CACHIA v ST GEORGE BUILDING SOCIETY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF CRIMINAL APPEAL GLEESON CJ, CLARKE JA and MEAGHER JA 14 August 1995 [1995] NSWCA 68 Gleeson CJ. In October 1990, following a hearing before Cole J in the Commercial Division of this Court in proceedings brought by Mr Cachia against the St George Building Society, judgment was given for the defendant. Mr Cachia, who was and is conducting this litigation in person, then appealed to the Court of Appeal of this Court. The appeal came on for hearing before Clarke and Cripps JJA and myself. The appeal was dismissed. The principal judgment was written by Clarke JA, and his Honour's reasons were agreed in by Cripps JA and myself. 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. Mr Cachia argued his own application for special leave to appeal to the High Court and the High Court refused leave. The order of this Court dismissing the appeal from Cole J was entered on 6 April 1993, and the application for special leave was heard before the High Court on 9 August 1993. Subsequently, Mr Cachia, on this occasion represented by senior counsel, applied to the High Court to have the High Court reopen its decision to refuse special leave to appeal. The High Court refused Mr Cachia's application. In July 1994, Mr Cachia then made a further application to this Court to reopen its decision on the appeal from Cole J. That application was heard before Priestley and Clarke JJA and myself. The application was refused. My reasons for refusing the application, which were agreed in by Clarke JA, turned both upon questions relating to jurisdiction and upon questions relating to discretion. It is incorrect to assert that the reasoning of that decision was related solely to jurisdictional matters. Priestley JA, who reached the same conclusion as the majority, decided the matter on a purely jurisdictional basis. Thereafter, Mr Cachia made an application to the High Court for special leave to appeal against the decision of this Court of 13 July 1994, and the High Court refused that application. Mr Cachia now makes yet another application to this Court to reopen its decision on the appeal from Cole J. He seeks that the orders of 13 July 1994 be vacated and that the notice of motion filed in May 1994 be reopened and heard further. Mr Cachia argues, first, that the decision of this Court of July 1994 was based solely on jurisdictional grounds and, second, that since that decision, there has been a development in the law which, at the very least, calls in question the jurisdictional basis of the decision of July 1994. The first premise in the argument is incorrect. The decision of July 1994 was not based solely on jurisdictional grounds; it was also based on discretionary considerations which adverted to the merits of the matter. 2 UNREPORTED JUDGMENTS Furthermore, the fact that the High Court has refused leave to appeal from the decision of July 1994 on the basis that, even if it were correct that there were jurisdictional issues relating to a matter of this kind which ought to be the subject of consideration by the High Court, the case was not a proper vehicle for the consideration of those issues, is a matter of significance. This is the sixth attempt that Mr Cachia has made in an appellate court to overturn the decision of Cole J. The ground upon which he seeks yet again to have the matter reopened is not new. It is one that has been considered and rejected on previous occasions. The material and the arguments relied upon by Mr Cachia do not, in my view, warrant the reopening of the matter or the making of any of the orders sought in the notice of motion. I adhere to the views which T expressed on 13 July 1994, and nothing that has been put before this Court on the present occasion by Mr Cachia causes me to modify those views or to consider that their application to the facts and circumstances of this case requires to be altered. The respondent to this application seeks not only that the notice of motion be dismissed but also that there be an order for costs against Mr Cachia on an indemnity basis. In my view, costs should be ordered against Mr Cachia on an indemnity basis. Senior counsel for the respondent is right to submit that this is a hopeless application which should have been seen as such from the outset. Mr Cachia's pursuit of this litigation has gone well beyond the bounds of reasonable persistence, and the circumstances of the case are such that the making of an order for costs on an indemnity basis is entirely appropriate. I would propose that the notice of motion be dismissed and that Mr Cachia be ordered to pay the respondent's costs of the motion on an indemnity basis. Clarke JA. I agree. Meagher JA. I also agree. Gleeson CJ. The order of the court is as proposed. Orders accordingly.