Cameron, B.A. v Rural Press Ltd

[1990] FCA 98

JUDGMENT Ne. 9.3 ..... J..~.L

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IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) NSW G521 of 1986
GENERAL DIVISION	1

BETWEEN: BARBARA ANN CAMERON

First Applicant

AND: GAMESTER PTY LTD

Second Applicant

AND: RURAL PRESS LIMITED

First Respondent

AND: JOHN LINDSAY PARRER

Second Respondent

AND: TIMOTHY ROY STARKEY

Third Respondent

MINUTES OF ORDER

JUDGE IWKING ORDER:	PINCUS J.
DATE OF ORDER:	19 MARCH 1990

RsGIsmY

WHERE, MADE : SYDNEY

THE COURT ORDERS THAT:

1.    the principal application be dismissed;

2.    the applicants pay the respondentsr costs of the hearings of the 12th, 13th, 14th and 19th March 1990;

3.    all other questions as to costs be reserved.

NOTE :  Settlement and entry of orders is dealt wit
Order 36 of the Federal Court Rules.

RECEIVED
2 8 FEB 1990
FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALFS DISTRICT REGISTRY	) NSW G521 of 1986
GENERAL DIVISION	)

BETWEEN: BARBARA ANN CAMERON

First Applicant

AND: GAMESTER PTY LTD

Second Applicant

AND: RURAL PRESS LIMITED

First Respondent

AND: JOHN LINDSAY PARRER

Second Respondent

AND: TIMOTHY ROY STARKEY

Third Respondent

PINCUS J. 19 MARCH 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a matter in which I sought to begin the trial last Monday, a week ago. The applicants then made a number of	interlocutory applications and it became clear during the course
of those that Miss Cameron, who appeared for the applicants, wished t6 obtain full discovery before the case went ahead. The orders which the Court had earlier made had the result that certain discovery was given, but not full discovery and it is desirable to say something about that.
The case is one in which it would be easier to say that full discoveri should be given than to give it, or to determine its scope. The statement of claim, which is an intricate document, raises numerous separate causes of action. Without being comprehensive, the major complaint which it raises is the conduct of the respondents in respect of the sale of her magazine, which is mentioned in para.16 and subsequent paragraphs. The agreement for the sale of the magazine to the respondents, or one of them, is said to have been produced by threat and, in para.l7(a), by duress and undue influence. Also in para.l7(b) there are alleged to have been representations, in addition to the duress and the influence, which subsequent paragraphs allege were untrue. Similarly, in para.18 there are allegations of representations which are said to be untrue. Paragraph 24 says that the first respondent was in a position substantively to control certain markets for goods and services; and para.25 says the respondents were taking advantage of that power in quite a number of respects, which are there listed. Then, again without trying to be comprehensive, allegations of that sort relating to the initial sale of the magazine go on.
Then one gets the resale of the magazine. That is, there were a series, according to the pleading, of agreements on repurchase. Let me take one of them only - I think there were three altogether.
In para.3l(h) it is said that the first respondent was threatened by the third respondent - I think that probably means the first applicant was threatened by the third respondent - that if she did not repurchase she would be sacked, and an oral agreement was'made. here was a representation in para.3l(i) and that was said to be untrue. Then para.3l(j) says that the breach of the oral agreement was accepted; payment of the applicant's cheque was cancelled. Paragraph 31(k) says there was a threat of prosecution for a criminal offence.
Then in para.31 there was apparenty a further repurchase agreement which again was breached, according to para.32(a) of the pleading.
Then in para.33(a) quite a number of things are said to be essential to the viability of the magazine. There are numerous allegations of breach in that single paragraph alone, it seems to me - probably a dozen or so. Paragraph 33(b) says that the second repurchase agreement was also rescinded; and there follow eleven allegations about that, including a number of claims.
Now I do not propose to analyse or refer to the pleading further, although I have read it carefully, but it is obviously a
very complex, multi-faceted, case. The central theme of it, so far as Miss Cameron was concerned when she was in front of me last
week, concerned the trade practices aspect and in particular that the respondents, or some of them, took advantage of market power, and she said she wanted to prove that first and had been advised she should do so.
It became clear to me that Miss Cameron did not want to proceed with the case because she did not feel it was ready, and .
the respect in which it was not ready seemed to be that she, Miss Cameron, did hot have the evidence about market ready. For that purpose she wanted full discovery and wanted to go back and assemble a great deal of information which she did not then have. Miss Cameron told me, for example, that she wanted to look into some transactions in the 1970's in which Rural Press Limited was engaged, with a view to determining whether they had acted similarly in other transactions.
However that may be, 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. Insofar as that depended on the unavailability of witnesses, it seemed to me a little unreasonable, because Miss Cameron said she had numerous witnesses who were willing to come and I thought the case could at least get started. It seemed to me that, although I had only two weeks available before I had to go on to other work, we should at least use that two weeks. One reason I adjourned the matter from last Wednesday to today was to enable Miss Cameron to make arrangements for the attendance of witnesses if she so
desired.
Apart from this matter of the availability of witnesses, I thought it was clear, from Miss Cameron's persistence in seeking an order for general discovery (which she had not obtained in the years in which the matter was pending) was that she wanted such an order to be made and carried out before the trial started. I did not examine the whole of the orders which had been made, but I was shown the relevant ones and it was clear that no order for general discovery had been made, although the case started some years ago.

I was unwilling to allow the interlocutory phase of the

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case to start over again, as it seemed to me it would have to do,

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to satisfy Miss Cameron. One thing which was plain was that general discovery was likely to be very complex, the scope of it would be difficult to ascertain, and there would certainly have been further arguments about discovery, if I had acceded to Miss

Miss Cameron also pointed out she had not got the answers to interrogatories she desired. As to that, I suggested that I could make orders, having in mind particularly the question of market share, for interrogatories to be delivered during the trial and answered forthwith or very promptly, but Miss Cameron did not seem very attracted to that idea.

When the hearing progressed to last Wednesday, Miss
Cameron told me she was ill. She showed me quite a number of

medical certificates in a bound volume which had apparently been

used for an application under the Administrative Decisions	(Judicial Review) Act 1977. I had a look at the certificates and
I studied the more recent of them. Their general trend was that some years ago Miss Cameron had an operation for a benign growth which apparently had no recurrence, but that had not cured her problems and she had, according to the medical certificates, difficulties which were largely stress-related, and the stress, the doctors thought, was that of the case.
I thought it was unreasonable to adjourn the case for any considerable time on medical grounds. I had the opportunity

i	of seeing Miss Cameron in court. She is a very intelligent woman,
I	well-spoken and with a certain degree of adroitness as regards
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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
I	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
I thought Miss Cameron could. On Wednesday, as I mentioned in the stress in running such a complex matter but if anyone could do it,
course of discussion with Mr Brezniak, I thought I could in effect kill two birds with one stone: give Miss Cameron more time to get witnesses and also, because she was concerned with her application to revive the Full Court legal aid matter, I thought I could arrange to get that listed last Friday. I asked that that be done; it did not happen, I am told, because Miss Cameron sent a message that she was not coming.
It khould also be added, for the sake of completeness, that this was raised last week with Miss Cameron, that is the likelihood of my being able to get a Full court to sit to deal with her application to revive the Full Court appeal. She said that her solicitor could not come last week; I do not know who that solicitor was. It was not Mr Brezniak, who has helpfully told me there was never any question of his coming last week.
Mr Brezniak who has, if I may say so, argued the matter forcefully and succinctly today, has produced a notice of motion' which will be filed, as follows. It asks for an order that the trial in the abovenamed case be deferred for at least one month to enable the first applicant in a related proceeding to appear in court. That, I think, is a reference to Barbara Ann Cameron who in this heading appears as the second applicant.
Mr Brezniak also relies upon an affidavit which is signed by Barbara Ann Cameron. It is not attested but Mr Brezniak says, and there is no objection to this, that he knows it has been
sworn. 1 suppose the practical course is to treat it as an exhibit. That will be marked Exhibit 2.
Next, Mr Brezniak produces an affidavit of Dr Paul Cunningham which will be filed. Lastly, he produces a medical certificate about Miss Cameron's back, which is accompanied by a script. That will be marked as Exhibit 3. Before I go to that material it is necessary to say something further about the background of the matter.
I have referred to the fact that the case is a complex one. The facts so far as the pleading is concerned occurred about six years ago, in general, and subsequently. But it is important to note that Miss Cameron's case, as she explained to me, begins some years before that. She had brought to court some material
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I	which went back to the 1970s and, as I understood, she wished to go back at least 15 years in examining the conduct of the respondents, the idea being to adduce a similar facts case, obviously a difficult case to manage.
There have been numerous interlocutory hearings. There was some dispute as to how many such hearings there wete, 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 illnesseg 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
unable to answer as quickly as anyone could reasonably be expected quite quick-witted, looked well and never showed any sign of being 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 argued, and I think he was right, that it would

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be unlikely that ajourning the case would improve matters. In fact, if it is the case that she is as ill as is claimed, Miss

i	Cameronvs illness would seem to be likely to be aggravated by
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I	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.
I should add I found Miss Cameron, although as I have said intelligent, well spoken and obviously a very competent person, difficult. I did not always find her candid. She said,
!	in effect, I should not hear the case because of my manifest lack
of enthusiasm for her cause. I am not quoting accurately, but
what she said was to that effect. I have given that some
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consideration and although I do not disguise the fact I thought some of the things she told me were not correct, and I told her so, I do not think I am biased against her. I found her in some ways quite an appealing person. I believe she thinks she has a just cause and she is determined to keep it going. She is indeed obsessed with it. I would not feel any embarrassment about
hearing her case although I think, through over-enthusiasm, she overstated or incorrectly stated some matters, which I commented
upon. I also confess that, as she said, at times I became irritated with her. But generally I did not find her irritating and thought that, although a difficult woman, she was the sort of woman who could, if anyone could, run a complex case as a lay person.
To come to today's material, Dr Paul Cunningham says he saw Barbara Ann Cameron on 14 March, last Wednesday, when I also saw her. She seemed to me to look much the same as on previous days. He said he examined her medical records and saw she had presented previously with a history of medical conditions involving certain continuing conditions, which he mentions, then:

"The complaints and pain being experienced by Barbara Ann Cameron were consistent with the medical records described in paragraph two above."

He does not say whether or not he examined the lady. He recommended fourteen days1 bed rest.

I have taken Dr Cunningham1s 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.

Next, there is an affidavit of Barbara Ann Cameron which has become Exhibit 2, in which she says that she would not have	started the case upon the grant of legal aid, had she known it
could be withdrawn half way through the case. I say nothing as to whether or not legal aid should have been withdrawn. I know nothing about that aspect of the matter except that Miss Cameron told me, as I understood her, that about $100,000 of legal aid money was spent.
Miss Cameron says I should accept the fact she has medical probl&ms. I do, but I have some reservations about them, in the sense that I had some observation of Miss Cameron myself I

i	and I do not accept what Dr Marshal1 has said, that she cannot concentrate for more than two or three hours. That seems unlikely, from my observation. I do not think Dr Marshal1 has
I	spoken to Miss Cameron for as long as I have - not in one session,
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anyway.
Then Miss Cameron goes on to say I may have been influenced by something not properly proven. I have dealt previously with that aspect of the matter. She was apparently referring to the history that Mr Bruce asked me to look at, and
\	which I looked at to the limited extent that I have mentioned. She said efforts had been made for years by the respondent to prevent the case from being heard. She talks about previous hearings and draws attention to all the medical evidence previously filed. She said that she has trouble standing for long periods. I cannot understand that. It seems to me absurd to complain that she cannot stand, because I told her more than once
that she does not have to stand.
Mr Brezniak, for whose attendance I am grateful, informed me he presses the application for an adjournment. I should add that Exhibit 3 simply says Miss Cameron is currently suffering a back injury and will not be fit for duty for up to two weeks. That presumably is the same back trouble discussed in other information.
The case is one in which I think I have to take into account the history of the matter as far as it is known to me, which is admittedly fairly limited. But the events of last week
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I	have convinced me the case is not likely to be any better prepared or more ready to be heard in a month or in six months than it is
I	at present. The basic problem seems to be that Miss Carneron
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i	insists on starting the discovery process over again, and she did not seem to think the case should go on otherwise. She also raised a difficulty with witnesses which seemed to be nebulous; at one stage I was told witnesses had been put off at the insistence of the Court and I did not think that was correct. Subsequently an affidavit was filed by her which showed it was not correct.
I	She did not seem at all anxious to call any witnesses or give evidence herself; I do not know why.
I think the case could have started last Monday. The interlocutory matters that were raised had no substance, in general. I do not see why, as I was willing to help Miss Cameron so far as I properly could as the trial judge, the case could not now be in its second week. I do not accept that Miss Cameron was
medically incapable of litigating last week. As Mr Bruce pointed out, if breaks were needed to enable her to lie down for half an
hour, we could have had a break, say during the course of the afternoon, but at least some progress could have happened. I have become convinced this case has to be put an end to. I do not think I should allow any adjournment, and I will accede to the
I	application made by Mr Bruce that the principal proceedings be dismissed.
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I will dismiss the proceedings, that is, the principal

application ik dismissed. The only difficulty which I have about

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the question of costs is that I understand costs have been reserved as to a number of matters. I can hardly deal with those

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without more information than I presently have.

... [His Honour heard counsel's argument.]

I make the order that the applicant pay the respondent's costs of the hearings last week, that is the 12th, 13th and 14th days of March 1990 and the costs of today. All other questions of costs will be reserved.

What I propose to do is to direct that all exhibits be returned to the parties who tendered them. There are certain documents, quite voluminous, which have been marked for identification. I will also direct that all of those be returned forthwith to the parties who brought them to Court.

I certify that this and the twelve

preceding pages are a true copy of the
reasons for judgment herein of His Honour

Mr. Justice Pincus.

Dated / 9 &?r?~/, /990 t:'

Solicitor for the applicants:	Mr D.J. Bresniak
Counsel for the respondents:	Mr V. Bruce Q.C. with Mr A.S. Martin
Solicitors for the respondents:	Sly and Weigall
Date of Hearing:	19 March 1990