CACHIA v WALKER & ORS [2000] NSWCA 5

New South Wales Court of Appeal

CITATION : CACHIA v WALKER & ORS [2000] NSWCA 5 FILE NUMBER(S) : CA 40359/95 HEARING DATE(S) : 8 November 1999 JUDGMENT DATE : 18 February 2000

PARTIES : SAVIOUR LAURENCE CACHIA v CHRISTINE LOUISE WALKER & ORS JUDGMENT OF : Mason P at 1; Stein JA at 1; Sheppard AJA at 1

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : Decided on the papers SOLICITORS : A: Mr Cachia R: J M Crestani, Parramatta CATCHWORDS : Motion to reopen appeal - orders entered - no question of principle DECISION : Application dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40359/95

MASON P STEIN JA SHEPPARD AJA

Friday 18 February 2000

SAVIOUR LAURENCE CACHIA v CHRISTINE LOUISE WALKER & ORS JUDGMENT 1 THE COURT: On 12 September 1998 this Court dismissed three related appeals, each brought from judgments of McInerney J in the Common Division. This Court's orders were entered. The appellant Mr Cachia sought special leave to appeal to the High Court. That leave was refused on 16 April 1999 for the following reasons delivered by Gleeson CJ: In this matter the applicant in the course of his submissions to the Court of Appeal made clear with considerable emphasis his attitude to the outcome of the appeal. He stated in written submissions under the heading "Please no new trial" a number of reasons why he was not pursuing an application for a new trial. He wrote, "The notion of a new trial so fills me with loathing and revulsion that I will go to any length to avoid it. Therefore I withdraw any pleading and any submission if these lead this Court of Appeal to a decision that a new trial should be ordered. I do so after having considered very carefully that to do so may conceivably result in my appeal being dismissed". In his application for special leave to appeal to this Court, and in the orders contained in the draft notice of appeal, the applicant, consistently with that earlier attitude, carefully framed the relief he sought in a manner which made no reference to the possibility of a new trial. The problem for the applicant is that if the submissions that he makes were to be accepted, the appropriate relief to be granted in the event of a successful appeal would be the very order which he says he does not seek, that is to say, an order for a new trial. In those circumstances, the application for special leave to appeal should be refused. In refusing the application the Court should not be taken to be endorsing all of the actions of the trial judge of which the applicant complains, or all aspects of the reasoning of the court of Appeal.