Cachia v Walker & Ors

THE COURT:

On 18 February 2000 this Court (constituted by Mason P, Stein JA and Sheppard AJA) dismissed a Notice of Motion filed by the appellant on 2 September 1999. The motion sought orders setting aside the judgment and orders of the Court made on the 12 June 1998 or, alternatively, to re-open the appeal and be further heard. The motion was supported by an affidavit of the appellant and the Court received written submissions from the parties.

In giving judgment dismissing the application, the Court noted that special leave to appeal had been refused by the High Court. Firstly, on 16 April 1999 and, after a bid by Mr Cachia to have his special leave application re-opened, refused again on 6 August 1999. In giving reasons for judgment, this Court considered and dealt with the arguments made by Mr Cachia in support of his Notice of Motion.

Undeterred, the appellant took out a further Notice of Motion on 10 November 2000, supported by an affidavit sworn that same day. This motion sought the vacation of the judgment and orders made on 18 February 2000 and an order that his Notice of Motion of 2 September 1999 be heard.

The Registrar made directions for the filing of submissions by the parties, noting that the appellant would rely on his affidavit and file submissions in reply to those of the respondents. The Court received the written submissions of the respondents dated 15 December 2000, and later, the appellant’s written submissions dated 12 January 2001.

For the purposes of consideration of the appellant’s contentions, let it be assumed, without deciding, that the Court has power to make the orders sought by him.

With one exception there is nothing new in the appellant’s contentions. There is simply no reason demonstrated to justify re-opening the Notice of Motion of 2 September 1999 (or, for that matter, this Court’s original judgment on the appeal of 12 June 1998). In this regard, there is neither need, nor point, in re-stating what the Court said in its reasons of 18 February 2000.

The exception is that the appellant complains that he was not orally heard by the Court, see his affidavit sworn 10 November 2000. The Court was not bound to accord the appellant an oral hearing of his motion of 2 September 1999. Mr Cachia placed extensive written submissions before the Court, in chief and in reply. The Court was entitled to conclude that the appellant had raised all the matters that he wished to raise.

The Notices of Motion of 10 November 2000 should be dismissed with costs. oOo