Cameron, B.A. v Rural Press Ltd
[1990] FCA 360
•20 JULY 1990
Re: BARBARA ANN CAMERON AND GAMESTER PTY LIMITED
And: RURAL PRESS LIMITED; JOHN LINDSAY PARKER and TIMOTHY ROY STARKER
Nos. N G521 of 1986 and N G173 of 1990
FED No. 360
Practice and Procedure - Evidence
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett(1), Gummow(1) and Hill(1) JJ.
CATCHWORDS
Practice and Procedure - applications for leave to appeal from decisions concerned with the time during a hearing when discovery should be dealt with - court's discretion rediscovery rule that a tight rein is to be kept on interlocutory appeals in this area - principles applicable to appeal from refusal of an adjourment.
Evidence - trial jugdge entitled to have regard to his own observastions of a party applying for an adjournment in assessing weight to be given to medical certificates tendered to him.
HEARING
SYDNEY
#DATE 20:7:1990
Appellants: Miss Cameron appeared for herself and by leave for the corporate appellant.
Counsel for the respondents: Mr A.S. Martin
Solicitors for the respondents: Messrs Sly and Weigall
ORDER
Each applicant for leave to appeal be refused with costs.
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealth with in Order 36 of the Federal Court Rules.
JUDGE1
The court heard together a number of applications for leave to appeal against various interlocutory decisions, and an appeal against an order dismissing the principal application. Miss Cameron, who was unrepresented, appeared on her own behalf and on behalf of Gamester Pty Limited. The court permitted her to appear for the company without objection on the part of the respondents.
The applications for leave and the appeal arise out of complex litigation launched by Miss Cameron and Gamester Pty Limited (to whom we shall refer together as the appellants) against the respondents. In the statement of claim, allegations were made against the respondents, concerning certain business transactions, of duress, undue influence, misrepresentation and especially, so we were told, taking advantage of market power within the meaning of s.46 of the Trade Practices Act 1974. Originally, the appellants had the benefit of legal aid, granted apparently by the Attorney-General under s.170 of that Act, but after about $100,000 had been expended in respect of the proceedings, numerous changes of solicitor for the appellants having occurred, the grant of legal aid was withdrawn. At the hearing at first instance, as on the appeal, the appellants were without legal representation.
The applications for leave to appeal relate to numerous interlocutory decisions made by the trial judge - upon an application to strike out the defence because of the respondents' alleged failure to give adequate discovery; upon an application for further discovery; upon applications to set aside certain subpoenas; upon applications to inspect documents; upon an application in respect of the date of attendance to be nominated in certain subpoenas; and finally upon an application to defer the issue of subpoenas, to adjourn the commencement of the hearing and that the delayed trial be upon affidavit evidence and commence upon a date after the hearing of a proposed appeal against the refusal of legal aid. As regards the last matter, it should be noted that the trial judge did in fact stand the hearing over for a few days to enable a full court to hear an appeal concerning Miss Cameron's claimed right to legal aid, and his Honour indicated that he would entertain a further application, depending upon the result of the appeal. Nothing came of the judge's attempts to facilitate a resolution of this aspect of the matter, apparently because Miss Cameron did not at that stage, whether for good reasons or bad, pursue the hearing of her appeal.
What appears to be a miscellany of interlocutory decisions the subject of applications for leave to appeal does actually have a unifying theme. Although there are other issues, and particularly Miss Cameron's health, the common theme is the question of the adequacy of discovery by the respondents. This issue had been debated on numerous occasions at directions hearings over a period of years, and had been the subject of a previous application to a full court for leave to appeal. On 7 September 1989, that application for leave was refused. Sheppard J., speaking for the full court, said he could not see any sign of a miscarriage of the discretion of the judge who had given directions in the matter. He said:
"Discovery, in a matter of this kind, is always an extensive and difficult exercise and judgments have to be made about whether documents are relevant to issues or not. The court has procedures for applications for further and better discovery and it allows, these days, for parties to serve notices to produce or subpoenas for the production of documents if they are dissatisfied with discovery."
His Honour added at the end of his reasons:
"But that does not mean that there may be something (clearly his Honour meant to say 'that there may not be something') to be said for the view - this was mentioned in the reasons I gave on 6 June - that discovery in fact and for whatever reason has been inadequate. That is a matter which can continue to be explored at directions hearings and even during the hearing itself as the evidence unfolds."
Miss Cameron, during argument before us, repeatedly asserted that the rules gave her a right to discovery. This is only true in a qualified sense. Order 10 rule 1 of the Rules makes it plain that the court has a duty, within the scope of which sub-rule 2 expressly brings the topic of discovery, to give "such directions with respect to the conduct of the proceedings as it thinks proper". Order 15 rule 3 confers on the court a discretion to order that discovery by any party "shall not be required or shall be limited to such documents or classes of documents, or to such of the matters in question in the proceeding, as may be specified in the order". Sub-rule 2 of that rule expressly requires the court, on application, to make "such orders ... as are necessary to prevent unnecessary discovery". The point is emphasised by rule 15 of the same Order, which provides:
"The Court shall not make an order under this Order for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made."
In cases where the court does not modify the obligation to discover, it still has a discretion (pursuant to rule 16(2)) to make particular orders "or any other order", and to give directions, where a party fails to file or serve a list of documents or an affidavit or does not produce any document when required to do so. It is plain that Sheppard J. had the flexibility of the court's powers in respect of discovery firmly in mind when he made the remarks, which have been quoted, in the course of his reasons for dismissing the application for leave to appeal from certain interlocutory orders relating to the alleged insufficiency of the respondents' discovery in the present matter.
These questions came before the learned trial judge at the commencement of a hearing for which two weeks had been set aside by him. The matter had twice before been fixed for hearing, and Miss Cameron informed the judge, as she informed us, that when it was to have gone to trial in September 1989 she had been ready to go on with it. In those circumstances, it would have required a strong case to have persuaded any judge that the hearing should be adjourned yet again to enable questions of discovery to be determined by interlocutory litigation which should ordinarily have been concluded long before. Miss Cameron urged the language of Sheppard J. as suggesting that these issues should be dealt with at the trial. It is far from clear that Sheppard J. did not contemplate an application prior to the hearing, rather than at the hearing. But, at any rate, it is beyond question that he had in mind, as we have said, a flexible power, and the desirability of its being exercised flexibly and by reference to the real issues which would arise during the trial.
The trial judge did not refuse to deal with the issue of discovery, nor did he deal with it by shutting out the appellants from obtaining further discovery. He set aside a particular subpoena, which Miss Cameron had intended to fulfil the purposes (or some of the purposes) of discovery, but he indicated a willingness to entertain further questions relating to the production of documents as they might arise during the course of the trial. He made certain orders relating to the inspection of certain documents. All this is the normal fabric of a normal trial, and would in no way suggest that, if the trial had proceeded to a conclusion, there could possibly have been any complaint that the fullest discovery reasonably obtainable had not been provided. Certainly, the setting aside of the subpoena lends no weight to Miss Cameron's complaints; it was framed in terms requiring the production of "in excess of 10,000 documents" from files kept in various parts of Australia, embracing topics not shown to have anything to do with the proceeding and defined in terms of the utmost vagueness.
The orders and rulings the subject of the motions for leave to appeal all relate to matters of practice or procedure. So far as concerned the making of any further orders, or the giving of any further directions, in respect of discovery, there was a very large question of timing involved in relation to the conduct of the hearing. It was open to the trial judge to consider that other issues ought to be dealt with first, and that this issue should wait its turn. The evidence could be expected to throw light, as it emerged, on any outstanding questions relating to the discovery of documents. It was within his Honour's discretion to consider that the definition of the market for the purposes of s.46, an issue which loomed large in the argument about discovery, ought to be dealt with at a later stage of the hearing, and perhaps, in all the circumstances, after some adjournment which might take place at the end of the second week of the hearing. As was pointed out in Merrick v. Australian Red Cross Society (unreported, Beaumont, Burchett and Gummow JJ., 1 May 1990), the question of when a particular issue is to be dealt with is peculiarly a matter of practice and procedure to which the principle stated by Jordan C.J. in In re the Will of F.B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 is applicable:
"I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
This statement received the approval of the High Court in Adam P Brown Male Fashions Pty Ltd v. Philip Morris Incorporated (1981) 148 CLR 170 at 177. (It may be that even stricter tests are applied in England: compare the case last cited at 177 with the observations of Lord Diplock in Hadmor Productions Ltd v. Hamilton (1983) 1 AC 191 at 220, which were recently applied by the Court of Appeal in Rofa Sport Management A.G. v. DHL International (U.K.) Ltd (1989) 1 WLR 902 at 911.)
Leave to appeal should be refused with costs in each case.
We turn to the appeal against the trial judge's decision on 19 March 1990 not to allow an adjournment of the proceeding but to dismiss the application. Although his Honour did not spell the matter out in his reasons, it is clear from the transcript of the argument, and is also implicit in the reasons, that he dismissed the application on the ground of the failure of the applicants to prosecute it. The matter had been listed for hearing at the beginning of the previous week and had been adjourned after three days, in the circumstances already indicated, to 19 March 1990. On that day, there was no appearance for Gamester Pty Limited, while a solicitor announced his appearance for Miss Cameron only "for the limited purpose of seeking an adjournment of the proceedings entirely upon health grounds". Miss Cameron herself did not come to court. His Honour was not satisfied that the matter should be adjourned, and he acceded to the application of counsel for the respondents that, there being no appearance of the appellants to prosecute it, the application should be dismissed.
What was done on 19 March must be seen against the background of what had occurred on 14 March. On that day, the trial judge rejected an application for a substantial period of adjournment, but granted an adjournment until 19 March at 10.15am, making it plain that he intended to devote the week to at least the early stages of the hearing. The decision then made involved the judge rejecting medical evidence that Miss Cameron's condition would prevent her conducting the case properly. In particular, he referred to the report of a Dr Marshall, dated 12 March 1990, which stated:
"She has endured years of litigation which has exhausted her physical reserve. Because of these problems she is not capable of any sustained effort whether mentally or physically for more than two or three hours at a time."
His Honour, on 14 March, pointed out that Dr Marshall, no doubt, was
"not in the position of having been in contact with Miss Cameron pretty well all the court day and it is clear to me that his assessment as to her mental capacity is quite wrong. She has considerable mental agility, even under stress - more, if I may say so, with respect, than some members of the legal profession - and it is absurd to suggest that she cannot sustain mental effort 'for more than two or three hours'."
Having considered reports covering a period of over a year, his Honour concluded that:
"(T)here is nothing in this history to suggest that adjourning it is going to achieve anything. In fact it is likely to be counter-productive. ... It seems to me likely that the longer it hangs over her head the worse the effect will be."
It should be noted that Dr Marshall, despite his assertion about an endurance limit of two to three hours, did not commit himself to the view that Miss Cameron could not conduct a court case. What he said was: "It is improbable, in my opinion, that she will maintain a satisfactory level of performance if she has to appear in Court all day without suitable pauses." (Emphasis added.) No one suggested that she should do that.
Miss Cameron, at the hearing of the appeal, repeatedly referred to her condition of pleurisy. However, the evidence did not show that she was in fact suffering from pleurisy either on 14 March or, more importantly, on 19 March 1990. There were a certificate and affidavit from a Dr E.J. Mulvey of Wee Waa to the effect that she was on 26 February 1990 "suffering from left sided pleurisy and is unfit for work and Court from 26 February 1990 till 1st March 1990." Although the affidavit was sworn on 11 March 1990, it did not extend the period of unfitness to which the doctor was prepared to certify beyond 1st March.
On 19 March 1990, a further certificate was tendered from a Dr R.M. Tooth, a specialist surgeon, but this was a printed form completed simply to show that Miss Cameron was suffering from "Back Injury" and would not be fit for duty, which was unspecified, for "2 weeks". It was accompanied by a prescription for a lumbar support on the basis of a diagnosis of "low back pain".
An affidavit sworn by Miss Cameron on 16 March 1990 and an affidavit sworn by a Dr Paul Cunningham on the same day were also read upon the application for adjournment. Miss Cameron's affidavit asserted that she had attempted to obtain a hearing in 1988, and that she had "strongly opposed the setting aside of the September 1989 hearing date by the Court on the basis of on going decline in my health and financial situation." She stated:
"My health situation has been aggravated by pleurisy, colonic bleeding and aggravation of a spinal injury from standing for long periods. Prior to attending Court on 12th March I had been having a rest each afternoon. I am considered medically unfit for work and am on a sickness benefit."
The affidavit of Dr Cunningham is in terms indicating that he first met Miss Cameron on 14 March 1990, when she presented at the emergency unit at Sydney Hospital. He stated:
"I examined the medical record of Barbara Ann Cameron and saw that she has presented previously with a history of medical conditions involving the following three
continuing conditions:
(i) Chronic lower pack (sic) pain.
(ii) Peptic Ulcer.
(iii) Pleurisy".
He commented: "The complaints and pain being experienced by Barbara Ann Cameron were consistent with the medical records described ... ." The only reference to any examination of Miss Cameron, or to any other opinion about her condition, is the following: "I examined Barbara Ann Cameron and advised her that it is necessary for a period of Fourteen (14) days bed rest from 14th March 1990 and I have so advised her." Upon the application for adjournment made on 19 March, reliance was also placed on the medical reports tendered on the earlier application of 14 March.
The trial judge delivered reasons in which he stated that, the previous week, "I certainly formed the impression that Miss Cameron, whether for good reasons or bad reasons, did not want the case to go ahead and did not regard it as ready." With regard to the earlier application for adjournment, he said that the medical certificates then relied on referred to "difficulties which were largely stress-related, and the stress, the doctors thought, was that of the case." He continued:
"I thought it was unreasonable to adjourn the case for any considerable time on medical grounds. I had the opportunity of seeing Miss Cameron in court. She is a very intelligent woman, well-spoken and with a certain degree of adroitness as regards legal matters. Miss Cameron did seem to me to attempt somewhat to dramatise her position and I think I should give an example of that. Miss Cameron expressed some difficulty in standing up and I told her she could sit down if she wanted to do so. At a later stage in the case she was actually struggling to her feet on crutches, which crutches had appeared during the course of the case, and I reminded her about the fact she did not have to stand up; she said I never said that to her or she did not recall it. I thought she was physically and mentally quite able to do the court work. I did not find it easy to accept the suggestion of one of the doctors that she could only concentrate for a couple of hours. Her concentration seemed to me to be good. Insofar as her mental capacity is concerned, she is (for a lay person) unusually capable of running a case. Of course, anyone not legally qualified is likely to have a certain amount of stress in running such a complex matter but if anyone could do it, I thought Miss Cameron could."
Later, his Honour continued:
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 Miss Cameron in court. It was that she was quite 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."
His Honour rejected Dr Cunningham's view in the following terms:
"I have taken Dr Cunningham's affidavit into account but it is necessary to notice that he has apparently never seen the lady before. He seems to have gone largely on her medical records, which I have seen myself, and he seems to rely upon the subjective element, that is the complaints and pain, not on a medical examination. I do not regard his report as taking the matter any further."
His Honour then said he accepted that Miss Cameron had some medical problems, adding:
"(B)ut I have some reservations about them, in the sense that I had some observation of Miss Cameron myself and I do not accept what Dr Marshall has said that she cannot concentrate for more than two or three hours. That seems unlikely, from my observation. I do not think Dr Marshall has spoken to Miss Cameron for as long as I have - not in one session, anyway."
His Honour took into account the history of the matter. The most relevant history, for the purposes of an application for adjournment on medical grounds presented on the basis of, particularly, the views of doctors who had seen Miss Cameron on 14 and 16 March, was, plainly enough, the history of the previous application for adjournment, dealt with on the very day of one of the later medical attendances, 14 March 1990. His Honour said: "I do not accept that Miss Cameron was medically incapable of litigating last week". He also pointed out that breaks could be had in a hearing, if they were needed, and that he had come to the conclusion that the case was not likely to be any better prepared or more ready to be heard in a month or in six months than it then was.
It seems an inescapable comment that his Honour must have been entitled to give considerable weight to the earlier application for adjournment, pressed so recently, and refused, at a time when he had had an ample opportunity to make his own assessment of the credibility of Miss Cameron in respect of the complaints about her condition upon which she was then insisting. In the circumstances, the judge's attitude would have bordered on the credulous if he had not examined critically the new medical evidence put before him at the beginning of the very next week. If a real medical crisis had developed in the meantime, he was entitled to expect a very detailed and convincing demonstration of it.
The argument which Miss Cameron presented to us comes down to the proposition that it is wrong for a judge to reject medical evidence on the basis of his own evaluation of it, combined with his own observations of the patient. Such a proposition cannot be sustained. It would put medical evidence in a position of unique invulnerability. In practice, every day, common law courts reject, or qualify their acceptance of, medical evidence - sometimes (but not invariably) on the basis of opposing medical opinions. From time to time cases are presented in which black and white positions are adopted by doctors called by the respective parties, and the court, taking into account but not accepting their evidence, comes to a conclusion which none of them supports.
So far as the present case is concerned, the judge had a very good opportunity to observe in court whether the appellant was actually able, without any (or much) apparent distress, to conduct difficult litigation over a lengthy period; while the doctors could only theorize as to whether it was likely she would be able to do so, despite which the material furnished by them barely condescended to any discussion of the basis of their predictions. Dr Cunningham's affidavit does not suggest he had ever seen Miss Cameron, apart from on the one occasion for an unspecified period at some time during one of the days when the judge had himself had a prolonged opportunity to observe her. It would fly in the face of common sense to say his Honour could not, when he was evaluating the evidence, take into account what he himself had seen. Part of the medical evidence involved a doctor's opinion that the appellant could not concentrate for more than two or three hours; a consideration of such a claim, about someone who has actually been conducting a court case, is not the peculiar province of a medical practitioner.
Before us, too, Miss Cameron complained of her medical condition in terms suggesting that, apart from some improvement of her back, it remained much as it was at the time of the trial; but she conducted her applications and her appeal for almost the whole day, fluently and vigorously, and without any apparent distress. She did not apply to us for any adjournment, although she asserted she was too unwell to do her case justice.
It is true that the trial judge made one slip when referring to Dr Cunningham's evidence. He commented that the doctor "does not say whether or not he examined the lady." This is inaccurate, since Dr Cunningham did say: "I examined Barbara Ann Cameron." However, the doctor's affidavit did not contain any details at all of that examination, while it did list, and made some comment relating to, three conditions noted in the patient's medical records. In substance, his Honour's conclusion that the doctor relied on that history rather than on any current observations or findings was plainly justified. No current findings on examination were stated. And, as has been pointed out, it appears Dr Cunningham was without the benefit of having ever seen the patient before.
In Bloch v. Bloch (1981) 55 ALJR 701 at 703, Wilson J. (with whom Gibbs C.J., Murphy and Aickin JJ. agreed) said: "The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision." This passage was applied by a full court of this court in Mudginberri Station Pty Ltd v. Australasian Meat Industry Employees' Union (1986) 12 FCR 10 at 12. See also Squire v. Rogers (1979) 39 FLR 106 at 113-115. For a case where, nevertheless, a refusal of an adjournment was reversed, see Ahern v. Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137. In the present case, we see no ground for disturbing the findings of the trial judge. Those findings lead inevitably to the conclusion that the refusal of the application for an adjournment, and the consequent dismissal of the proceeding, were well justified.
The appeal should be dismissed with costs.
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