Cachia v Westpac Financial Services

[2003] NSWSC 513

CITATION:	Cachia v Westpac Financial Services [2003] NSWSC 513
HEARING DATE(S):	11 June 2003
JUDGMENT DATE:	11 June 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Statement of Claim is struck out. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.
CATCHWORDS:	Striking out of Statement of Claim - attempt to re-litigate in this Court matters finally determined in another jurisdiction - abuse of process and vexatious litigation.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 15 r 26.
CASES CITED:	N/A
PARTIES :	Salv Laurence Cachia (Plaintiff) v Westpac Financial Services Limited (Defendant)
FILE NUMBER(S):	SC 20511 of 2002
COUNSEL:	N/A (Plaintiff) Mr R J Weber SC (Defendant)
SOLICITORS:	In Person (Plaintiff) Mallesons Stephen Jaques (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 11 June 2003

20511 of 2002 Salv Laurence Cachia v Westpac Financial Services Limited

JUDGMENT

1 MASTER: The plaintiff commenced these proceedings by Statement of Claim filed on 11 November 2002. He is a very experienced litigant in person.

2 The dispute arises out of an investment made by the plaintiff in the Westpac Real Property Growth Trust and what happened in relation to that investment thereafter.

3 The defendant moves to have the statement of claim struck out. Under Pt 15 r 26 of the Supreme Court Rules 1970, the court has a discretionary power to grant such relief.

4 A reading of the Statement of Claim discloses that the disputes in relation to the investment were litigated in another court (the Federal Court) and that the plaintiff was unsuccessful in those proceedings. Indeed, there has been an unsuccessful appeal to the Full Court of the Federal Court and unsuccessful application for special leave made to the High Court.

5 In my view the process can only be read as an attempt to re-litigate these matters once again. Largely, the relief that is sought comprises declarations and a claim for damages relating to what happened in the Federal Court proceedings and the appeals.

6 The plaintiff has made detailed submissions, (both orally and in writing), in opposition to the application. In dealing with this matter I have had regard to each and every one of the submissions.

7 In my view, the matters which the plaintiff desires to litigate in this Court have been finally disposed of in another jurisdiction. Public policy requires finality. Further, it seems to me that this Court would not exercise jurisdiction in dealing with the matters which are the subject of the plaintiff’s claim.

8 If the plaintiff wishes to pursue a claim that the judgment in the Federal Court was procured by fraud or the like, his remedy is to go back to that court.

9 In my view, the Statement of Claim does not propound a reasonable cause of action. It is an abuse of process and vexatious.

10 In reaching the views I have expressed in this matter, I have borne in mind that the defendant bears the onus of satisfying the court of its entitlement to the relief that is sought. The authorities make it clear that such relief is only granted in what might be said to be clear cases. In my view this is one of those clear cases.

11 The Statement of Claim is struck out. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

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Last Modified: 06/12/2003