Cameron, B.A. v Rural Press Ltd

[1988] FCA 527

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I

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. NSW G.521 Of 1986
)
GENERAL DIVISION	)

BETWEEN: BARBARA ANN CAMERON

First Applicant
GAMESTER PTY LIMITED

Second Applicant

M D :  RURAL PRESS LIMITED
First Respondent
JORN LINDSAY PARKER
Second Respondent
TIMOTHY ROY STARKEY
Third Respondent

C O R M :	WILCOX	J
PLACE :	SYDNEY

DATE :  21 SE?TEllBER 1988

dismissed.

MINUTLS OF ORDER

TEE COURT ORDERS TEAT:

1.         The Notice of notion filed on 19 September 1984 be

2 .   .

1

..	..	2 .	The applicants pay to the respondents thelr costs
the motion.

of

Note:  Settlement and entry of orders is dealt wlth In Order
36 of the Federal Court Rules.

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. NSW G.521 Of 1986
)
GENERAL DIVISION	)

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

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

c o w :	WILCOX J
P U C E :	SYDNEY
DATE :	21 SEPTEMBER l988

BXTE11PORE REASONS FOR JUDGMENT

Application has been made by the applicants for an

order vacating the hearing date	of this matter, which is
currently fixed to commence next Monday	26 September. The
interlocutory processes involved with this case have	gone on

L .

i

.. . . for a much longer than usual period. The Application was

filed nearly two years ago, on 14 November 1986.	It appears
from the Court records that today will	be the 29th occasion on

which the matter has been dealt with in a court hearing, that

is either a directions hearing	or a hearing of a Notice	of
notion.

The matter first came before me early in 1987. At

that time there was an application for security for costs.
Over the opposition of the respondents, I did not immediately
deal with that application. The main reason for this was that

I thought that it would be helpful in considering the question

of security for coats to have some	idea of the likely duration
of tho hearing.	This dopended upon two nattcra. The first of

these was whether the applicants would persist with a claim

made under s.46	of the Trade Practices Act 1974, which was
pleaded but which I was told from the	bar table more than once

might not b . prorsed. It aeened to be common ground between

the parties that if the s.46 claim was abandoned, leaving only

a claim under s.52 of the Act, the hearing would be

approciably shortoned.

Tho rocond roason war relatod to the first, namoly

the quortion of legal reprorentation of tho applicants.	ror
the mort part, the applicants havo been represented	at the

various interlocutory hoarings by the first applicant, Miss

Camoron, rpeaking on behalf of herself and the second

applicant, Gamester Pty Limited, of which she is apparently

the controller. Miss Cameron, not unnaturally, desired to

..	.'	have considered legal advice before deciding whether
maintain the 6.46 claim. From time to time, she engaged

to

various solicitors. The detail	of much of this is set out in
an affidavit which she swore on	6 September 1988 and which was

read in support of the current application.

Without going into the matter in any detail, it is

enough to say that a number of different firms	of solicltors
have acted in the matter from time to time,	usually for

relatively short periods.	Difficulties have occurred.	niss
Cameron's	version of the situation between herself and	her

various solicitors is set out in the affidavit to which	I have
referred.	I do not, of course, have the solicitors' version

of those natters. Conrequently I attempt to form no view
about the reason why particular solicitorr have ceased to act;
and indeed I do not think that it would be material for me to

do so for the purpose of this application.

The unhappy fact ir that, derpite what I am sure were

sincere attempts by nirr Cameron to retain solicitorr who

would carry out her inrtructionr and get the matter ready for

hearing, no firm of rolicitors has in fact succeeded in

completing that task.	The rerult of variour solicitorr acting
during 1907 van that, from time to	time, when the matter was

before me a legal practitioner would appear; sometimes a

solicitor, rometimer counrel inrtructed by a solicitor.	I was
told on those occasions	that the particular solicitor had been
retained and optimirtic forecasts were given	as to the future
progrerr of the matter.	It seemed to be accepted on all hands

.- . . that there was a need to revise the Statement of Clalm and

some work was done in regard to this matter. It also seemed

to be accepted by Miss Cameron and those var1ous practitioners that it would be necessary to supply further information and, in particular, legal opinions as to the prospects of success

to officers of the Department of the Attorney-General, from

which department certain legal	aid funds were being provided.
Inevitably, this would necessitate	the solicitors becoming

involved in the case and spending the necessary time.

unfortunately that never happened.

The other aspect of the matter is that I followed the

usual course in making directions. These directions included

a direction that tho hearing of the matter proceed on	the
basis of affidavit evidonce supplemented	by such
cross-examination as was desired.	I also made various
directions regarding discovery etc.	Inevitably this involved
quite a lot of preparatory work.	The fact that solicitors

were coming and going, without spending the necessary time to

do tho work, meant that nothing happened.

As I havo said, I stood over the application for

security for coats, over the protests of the counsel for the

rospondonta, on 8 nurb.r of occasions in the hope that the

u t t e r would clarify. It was a constant foature of the

various and nuerous appoarances of this matter in the list in

1987 that forecasts were given that all would shortly	be in
order. Eventually, I took the view that	I ought to deal with
the application for security for costs.	I heard argument on

. that matter on 7 August 1901. In a reserved judgment, I

.z

dirmisred the application for security for costs.	My reason
had nothing to do with the previous history	of the matter and,
of course, still leas to do with any question	f the merit of
the matter. Put shortly, the reason was that	it was conceded

that there could be no order for security against miss
Cameron, the firrt applicant; the application for security

war made againrt the second applicant, Gamester Pty Limited.

I took the view that the two claimr were intertwined	an that
to order security againat the second applicant, with	a

conrequential order that thir action be stayed if recurity waa

not forthcoming, ar on the evidence seemed likely, would	be
only to embarrara the trial	of the unrtayed claim of the firrt
applicant.

The significance of referring to this matter in the

current context ir that the evidence which	was put before me
at that tire dirclored fairly clearly	that neither of the

applicant. had auch manna ar would . b likely to enable them to

pay any order for cortr which might be made in favour of the

reapondentr, if tho claim failed.	So far ar I am aware, there
being no evidence to auggoat otherwire,	that ia rtill the
aituation.

Following dirporal of the application for recurity

for coata, the question aroae ar to the matter being got ready

for hearing. Numerour directions had been made, but not

complied with on the part of the applicant. In particular,

the necerrary affidavitr had not been filed.	Although from
time to time an affidavit was put on the	file, miss Cameron

quite frankly indicated that many more affidavits were

required, including very important affidavits. In those

circumstances, it war not possible to require the respondents
to file their affidavits. The situation came to such a pass

that I came to the conclusion early in 1988 that it was

hopeless to expect that the matter could proceed in accordance

with the usual procedures. It seemed to me to b . obvious

that, if the Court insisted upon trial by affidavits, the case

would simply never be ready for trial. It seemed that,

because of her problems with her legal advisers and her

understandable inexpertise in doing the job herself,	Hiss
Cameron was no further advanced	in regard to completing hoc
affidavit evidence than she	had bran many months previously.

Consequently, I decided to take a different course.

Although I took the view that affidavit evidence properly

prepared would have provided the most efficient method of

trial, and in n o m a 1 circumstances 1 would have insisted upon

this, I thought that tho bottor course might simply . b to fix

a trial dato roll ahoad of the date of fixing -- so that

everybody know about tho situation

-- and to abandon tho

diroction as to affidavit evidonco. I had in mind that, if

sufficiont time was allowod, Hias Camoron could proparo
horsolf accordingly. If rho could not obtain ovidenco in an

appropriate form for affidavits, she could at least find out

what the witnesses could say	and, even if she had to conduct
the cam.	hersolf, rho could call those witnesses and icit
their evidence from them orally.	I felt that this was the

g . . .

only way in which the case could be heard; and that it was,

on balance, the appropriate course to take.

Accordingly, on 24 March 1988, I fixed the matter f o r

hearing for a period of two weeks to commence on 26 September

1988.   At the time that I did this, Hiss Cameron indicated

that she wished to have a hearing date	at about that time.
Indeed, there was some discussion about the suitability	of
that date as compared with a later date	in the year. As any

othor date would have been probably two months later than that

date, at Miss Cameron's	request I fixed the matter for 26
Septomberr notwithstanding the	fact that this was not very

convenient to counsel for the respondents.

?Tom time to time since 24 Harch applications have

been made in rolation to various interlocutory orders.	I
think I (IB	correct in saying that all of the relevant

applications havo boon mad. by Miss Careron. I have always

allowed applications to . b mad. by Notices of Hotion served

upon tho rospondonts loss than the usual prescribed poriod	of
fivo days boforo tho roturn date.	In practice they have been

mad. roturnablo at tho earliost possiblo moment, and even at

tho prico of visiting so10 inconvenionco upon the	rOSQOndentS'
logal roprosontativos bocauso of short notico. I have	taken

this course bocause I have been anxious to obviate any delay

which.might othorwise be ruffered whilst Hiss Cameron was

waiting to find out the fate of	any particular application she
might mako.

.. .- Numerous Notices of Motion have been dealt with In

thls way during this period. The subject matter of these
Notices of notions has been diverse. It has included
questions of discovery, interrogatories, particulars, the

availability of witnesses, certain actlons said to have been

taken by the solicitors for the respondents and so on.	I have
ruled on these matters as they arose, sometimes In favour	of
the applicants and sometimes in favour of the respondents.

This morning Miss Cameron has said that she has been

delayed in her preparation because of the attitude taken by

tho solicitors for the respondents	and various actions taken
by them. In	dealing with some of the matters to which I have
just referred, I have in fact expressed some criticisms	of
actions taken on behalf of the respondents and	it would

certainly be not correct to say that all of the problems in

the case lie on ono side. Notwithstanding that, I am quite unconvinced that Hiss Camoronls present problems are in any

way to be laid	to tho door of the rerpondents	or their
solicitors.	Although tho various matters to which	I have

reforrod havo incroared her workload in preparation, I do not

think that any action	or omission by them has significantly
dolayod what ought to havo boon the propor proparation	of the
cas.,	namoly intorviowing tho nocessary witnessor and
obtaining proofr of evidence	so that it would be known what
evidenco people could give,	if and when they were called.

I think that the problem confronted by Hlss Cameron

..	..	is that she lacks legal assistance in the natter. Apparently,
at the present time, she lacks legal aid; although I am told
that her application for renewal of her legal aid 1s currently being considered, she says by the Attorney-General himself. Whatever may be the result of her application, the further
problem is that she does not currently have any solicitors
acting for her. In contrast to the situation which has
occurred on a number of previous occasions, she does not even
have a solicitor who is in prospect. In short, so far as I
can see, the case is no nearer being ready for hearing than it
has been since I first became involved in it early last year.

I have no doubt that, if the Court insists on the

matter proceeding next nonday, Miss Cameron will entertain

difficulties, which difficulties may be fatal to	her prospects
of successfully conducting the	action.

when one reacher that conclusion there is a natural

inclination to grant an adjournment. But, in deciding whether

to give offect to that inclination, I have to bear in mind the

position of tho rorpondents. As I have indicated, the matter

ha8 boen boforo the Court on an inordinate number	of
occasions.	On each of thore occasions the respondents have

boen legally representod, usually by counsol. undoubtedly, they would havo incurrod a very considerable liability for

costs5 and I see no realirtic prospect that those costs will

. b paid by the applicantr, no matter what the result of the

proceoding.

.- If I accede to the present appllcatlon, I have to

face the fact that the case will drag on	for a considerable
further period.	I note that part of Hiss Cameron's

application is that a new hearing date be set no earlier than

February 1989. By acceding to the application I would be

putting the respondentr in the position of having to continue

to live with the car., including the numerous applications

which seem to be an inevitable feature of it, and of

continuing to incur coats, without any prospect of those costs

being paid.	I do not think that thir would be fair to the
respondentr.	No proporition ha8 beon put before the Court as
to a way in which thir unfairnerr can	be eliminated;

notwithrtanding the fact that I raired this matter directly with Mr McClintock of counrel who appeared for His8 Cameron when the matter war before tho Court on a different aspect

lart Friday. No doubt, the reason why no proporition has been put is that it is riaply not within Hirr Cameron's capacity to

take any courre which would alloviate the problem.

I think, in tho circumrtancer of the care, that it

would b . an inju8tico to the rerpondentr to allow that

rituation to occur. Whatover tho morit of tho dirpute between

tha paCti.8, tho po8ition har now boon roachod whero I aurt

roluctantly tako tho viow that it ha8 to b . brought to a head.

It cannot be raid that a hearing next week	ir one that is
visited upon tho applicantr	at short notice or which takes
them by rurpriro.	Mirr Cameron has known of the date for six
monthr.	If rho har boon unable to got her care together in

..

..

situation is going to improve, I can have no confldence that

that period. and in the absence of any indlcatlon that the

she will be able to do SO in the future.

Consequently, I take the view that I should refuse
the current application. Unless Miss Cameron indicates that

the matter is not to proceed next Monday, in the sense that

there will be some order disposing of it finally by consent, I

will not vacate the hearing date and I will expect the matter

to proceed to trial next Monday.

I cortify this and the ten (10)

preceding pages to be a true copy of
the Reasons for Judgment of
his Honour Justice Wilcox.

Associato:
Date :

Appearance for the Applicant:	Miss B A Cameron in person
Counsel for the Respondent:	Mr V Bruce QC
Solicitors for the Rorpondent:	Sly and Weigall
Date(s) of hearing:	21 September 1988