Cachia v Walker

[1999] HCATrans 83

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S84 of 1998

B e t w e e n -

SAVIOUR LAURENCE CACHIA

Applicant

and

CHRISTINE LOUISE WALKER, GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES and ROBERT ERIC MORLEY

Respondents

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 12.20 PM

Copyright in the High Court of Australia

MR H.G. SHORE:   May it please the Court, I appear for the respondents.  (instructed by J.M. Crestani)

GLEESON CJ:   Is Mr Cachia here?

MR SHORE:   I do not believe so, your Honour.  If that is so, then the submissions of the respondents are very brief.  There were some supplementary documents that were filed containing an expansion of the argument that was put by Mr Cachia as being in lieu of oral argument.  The respondents would simply wish to say that that raises no new matter.  It does not change the summary that has been put on by the respondents.

GLEESON CJ:   Where, in his submissions, does Mr Cachia refer to the question of the orders that he would seek if his appeal were successful?

MR SHORE:   He does not, but it is dealt within the application for special leave and in the draft notice of appeal.

GLEESON CJ:   Where is it dealt with in the application for special leave?

MR SHORE:   That is at page 279 of the principal volume.  In fact, more accurately, at page 281.  Your Honours will there see - - -

GLEESON CJ:   Officer, will you call Mr Cachia please?  Officer, please call Saviour Laurence Cachia outside the Court.

COURT CRIER:   No response, your Honour.

GLEESON CJ:   Thank you.  Yes, Mr Shore.

MR SHORE:   Thank you, your Honour.  Those orders are at page 281 and your Honours will see that the orders that he seeks specifically avoid any question of a retrial.

CALLINAN J:   That might be because he is confused with powers of the Court of Appeal or the likely order by this Court.

MR SHORE:   Your Honours, lest there be any debate about it, it ought be said that the Court of Appeal found specifically that he was emphatic in his desire not to have a new trial.  The material that deals with that specifically was contained in his two volumes of written submissions which were referred to.  I have extracted the part that deals with that and if the Court would permit, if I could hand up two copies of that.

GLEESON CJ:   Thank you.

MR SHORE:   The relevant passage is marked with a blue sticker.

GLEESON CJ:   The part headed, “Please, no new trial”?

MR SHORE:   Yes, but if your Honour goes to page 180, at the bottom of the page, last paragraph, your Honours will see, “The notion of a new trial so fills me with loathing and revolution that I will go to any length to avoid it.  Therefore, I withdraw any pleading and submission if these lead to this Court of Appeal to a decision that a new trial should be ordered.  I do so after having considered very carefully that to do so may conceivably result in my appeal being dismissed.  I am prepared to suffer even this most adverse consequence in my plea for no new trial”.

Your Honours, in my submission, there could be no debate about what he was putting and that, accordingly, when the Court of Appeal found that he was specifically requesting no new trial and that that was the only conceivable remedy that may have applied had he been otherwise successful in the appeal, that that was something which he most definitely and in specific terms excluded.

GLEESON CJ:   Yes, we do not need to hear you further, Mr Shore.

MR SHORE:   Thank you, your Honour.

GLEESON CJ:   In this matter the applicant in the course of his submissions to the Court of Appeal made clear with considerable emphasis his attitude to the outcome of the appeal.  He stated in written submissions under the heading “Please no new trial” a number of reasons why he was not pursuing an application for a new trial.  He wrote, “The notion of a new trial so fills me with loathing and revulsion that I will go to any length to avoid it.  Therefore I withdraw any pleading and any submission if these lead this Court of Appeal to a decision that a new trial should be ordered.  I do so after having considered very carefully that to do so may conceivably result in my appeal being dismissed.”

In his application for special leave to appeal to this Court, and in the orders contained in the draft notice of appeal, the applicant, consistently with that earlier attitude, carefully framed the relief he sought in a manner which made no reference to the possibility of a new trial.  The problem for the applicant is that if the submissions that he makes were to be accepted, the appropriate relief to be granted in the event of a successful appeal would be the very order which he says he does not seek, that is to say, an order for a new trial.

In those circumstances, the application for special leave to appeal should be refused.  In refusing the application the Court should not be taken to be endorsing all of the actions of the trial judge of which the applicant complains, or all aspects of the reasoning of the Court of Appeal.

Is there an application for costs?

MR SHORE:   Yes, your Honour, there is.

GLEESON CJ:   The applicant must pay the respondents’ costs of the application.

AT 12.31 PM THE MATTER WAS CONCLUDED