by the applicant; and in our opinion the applicant has not shown a reasonable basis for the grant of leave to appeal.
20 For those reasons, the Court orders: Application for leave to appeal is dismissed with costs.