CACHIA v ST GEORGE BUILDING SOCIETY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and CLARKE JJA 13 July 1994, 13 July 1994 [1994] NSWCA 39 PRACTICE AND PROCEDURE — appellant was refused leave to appeal by High Court — application for reopening of case and further hearing — alleged fundamental error by Court of Appeal — court has no inherent jurisdiction to consider an application once judgment is final — application for two members of the court who sat on earlier appeal to disqualify themselves — application misconceived. Gleeson CJ Since 1990 Mr Cachia has been in litigation with the St George Bank Ltd formerly the St George Building Society Ltd. For reasons that will appear, the bank might have thought the litigation had come to an end, but Mr Cachia evidently has other ideas. On 30 October 1990, following a hearing before Cole J in the Commercial Division of this Court, judgment was given for the defendant in Mr Cachia's action against the bank. Mr Cachia then appealed to the Court of Appeal of this Court. Both before Cole J and before the Court of Appeal Mr Cachia conducted his own case. The appeal to the Court of Appeal was heard on 25 June 1992. The judges who heard the appeal were Clarke JA, Cripps JA and myself. In the appeal Mr Cachia contended, in both written and oral submissions, that Cole J had fallen into error in various respects in his judgment at first instance. After hearing argument from both sides the Court of Appeal reserved its decision and, some months later, gave its judgment. The judgment of the Court of Appeal was that the appeal from the decision of Cole J should be dismissed. The reasons for judgment of the Court of Appeal were delivered in the judgment of Clarke JA who wrote the leading judgment. Cripps JA and I both wrote very short judgments in which we simply expressed our agreement in the judgment of Clarke JA. Mr Cachia then made an application for special leave to appeal to the High Court. In that application he asserted various errors which he said were to be found in the judgment of Clarke JA. He also asserted that he had not received a proper hearing in the Court of Appeal. That is an assertion that he has repeated this afternoon and it is of some importance to note the basis upon which that assertion is made. In both written submissions and in oral argument before the High Court, and before this Court, Mr Cachia's reasoning has been as follows. He has attributed to Clarke JA a number of errors which he says were fundamental errors, and then he has gone on to say the circumstance that Cripps JA and I simply expressed brief agreement with Clarke JA demonstrated that we had not given independent consideration to the matter. How otherwise - Mr Cachia asks - could we have fallen into the same errors as those he attributes to Clarke JA? Mr Cachia's argument in this respect is summed-up in paraS.15.3 of his written submissions to this Court which are to the same effect as submissions he has previously made to the High Court. That paragraph is in the following terms: 2 UNREPORTED JUDGMENTS "Tf, in my submissions herein, I have succeeded to prove that his Honour Justice Clarke, with respect, has erred on even a few of the issues which I have put in contention then it must follow that their Honours Chief Justice Gleeson and Justice Cripps were also wrong by virtue of the fact that they agreed with him. The possibility that by chance and coincidence three judges fall into the same basic and fundamental errors is insignificantly remote. Therefore, by the fact that Chief Justice Gleeson and Justice Cripps agreed with Justice Clarke on the same basis and fundamental errors is prima facie evidence that their Honours Gleeson and Cripps did not, with respect, bring an independent mind to bear in the adjudication of the matter. The Court did not exercise its function." Mr Cachia argued his own application for special leave to appeal to the High Court, and the High Court refused leave. On 6 April 1993 the order of the Court below dismissing the appeal from Cole J was entered. The application for special leave was heard on 9 August 1993. Subsequently Mr Cachia made a further application to the High Court for special leave to appeal or, perhaps more accurately, his application was for the Court to re-open its decision to refuse special leave to appeal. At all events, on the second occasion he was represented by senior counsel. In the course of argument senior counsel once again took the High Court to the principal grounds upon which it was alleged the judgment of the Court of Appeal had been in error. Once again the High Court refused Mr Cachia's application. Mr Cachia has now come back to this Court with a motion seeking to vacate the Court's original order dismissing the appeal from Cole J. He asks for an order that the matter be re-opened and heard further. In support of that application he has filed an affidavit and further lengthy written submissions. The principles governing the approach that the Court should take to an application of this kind appear in the following, amongst other, authorities: Bailey v Marinoff 125 CLR 529; Gamser v The Nominal Defendant 136 CLR 145; Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319; Wentworth v Rogers (No 9) (1987) 8 NSWLR 388; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd 150 CLR 29. I do not intend, for purposes of this judgment, either to repeat or to summarise those principles. In support of his application Mr Cachia, once again, maintains that the judgment of the Court of Appeal and, in particular, the reasoning of Clarke JA, was affected by fundamental error including errors in the construction and application of the relevant Statutes. This, says Mr Cachia, constitutes a failure of the Court in its application to observe and apply the law as enacted by Parliament. Each and every one of the errors relied upon in this application by Mr Cachia had expressly been relied upon in his applications to the High Court. I should add that the High Court dismissed the application for special leave to appeal upon the ground that it did not see sufficient prospects of success to warrant the granting of leave to appeal. Then, as I mentioned earlier, there is the argument by Mr Cachia that because the other two members of the Court simply agreed in the judgment of Clarke JA, which judgment is assumed to contain the supposed errors, it ought therefore be inferred that they did not give proper attention to the matter. URJ CACHIA v ST GEORGE BUILDING SOCIETY LTD (Priestley JA) 3 It is to be noted, in connection with that argument, that the supposed errors upon which Mr Cachia relies are errors that were evidently made by Cole J in the first place, repeated by Clarke JA, accepted uncritically - so Mr Cachia would have it - by the other members of the Court of Appeal and then, finally, errors which, although brought to the attention of the members of the High Court were insufficient to persuade their Honours that the case warranted special leave to appeal. The matters relied upon by Mr Cachia are not of such a kind as could sustain an application of the nature with which we are here concerned. The matter is complicated by the consideration that Mr Cachia seeks to have the earlier decision of the Court of Appeal reviewed, and in part reviewed on the merits, by a differently constituted Court of Appeal and submits that Clarke JA and I should disqualify ourselves from dealing with this application. He puts this submission in part upon the basis that it is incongruous and inappropriate that we should sit to consider an argument that we earlier erred, or that we earlier failed to give the matter adequate consideration. It would, however, be equally incongruous and equally inappropriate that some other members of the Court of Appeal should sit to hear an argument that our earlier judgment was affected by error or that the circumstance that we made or agreed in certain errors included that some of us did not give the matter proper consideration. The incongruity in both cases arises from the nature of Mr Cachia's proceeding. In my view the application that we should disqualify ourselves from sitting should be refused. We should not allow a litigant to put us in the position that I earlier described as incongruous and inappropriate by making a submission of that character. The application which is made to this Court by Mr Cachia, having regard to the basis upon which it is brought and to the principles enunciated in the cases mentioned earlier is, in my view, misconceived. There is one further matter to which I should make reference in conclusion. In his affidavit of 2 May 1994, and also in his written submissions, Mr Cachia has made reference to what he says is a failure on the part of the bank to produce evidence in answer to a subpoena. This appears to involve, or to perhaps foreshadow, an argument that the judgment in favour of the bank was, in the first instance, procured by fraud. If it is desired to propound that argument then the way to do it is not to make an application to this Court to re-open its decision dismissing the appeal. There are procedures that are available in some circumstances when such a thing has occurred but the procedure that has been followed in the present case is not the appropriate procedure. I would propose that the motion be dismissed with costs. Priestley JA I agree. On the approach I take to this application I need only consider the question whether the Court has jurisdiction to entertain it. The matters material for considering this question are that Mr Cachia's appeal to this Court was dismissed and reasons given in the judgment dismissing it. Then, the formal orders disposing of the appeal were prepared and entered. There was then an application for special leave to the High Court, which was dismissed. There was then an application to re-open the dismissed application for special leave, which was dismissed. At that stage there was nothing further to be done in connection with the appeal that had been heard and decided by this Court. So far as I am aware there are no rules of Court which have any application to the situation which comes about after the final stage of an appeal has been reached. By "final stage" I mean the position where judgment has been formally entered 4 UNREPORTED JUDGMENTS and there is nothing further under the rules or in accordance with ordinary practice which can be done in regard to the litigation culminating in that appeal. That there are no such rules of Court by reference to which an argument could be mounted to the effect that the Court has jurisdiction conferred on it by the rules to entertain an application such as the present one seems to have been recognised by Mr Cachia in that, as I understand both his written submissions and his oral submissions, he was relying on the Court's inherent jurisdiction to entertain an application to reconsider a judgment of the kind I have been describing. It was decided by this Court in Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [1986] 7 NSWLR 319, that this Court is bound by two decisions in the High Court - Bailey v Marinoff (1971) 125 CLR 529 and Gamser v The Nominal Defendant (1977) 136 CLR 145 - to act on the view that this Court has no inherent jurisdiction to consider an application to re-open an appeal from this Court which has reached the final stage that I have referred to. In the Southern Cross Exploration case, at page 325, there was some discussion of the question whether the Court was bound by Bailey and Gamser in light of circumstances which could be said to bear upon the applicability of those decisions which had arisen since the decisions were handed down by the High Court. The conclusion of this Court was that, although there might be something to be said for a re-examination of Bailey and Gamser any restriction of Bailey, which was the primary of the two cases referred to, or refusal to follow it, could only be authorised by the High Court itself. That decision seems to me to be applicable to the present case. Mr Cachia was not able to refer the Court to any decision of the Court since Southern Cross Exploration which affected its authority or what it stated as being the rule governing this Court, having been decided since that case. Ordinarily this Court would not think it appropriate to rely on the research of an applicant in person for accepting a concession made by such a litigant that he was unaware of any authority in a particular field important to the decision of the particular matter; not only would the Court not ordinarily think it appropriate to accept such a concession, still less would it ordinarily think it appropriate to rely upon it. In the present case there seems to be some justification for thinking that Mr Cachia has made a thorough search of the decisions of this Court, both reported and unreported. In his lengthy, and extremely careful and detailed written submissions, he has, for example, referred to a case in this general area which was decided in July last year by this Court and has not been reported. The case does not support the proposition for which he cited it, but the fact he did cite it shows that he is capable of searching the unreported decisions of this Court for decisions relevant to his present application. I am not aware of any case myself in this Court which in any way affects the authority of Southern Cross Exploration and counsel for the respondent to this application was likewise unaware of any. In view of this convergence of understanding between all the parties who have had some occasion to be interested in the matter I think it is safe to set on the footing that the Southern Cross Exploration case remains the standing authority in this Court in regard to situations such as the present. There were two submissions made by Mr Cachia which, if there were anything in them, could have been of assistance to him in avoiding the application of the authority of the Southern Cross Exploration case. The first was his submission that, although formal orders had been entered in the present case following the dismissal of his appeal, those orders had been formally entered only so that he URJ CACHIA v ST GEORGE BUILDING SOCIETY LTD (Clarke JA) 5 might then be in a position to make his application for special leave to appeal to the High Court. Therefore, they should not be treated as formal final orders because it was his intention to carry on the litigation. I do not think this is a valid argument. The orders were final and formal orders in all senses relevant for this Court's purposes. What the intention was of the party who caused them to be entered seems to me to be irrelevant to their legal effect. The other argument was that the judgment of the Court dismissing his appeal was invalid for the reasons which he outlined in his written submissions and which the Chief Justice has summarised. Being invalid for those reasons, he said, it was as if it did not exist. This submission, in my view, is incorrect. Even if this Court were to make an order disposing of an appeal which involved some procedural mistake which could be called denial of procedural fairness or denial of natural justice that would not make the Court's order invalid. As an order of a superior court of record the order of the Court would remain valid and effective until such time as it was set aside by some appropriate procedure, if it were appropriate for it to be set aside and if there were some appropriate procedure available. Unless and until that happened the order will be as valid as any other order. Thus, the rule in Southern Cross Exploration applies to the order in the present case as much as to any other order of the Court. For those reasons it seems to me that this application is one which the Court has no jurisdiction to entertain or to grant and it should be dismissed with costs. Clarke JA I agree with the judgment of the learned Chief Justice and I do not propose to add any observations of my own. Gleeson CJ: The order of the Court will be that the motion is dismissed with costs. Counsel for the Appellant: In person Counsel for the Respondent: AJ Meagher/GS Ballard Solicitors for the Appellant: In person Solicitors for the Respondent: Allen Allen & Hemsley