Cachia v Walker & Ors S84/1998 [1999] HCATrans 247 (6 August 1999)

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 leave to reopen case

GLEESON CJ

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 1999, AT 10.13 AM

Copyright in the High Court of Australia

MR S.L. CACHIA: Your Honours, Cachia the applicant.

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

GLEESON CJ: Yes, Mr Cachia.

MR CACHIA: If your Honours please, I rely on my written material, namely the application book volume 1, applicant's supplementary book volume 2, notice of motion and affidavit of applicant filed on 12 May 1999 and affidavit of applicant sworn on 30 July 1999. I would seek to reply to any verbal submissions made on behalf of the respondents, your Honour.

GLEESON CJ: Thank you. Mr Shore.

MR SHORE: Your Honours, there are certain objections to the affidavit of 11 May of Mr Cachia. In an outline of argument filed on behalf of the respondent it was said that objection would be taken from paragraph 16 onwards. It should be paragraph - - -

GLEESON CJ: Just excuse me for a moment, Mr Shore, will you?

CALLINAN J: Where do we find that, Mr Shore, the affidavit?

MR SHORE: The affidavit or the outline of respondent's argument?

GLEESON CJ: We have in front of us an affidavit of 30 July 1999 of Mr Cachia, but that is not the one to which you are referring.

MR SHORE: No, your Honour, it is not. There is no objection to any part of it. That is the one that deals with the postal services.

GLEESON CJ: Yes.

MR SHORE: Your Honour, this is an affidavit of 11 May which I understood was being filed by Mr Cachia.

GLEESON CJ: I just want to get my hands on it.

MR SHORE: I understand.

GLEESON CJ: It is in our papers immediately behind a notice of motion with the expression "Return date to be fixed" stamped on it.

MR SHORE: Yes, your Honour. Thank you.

GLEESON CJ: Now, what are the objections to that affidavit?

MR SHORE: Your Honours, if I could deal with it in two parts. From paragraphs 15 onwards the respondents submit that they raise matters that could only be ventilated upon appeal and not upon any application to reopen. Your Honours, in the respondents' outline of argument it was accepted that this Court has the power to reopen its orders and reconsider them in certain circumstances that have been outlined by this Court in the case of de L to which reference was made in the respondents' outline.

GLEESON CJ: So, what is the objection to the affidavit. The affidavit, of course, takes the form of written submissions in some respects rather than evidence but why should we stay and concern ourselves with that, Mr Shore?

MR SHORE: Your Honour, I simply raise it. I do not want to take your Honours' time with it. In my submission, they relate to matters that could only be touched upon in appeal and would not be suitable in relation to an application such as this. The paragraphs prior to paragraph 15 might be in a different category because they relate to the topic, if I can so summarise it, of why I did not attend on the earlier hearing. Your Honour, that is my submission. If your Honours are against me then your Honours can turn to the whole of that material.

GLEESON CJ: Objection is taken to parts of the affidavit of Mr Cachia of 11 May 1999. It is true that part of the material appearing in that affidavit is not in the form of admissible evidence and does not even purport to be in the form of admissible evidence but rather takes the form of argument. However, we will receive the material in the affidavit.

MR SHORE: May it please the Court. Your Honours, notification had been given to Mr Cachia of intention to cross-examine him upon that affidavit. That is not now proceeded with.

GUMMOW J: Really, Mr Shore, what is the heart of your point.

MR SHORE: Your Honour, I was indicating that we have backed away from that. We do not seek to cross-examine on it.

CALLINAN J: Mr Shore, what extent do you wish to go beyond any submissions that you have made, that is your written submissions.

MR SHORE: I do not.

CALLINAN J: Thank you.

GUMMOW J: I thought one of the points you were making was that any remedy, if there was to be one, would have to be a new trial.

MR SHORE: Your Honour, that is so.

GLEESON CJ: Yes, Mr Cachia.

MR CACHIA: Your Honours, there is very little I could say because I do not think that learned counsel has made any substantive submissions in regard to the point before this Court this morning. I think he mentioned, of course, one point that this Court may not have jurisdiction to reopen the hearing. I think that point is very well established. This Court does have such jurisdiction. Do you want to hear me on that point?

GLEESON CJ: You may proceed with your argument upon the assumption that the Court has jurisdiction to reopen.

MR CACHIA: On the last occasion, your Honour, when my case was dismissed the whole argument and the whole topic of dismissal was hinged on the basis that I had rejected a new trial in the Court of Appeal. I had not rejected a new trial. I pleaded with that court not to have me suffer again the evils of a new trial. It was a solicitation. It was not a rejection by any means and the passage quoted to the Court on that day, on 16 April, in fact, does not rule out a new trial. It was a heartfelt plea to the Court and to me, plea as written in the English language, not a pleading not in any legal sense but a plea that the Court decides the issue before itself. It has the power of review.

GLEESON CJ: Whatever be the appropriate word to apply to it, whether it be argument, solicitation, request, claim or contention, what is it you are seeking to achieve as the outcome of any appeal if you were allowed to appeal? What is the result you are aiming at?

MR CACHIA: From this Court, your Honour, I have stated the orders I would seek. I do not recall them offhand.

GLEESON CJ: Tell me now. What is the result if it is not a new trial?

MR CACHIA: What I would seek from this Court, and I am speaking offhand and not precisely, is that this Court sends the case back to the Court of Appeal to determine that case according to law.

GLEESON CJ: To determine whether there ought to be a new trial?

MR CACHIA: If the Court of Appeal decides that, yes, but I believe that the Court of Appeal can, in fact, review the case itself and can make the appropriate decisions. It may even send a portion of it back.

GLEESON CJ: Are you telling us that what you are seeking includes the possibility of a new trial?

MR CACHIA: Yes. Yes, I am, yes. I do not want to waste the Court's time, your Honour. If you want to hear me further I have lengthy submissions to make.

GLEESON CJ: Well, I do not know about lengthy. This is your opportunity to say anything you want to say and you are subject to time limits. Is there anything - - -

MR CACHIA: I notice the red light is on. Surely, I have not been on for 20 minutes.

GLEESON CJ: I am surprised that it has been going for 20 minutes. Go ahead.

MR CACHIA: Your Honours, the ordering of a new trial may not have been an option open to the Court of Appeal or it may have been but it certainly was not the only option open to it. The Court of Appeal had the power to hear the appeal by way of a rehearing. In Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 the High Court acknowledged the powers of the Full Court to conduct an appeal by way of a rehearing. Such a power is enjoyed by the Court of Appeal. The Supreme Court Act 1970 section 75A also provides for it. Instead, five Judges of the High Court said:

True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules O. 58, rr. 6 and 14.

Even if the Court of Appeal had mistakenly thought that the appellant rejected a new trial it was still incumbent upon it to do justice as best it could. The difficulty in the reaching of a decision never prevented the court from trying. It had the power to conduct a rehearing.

The extract of my submissions tendered to this Court on 16 April on behalf of the respondents would not have afforded this Court an insight into the motivation of the appellant in soliciting the Court of Appeal not to order a new trial. Only the full text of the submissions would have shown the torture, the suffering and the anguish which he had endured during the primary trial.

I told the Court of Appeal at page 206 of my submissions number 1, "I pleaded there shall be no order for a new trial. I am the victim and my plea ought to be heard. I have suffered enough. This litigation had gone on and on and its effects upon me are beyond what one could reasonably be made to endure". At page 224 I said, "The appellant seeks a review by this honourable Court of matters which were before the lower court and submits that there are serious and weighty reasons, not least the health of the appellant, why a new trial ought not to be ordered."

My further evidence on appeal which is included in the applicant's supplementary book at page 381, lines 10 to 13, I told the court, "The notion that the Court might order a new trial fills me with utter dread. My health, both mentally and physically, wills suffer severely if I had to face a new trial."

But even these extracts which I just read cannot begin to convey my extreme distress at the thought of a new trial. However, I stress again most strongly that there is no rejection of a new trial in what I told the Court of Appeal. I implored the Court not to order a new trial. I did not reject it. It is evident that this Court did not during proceedings have regard to the applicant's reply to respondents' summary of argument, in particular to paragraph 1.6 at application book, page 315, at which I said, "A plea for `please no new trial' does not compel a court to desist from ordering a new trial. It hardly requires stating that a litigant does not dictate as to what orders a court makes. If a new trial were the only course open, the Court would have been bound in justice to order it."

Even if I had rejected a new trial then that would raise a new principle for this Court to consider, whether a rejection of a new trial prevents a Court of Appeal from ordering one if it deemed fit.

Your Honours, counsel says that Order 69 rule 11 conferred an entitlement to appeal and make submissions but he had waived any such entitlement by his undertaking in the respondents' summary of argument in which he had stated unequivocally:

If the Applicant does not seek to so supplement then the Respondent does not seek to supplement this Summary with oral argument. If the Applicant does then the Respondent would seek to supplement this Summary with oral argument.

That is at page 312, line 11. And counsel breached an equivocal undertaking to my detriment. Similarly, he breached Order 69A rule 8(2) which provides that:

If it is proposed that the party will appear and present oral argument, the summary of argument shall so state.

There was also a notice from the Deputy Registrar by letter dated 26 March 1999 that Practice Direction No 3 of 1996 required:

each party to provide four copies of all material to which they intend to refer at the hearing.

The copies were to be delivered before the date of the hearing but counsel handed up to the Court at the hearing of 16 April a document, copies of which had not so delivered and thereby he breached the Registrar's direction which was made per Order 69A rule 14 and breached Practice Direction No 3 of 1996, nor was a copy of the document provided to the applicant prior to the hearing so as to enable him to respond appropriately. Counsel also breached Order 69A rule 10(10) which requires that if:

a party intends to refer to a document which is not included in the application book, that party shall give notice to each other party not less than 3 working days before the date fixed for the hearing.

He failed to give such notice to the applicant with regard to the said document. The respondents ought to have taken the appropriate steps to include the said document in the application book. They failed to do so to the detriment of the applicant.

I further rely upon the grounds and reasons appearing in my affidavit sworn on 11 May 1999. I have nothing further to add, your Honour.

GLEESON CJ: Thank you. The Court will adjourn for a short time to consider the course it will take in this matter.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.35 AM:

GLEESON CJ: We do not need to hear you, Mr Shore.

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 to appeal 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.

Is there an order for costs sought?

MR SHORE: Yes, your Honour.

GLEESON CJ: Do you resist an order for costs, Mr Cachia?

MR CACHIA: It would be appropriate not to make an order for costs. You said yourself that you do not agree with all the reasoning of the Court of Appeal. It was just and proper for me to make this application. I do not think I should suffer the penalty of costs for proceeding.

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

The Court will adjourn to reconstitute.

AT 10.37 AM THE MATTER WAS CONCLUDED