Cameron, B.A. v Rural Press Ltd

[1990] FCA 113

JUDGMENT NO. ........ ...... ....., 113 1.901

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IN THE FEDERAL COURT OF AUSTRALIA	1
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 PARKER

Second Respondent

AND: TIMOTHY ROY STARKEY

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	14 MARCH 1990
WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:
NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1.    the matter be adjourned till Monday, 19 March 1990 at 10.15 a.m., subject only to the Full Court reserving its judgment in the legal aid application on Friday, 16 March 1990;

2.    the trial be conducted orally;

3.    no new date be given for the return of subpoenas, the filing and serving of subpoenas or for witnesses other then MS Cameron to attend court.

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IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	1 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 PARKER

Second Respondent

AND: TIMOTHY ROY STARKEY

Third Respondent

PINCUS J . 14 MARCH 1990

EX TEMPORE REASONS FOR JUDGMENT ,

This is a notice of motion filed by the applicants for

the following relief: 

1.    that the applicants be given a new date for the return of subpoenas and at least one week in which to file and serve subpoenas and to contact the other witnesses with a new date for them to attend court;

1. that the trial be by way of affidavit evidence as originally commenced;

2. that thk trial be put forward until a new date after the

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   hearing of the legal aid application on 23 March 1990.

It is convenient to take those matters in reverse order and I propose to deal first with the legal aid application.

I understand from what Miss Cameron tells me that the legal aid application to which she refers is in reality an appeal from an order of Lockhart J. I have had my associate obtain the reasons for judgment, which I have read, and in particular at page six his Honour expresses himself in a way which would not induce one to adjourn the trial until after the hearing of the appeal.

However, the matter is somewhat complicated by the circumstance that I have had inquiries made as to the availability of the Full Court and I have been told that, although it has not really been confirmed, if it were important, the Full Court could sit tomorrow afternoon to deal with the appeal. I am not able yet to say that that is a certainty, but it seems possible and further	. .
inquiries about it can be made. If in fact it is possible for the

Full Court to sit tomorrow afternoon, then I would be inclined to adjourn the trial until after the Full Court has disposed of the matter, because it would seem to me not terribly inconvenient to do so. If, however, the Full Court cannot sit until 23 March, I would be inclined to go on with the trial in view of the reasons for judgment of Lockhart J. and, in particular, the reasons why he

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dismissed the application.

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Therefore, as to item 3, my view of the matter is as follows. subject to its being confirmed that the Ful'l Court can sit on Friday afternoon, I would be inclined to adjourn the trial until after that. If, of course, the Full Court reserves its decision, then the trial would have to be adjourned further.

The second matter I propose to deal with is the question of trial by affidavit. Although nothing much has been said about this, it seems to me that it would be extremely difficult to conduct the trial by affidavit in view of the fact that the applicants are unrepresented, and I do not propose to do that. The trial will have to be conducted orally.

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The third point is the question of enabling witnesses to

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be contacted. The background is that Miss Cameron went to see the

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registry last week about subpoenas and she has filed an affidavit as to what happened on that occasion. She told me during the course of this week that she was simply told to put her witnesses off and I expressed, and continue to express, my disbelief of that. It appears, having read the affidavit, that Miss Cameron

and I may have had a misunderstanding on that, because what she	really intended to convey, and what I am prpeared to accept, is
that she was told that it was not in order to arrange to have all the witnesses for next week. I do not disbelieve the content of the affidavit which has been filed on 14 March 1990.

The point about the witnesses is this. Mi'ss' Cameron

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said in effect that one reason she put witnesses off was that she thought the case would probably settle. I do not know whether the case will settle or not and I do not even urge the parties to try to settle. '1t seems to me that if a Court gets involved in negotiations for settlement, it necessarily tends to take one side or antoher and my task, as I see it, is to try the case. If the parties settle, I would of course congratulate them and be very grateful; but whether they settle is entirely a matter for them; that is, for Miss Cameron and for her opponents.

It was therefore wrong, as it seems to me, of Miss Cameron, insofar as she did rely upon the possibility of settlement as a reason for lack of preparation, that -she did not prepare for the case. Nevertheless, I accept what she tells me that she has not really prepared. Now, another matter that is related to that is the state of her health and she seems to say that, in effect, she is not well enough to conduct the litigation and therefore it should be adjourned. I have looked at the medical reports which have been produced as part of the record in the application for legal aid. In general, I have not read those which predate 1988, although I have noticed that some years ago Miss Cameron had an operation, as she mentioned to me orally.

The burden of the medical reports is perhaps exemplified by one which was written by Dr Marshal1 on 3 March 1988. 1 do not

say this is a particularly significant one, but it is fairly

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typical. Dr Harshall says on 3 March 1988:

"Miss Barbara Cameron, who has been attending me ...
would not be unreasonable."

Dr Marshal1 seems to be the main doctor involved, but for the sake of completen6ss, I should mention that about the same time Miss Cameron was seeing a neurologist and his report was to the same effect, that it tended to attribute her problems to the same cause. Dr Jonathon Lester reported on 12 February 1988:

"I have recently seen Miss Cameron for neurological

... over her publishing business."

Now, the most recent report which has been tendered, which will be marked Exhibit 1, is one from Dr Marshal1 dated 12 March 1990 and after discussing Miss Cameron's physical symptoms, which have been explained to me by Miss Cameron herself, he says this:

"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."

I question that. Dr Marshal1 is, no doubt, 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 considerble 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. He goes on to say:

"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.

Mr Bruce, sehior counsel for the respondent, said he wanted to cross-examine Dr Harshall. I refused leave to cross-examine. I accept for the purposes of this application that the applicant, Miss Cameron, has stress-related illnesses. Stress, probably, partly assists and partly detracts from her performance. The point which convinces me that I should not simply adjourn the case until Miss Cameron gets better is the one that is made by Mr Bruce. That is that there is nothing in this history to suggest that adjourning it is going to achieve anything. In fact it is likely to be counter-productive. I am quite willing to believe that Miss Cameron has found the pendency of this litigation very stressful. People commonly do and I am prepared to believe it has had a bad effect on her health.

It seems to me likely that the longer it hangs over her head the worse the effect will be. I therefore propose to continue with the trial, which takes me back to the question of Miss Cameron's preparation or lack of it. The statement of claim which I read raises numerous causes of action, for example fraud,

a breach of the Trade Practices Act 1974, and a breach of the	obligation to keep information confidential. Most of the
transactions which the applicants plead are transactions in which she was personally involved. That is, she was party to the relevant agreements or to the conversations and it is, as it seems to me, obvious that a very important witness in her case is Miss Cameron herself.
She has explained to me that a statement has been prepared for 'her. I do not know whether it is yet ready. I am also prepared to accept that she has other witnesses who need to be called to support her case, although I question whether there are really as many as 53.
What I propose to do is to start the trial next Monday, which means that we lose nearly three days. It may be said by Miss Cameron that this does not solve her problem about preparation but it seems to me it will sufficiently solve it. She must be well enough advanced in preparation to call herself on Monday and call other witnesses and at least fill in that week.
I will not be available after that week and will have to arrange for further time to complete the trial which, given my calendar, is going to be very difficult. However, I will have to meet that when I come to it.
The reason for the adjournment, then, until Monday is to enable Miss Cameron to complete her preparation and in the hope
the legal aid matter. The only fly in that ointment, if I can use that the Full Court will be able to meet on Friday to dispose of
that expression, is that it is possible that the Full Court will hear the matter but reserve its judgment, in which case it may be that the trial will have to go off.
If, however, the Full Court hears the legal aid matter and disposes of it, then there is no reason why the case should

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not start on Monday. If it is not possible for the Full Court to

meet on b rid ay, I will still start the case on Monday.

So the only circumstance in which the case will go off from Monday, so far as the legal aid question is concerned, is if the Full Court sits on Friday (or perhaps tomorrow) and reserves its decision. In that event I would feel obliged to adjourn the

trial for Monday. Otherwise, it will go ahead on Monday.

Now, I want to say something else about this question of the preparation on the applicants1 side. Miss Cameron has said that she wants to start with the question of market and that she was advised that she had first to prove market. That is, of course, erroneous (if such advice was given) as any lawyer would know. There is no legal requirement that market be proved first. It could be proved last or in the middle of the case.

I suggested to Miss Cameron a day or two ago that the
difficulties in establishing market, in view of her lack of

preparation, were such that it seemed to me that she could with

advantage split that issue off and I could try the rest of the	case, leaving the question of market to be determined later. Mr
Bruce agreed to that course but Miss Cameron did not. I am still prepared to do that. I am prepared to go further and let 1-liss Cameroll split her case on market so that she can call such evidence as she wishes on market next week and leave the rest of it to be called later. But what she must do next week is to call all her evidence on all the issues in the case other than market.

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I do not propose, unless there is some sharp change in the circumstances, to be deterred from getting this trial started. It has become plain the more Miss Cameron has spoken to me that she is very anxious to settle; but the case has not settled. It has been going for years and it has just got to be tried and I propose to try it next week.

Let me go over that again. I understand that it is possible that the Full Court might sit on Friday. There was some suggestion it could sit tomorrow but it seems more likely to be Friday. If the Full Court sits on the legal aid appeal and reserves its decision I will, I think, be obliged to adjourn the trial for Monday. Otherwise, it will go on; it will start at

10.15 on Monday and it will go for the whole of the week and I

will repeat that if Miss Cameron wants to defer (wholly or partially) her case on market, which seems to me to be the most: difficult part of it to prove, then I will let her do that.

Insofar as I would let her do it wholly, that is as I understand, with Mr Brucevs consent.	I did not understand him to
consent to its being done partially, but I am still prepared to

let Miss Cameron do so.

The only other matter which I would like to mention on the question of market is that I would be prepared, depending upon the circumstances and the way the case runs, to entertain an application for delivery of an interrogatory or interrogatories during the trial to be answered during the trial by the respondents on the question of market.

I viould not, however, let that be used as a reason to

delay the trial. The trial would have to go on.

I certify that this and the nine

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

Mr. Justice Pincus.

Counsel for the applicants:	MS B.A. Cameron
Counsel for the respondent:	Mr V. Bruce Q.C. & Mr A.S. Martin
Solicitors for the respondents:	Sly & Weigall
Date of Hearing:	14 March 1990