Cameron, B.A. v Rural Press Ltd

[1988] FCA 538

.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT	REGISTRY	)	No. G521 of 1986
GENERAL DIVISION	1

BETWEEN:  BARBARA ANN CAMERON

First Appllcant

GAMESTER PTY. LIMITED

Second Appllcant

AND :  RURAL PRESS LIMITED

First Respondent

JOHN LINDSAY PARKER

Second Respondent

TIMOTHY ROY STARKEY

Third Respondent

CORAM:	BOWEN, C.J., SHEPPARD and BEAUMONT JJ.
DATE :	23 SEPTEMBER, 1988

PLACE: SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT

1. Leave to appeal be granted.

applrcation for the vacation of the hearing date, such reserve llberty to the applicants to renew thelr
application, i f to be made, to be heard by Wllcox J. at 2.15 p.m. on 26 September.
4.	Costs of the appeal be costs In the motlon before Wllcox J.

2 .   The appeal be allowed.

3.  Set aside the orders made by Wllcox J. on 21 September 1988; in lieu thereof, direct that the final hearing of the proceedings commence at 2.15 p.m. on 26 September 1988 and

to vacate the hearing dates.

Note: Settlement and entry of orders is dealt wlth by Order 36

- of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

BETWEEN:  BARBARA ANN CAMERON
First Applicant
GAMESTER PTY. LIMITED
Second Applicant

AND :	RURAL PRESS LIMITED
First Respondent JOHN LINDSAY PARKER Second Respondent TIMOTHY ROY STARKEY Third Respondent

CORAM:	BOWEN C.J., SHEPPARD AND BEAUMONT JJ.
PLACE :	SYDNEY
DATE :	23 SEPTEMBER 1988

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:	This is an application for leave to appeal
from an interlocutory judgment	of Wilcox J. given on 21

September 1988 refusing an application by the applicants to vacate a hearing date for the final hearlng of the proceedings fixed to commence on Monday next 26 September and to continue

thereafter for two weeks. The proceedlngs were commenced on

14 November 1986. On 24 March 1988 his Honour fixed the

matter for hearing to commence on 26 September. The matter

has had a long and compllcated history: It has been before

the Court for directlons or on notices of motion on no less
than 29 occasions.

Although the applicants have retalned solicitors from time to time, they are presently not legally represented. This has caused difficulties, especially as it appears that the case is a complex one.

In the course of the hearlng of the application for the vacation of the hearlng date, the first appllcant who, as we have said, appeared in person, sought to tender evldence that she was suffering from a number of lllnesses whlch prevented her from properly presenting her case at a lengthy final hearing. The evidence took the form of medical

certificates and was not in the form of an affidavit. Senior

counsel for the respondents objected to the tender and

submitted that such evidence should be put in affidavit form and foreshadowed that, in any event, he would wish to cross-examine the medical practitioners. It appears that his

Honour allowed the first applicant an opportunity to contact	the doctors to enquire as to their availablllty but It seems
that they were not then avallable. In the result, his Honour
rejected the tender of the medical certificates.
On the hearlng of thls appllcatlon for leave to appeal, the flrst applicant sought, and we allowed, the tender In this application of two affidavlts by medical
practitloners - an affldavit by Jonathan Leicester sworn 2 2
September 1988 and an affldavit by Meyer Jacob Saul Marshal1 sworn 2 2 September 1988.

The respondents wish to cross-examine the doctors on

their affidavits and submit that we should not act on the opinions expressed in them until that cross-examination has taken place. On the other hand, it seems to us that, subject to any cross-examination, the fresh evidence is material properly to be taken Into account in determining whether an application to vacate the hearing date should be granted.

His Honour dld not, of course, have the benefit of this evidence and It has only become available after his HOnOUK exercised his discretion to refuse the applicatlon. In our view, as we have said, ~t is material which ought to be taken into account, sub~ect to any cross-examination, in the

exercise of the discretion to grant, or refuse, an application

for an ad~ournment	of the proceedings.
In these circumstances, we propose to grant leave to appeal, to allow the appeal and to set aside the orders made

by the learned Judge in refusing the application for

adjournment. In lieu thereof, we would direct that the

hearing commence at 2.15 p.m. on Monday 2 6 September and that

at that time the applicants are to be at liberty to renew

their application for ad~ournment of the proceedings.

We should add that the applicants sought to challenge his Honour's decision on several other grounds. In OUK

oplnion, there is no substance in any of these contentions.

The orders of the Court wlll be -

1.    Grant leave to appeal.

2. Appeal allowed.

3 .    Set aslde the Orders made by Wilcox J. on 21 September 1988; in lieu thereof, direct that the final hearing of the proceedlngs commence at 2.15 p.m. on 2 6 September 1988 and reserve

liberty to the applicants to renew their

application for the vacation of the hearing

date, such application, if to be made, to be

heard by Wilcox J. at 2.15 p.m. on 26

September.

4 .    Costs of the appeal be costs in the motion

before Wilcox J. to vacate the hearing dates. I certlfy that this and the

precedlng K Tee (-7 1
pages are a true copy of the
Reasons for Judgment herein of

the Court.

- Dated: 23 September 1988