Cameron, B.A. v Rural Press Ltd
[1992] FCA 179
•14 APRIL 1992
Re: BARBARA ANN CAMERON and GAMESTER PTY LTD
And: RURAL PRESS LTD; JOHN LINDSAY PARKER and TIMOTHY ROY STARKEY
No. G521 of 1986, G646 and G839 of 1991
FED No. 179
Practice and Procedure
(1992) 35 FCR 211
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Davies(1) and Neaves(1) JJ.
CATCHWORDS
Practice and Procedure - appeals and application to the full court - litigant in person unable to proceed - whether an adjournment of the Full Court proceedings should be granted - whether adjournment required as an appeal to the Legal Aid Review Committee had been lodged - whether the Court should dismiss the appeals and applications.
HEARING
SYDNEY
#DATE 14:4:1992
Counsel for the Respondents: A.S. Martin
Solicitors for the Respondents: Sly and Weigall
ORDER
Matter No. NG646 of 1991
1. The appeal be dismissed with costs.
2. The motion, notice of which was filed on 23 December 1991 and relating to the timetable for the index of the appeal books, be refused with costs.
Matter No. NG839 of 1991
The appeal be dismissed with costs.
Matter No. NG521 of 1986
1. The motion, notice of which was dated 16 April 1991 relating to leave to appeal against the orders of Beaumont J. made 16 April 1991, be refused with costs.
2. The applications for leave to appeal from the orders of Sheppard J. made on 25 and 26 July 1991 be dismissed with costs.
3. The motions, notice of which was filed on 18 October 1991 relating to the preliminary settlement hearings and leave to appeal, be refused with costs.
4. The motion, notice of which is dated 18 December relating to leave to appeal from orders made by Sheppard J. on 29 November 1991, be refused with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The two appeals, being matters No. NG 646 of 1991 and No. NG 839 of 1991, had been fixed for hearing on 27 February 1992. On 31 January 1992 in each of the three matters presently before the Court, the Court constituted by Lockhart J., made a series of orders to the effect that the appeal No. NG 646 of 1991 should not be the only matter to proceed before the Federal Court on 27 February 1992 but that the two appeals be listed before the Full Court on that day and that all extant notices of motion or applications for leave to appeal in matters No. NG 521 of 1986, No. NG 646 of 1991 and No. NG 839 of 1991 or otherwise related to any of those matters be listed before the Full Court on 27 February 1992. Other orders were made but need not be referred to at the present time.
When the matters were called on before the Full Court on 27 February 1992 Ms Barbara Ann Cameron appeared on her own behalf and was granted leave, pursuant to O.9 r.1(3) of the Federal Court Rules, to appear on the hearing of the matters for Gamester Pty Ltd, a company apparently controlled by her. The respondents were represented by counsel. Ms Cameron sought an adjournment of the hearing of the matters on a number of grounds. After hearing submissions by Ms Cameron and submissions by counsel for the respondents, the Court announced that it refused the adjournment and that it would publish its reasons for so refusing at a later date. The Court directed that Ms Cameron proceed with the presentation of her case in support of the two appeals. After further discussion the Court adjourned the further hearing of the three matters until 10.15 am on 28 February 1992 and made it clear to Ms Cameron that the Court proposed to proceed with the hearing of all the matters at that time and would not hear any applications for further adjournments.
In order to understand the matters presently before the Court it is necessary to give a brief summary of the history of the matters. In November 1986 Ms Cameron and Gamester Pty Ltd commenced proceedings in the Federal Court against the respondents in matter No. NG521 of 1986. The claim was for relief based upon contraventions by the respondents of the provisions of the Trade Practices Act 1974 and related claims. After a very large number of directions hearings, the Court, constituted by Pincus J., commenced hearing the application on 12 March 1990. On 19 March 1990 the Court dismissed the application for want of prosecution. On 5 June 1990 a Full Court of the Federal Court constituted by Burchett, Gummow and Hill JJ. heard an appeal from the order of the Court dismissing the application and also heard applications for leave to appeal from a number of interlocutory matters which had occurred prior to the dismissal of the application on 19 March 1990. On 20 July 1990 the Full Court dismissed the appeal with costs and refused leave to appeal against any of the earlier interlocutory orders. Normally this should have been the end of the matter since the application had been dismissed, an appeal from that order had been dismissed and the application had been brought to an end. As a matter of interest it is noted that on 4 October 1991 the High Court constituted by Brennan, Dawson and Toohey JJ. refused an application for special leave to appeal from the orders of the Full Court of the Federal Court of Australia made on 20 July 1991.
By notice of motion dated 9 July 1990 in matter No. NG521 of 1986, Ms Cameron and Gamester Pty Ltd sought a large number of orders, the most important one being an order that the Court enforce a settlement allegedly reached as set out in the affidavit in support. No doubt, the correct procedure would have been to institute a separate application. However, no objection was taken to the applicants' process. Apparently the applicants contended that before the making of the order dismissing the application on 19 March 1990 an agreement had been reached whereby the proceedings had been settled. The applicants, by motion, sought to enforce that agreement. This agreement had not been alleged before the Trial Judge nor before the Full Court of the Federal Court of Australia. The reasons for decision of the Full Court make clear the reasons why the application had been dismissed and there is no suggestion contained in the reasons of any alleged settlement of the proceeding. On 20 March 1991 the Court constituted by Sheppard J. dismissed the motion of 9 July 1990 in so far as it sought to obtain an order to enforce the settlement as alleged. The order made was that paragraph 1 of the notice of motion of 9 July be dismissed with costs. It is not necessary at this stage to refer to the large number of other orders sought by the applicants pursuant to that notice. For present purposes it is sufficient to say that by a notice of motion dated 8 April 1991 and filed on 14 April 1991 the applicants sought a large number of orders including an order as follows: "8. An order that the agreement as amended by the Court be binding." On 25 July 1991 the Court, constituted by Sheppard J., at the request of Ms Cameron, amended paragraph 8 to read: "An order that the agreement reached in the documents annexed to the affidavit of Ms Cameron of 24 July 1991 be declared to be binding." Presumably, the applicants sought both an order amending the draft terms of settlement to exclude therefrom provisions to which the applicants objected and also an order that the terms as so amended be binding on the parties.
On 1 October 1991 the Court constituted by Sheppard J. ordered that paragraph 8 of the notice of motion of 8 April 1991 as amended on 1 October 1991 pursuant to leave granted on 25 July 1991 and the other paragraphs being 2 to 7 inclusive and 9 to 15 inclusive of the notice of motion of that date be dismissed for want of prosecution. This order dealt with all, except two, of the orders sought by the notice of 8 April 1991. The two not dealt with related to matters overtaken by time and could have had no further application.
The applicants appealed from this order and that appeal is matter No. NG646 of 1991. By their amended notice of appeal filed on 1 8 December 1991, the appellants appealed from "the whole of the judgment of Sheppard J. given on 1 October 1991". The order made on 1 October 1991, which was entered on 11 November 1991 is as follows:
"1. The application that I disqualify myself for actual or apprehended bias is refused.
2. Paragraph 8 of the Notice of Motion of 8 April 1991 as amended on 1 October 1991 pursuant to leave granted on 25 July 1991 (see page 32 of the transcript) and paragraphs 2 to 7 inclusive and 9 to 15 inclusive of such Notice of Motion are dismissed for want of prosecution.
3. The applicants pay to the respondents the costs of that Notice of Motion including any amount reasonably incurred for the costs of arranging for transmission by video of the evidence by Mr Williams from London.
4. All other Notices of Motion taken out by any party are stood over to 24 October next at 9.30 am before me for directions.
5. The Court directs that: the Registrar notify the applicants of the terms of these orders and of the date and time for the listing for directions of the remaining Notices of Motion."
Reasons for judgment for the orders made were published by Sheppard J. on 30 September 1991, 1 October 1991 and 7 November 1991. The reasons for judgment are of importance since they illustrate a pattern which has been followed by Ms Cameron every time a matter in which the applicants were seeking orders came on for hearing.
On 24 October 1991, the proceedings in matter No. NG521 of 1986 came on for hearing before the Court constituted by Sheppard J. On that day His Honour directed that all outstanding motions in that proceeding would be adjourned to 29 November 1991 for hearing. On 29 November, Ms Cameron sought, unsuccessfully, an adjournment of the hearing. The hearing was part heard and adjourned to 6 December 1991. On 6 December 1991 Ms Cameron was not present in Court but counsel on behalf of the applicants sought, unsuccessfully, an adjournment of the further hearing of the motions. Thereafter, counsel for the applicants withdrew and the hearing continued in the absence of the applicants. A number of orders were made on 6 December 1991. The order which was entered on 12 February 1992, is in the following terms:
"1. The Applicants' motion (comprising paragraphs 1 and 3 to 9) dated 10 December 1990 and filed 10 December 1990 be dismissed.
2. The Applicants' motion dated 16 January 1991 and filed 6 December 1991 be dismissed.
3. The Applicants' motion dated 25 February 1991 and filed 1 March 1991 be dismissed.
4. The Applicants' motion dated 11 March 1991 and filed 20 March 1991 be dismissed.
5. The Applicants' motion dated 10 July 1991 and filed 15 July 1991 be dismissed.
6. The Applicants' motion dated 27 May 1991 and filed 27 May 1991 be dismissed.
7. The Applicants' motion dated 26 August 1991 and filed 30 August 1991 be dismissed.
8. The Applicants' motion dated 9
September 1991 and filed 16 September 1991 be dismissed.
9. Paragraphs 1, 5 and 6 of Applicants' motion dated 30 July 1990 and filed 24 July 1990 be dismissed.
10. The stay of execution of orders for costs granted pursuant to Order made on 6 June 1989 be removed.
11. The stay of execution of orders for costs granted pursuant to Order made on 7 September 1989 be removed.
12. The Applicants' motion filed 25 November 1991 (returnable 29 November 1991) be dismissed.
13. The Applicants pay the Respondents their costs of all Applicants' notices of motion dismissed on 29 November 1991 and 6 December 1991 and of the Respondents' notice of motion dated 16 August 1990."
The appellants appealed from this order and that appeal is matter No. NG839 of 1991. By their amended notice of appeal filed on 4 February 1992, the appellants appealed from "the whole of the judgment of Sheppard J. given on 6 December 1991".
In the litigation, a consistent pattern has emerged. The applicants, represented for the most part by Ms Cameron, have been industrious in pursuing interlocutory motions and appeals. But when finality has approached, Ms Cameron has sought an adjournment, generally on medical grounds.
Pincus J. finally refused an adjournment stating, inter alia:
"There have been numerous interlocutory hearings. There was some dispute as to how many such hearings there were, but certainly dozens of them over a long period of time. The medical certificates which I have previously been shown and which I have mentioned briefly show, in my opinion, that the stress-related illnesses were connected with the case. They were, in short, nervous disabilities. Such disabilities, one knows, can be distressing. I reiterate, however, I have taken into account my own impression of Ms Cameron in court. It was that she was quick-witted, looked well and never showed any sign of being unable to answer as quickly as anyone could reasonably be expected to answer. She was, I thought, capable of carrying on vigorous debate over long periods of time.
The critical point, however, about the medical certificates I was shown last week was that they emphasised that it was the litigation which was causing the medical problems to persist. Mr Bruce (counsel for the respondents) argued, and I think he was right, that it would be unlikely that adjourning the case would improve matters. In fact, if it is the case that she is as ill as is claimed, Miss Cameron's illness would seem to be likely to be aggravated by prolonging the litigation further. There was no suggestion in the medical reports that merely delaying the case would be likely to help; the suggestion rather was to get it over with."
As Ms Cameron did not proceed, Pincus J. dismissed the proceedings for want of prosecution. Burchett, Gummow and Hill JJ. dismissed an appeal and subsequently special leave to appeal was refused by the High Court.
That should have been an end to the matter, but the applicants then instituted further proceedings seeking to enforce an alleged settlement of the proceedings arrived at before Pincus J. had dismissed them. The applicants sought also an order amending the terms of the settlement to omit those terms which were not acceptable to the applicants.
Sheppard J. likewise was unable to bring those proceedings to finality. Ultimately, after refusing an adjournment of the trial, his Honour dismissed the proceedings for want of prosecution. In the course of his reasons for refusing an adjournment, his Honour said:
"The proliferation of directions hearings in the case, of notices of motion and of applications of various kinds, has continued since the dismissal of the appeal by the Full Court. In the earlier stages of the litigation before the dismissal of the applicants' claim, Wilcox J. had control of the matter. The Court statistics indicate that there were more than 40 directions hearings before him. The matter then came under my supervision. I have not done a count of the directions hearings that I have had, but I think without exaggeration that they must have already reached the number of 40 achieved by Wilcox J. They have related either to the preparation of the principal case for hearing or to proceedings instituted since that case was heard and the appeal was dismissed.
There have been frequent references over the years that this matter has been in the list concerning Miss Cameron's health. The certificates to which I have referred today are not the only certificates which have been given to the Court from time to time in relation to that matter. A number of others are amongst the Court records. I think I am correct in saying that I have seen on previous occasions all the certificates upon which reliance is currently placed, except those of Dr Crawford and Dr Norrie, and possibly that of Professor May. If I have not seen that particular one, before I have seen one like it.
...
I can only say that over the period that I have had directions hearings in this case, the sort of thing that is said in this affidavit about the possibility of legal aid, about the possibility of someone else representing her, about the difficulty she has in conducting her case on her own - and I can understand that - and the possibility that someone from the profession will appear for her, have been mentioned on frequent occasions. It is something which is said from time to time. But nothing ever comes of it. It is again something that simply goes on and on. And I cannot regard what is said today in this affidavit or has been said in the submissions that have been made to me, as falling into any other category than this if one looks back over the years at the sort of statement that one finds in this affidavit."
Subsequent to the orders of Sheppard J., Ms Cameron was again active in filing notices of motion.
When the matters came on for hearing on 27 February 1992 before the Full Court as presently constituted, Ms Cameron sought an adjournment of the hearing. Essentially she relied upon three main grounds which can be defined as follows: 1. medical; 2. legal aid; and 3. no appeal books. We shall deal with each of these grounds but we make it clear that neither severally nor cumulatively were they sufficient to justify an adjournment in the very special circumstances of these matters.
1. MedicalMs Cameron handed to the Court two handwritten medical certificates from a Dr M. Davis, a general practitioner. They are undated, but, apparently, were written on 26 February 1992. One reads as follows:
"To Whom It May Concern
This is to state that Ms Barbara Cameron is only capable of limited attendance in court (up to 2 hours) due to a severe oesophageal ulceration for which she is receiving medication."
The second reads as follows:
"To whom it may concern this is to state that I have examined Barbara Cameron who is suffering from chest pains and in my opinion it is important that she sees her cardiologist Prof Hickey tomorrow morning (27.2.92). Her cardiograph (dated 26.2.92) shows some variations which the Professor needs to examine and compare with previous tracing."
In addition Ms Cameron spoke at length about her medical condition and health.
By themselves, the two medical certificates do not justify the granting of an adjournment. Ms Cameron appeared on 27 February 1992. She presented submissions during a two hour period. She appeared again after the luncheon adjournment and made further submissions. Having regard to the past pattern, the history of these matters and the constant production of medical certificates relied upon to justify the granting of adjournments when a hearing to deal with the substance of her claims is about to commence, the Court was not satisfied that an adjournment should be granted.
There is no doubt that Ms Cameron has health problems, and it appears that some of her health problems may be serious. But Ms Cameron is aware of her problems and, if the applicants wished to litigate, it was necessary for the applicants to be represented by someone who could appear throughout a crucial hearing. Ms Cameron has not been able to do that. She is vigorous in litigation. But save for her appearance before Burchett, Gummow and Hill JJ., she has not appeared throughout a final hearing. And although Ms Cameron has been in contact with lawyers, and from time to time a lawyer has appeared to convey a message, nevertheless, the applicants have not arranged for legal representation.
In brief, Ms Cameron's health problems must be weighed against the need to provide justice to the respondents. The function of the Court is not only to ensure that the parties have a fair opportunity to prepare for a trial or hearing but also to ensure that litigation is brought to finality. Only in an exceptional case would a court not adjourn proceedings to accommodate medical problems suffered by a party or essential witness. However this is an exceptional case. Justice could not have been achieved by adjourning these proceedings. The time had come for this litigation to be dealt with finally.
2. Legal AidMs Cameron sought legal aid with respect to the appeals which had been filed. Previously she had been granted legal aid with respect to the original application in matter No. NGr21 of 1986, but that aid had been withdrawn. Her request for legal aid with respect to the appeals presently before the Court was refused. Apparently the request was made well after the notices of appeal had been filed. Ms Cameron handed to the Court correspondence between herself, the Legal Aid Commission and the Legal Aid Review Committee. That correspondence is set out:
(a) Legal Aid Commission to Solicitors for Ms Cameron dated 23 January 1992: "Re: Barbara Ann Cameron
I refer to the application for legal aid submitted by you on behalf of the abovenamed.
The Commission has adopted policy guidelines in relation to certain matters including business disputes. Legal aid is only granted in such matters if the legal aid application discloses cogent reasons for a grant of legal aid and that there would be undue hardship to the applicant in the event of a refusal.
A determination has been made to refuse the application as it does not satisfy these requirements.
No determination has been made of the prospects of success of the proceedings.
Your attention is drawn to Section 56 of the Legal Aid Commission Act, 1979, which enables your client to appeal to the Legal Aid Review Committee if dissatisfied with the determination referred to herein, PROVIDED THAT such appeal is lodged with the Commission in writing within a period of twenty-eight (28) days after the date on which notice of the determination was brought to your client's attention. Your attention is also drawn to Section 57 of the Act which provides for the adjournment of proceedings by a Court or Tribunal pending determination of an appeal by the Legal Aid Review Committee.
In accordance with the provisions of Section 34(2) of the Act a copy of this letter is being sent to your client(s)."
(b) Ms Cameron to Legal Aid Commission dated 12 February 1992:
"This letter is in reply to your letter dated 23.1.92 but received by E.H. Tebbutt and Sons on 28.1.92. E.H. Tebbutt and Sons have withdrawn from this matter because we did not get legal aid. However we have another solicitor who is prepared to take it on if we get legal aid. The situation is becoming crucial because the hearing is set down for 26th and 27th of February 1992.
Mr David Bennett QC has agreed to act without payment but he insists that he is instructed by a solicitor and has a junior counsel to help him. Mr John Coombes QC has spoken with someone in your office. I cannot now recall who. Mr Sainsbury from Tebbutts is a young solicitor not experienced in litigation. It seems he forgot to include in the application the copy of my pension card and the letter stating that we had prospects of success. This is an independent opinion I got from a very good and honourable solicitor who read all of the material.
Mr Sainsbury cannot remember what material he sent you. There is a strong likelihood that he sent you the wrong affidavit with reference to the letter he sent you. Could you please by return mail tell me exactly what was sent to you. It should have been an affidavit of mine dated 24.7.91 and no other affidavit. He states that you were sent a draft affidavit. I need to know what that was. WE WANT TO APPEAL AGAINST YOUR REFUSAL TO GRANT AID but do not know the procedure at the moment. Could you please reply setting out clearly what we must do to appeal. We would also be grateful for any evidence and material you may have which would assist us in enforcing a stay in the Federal Court. So far they have not given us a stay. They say the New South Wales Legal Aid Commission Act does not apply to the Federal Court. My view is that if we can apply for legal aid for a Federal Court matter we ought then to be able to have all of the conditions which are attached to the application. This is important.
Please find enclosed:
(a) The opinion of Mr Dale Kemp as to prospects of success.
(b) A copy of my pension card. I am not well enough to go out and copy the letters at the moment from my Doctor but I am on a pension because I am not well enough to work. Both my GP and my specialist say I could die from either a ruptured ulcer or burst aneurism if I have to try and conduct the case myself.
Please write to the above address or phone me on 359 2314. Please keep my phone number extremely confidential as I have been threatened that I will be murdered if I do not give up this case. The police have advised that I do not give my phone number to anyone."
(c) Ms Cameron to Legal Aid Commission dated 14 February 1992:
"I refer to our conversation by phone today in which you advised me to write to you about the commercial aspects of the application.
The matter is not really commercial. It is seeking to enforce a contract. If we are successful I will get all the money, not Gamester.
I am on an invalid pension. If I get the money I can buy a flat in which to live which will save the government the rent supplement to my pension. I will never be able to work again and without this money I must face a life of destitution on a pension which does not cover the costs of medical care I need.
I have fought this case for 9 years and lost everything I owned. We did not start the case. Rural Press did in the District Court. We were advised to cross claim in the Federal Court.
WE failed to get a stay granted under the Legal Aid Commission Act. The Court said it did not apply to the Federal Court. I will try and get the High Court to enforce it but the Federal Court rejected it on the basis that it had no evidence of an appeal before it even though the solicitor who kindly acted for me without payment said we had sent a letter appealing. The matter has become very urgent indeed because the hearing is on Thursday the 26 February 1992."
(d) Legal Aid Review Committee to Ms Cameron dated 21 February 1992:
"I refer to your telephone call today, and as requested, confirm that you have lodged an appeal to the Legal Aid Review Committee against the refusal of the Legal Aid Commission to grant you legal aid in relation to proceedings in the Federal Court.
I understand that you have advised Mr Berry that you will be submitting some additional documents in support of your appeal.
On receipt of same, the file will be prepared for submission to and consideration by the Legal Aid Review Committee. The period of four to six weeks should be allowed for this process."
In addition, Ms Cameron handed to the Court a letter from Mr Bennett confirming the contents of paragraph 3 of the letter of 12 February 1992 insofar as it refers to him. His letter is dated 27 February 1992, and includes the following paragraphs:
"3. Last Friday, 21 February you advised me that Mr Webeck of Webeck Farland Pender might be prepared to act.
4. On Monday I spoke to Mr Webeck. He confirmed that he had been asked to act and advised that he was looking at the position. I told him a considerable amount of preparation would need to be done before Wednesday (when I would return from Canberra) in order for it to be possible for me to appear.
5. On Wednesday, 26 February Mr Webeck advised me that he would not be prepared to act in relation to the appeal. Accordingly, I regret that I am unable to assist you."
Section 56 of the Legal Aid Commission Act 1979 (NSW) enables a person who is dissatisfied with a determination of the Commission to grant legal aid, to appeal to a Legal Aid Review Committee. Section 57 of the Act provides:
"57. Where it appears to a court or
tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined; or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent;
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings; and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit."
Ms Cameron contended that under this section, the Court was required to adjourn the hearing of the appeals.
For present purposes, and without expressing any view on the question, it can be accepted that these provisions, though contained in a State Act, apply to or should be applied in proceedings in the Federal Court of Australia. The requirement of sub-paragraph 57(a)(i) is satisfied in that Ms Cameron has appealed to a Legal Aid Review Committee against the refusal of the Legal Aid Commission to grant her request for legal aid with respect to the two appeals presently before the Full Court and the appeals have not been determined. However, before the apparently mandatory provisions of s.57 apply, two further conditions precedent must be satisfied, namely it must appear to the Court that the appeal to the Review Committee is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the appeals and that there are no special circumstances that prevent the Court from doing so, that is from adjourning the appeals (emphasis added).
The Court is not in a position to express any view on whether the appeal to the Legal Aid Review Committee is likely to succeed or not, or in other words, whether Ms Cameron is likely to obtain a grant of legal aid. What is postulated is that, in substance, it must appear to this Court, that the appeal to the Review Committee "is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings". Thus, if it appears to this Court that the appeal to the Review Committee is not bona fide, or that the appeal is frivolous, or is vexatious or is otherwise intended to improperly hinder or improperly delay the conduct of the appeals in the Federal Court, the apparently mandatory provisions of s.57 of the Act have no application.
The Court can accept that subjectively Ms Cameron is making a bona fide appeal to the Review Committee, but that, by itself, is not sufficient. The Court must have regard to objective standards taking into account all relevant material applicable to the particular matters before the Court. In this regard, the Court is entitled to have regard to all relevant material extending back to 1986 when matter No. NG521 of 1986 was instituted. In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 the Australian Industrial Court constituted by Northrop J. had to consider the construction and application of s.197A of the Conciliation and Arbitration Act 1904 then in operation. In substance, that section provided that a party to a proceeding before the Court should not be ordered to pay costs incurred by any other party "except where the party against whom the order is made instituted the proceedings vexatiously or without reasonable cause". At pages 272-274, the Court considered principles applied to the striking out of proceedings on the ground of being vexatious or disclosing no reasonable cause of action, and at pages 274-275 the Court said:
"Section 197A is to be considered when proceedings in the court have been completed and dismissed. The principles set out above are to be applied at an early stage of the course of the proceedings. In my opinion, similar principles are to be applied when considering the matters raised by s.197A. Great care must be exercised to ensure that in finding that a party has instituted proceedings vexatiously or without reasonable cause, that party is not improperly deprived of his freedom from liability to pay costs to an opposing party. The test is a substantial one.
In considering this matter the court must have regard to all the material properly before it. The test is not subjective to the party instituting the proceedings as at the time of the institution of the proceedings. The conduct of the opposing party prior to the institution of the proceedings may be relevant in deciding whether the proceedings were instituted vexatiously or without reasonable cause. The conduct of the opposing party both prior and subsequent to the institution of proceedings may be relevant to the discretion remaining in the court."
Similar principles should be applied to the present matter. The history of the litigation between the appellants and the respondents has been set out already, albeit in summary form. As appears from what is said above there had been many interlocutory motions taken by Ms Cameron before the hearing of the application began before Pincus J. There had been numerous applications for leave to appeal from orders made in those interlocutory matters. On 7 September 1989, a Full Court of the Federal Court refused leave to appeal from an interlocutory order. In its reasons for judgment dated 20 July 1990, the Full Court heard "a number of applications for leave to appeal against various interlocutory orders". Leave was refused. Since then, a reference to the reasons for judgment given by Sheppard J. and referred to earlier in these reasons, show that many interlocutory orders had been sought by Ms Cameron since 20 July 1990. Further, at no stage has the original application nor the motions for relief based upon agreements reached during the period the original application was in existence, nor the many interlocutory motions thereafter, been heard on the merits. Ms Cameron has not appeared to complete her claims on the merits.
In the present cases, the relevant proceedings are the two appeals being matters No. NG646 and No. NG839 of 1991. Having regard to the earlier history of the litigation between the parties to these appeals, the fact that legal aid in matter No. NG591 of 1986 was withdrawn before trial and the fact that the request for legal aid was made after the appeals were instituted, it did not appear to this Full Court that the appeal by Ms Cameron to the Review Committee was, objectively, bona fide. Further, it did not appear to the Court that the appeal was "not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct" of the two appeals presently before this Full Court. It may well be that Ms Cameron does not carry any onus of proof to prove a negative. Probably the respondents do not have any onus of proof to establish that the appeal to the Review Committee is frivolous etc. The Court must have regard to all of the facts and circumstances. On this basis it appeared to the Court that the requirements of sub-paragraph 57(b) of the Legal Aid Commission Act 1979 do not apply. In other words, it did not appear to the Court that any of the conditions precedent contained in that sub-paragraph were satisfied. It follows, therefore, that that section did not require this Court to adjourn the hearing of the two appeals before the Court.
In any event, this was one of those special cases where justice could only be done if the hearing proceeded. The cost to the respondents of the proceedings to the date of the hearing of the appeal were unreasonably high having regard to the issues involved. Sheppard J. in the passage cited above mentioned a number of interlocutory hearings which exceeds by far our experience of the interlocutory proceedings in a matter before this Court. And the claim is, on its face, extraordinary. The proceedings in relation to the alleged settlement seem, on their face, to have little prospect of success.
In these special circumstances, justice required that the adjournment be refused. 3. No Appeal Books
Order 52 of the Federal Court Rules contains provisions relating to appeals and in particular reference is made to O.52 r.24 and the following rules. The appellants were using many excuses to avoid compliance with the rules. Many are set out in an affidavit sworn by Ms Cameron on 21 February 1992 and filed in matter No. NG646 of 1991. The matters had been listed for hearing on 27 February 1992 and no appeal books had been prepared by the appellants by 31 January 1992. The Court, constituted by Lockhart J., had made the orders for the hearing of the appeals and other matters to be listed for hearing on 27 February 1992. On 13 February 1992, a Deputy District Registrar had exercised the powers conferred by O.52 r.37A and had given a number of directions. That rule provides as follows:
"37A. At any time after the filing of
the notice of appeal the Registrar may give directions as to any matter which appears to him to be a convenient matter upon which to give directions."
Under O.1 r.4 the word "Registrar" in the Federal Court Rules, is defined to include a Deputy District Registrar. The directions so given were:
"1. DETERMINE that there shall be one set of appeal papers and one index of the documents comprising those appeal papers for all the notices of appeal and notices of motion listed before the Full Federal Court on 27 February 1992.
2. SETTLE the index of the appeal papers in the form (subject to any necessary renumbering) of the document "INDEX OF THE APPEAL PAPERS" attached.
3. DETERMINE that the documents that shall be included in the appeal papers and the order of inclusion be in accordance with the settled index.
4. DETERMINE that the number of copies of the appeal papers required are nine, being five copies to be provided for the Full Court, two copies to be provided for the use of the Respondents, and two copies for the use of the Applicants/Appellants.
5. DIRECT that the appeal papers may be prepared by copying upon both sides of the page.
6. DIRECT that the Applicants/Appellants prepare the appeal papers, and file five copies in the Registry by 4.00 pm on Wednesday 19 February 1992.
7. Should the Applicants/Appellants for any reason fail to comply with the Determinations and Directions set out in paragraphs 1 to 6 (or any of them), AUTHORISE AND REQUEST the Respondents to prepare and have available for the Full Court on or before 24 February 1992, four copies of the appeal papers prepared in accordance with the Determinations set out in paragraphs 1 to 3."
It is not necessary to refer to the index attached to the directions. Rule 37A may be contrasted with r.38.
The applicants/appellants did not comply with direction 6. In conformity with direction 7 the respondents prepared the appeal books. The direction required four copies of the appeal papers to be prepared, presumably on the basis that a set need not be given to the appellants. Importantly, the respondents did not give a set of the appeal books to the appellants assuming that the appeal books to be prepared by the respondents were for the benefit of the Court only. Thus, when the matters came on for hearing, Ms Cameron sought an adjournment of the hearings on the basis that she did not have a set of the appeal books.
During the course of the submissions on the application for an adjournment, counsel for the respondents announced that he was prepared to give a set of the appeal books to Ms Cameron then and there.
It must be remembered that the appellants were appealing to the Full Court. The appellants had sought many orders of the Court but did not pursue them at hearings fixed for those purposes. Ms Cameron either knew or should have known what the appeals were all about. A failure to prepare appeal books could be a tactic to extend further the continuation of a multiplicity of motions over an indeterminate period. The Court could see no reason why an adjournment should be granted on this ground.
For these reasons, the Court refused to grant an adjournment. The Court requested Ms Cameron to present the cases on behalf of the appellants. After discussion, the Court adjourned the hearings to 10.15 am on 28 February 1992 and made it very clear to Ms Cameron that it would not hear argument then about any other adjournment. The Court adjourned at 3.10 pm.
On 28 February 1992, when the matters were called on for hearing, Ms Cameron did not appear. There was no appearance for the applicants or for the appellants. A solicitor appeared as amicus curiae to give a medical certificate to the Court. The certificate was from Dr M. Davis, was typed, was dated 27.2.1992 and was as follows:
" TO WHOM IT MAY CONCERN
This is to state that Barbara Cameron has been hospitalized today, due to a bleeding Oesophageal ulcer which was diagnosed on Tuesday, 25th/2/1992. Mrs Cameron is on maximum medical treatment for this condition as there is a possibility of an uncontrollable bleed from this type of Ulcer which can be a life threatening event. She must remain in hospital for approximately 1 week."
Having regard to what had occurred on 27 February 1992 and to the history of the litigation, the Court decided to proceed with the hearing of the appeals, the applications for leave to appeal and the outstanding motions. Counsel for the respondents explained the history of the matters. The crucial issue was the order made on 1 October 1991 dismissing the motion seeking the order that the agreement reached in the documents annexed to the affidavit of Ms Cameron sworn 24 July be declared binding. That was the lynch pin on which all other matters, apart from motions for contempt, depended. The motion for the declaration was dismissed for want of prosecution.
The Court read the reasons for judgment of Sheppard J. referred to earlier in these reasons. They relate to the applications made for adjournment of the hearing of the motions then part heard before him. We could see no error in those reasons. Indeed, His Honour went to extraordinary lengths to satisfy himself about the medical condition of Ms Cameron. Reasons were not published as to why the motion seeking order 8 was dismissed. But a reference to the transcript of the proceedings before Sheppard J. shows that that motion was dismissed for want of prosecution. All the motions were dismissed on either one of three grounds. Thus some were dismissed on the basis that they constituted an abuse of the process of the Court, for example the motions for contempt of court which did not comply with the provisions of the Federal Court Rules. Others were dismissed because they related to interlocutory matters and were consequential on the settlement motion which had been dismissed. The third ground was dismissal for want of prosecution. We could see no reason to disagree with the orders so made.
The same pattern applies to the matters before this Full Court. When the hearing of the substantive issues was to begin, Ms Cameron was not present. There was no appearance on behalf of the appellants or applicants. This Full Court was satisfied that, from the reasons for judgment of Sheppard J., Ms Cameron was given every opportunity to present the case for the applicants before His Honour. She did not do so. In the circumstances, this Court considered that since Ms Cameron was not present to prosecute the matters it was appropriate to make the orders it did on 28 February 1992. These orders were made in the absence of Ms Cameron and in the absence of anyone appearing for the appellants and applicants. The basis of the orders dismissing the appeals and other applications and motions was for want of prosecution. Before doing so, however, the Court, with the assistance of counsel for the respondents, satisfied itself that the notices of appeal and the various applications and motions disclosed no reasonably arguable case.
Counsel sought an order that the applicants/appellants pay the respondents' costs on an indemnity basis. Section 43 of the Federal Court of Australia Act 1976 empowers the Court "to award costs in all proceedings before the Court". Normally when costs are awarded, those costs are taxed on a party and party basis. In some cases the Court may order that the costs be taxed on a solicitor and client basis which result, normally, in a greater sum being awarded. On occasions, a court may order that the costs be taxed on an indemnity basis. The Federal Court Rules do not make provision for this but, apparently, the Rules of the Supreme Court of New South Wales do. Indemnity costs, normally, result in an even greater sum being awarded.
In the present case, counsel for the respondents contended that the Court should award them their costs on an indemnity basis. On rare occasions such an order has been made. Indeed, on 14 February 1992, in matter No. NG521 of 1986, Lockhart J. awarded costs in favour of the respondents on an indemnity basis. Nevertheless, accepting that the Court has the power to make such an order, the Court was of the opinion that notwithstanding the very special features of these matters, the usual order for costs should be made.
These are the reasons for the orders made on 27 February 1992 refusing orders adjourning the hearing of the matters and for the orders made on 28 February 1992. The orders made on 28 February 1992 are as follows:
Matter No. NG646 of 1991
1. The appeal be dismissed with costs.
2. The motion, notice of which was filed on 23 December 1991 and relating to the timetable for the index of the appeal books, be refused with costs.
Matter No. NG839 of 1991
50. The appeal be dismissed with costs.
Matter No. NG521 of 1986
1. The motion, notice of which was dated 16 April 1991 relating to leave to appeal against the orders of Beaumont J. made 16 April 1991, be refused with costs.
2. The applications for leave to appeal from the orders of Sheppard J. made on 25 and 26 July 1991 be dismissed with costs.
3. The motions, notice of which was filed on 18 October 1991 relating to the preliminary settlement hearings and leave to appeal, be refused with costs.
4. The motion, notice of which is dated 18 December relating to leave to appeal from orders made by Sheppard J. on 29 November 1991, be refused with costs.
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