Cachia v Walker

[2000] NSWCA 5

CITATION:	CACHIA v WALKER & ORS [2000] NSWCA 5
FILE NUMBER(S):	CA 40359/95
HEARING DATE(S):	8 November 1999
JUDGMENT DATE:	18 February 2000
PARTIES :	SAVIOUR LAURENCE CACHIA v CHRISTINE LOUISE WALKER & ORS
JUDGMENT OF:	Mason P at 1; Stein JA at 1; Sheppard AJA at 1

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL:	Decided on the papers
SOLICITORS:	A: Mr Cachia R: J M Crestani, Parramatta
CATCHWORDS:	Motion to reopen appeal - orders entered - no question of principle
DECISION:	Application dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40359/95



MASON P
STEIN JA
SHEPPARD AJA

Friday 18 February 2000


SAVIOUR LAURENCE CACHIA v
CHRISTINE LOUISE WALKER & ORS
JUDGMENT

1    THE COURT: On 12 September 1998 this Court dismissed three related appeals, each brought from judgments of McInerney J in the Common Division. This Court’s orders were entered. The appellant Mr Cachia sought special leave to appeal to the High Court. That leave was refused on 16 April 1999 for the following reasons delivered by 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.

2    Mr Cachia applied to reopen his case in the High Court. There was a further hearing on 6 August 1999. Mr Cachia submitted that he had not rejected a new trial in the Court of Appeal, and that he had merely pleaded with the Court not to have him suffer again the evils of a new trial. He referred the High Court to various passages in his written submissions in the Court of Appeal. The application was refused for the following reasons, again given by Gleeson CJ:

In this matter, having regard to the unusual circumstances that occurred in relation to the previous hearing of an application for special leave to appeal from a decision of the Court of Appeal, the Court has reconsidered on the merits the application for special leave to appeal in conjunction with the present application which is, strictly speaking, an application for leave to reopen our earlier decision.
The Court is of the view that, whilst we do not necessarily agree with every step in the process of reasoning of the Court of Appeal, there are insufficient prospects of success of an appeal to warrant a grant of special leave from the decision of the Court of Appeal, especially having regard to the way the case was conducted in the Court of Appeal and, in particular, having regard to the way the case was conducted in the Court of Appeal in relation to the relief that was sought in that appeal. For those reasons, this application is refused.

3    Undeterred, Mr Cachia filed a Notice of Motion in this Court seeking to have the judgment and orders made on 12 June 1998 vacated, with ensuing orders that the appeal be allowed or alternatively that the hearing of the appeal be reopened and further heard. The motion is supported by affidavit and the parties have exchanged written submissions. 4    There is disagreement between the parties as to whether this Court has the power to reopen its orders of 12 June 1998 in the present circumstances. In our view it is unnecessary to consider that issue. We are not disposed to reopen the matter even were there power to do so. 5    Most of Mr Cachia’s submissions ventilate his earlier written arguments or seek to engage in a continuing dialogue with the Court in relation to its published reasons for judgment given on 12 May 1998. The appellant repeats the arguments advanced in the High Court as to his real intent concerning a new trial. 6    It is suggested that the Court overlooked the presence in the Notice of Appeal of the conventional prayer for “such further and other order and declaration as this honourable Court deems fit”. This was not overlooked. The Court was entitled to treat the appellant’s later written submissions as indicative of the his final position. That position was stated in unequivocal terms which excluded the possibility of a new trial. 7    Alternatively, the appellant submits now that he has the right to reconsider his position. He states that he would have accepted a new trial had it been offered to him. By inference, he seeks such relief now. 8    It is too late, now that the appeal has been determined here and in the High Court. The appellant is an articulate and understanding litigant. His written submissions are quite unequivocal. They were the basis of the earlier hearing. It would be an intolerable injustice to permit the appellant now to seek to present a different case. 9    The application should be dismissed with costs.

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