Cameron, B.A. v Rural Press Ltd

[1992] FCA 56

, .

L. '.

JUDGMENT No. ..% ..,. -......._.W. q2

I-:

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NO. NG 521 of 1986 11 I;

1   t'.

GENERAL DIVISION I I

BETWEEN:  BARBARA ANN CAMERON

Applicant

AND:  RURAL PRESS LIMITED and
OTHERS

Respondent

IN THE FEDERAL COURT OF AUSTRALIA	1 .
1
NEW SOUTH WALES DISTRICT REGISTRY	1 No. NG 646 of 1991

NG 839 of 1991

GENERAL DIVISION )

t

BETWEEN:	GAMESTER PTY LIMITED and	i ,
ANOTHER	i  :
i

Applicant	l
l

AND:  LIMITED and

OTHERS	I
I.

Respondent I -

14 February 1992

I

REASONS FOR JUDGMENT

LOCKHART J.

There are before the Court five notices of motion. I shall

deal with each of them in turn. Before doing so I should say that the applicants in each case are Gamester Pty Limited and Barbara Ann Cameron. There is no appearance today by or on behalf of either of the applicants. The solicitors who previously acted for the applicants have been good enough to be present today and to make submissions to the Court as amicus

L

curiae and I am grateful to them for that assistance. As the applicants are not here to prosecute their motions which are opposed by the respondents, they must in my view be dismissed. However, I shall say something more about them than that.

In matter 521 of 1986, the applicants seek amongst other things an order that orders made by the Court on 30 December last and 31 January last be vacated and also seeks orders that the respondents be found guilty of contempt of court and that counsel for the respondents be similarly found guilty for misleading the Court. After careful examination, there is no material before me which would cause the Court to make any of the orders that are sought. Indeed, I am satisfied that none of those orders that are sought should be made. Indeed, orders 2, 3 and 4 sought in this motion are vexatious and frivolous. Accordingly, that

motion is dismissed. I will deal with costs in a moment.

In matter number 646 of 1991, there are two notices of be vacated and various other orders numbered 2 to 9; and there

motion: one seeking an order that all orders of 31 January 1992 is a second motion seeking orders relating to appeal books and exhibits. Again, those motions are dismissed for want of prosecution. Despite the lack of prosecution, I have carefully read those motions and I have read the registrar's report of the settling of the index of the appeal papers yesterday and there is no case on the merits, whatever, for making any of the orders that are sought in either of those notices of motion. They too are dismissed.

In matter number 839 of 1991 there are two motions. One seeks four orders and the other seeks one order in relation to the appeal books. Again they are dismissed for want of prosecution; also because, on the material before me, there is no ground for making any of the orders sought. Accordingly, all five motions are dismissed, both for want of prosecution and on the merits.

A motion in matter 646 of 1991 seeks an order for a stay under the Legal Aid Commission Act. ~h-at, I take it, must be and indeed can only be, so far as I can see, a reference to the Legal Aid Commission Act 1979 of the State of New South Wales. Section 57 provides as follows:

"Where i t appears t o a c o u r t or t r i b u n a l , on

a n y i n f o r m a t i o n b e f o r e it:

( a ) t h a t a p a r t y t o a n y proceed ing b e f o r e

the	c o u r t	o r t r i b u n a l :
( i )	h a s appealed,	i n accordance w i t h

s e c t i o n 56, t o a Legal A id Review

Committee and t h a t t h e appeal h a s

n o t been de termined; o r

(ii)

i n t e n d s t o appea l , i n accordance

w i t h s e c t i o n 56 , t o a Legal A id

Review Committee and t h a t such an

appeal i s competent ;

( b ) t h a t the appeal o r i n t e n t i o n t o appeal

i s bona f i d e and not f r i v o l o u s o r

v e x a t i o u s	o r	o t h e r w i s e	i n t e n d e d	t o
i m p r o p e r l y	h i n d e r	or	i m p r o p e r l y	d e l a y

t h e conduct o f the proceed ings ; and

( c ) t h a t there a r e n o s p e c i a l c i r cums tances

t h a t p reven t it from d o i n g s o ,

the c o u r t or t r i b u n a l s h a l l ad journ t h e

proceed ings t o such d a t e on such t e rms and

c o n d i t i o n s a s it t h i n k s f i t .

I have carefully looked at the file and I cannot see any evidence to support the view that the applicants have appealed or indeed intend to appeal to a Legal Aid Review Committee in relation to the costs of proceedings before this Court. Strictly therefore, there is no need to consider the application of section 57 but I will say two things about it. First, it is an Act of the New South Wales Parliament and it cannot bind a federal court, including this Court. That is sufficient to dispose of the point. However, as S. 57 itself requires, it is for the Court to be satisfied of the matters to which it refers before the Court adjourns the proceedings; indeed the section requires the relevant court to adjourn the proceedings once it is satisfied of the relevant matters of which it speaks.

Even if S. 57 were to apply, I am not satisfied that the applicants have appealed in accordance with S. 56 to the Legal Aid Review Committee, or that they intend to appeal in accordance with that section to such a committee. Nor am I satisfied that such an appeal would be competent, and nor am I satisfied that	an appeal or intention to appeal to a Legal Aid Review Committee	is bona fide, not frivolous or vexatious or otherwise intended
to improperly hinder or improperly delay the conduct of the proceedings before this Court. I am not saying that the appeal or intended appeal. to the Legal Aid Review Committee, if there be one, is in fact not bona fide or is in fact frivolous or vexatious or is in fact intended to improperly hinder or improperly delay the conduct of the proceedings in this Court. I am simply not satisfied of the matters to which the section directs the Court's attention, but as I said earlier, this Court is not bound by the section in any event.
The question of costs has arisen and counsel for the respondents asks for an order for costs on an indemnity basis. I have discussed with counsel the question of costs on a party- party, solicitor and client, and indemnity basis. In the circumstances of this matter where the motions have been taken out by the applicants and they are not here and there is no evidence before me as to why the applicants are not here and in light of the contents of the notices of motion where there is simply no justification for the orders that are sought, I think the only appropriate course to take is to indemnify the respondents for the expenditure that they have had to incur. Accordingly, I order that in each of the motions the applicants pay the costs of the respondents on an indemnity basis.
There is one other matter I should clarify. This Court has taken steps on more than one occasion to ensure that the Full
Court of this Court which is sitting on 27 February to hear an
appeal and certain motions in various matters before this Court, has before it all relevant motions. The five motions before the Court today have been dismissed, they therefore do not come before the Full Court. If any further notices of motion or notices of appeal are filed in any of the matters 521 of 1986, 646 of 1991 or 839 of 1991, or indeed otherwise referable to the lssues in those proceedings, they should be brought before the Full Court on 27 February next, unless a Judge or the Registrar

l.'. ,;

forms the view that they should be placed initially before a
single Judge, in which case that course may be followed.

I certlfy that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated:  14 February 1 9 0

No appearance for the Applicant.

Counsel for the Respondent	A.S. Martin
Solicitors for the Respondent :	Sly & Weigall
Appearing as Amicus Curiae	E.H. Tebbutt & Sons
Date of Hearing	14 February 1992

Date of Judgment : 14 February 1992