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Williams v Spautz [1993] HCA 9; (1993) 112 ALR 191; (1993) 67 ALJR 388 (11 March 1993)

HIGH COURT OF AUSTRALIA

ALAN JOHN WILLIAMS AND ORS v. MICHAEL EDWARD SPAUTZ
F.C. 93/010
[1993] HCA 9; (1993) 112 ALR 191
(1993) 67 ALJR 388

HEARING

High Court of Australia
Mason C.J.(1), Brennan(1) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
11:3:1993

DECISION

MASON C.J., BRENNAN AND GAUDRON JJ. This is an application by the respondent in an appeal to this Court to vacate the order allowing the appeal and for a rehearing or a reconsideration of the appeal. The principle governing the exercise of jurisdiction to reopen a judgment and to grant a rehearing is well established. In University of Wollongong v. Metwally (No.2) ((1) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71.), the principle was expressed in these terms:
"Except in the most exceptional circumstances, it would be
contrary to all principle to allow a party, after a case had
been decided against him, to raise a new argument which,
whether deliberately or by inadvertence, he failed to put
during the hearing when he had an opportunity to do so."
[1982] HCA 41; 149 CLR 672, at p 684):

"Generally speaking, (the jurisdiction) will not be
exercised unless the applicant can show that by accident
without fault on his part he has not been heard."

2. The purpose of the jurisdiction is not to provide a means by which unsuccessful litigants can seek to re-argue their cases.

3. In this case, the applicant, who appears in person, relies principally on two matters in support of the relief which he now claims. Those matters are:

(1) that the Court did not deal specifically with 41 points
raised in a Notice of Contention which the applicant filed
in the appeal; and
(2) that the Court was wrong in holding that there was an
abuse of process.

4. The short answer to the first matter on which the applicant relies is that the 41 points in the Notice of Contention were disavowed in argument by counsel for the applicant, except to the extent that they were adopted by counsel in the general submissions that he put to the Court and which were dealt with in the judgments. In the course of argument during the appeal, the Chief Justice specifically asked counsel for the respondent:

"What about this notice of contention, Mr Cassidy? ...
Before you answer, I should make it clear that I am not
inviting you to address us at any length on it."

Counsel's response was:

"Your Honour, I did not intend to put any arguments to the
Court other than those which we have put, some of which have
perhaps adopted some points that were not dealt with in the
court. I do not know whether it was obvious from the typing
that the notice of contention was not of my authorship."

To the extent that the points of contention were taken up in the oral submissions put to the Court, they were dealt with in the judgments; and, to the extent that the points in the Notice of Contention were not raised by counsel, that was the consequence of a deliberate decision not to raise them or not to take the opportunity to raise them.

5. The applicant's submission that the Court was wrong in holding that there was an abuse of process is no more than an attempt to reagitate the case that was presented by counsel on his behalf on the hearing of the appeal. For that reason it does not constitute a ground for the exercise of the jurisdiction which the applicant seeks to invoke.

6. The application is dismissed.

ORDER

Application dimissed with costs.

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