Cachia v Walker and Ors S25/2002

[2002] HCATrans 635

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S25 of 2002

B e t w e e n -

SAVIOUR LAURENCE CACHIA

Applicant

and

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

Respondents

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 12.47 PM

Copyright in the High Court of Australia

MR S.L. CACHIA, appeared in person.

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR H.G. SHORE, for the respondents.  (instructed by J.M. Crestani)

GAUDRON J:   Now, do you wish to supplement your written submissions?

MR CACHIA:   I do, your Honour, yes.

GAUDRON J:   Yes, very well.

MR CACHIA:   Your Honours, in the hearing of the motion the Court of Appeal erred on four grounds in not setting aside the patently unlawful and invalid judgment of the primary court before deciding whether or not it should then order ‑ ‑ ‑

GAUDRON J:   Perhaps I could interrupt you for a minute, I am sorry, to tell the parties, the counsel, that we will not take any further cases in the list until 2.15.  Yes, thank you.  I am sorry, Mr Cachia.  I should have done that before.

MR CACHIA:   The first ground, your Honour, is that the Court of Appeal erred in not setting aside the patently unlawful and invalid judgment of the primary court before deciding whether or not it should then order a new trial.  The second ground is in not deciding whether it had the power to reopen the hearing of the appeal.  The third ground in not hearing the parties and instead deciding the matter before it on brief written submissions and not by determining the substantive issues raised in the submissions.  Ground No 4 is in being factually incorrect.

Evidence of the primary judge’s fishing expedition is at application book volume 3 page 381 and page 383.  The Court of Appeal judgment of 12 May 1998 refers to the judge’s fishing expedition at volume 2 page 189, 190, 193, 194, 196, 198 and 211.  There can be no doubt, even from the judgment of the Court of Appeal, that the judgment of the primary court was vitiated.  It was invalidated by the acts of the judge.  I think that it is common ground and I do not need to argue that point any more.

In fact my appeal in the Court of Appeal was dismissed because the court took my plea of “Please No New Trial” to mean I refuse a new trial.  I did not refuse a new trial.  I made that plea under duress.  That solicitation, your Honours, “Please No New Trial” is at application book volume 3 page 385.  The duress comprised high litigation costs ‑ page 385 line 40.  My health would suffer ‑ page 386 line 12.  There is also a report of Dr Grady in support of that at page 387.  I suffered trauma during the primary trial.  This duress was put to the Court of Appeal in my affidavit in further evidence of appeal.  In the Court of Appeal I had sought a review of the primary court hearing, and I can give you the references where that appears in the application books if you wish.  It also appears in the notice of appeal to the Court of Appeal.  I had overwritten my plea of “Please No New Trial” with the plea of “Such further and other orders as the court deems fit”.  That is in my written submissions almost ‑ in the last line, as well as in the notice of appeal to the Court of Appeal.

The words “Please No New Trial” do not mean I refuse a new trial.  Words in the English language have the meaning stated by the words.  The former is a solicitation, a request.  How could it be taken to mean a refusal of a new trial?  In any case, I remained entitled to reconsider and to change my mind.  That the horrors of the primary trial would fade in time is a fact of human experience.  At that time, under the duress of being again subjected to a similarly horrific new trial, I entreated, “Please No New Trial”.  In any event, your Honour, the issue of “Please No New Trial” was never the subject of a hearing.  It was raised for the first time in the judgment of the Court of Appeal and I never did get a chance to be heard about it.  The judgment of the Court of Appeal was a reserved decision, so there certainly was never a chance for me to address the issue on the points that I have stated there.  The trial judge’s disregard of principles of justice render the judgment that ensued void.  It ought to be set aside irrespective of any other factors.

In any event, it is not ordinarily open to a litigant to waive unilaterally improper acts on the part of a judge.  This is because performance of fair, just and equitable acts on the part of the judiciary belongs not to the litigant alone but to the public at large and to the legal system of which a judge is a member.  A judge must not do the impermissible.  He must uphold the justice system.  The justice system demands that he acts properly and there can be no waiver that he does so.  The judgment in the primary court had miscarried.  The Court of Appeal ought to have aside the judgment of the court.  The question of what follows that setting aside does not arise until after that setting aside.

The unlawful acts of the trial judge and their effects amount to such a fundamental denial of natural justice as should have led inevitably to a rehearing or an order for a retrial.  The general supervisory jurisdiction of this High Court in respect of such acts would require it to intervene.  It is my contention that the judgment showed to be vitiated, ought to be set aside irrespective of other grounds of appeal and other submissions.  In this instance the judgment of the primary court was vitiated by the acts of the

judge.  It ought to have been and should be set aside.  I am seeking that an invalid judgment be set aside.

There are no binding definitive decisions regarding reopening of hearings on which courts of appeal can rely.  The people need to know whether courts of appeal have the power to reopen hearings.  Your Honours, the issues in this matter are clear‑cut and they are non‑contentious.  The case would make an excellent vehicle to test these questions.  It is a special case that merits the High Court’s intervention.  In my draft notice of appeal the orders I seek are at application book volume 2 page 312, your Honours.  They do not burden this Court.  If my appeal to this Court is upheld, the Court of Appeal would then hear the parties on the motion or, alternatively, reopen the appeal and deliver a judgment according to law.

I am a litigant in person and beg the indulgence of the Court since this puts an additional burden on the Court in the sense that I am unable to assist the Court with legal argument and the invocation of legal precedent.  I rest confidently that the law is your province, your Honours, and that you will recognise my limited role.  Thank you, your Honours.

GAUDRON J:   Thank you, Mr Cachia.  Mr Hislop, we need not trouble you.

MR HISLOP:   May it please the Court.

GAUDRON J:   The applicant seeks special leave to appeal from decisions and orders of the Court of Appeal of New South Wales dismissing motions to reopen an earlier appeal which, by that court’s order, stands dismissed.

The earlier decision and order of the Court of Appeal was the subject of a special leave application heard and determined on 16 April 1999 prior to the first of the motions to reopen.  On 16 April 1999 the special leave application was dismissed essentially because the Court took the view as had the Court of Appeal in its earlier decision that the applicant had rejected a new trial as a possible outcome.

On 6 August 1999, this Court heard a further special leave application with respect to the earlier decision and order of the Court of Appeal treating it as an application to this Court to reopen its earlier decision refusing special leave.  On that occasion it was said that having regard to the way the case was conducted in the Court of Appeal, particularly in relation to the relief that was sought in that appeal, the proposed appeal enjoyed insufficient prospects of success to justify the grant of special leave.

The same consideration, namely the way in which the appeal was conducted in the Court of Appeal, particularly in relation to the relief that was sought in that appeal, directs the conclusion that the prospects of having the appeal reopened, as is ultimately sought by the present application, are insufficient to justify the grant of special leave.

Accordingly, special leave must be refused with costs.

AT 12.59 PM THE MATTER WAS CONCLUDED