Cameron, B.A. v Rural Press Ltd

[1991] FCA 707

JUDGMENT No. ?C,3/.9! ...-

m 'I'HE ZERmiw COURT OF AUSTRAGIA	1
\
\	SOUTH No. NG521 of 1986
1
-	1
m: SHEPPARD J.
m : 30 SEPTEMBER 1991
settlement said to have been effected between the parties, as	I underatand it, some time during the latter part of last

20 NOV 1991

FEDERAL COURT OF

-	AUSTRALIA
PRINCIPAL
REGISTRY

HIS HONOUR: This matter consists of an
Gamester Pty. Limited and Miss Cameron to enforce an alleged

year. Tbe agL)lication proceeded for hearing on 25 and 26 of

July last when it wae stood over until this morning because of my own inability to make further time available on a continuous baais at that time. The two days were occupied with evidence. Wise Cameron appeared by leave for Gamester Pty. Limited and in person, and Mr Martin of counsel appeared for the respondents to the application.

This morning I had expected to continue with the hearing. There has been filed in Court, however, without objection by the respondents, a notice of motion dated today, in which an order is sought that all natters listed for hearing today be adjourned for one week or until the applicants are legally represented if such representation is able to be obtained earlier. The application for an adjournment is supported by an affidavit sworn by Miss Cameron today. In it she says that for medical reasons, she is unable to conduct the litigation. She also says that in the past she has taken risks with her health by attending court against medical advice- The affidavit continues:-

I am no longer prepared to continue to take this	"2. ... Because of the risk of death or brain damage
risk until I have had tests to determine whether or not I suf £er from an aneurism behind the right eye.
3. Because of the demise of my publishing business
and this litigation I am now unable to pay for private medical health insurance. I am on the waiting list to have an MRI scan. My turn came up some time ago but on the day I had to attend court and cancelled the appointment because of fear that the court would dismiss our case if I was unable to attend for medical reasons.
4 . The stress arising from this litigation has
caused me to suffer from stress induced urticaria. For this reason Dr Burke, specialist neurologist said to me, 'It would be too dangerous for you to have an angiogram'. An angiogram is the usual and preferred test to diagnose an aneurism.
5. A few months ago I started to suffer from high blood pressure. Since my blood pressure became elevated the pain behind my right eye has become more acute, which both my G.P. and specialist said
to w words to the effect, i s further indication
that the caume of the pain could be an aneurism.'"
Later Miss Cameron saysr-
"The medication to thin my blood and medication for stomach ulcer are incompatible which makes it difficult to treat both problems simultane~usly.~

A number of medical certificates are annexed and I shall refer to these in a moment. Miss Carneron continues:-

"9. This week I hope to be able to have an MRI scan
done because of the worsening of my symptoms.

10. Before the demise of my publishing business I enfagcd good health an& did not suffer disablement from the above problems.'

Mlss Cameron then turns to a different matter. She says

in paragraph 11 of the affidavit:-

"The applicants now have s solicitor on the record of the High Court and senior and junior counsel to address the High Court. These people have kindly offered to act without payment. They cannot afford to also act in the Federal Court."

I understand the reference to the proceedings in the High
Court to be a reference to the application for special leave
to appeal which I have been informed will be heard by the High

Court on Friday of this week. Miss Cameron continues:-

"12. The applicants are negotiating with a solicitor and barrister to conduct the Federal Court matters but negotiation. could not be completed by 30

Septembar due to ny illness, my being in the country

with the material and the loss of our property. Two barristers have offered to act in the Federal Court without payment but both are unavailable during the week commencing the 30th at this stage.

13. The applicants do not have the money to pay for

a solicitor and barrister.

14. They have applied to the Legal kid Commission of

New South Wales for legal aid to enforce the

settlement. To date a decision has not been
received.

15. The applicants have had trouble attracting a solicitor and barrister to act in the settlement matter because Sly 6 Weigall are acting for the respondents and have delayed the case at every possible opportunity and, because of the absence of the usual pre-trial assistance of discovery, a defence and the demand of subpoenas and time to file further affidavit evidence. When the applicants were denied these usual facilities the etress associated with realising that the absence of important evidence would make it even more difficult to attract a solicitor to act caused a serious decline in my health."

There follows a reference to the amount that would be paid if the settlement, the subject of these proceedings, were effected and a reference to some of the correspondence which is in evidence in the case. There is then reference to an article by the Honourable Mr Justice Young which I regard as irrelevant to these proceedings. Finally, the affidavit
says :	-
"Mr Peter Tebbutt of Tebbutt k Sons, solicitors, has commenced liaison with Mr Mackay of Sly h Weigall with a view to concluding the settlement reached."

It seem6 to me that this application for an adjournment is made, really, on three distinct grounds which are no doubt accumulated to provide a reason why I should adjourn the case. The first ground is the medical ground to which I have referred and about which I shall say more in a moment. The second ground is the lack of legal representation, Hiss Cameron's inability to cope with representing the company and herself and the possibility that legal aid will be received from the Legal Aid Commission of New South Wales. There is also the difficulty of attracting people to act for her and for the company in the light of the fact that there is no

money .

The 'third grmmd consists of the fact that the matter

may, after all, be settled. There were delivered to my

chambers during last week copies of two letters, one dated 24

September 1991 and the other 22 September 1991, each written to Ur Mackay of Sly h Weigall. The letter of 22 September 1991 is endorsed "without prejudice" and says:-

"We hereby conflrm that Mr Peter Tebbutt of Tebbutt h Sons, solicitors, of 115 Pltt Street, Sydney, has accepted our rnstructions to act for the purpose of concluding the settlement reached should you desire to conclude the matter. Ur Tebbutt has authority to receive moneys on our behalf."

I have not been informed by either party of the outcome of any discussions between Mr Mackay and Mr Tebbutt.

I propose to deal with each of the grounds to which I

have referred in order. I come firstly to the medical

grounds. In order that these may be understood in proper context, it is necessary to refer to the medical certificates annexed to Miss Cameron's affidavit. In order of the date in which they were written the first certificate is that of Professor Basten, who i described as a Profeseor of Imunology at the Clinical Immunology Research Centre of the Sydney University. The certificate is dated 3 June 1987 and has been seen by me previously when reference has been made to Miss Cameron's medical condition. It is over 4 years old. It begins with the words "To whom it may concern", and then refers to Miss Cameron. It says:- - -

"MS B. Cameron suffers from chronic recurrent urticaria which affects a large part of her body and is resistant to standard treatment. Stress is well	recognised as a provoking factor in this condition	and while present will interfere with the efficacy
of treatment. Given that Ms Cameron remains under continuous stress it is important, from the medical point of view, that everything possible is done to reduce the stress level as soon ae poeeible."

The next certificate is dated 19 June 1987. It comes from Dr Marshal1 whose qualifications include Fellowship of the Royal Australasian College of Physicians. It is another certificate whlch I have seen on other occasions. The certificate saysr-

"1 certify that Dr Halmagyi, Neuro-Physician, and Dr Hornbrook, Eye Specialist, have reported to me that they consider the loss of vision and pain in Miss Cameron's right eye are most likely the result of stress, but they cannot exclude the possibility of an aneurysm. An Angiogram would help elucidate this problem, but because of the hazards of this test, having regard to Miss Cameron's urticaria, it has not been carried out."

That certificate is also dated more than 4 years ago.

The next certificate is not precisely dated but was written no later than August 1989. The date it bears is 28 August, then the figure eight appears and the precise year of the decade of the eighties in which it was written is not identified. The certificate is another certificate from Dr Marshall. It says:-

"I have seen Miss Barbara Cameron this day with a view to providing a Medical Report for the Court. She suffers from stress relevant symptoms. As repeatedly stated in my previous reports, I believe Miss Cameron to be approaching the end of her

tolerance and further pmlongment of t h e stress map

place her health seriously at risk.

would expect her symptoms to worsen and I cannot	If she is to continue under stress until next year I
exclude the possibility of irreversible consequences.
I do not believe it possible for a doctor to predict the exact point at which Miss Cameron's tolerance to which acute stress will break down.
I consider Miss Cameron unfit for work and have
provided her with a medical certificate for sickness benefits."

There may be more of that certificate, but I cannot read
it if there is. My conment about it is that is at least two

years old and I think probably older.

The next certificate is dated 23 March 1991. It is given

by a general practitioner, Dr Philip Norrie. Dr Norrie saysr-

"Thia ia to certify that I first consulted with Mrs Barbara Ann Cameron, DOB 19/12/44, at the above addreaa on 19/3/91, after she had injured her R big toe nail. During this and a follow-up consultation to dress the wound we discussed Mrs Cameron's other ongoing medical conditions which are chronic, stress related and potentially life threatening, especially the thrombosis in the R leg and the chronic gastric ulcer which has the potential to turn malignant (cancerous).

Current, ongoing, stress related conditions of Mrs

Cameron arer-

1 Gaatric Ulcer

2 Duodenal Ulcer Dr. Tom Hugh 3 Irritable Bowel Syndrome St. Vincents

4 Urticaria Prof. Basten Sydney Uni.

5    Cheat pain due to coronary artery spasm investigated at St. Vicents Hosp. Coronary Care Unit.

6    Weight gain due to eating dairy products to relieve ulcer pains.

7 Recurrent R leg thrombosis exacerbated

by the above weight gain. Prof. James MAY."

Professor May's name simply appears there. I assume that the

Doctor's information about that matter came from Miss Cameron. Dr Norrie continues:-

Mrs Cameron needs urgent medical investigation required by Prof. May and Dr Tom Hugh but has been unable to have the investigation done due to work/ legal/court commitments.

If the above causes of stress (current legal cases) are not reduced to allow the necessary investigat~ons to proceed and to allow the stress related medical conditions to subside Mrs Cameron has a great risk of premature death due to Pulmonary Embolism (patient has already had one) and/or perforated or malignant change in her chronic gastric ulcer or perforation of her chronic duodenal ulcer. "

The next certificate is undated, but I have been informed by s s Cameron that it relates to an examination which occurred in Hay of this year. It is signed by Professor May, professor of Surgery, and it is headed, "Vascular Associates, Camperdown". Professor Hay saysr-

"Miss Barbara Cameron has a history of deep vein thrombosis and pulmonary embolism. She has symptomn of a recurrence of this problem and requires further investigation and observation. In view of the life threatening nature of this disease I have advised her strongly to take three months off in order to lose weight & reduce the chances of continuing or current thrombosis, and allow further investigation."

On the basis that that certificate came into existence in May, I should point out that the hearing of this matter proceeded within that three month period, the hearing days as

I have mentioned being 25 and 26 July last.

Finally, there are two documents each dated 26 September last from Dr Crawford who is a Fellow of the Royal Australasian College of Surgeons. In the first of these certificates Dr Crawford says:-

"This is to certify that S B. Cameron has many stress related diseases and is under considerable stress at present. She is not fit to attend court for at least one week from 26 September. She was examlned by me today."

I cannot read the entirety of the second document but it is asking for accoarmodation to be made available for a condition ( " 7 aneurymm") that she is said to have behind the right eye. Miss Cameron interrupts to tell me that it is to expedite the scan. The letter concludes by saying that her symptom are worse.

The only recent certificates or letters are those from Dr Crawford, dated as I say 26 September, which is Tuesday of last veek.

This matter, as the Court records show, has had a long and unfortunate history. It has been the subject of an enormous number of directions hearings. Originally these were held in relation to what I may call the principal case brought by Miss Cameron against the respondents. That case was eventually heard by Pincus J and dismissed. I do not need to refer in .more detail to the history of it because that is referred to in his Honour's judgment. An appeal from his

Honour's judgment was dismissed by a Pull Court of this Court.	It is from that decision that the applicants seek leave to
appeal in the High Court in the application which I believe is to be heard on Friday next. Since the dismissal of the appeal, there have been a number of other matters brought to the Court, the most critical of which has in my view been this application alleging that a settlement of the litigation was effected.

There was an earlier proceeding in which it was said that the matter had been settled. Time was made available by me for the hearing of that application in March of this year. But the application was not prosecuted, as I understand it, because it was said that events occurring subsequently had overtaken that matter. A new application alleging the matter to have been settled was made. That is the application which is part heard.

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

the principal case for hearing or to proceedings instituted	by Wilcox J. They have related either to the preparation of	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 Hiss 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.

One thing that strikes one in relation to Miss Cameron's medical condition, and I do not suggest for a moment that she has not a medical condition or medical conditions, is that there never seems to be any continuity of treatment or of the identity of doctors whom she sees. In the current certificates we begin with Professor Basten who indicates that a possible aneurysm requires attention. That is in June 1987. Then we go to Dr Marshal1 who has seen her more than once, and also takes a serious view of things, but still in 1987. Dr Marshal1 again sees her perhaps later in 1987 or perhaps in 1988 or 1989, I cannot tell from the certificate what the year was. And again one has the impression of serious complaints.

practitioner, endeavouring to summarise the various conditions	Then, coming to this year, we have Dr Norrie, a general
from which it is said Miss Cameron suffers. Then Professor May, and finally Dr Crawford. And the matter of Miss Cameron's medical treatment, like this case, simply goes on and on, and nothing ever seems to be achieved and nothing ever seems to happen very much.

What the reasons for this are, I do not know. I do not

attach any particular blame to anybody. They are simply the objective facts. One of the things that comes through to

anyone who reads these certificates, whether they be the ones

annexed to this affidavit or others that I have seen in the past, is that Miss Cameron's health problems are all stress related and related to the stress that is occasioned her by this litigation. Doctors are at one in their view that her condition will only imprwe if this litigation comes to an end. But it never does. And from what Miss Cameron said to me in the course of what she had to say this morning concerning thir application, it seem8 as though her attitude

is that it never will. It is simply going to go on and on.

The immediate problem I have is to determine whether I should accede to this application or not. In order to reach a conclusion on that matter I have to take account of the other grounds which are relied upon, namely, the fact that it may be that she will receive legal aid, or that she may otherwise be legally represented, and the suggestion that the matter may

after all be settled in the not too distant future through the	agency of Mr Tebbutt.
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 tims 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.
So far as a projected settlement is concerned, Wr Tebbutt is not here: he has not appeared. It is not uncommon for members of the profession to assist people who are in need of legal assistance but who have no money to support it, and it is not uncommon in those circumstances for them to attend court to give the court some reassurance that what is said in relation to them is indeed happening, or likely to happen, but nothing of that kind has occurred here. There is no indication on the part of the respondents to this application that the matter is near settlement. The application is
opposed by them and there is simply no sign that settlement is near or is likely to occur in the way that the affidavit and
the letter to Mr Tebbutt suggest.
It is sometimes difficult for a judge to reach a conclusion on whether a matter should be adjourned on medical grounds. More often than not applications of that kind are granted. Very often doctors are called to give evidence so that the Court may understand what the future holds for a

particular party and itself make some assessment of what the future is. Nothing of that kind has been done here. The affidavit wan filed in Court. I had not seen it until this morning. Mr Martin of counsel for the respondents was not given a copy of it until this morning, and then was not given a copy of the annexures to it, that is to say the medical certificates, until the hearing had actually begun.

It becomes quite impossible to deal with the matter on

this basis. It is true that in the letter that was written to

Mr Mackay dated 24 September last, there is a foreshadowing of

this application, but Miss Cameron appeared here last Monday at a directions hearing and I can only say showed no sign of ill-health. She conducted the limited hearing that we had in relation to directions quite vigorously and, so far as my recollection goes, and I speak subject to what the transcript may say, there was no reference made to the then state of her

health. - It was on the following day that 8he consulted Dr

Crawford.

There is reference in the affidavit in paragraph 15 to the denial of subpoenas and time to file affidavit evidence. That is no doubt a reference to what occurred last Monday when the matter was in the list for directions. There is an order made by me to the effect that Miss Cameron may not issue subpoenas without leave of a judge. She sought my leave last Monday in relation to a number of categories of witnesses. One of those consists of a number of solicitors who are said

to have given her advice concerning a certificate which Sly 6 Weigall wished signed on a deed of release, which, if signed, would have effected the contested settlement. I was quite content that she should subpoena these solicitors. It seems to m e that they are material and necessary witnesses. I made that clear, but the difficulty was they were not identified. When I sought to identify them, Miss Cameron said that it had not yet been decided which of them would be called. She did identify three, I think a Mr Demetrios, a Mr Angelos and a Mr Garling, and I asked her if she wished me to give her leave to serve subpoenas on these gentlemen but she said she was not sure, that Hr Garling had another commitment which might make it difficult for him to appear, and in the end I simply refused the application. That is the context in which her reference to a denial of subpoenas should be read. I did indicate to her that those per.sons who had sworn affidavits on behalf of the respondents would be present for cross- examination and I believe arrangements have been made for them to be present today.

I did indicate to her also that I would permit subpoenas to be served on the directors of Rural Press Limited provided they were served by last Wednesday, but she did not apparently want this in the end. I did say to her that I would not allow

Mr Parker to be recalled. She was allowed to call him on the

last occasion; he gave evidence, his evidence was completed and he was excused. I was not prepared to permit the cross- examination to be re-opened at large which was really what was

entailed in the request.

In that state of affairs the matter was listed this morning for the remumption of the hearing. The Court is prepared now to go on with the hearing and indeed expects to, or at least expected to until 10.15 a.m. today. I have endeavoured to weigh, as best I can, all the factors to which

I have referred and I have taken into account Miss Cameron's

health which I do not believe to be good but which has been a chronic condition from which she has suffered for many years. Despite it she has herself conducted numerous court appearances, and acquitted herself on many occasions quite adequately, indeed, some would say more than adequately.

In all the circumstances I have reached the conclusion that I should refuse this application and I do so.

[For ensuing discussion see transcript. His Honour stood

the matter down until 2.15 p.m. when a solicitor, Mr. Webeck,

sought leave to appear as an amicus curiae. That leave was	granted. The transcript records the course of the proceedings
thereafter until h r s Honour made some further remarks which now follow.]
HIS HONOUR:  T h i s morning I refused an application for the
adjournment of the matter now before me, which is an . application to enforce an alleged settlement of these proceedings, and I gave reasons for my decision. I stood the

matter over until 2.15 p.m. to enable Kiss Cameron to consider what she wished to do. When I resumed this afternoon, Mr Webeck, solicitor, sought to appear and was given leave to appear as amicus curiae. I should indicate at this point that

I am grateful for his attendance and for the help he has given

the Court.

Mr Webeck produced a further medical certificate which is dated 30 September, 1991, that is today. It is from Doctor D. Demetriou who is a cardiologist. Dr Demetriou says that Mrs Cameron has a potential diagnosis of an aneurysm behind her right eye made by a neurologist, that it has not been excluded yet by further tests and that she now has pain behind this eye. Dr Demetriou says that Miss Cameron also has essential hypertension and that her blood pressure "does rise before and during stress, such as the court case." He says that he is

investigating her for chest pain and palpitations, also

aggravated by stress.

Dr Demetriou concludes his report by saying:-

"Should her aneurysm rupture, something more likely to occur if her blood pressure rises, she could have a catastrophic stroke. I have suggested to her that she gets someone else to manage her court case 6 thus decrease her stress. I would appreciate your co-operation."

The certlflcate of course was only seen by counsel for the respondent and myself when the court resumed at 2.15 p.m. Dr Demetriou is not here and nothing has been said about that,

although remarks were made about the fact that no doctor had yet given evidence about her condition, at least so far as I am aware, in relation to a number of applications for adjournment that have been made from time to time.

On the basis of Dr. Dametriou's certificate and upon the basis also of a statement made by Mr Uebeck, that it is probable that his f i m will have instructions to appear for Miss Cameron at the end of a period of seven days, I am asked yet once again to adjourn this matter. The adjournment is strongly opposed by Mr Martin of counsel for the respondents. He says, quite correctly, that the matter was part heard and adjourned until today. He also says that there was ample opportunity for a solicitor to be retained in the intervening period of over two months since the matter was last before the court. Furthermore, the matter was in the list for directions last Monday and no suggestion of an application for an adjournment was then made. Mr. Martin informs me that

expenditure has been incurred in relation to the setting up

tomorrow evening of a video transmission to London to enable	the taking of evidence from a witness who has sworn an
affidavit and who is in London, it being Miss Cameron's desire to cross-examine that witness. This expense apparently cannot be avoided now that it has been incurred.
I must confess that I think the position is extremely difficult. The matter which concerns me more than any other is the statement in Dr Demetriou's certificate that Miss

2 0

Cameron's blood pressure may bring about a rupture of an aneurysm that he believes she has and other consequences to which I have referred. As I say, Dr. Demetriou is not present in court and I would understand that he may have difficulty in being here. However, the court is used to taking evidence now over the telephone. I do not know what Dr Demetriou8m convenience is, but my associate will find out. I propose to have him rung by my associate to ascertain his position and arrangements will be made for him either to give evidence in person or over the telephone later this afternoon if that is the course that Miss Cameron desires.

I note that his address is 187 Macquarie Street, Sydney which is not very far along Macquarie Street from this building. I propose therefore to adjourn for a short time to enable the doctor or his secretary to be rung and his convenrence ascertained. I shall return to court when I have learned what that is.

[The matter was then adjourned to 4.00 p.m. when Dr. Demetriou gave evidence over the telephone from the Royal Prince Alfred Hospital. The transcript records that evidence and the discussion which followed it. At the conclusion of that dfscussion his Honour saidr-

"Well I have reached the conclusion quite firmly that thrs applrcation for an adjournment should be refused. I shall publish reasons for my conclusion after the transcript of this afternoon's hearing becomes avarlable, but I indicate now that the matter will proceed to a hearing at a quarter past

10 in the morning in the court on the 23rd level.	I
adjourn this matter now."

Subnequent dincussion is recorded in the transcript.

pages are a true copy of the reasons for I certify that this and the 2@ preceding

iudarnent and subseauent remarks hereln of

G h e a : e .

Assoclate