Gamester Pty Limited & Anor, An application

[1992] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney

In the matter of -

An application for a Writ of

Mandamus against HIS HONOUR

MR JUSTICE LOCKHART

Respondent

GAMESTER PTY LIMITED and

BARBARA ANN CAMERON

Applicant and Prosecutor

Application to waive fees

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Garnester(6) 1 5/2/92

AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 1992, AT 4.20 PM

Copyright in the High Court of Australia

HIS HONOUR:	Now this is an application to waive fees in relation to a matter you wish to bring before the
Court, is it?
MS B. CAMERON:	Yes. Thank you for fitting it in this

afternoon, at the end of the day; I appreciate

that. There is a small affidavit to go with the

summons seeking to waive the fee.

HIS HONOUR:  Do you mean, in addition to the affidavit that

I already have?

MS CAMERON:	Yes, it is a two-page affidavit.
HIS HONOUR:	Is it the affidavit that begins, "On this

fourth day of February"?

MS CAMERON:  Yes, they both do that though. It is the one

that - paragraph 1 is, "My only income is - - -

HIS HONOUR:	Yes, I have that, thank you.
MS CAMERON:	I am not sure - I have got medical certificates

and a pension card I can show you, but my

understanding is that you want some sort of

synopsis as to the merits.

HIS HONOUR: There are really two matters, I propose,

Ms Cameron. The first is the question of financial

means, and the second is whether the matter in

respect of which you seek a waiver of fees is one

that really has any prospect of success or is a

matter that might fairly be brought before the

Court. As to the first, I think I am content with

your affidavit and the references to your own

financial position and the position of the company.

It is the other that I think I need to hear from

you on.

MS CAMERON: Yes.
HIS HONOUR:	I do not want to interrupt you unduly, but in

order to understand what it is that you are seeking

to air before the Court, I have some papers which I

have read, but I must confess they leave me a bit

puzzled as to what it is. Could we start with the

order of Mr Justice Lockhart, which is really the

order that you seek to challenge by way of a

mandamus from this Court, is that right?

MS CAMERON:  Yes. Unfortunately, I do not have a copy of

the orders. They had not been taken out before I

came down here. Mr Segal said that he would fax to

this Court a copy of the report of listing, but it
is possibly more the absence of an order rather

than the order which is the problem.

Gamester(6) 2 5/2/92

HIS HONOUR:  Let me just check with Mr Jones as to whether

we have anything at all. I understand from

Mr Jones that there may be something on the way

which will answer that question but perhaps I could

ask you some other questions while we are waiting.

Let me go back one step further. Without going into the history of this matter, the

proceedings that are before the Federal Court at

the present time, I take to be an action brought by

you?

MS CAMERON:  Yes, that is the problem. We have brought an

action to enforce a settlement.

HIS HONOUR:  When you say "we", I take it you mean yourself

and Gamester Pty Limited?

MS CAMERON:  Yes, we brought an action to enforce a

settlement of a matter which has been before the

court for nine years and it is the reason why I am

on an invalid pension. Before this case started I

had the good fortune of being fairly wealthy, I

employed people and I had enjoyed very good health

and we say this case has been wilfully delayed for

eight years to the point where I have lost

everything and I have lost my health which is the

great tragedy.

HIS HONOUR:  When you say that the proceedings are to

enforce a settlement, there is some reference in
the papers to an action brought under the Trade

Practices Act.

MS CAMERON: Yes.

HIS HONOUR:  And that, I take it, was an action brought by you and by Gamester?

MS CAMERON: Yes, to enforce a settlement.

HIS HONOUR: Only to enforce a settlement?

MS CAMERON: Yes. This is the point I need to explain to

you. We filed a notice of motion to enforce a

settlement and you have a copy of the affidavit

there and I have got the original - one of the

originals.

HIS HONOUR:  You are speaking of the affidavit that is

MS CAMERON: It is exhibit B.

HIS HONOUR: Yes, blank day of January 1991?

MS CAMERON:  No, that sets out the history of the matter.

It is the next exhibit, exhibit B.

Gamester(6) 5/2/92

HIS HONOUR: That is the one that begins, paragraph 1, "I am

a public officer of Gamester"?

MS CAMERON:  Yes. If you could perhaps go about two-thirds

of the way through that affidavit to a letter dated

10 August 1990 - I am just presenting this very

much in a synopsis form so that you can - - -

HIS HONOUR: Well, that is the way I would prefer it.

MS CAMERON:  If you go to the letter of 10 August 1990, the

beginning of the second paragraph reads - - -

HIS HONOUR:	Yes, I have that.
MS CAMERON:	The second paragraph begins:

Whilst you and Gamester have now accepted our

client's offer of settlement -

The essence of the settlement was that Rural Press

were to pay us $250,000 and the terms of the

agreement were that all litigation would end, the

magazine would not be published again and that we

would not sign a contract with publishers to

publish the story of the attempted takeover of our

business, and each party would pay their own costs.

And when we took the agreement to Sly & Weighall, Mr Williams, a solicitor at Sly & Weighall, said

that Mr Parker, who is the managing director of

Rural Press, had changed his mind and did not want

to proceed.

We then filed a notice of motion seeking to enforce that settlement and it was part heard on

1 October, and unfortunately - I have medical

certificates here - the two worst medical problems

I have is that I have a chronic stomach ulcer which
I have had for years, well for the last few years

of this case. I also suffer from thrombosis and a

queried aneurysm and the two medications are

incompatible. After a day in court, the aneurysm

which is behind my right eye - I say "queried"

because I cannot have an angiogram because I also

suffer from .... and have an allergy to the dye.

On 1 October, which was the second day of that

hearing I developed internal bleeding and I had to

leave the court. The judge dismissed it for want

of prosecution after telling me that he would stop

if I left, and he refused to hear an application

for adjournment on medical grounds.

HIS HONOUR:  Now, let me just clarify one thing you said,

that the proceedings were proceedings to enforce a

settlement.

Gamester(6)	4	5/2/92
MS CAMERON: Yes.

HIS HONOUR:  But I gather from what you have told me that at

effect to a settlement which you say had been

some stage or other you brought proceedings in the give

reached in respect of those proceedings?

MS CAMERON:  Yes, I think it is probably important if I

could just, say, take a couple of minutes and give you a few sentences as to what the case was about.

HIS HONOUR:  I just want to make sure as to why it was in

the Federal Court.

MS CAMERON:  Yes, that is what I could explain. You see, it

was a trade practices matter in that we alleged

that Rural Press in breach of the Trade Practices

Act took over our business misusing their market

power.

HIS HONOUR:	I understand that.
MS CAMERON:	We were given legal aid by the federal

Attorney-General's Department under section 170 of the Trade Practices Act to take action against them, and then we say our legal aid was wrongfully taken back on the basis of the same opinion upon

which it was given. The officer in the

Attorney-General's Department just said he changed his mind about the opinion and we were faced with

either having to abandon the case and pay the costs

or continue, and we decided that I would try and

conduct the case and I have been fortunate in that

I have received a lot of help from people in the profession and it ran through the court for years.

We say Sly and Weigall wilfully delayed it by

refusing to discover documents they were ordered to

discover. We have never had a hearing of it. It

was set down for trial and unfortunately I was in

hospital on the day of the trial and -

HIS HONOUR:  But you say that ultimately it was settled, do

you?

MS CAMERON:  Yes.

HIS HONOUR: That action. Is that the action that you say

was settled by an agreement to pay $250,000 and

certain matters in relation to costs?

MS CAMERON:  Yes, I was advised to file the notice of motion

to enforce the settlement in the Federal Court and

ask, under the provisions of the cross-vesting

legislation, if the Federal Court could hear it,

and Mr Justice Sheppard agreed to do that, and that

is how we are in the Federal Court on a motion to

Gamester(6) 5/2/92

seek - we are in the same file number as the

original proceedings, the motion was filed in the

same file number, G521 of 1986.

HIS HONOUR:  Yes, well then, from what you said a moment

ago, I took you to say that the motion to enforce

the settlement was some how struck out for want of

prosecution?

MS CAMERON:	Yes.
HIS HONOUR:	Can I just ask you, is it that striking out

that has prompted you to bring the matter before

the Court today or is it some later step that was

taken?

MS CAMERON:  Yes, it is a later step which I have not told

you about yet. We appealed against that decision

to dismiss it for want of prosecution, and

Mr David Bennett QC, he kindly offered to give us

some advice because Sir Adrian Solomons had been

helping us and he had become ill at that time, and

Mr Bennett advised us that we had a good case and

to appeal and we did.	We then applied for legal
aid - - -

HIS HONOUR:  So you are speaking still of the

Attorney-General's Department, or are you speaking of legal aid under the State scheme?

MS CAMERON:  We applied for legal aid to enforce this

settlement.

HIS HONOUR:	But applied to whom?
MS CAMERON:	To the New South Wales Legal Aid Commission.
HIS HONOUR:	Right, although the earlier legal aid had been

granted and withdrawn by the Attorney-General's

Department, as I understand it.

MS CAMERON: Yes, but that was a few years before. I am

talking about 1 October last year.

HIS HONOUR: Yes.

MS CAMERON: If I could just, perhaps, go back before

1 October. There were a number of outstanding

notices of motion in G521 of 1986, and this is

where there is a bit of confusion in that there
were notices of motion, for example, to preserve

certain material and a motion in regard to costs,

orders, and a considerable number of important

motions which had not been heard and Mr - - -

HIS HONOUR:  I just want to interrupt you for a moment. I

have this minute of order, but maybe you need a

Gamester(6) 6 5/2/92

copy. I will just get a photocopy of this minute

of order run off, Ms Cameron, and let you see that.

MS CAMERON:	Thank you.
HIS HONOUR:	You say there are a number of other motions. I

want to try to focus on to the matter that has

brought you here today.

MS CAMERON: With the other notices of motion, when I

brought along the settlement to the court,

His Honour said that he would stand over all the

other notices of motion - and these were the words

he used - "until we decide the settlement problem". They were stood over. When we appealed against the

1 October decision, a few weeks after that he then

listed for hearing all of these notices of motion

which he had previously stood over.

HIS HONOUR:  "He" being Mr Justice - - -?

MS CAMERON: Sheppard.

HIS HONOUR:	Are you talking about 1 October last year?
MS CAMERON:	Yes.  These other motions were listed for

hearing on 6 December of last year. I was in

hospital on that day and I had a - the doctor filed

an affidavit and I had a solicitor and barrister

who kindly offered to go along and act without

payment, and Mr Justice Sheppard - and I have got

the transcript here. I can show you these claims

which we feel are really a bit irregular.

He told our barrister and solicitor that he

did not need them there, that they could leave the

court, that he was just going to go through the

motions and see what they were. Counsel for the

respondents said that he had spoken with my doctor

and that my doctor said there was no reason for me

to be in hospital; there was nothing wrong with
me.	My doctor did not say that at all, and I have

an affidavit here where he said he did not say

that.

Anyway, the same thing happened. Our

solicitor and barrister left the court and the

motions were dismissed for want of prosecution.

So we appealed against that and we asked if that

appeal could be heard well after the appeal for the
settlement appeal because the term of the
settlement document says that we will not proceed

with any matter in the court. And this is where we

are corning up to the problem now and that the

registrar or the person in the court responsible
for listing matters listed both appeals on the one

day and set the same timetable.

Gamester(6)	5/2/92
HIS HONOUR:	And that is a day yet to come?
MS CAMERON:	27 February, and the index is to be finalized

on Friday for both and we applied for legal aid and

I was also trying to raise money - my sister was

trying to raise money to help pay somebody and

we - I am now corning to the problem in that - we

had solicitors and a barrister who said they could

give us help if it was just to enforce the

settlement, because we had an opinion which said

that the settlement was enforceable and that - I

have got the opinion here - and they said they

would act for us without payment if that was all it

was, just to appeal against the first one which is

matter 646 of 91, that is the settlement appeal.

HIS HONOUR: Well basically, as you explain it, it is an

appeal against the order striking out your notice

of motion.

MS CAMERON:  Yes. I have sort of called them the settlement

appeal and the notices of motion appeal.

HIS HONOUR:  Yes, I understand the difference you are

making.

MS CAMERON:  And so the solicitor said they would act for us

in the settlement matter only and we applied then

to the court to have the setting down of the second

appeal, the notice of motions appeal. We applied

to have that put forward until after the settlement

matter had been heard because, for three reasons:

one, the order of His Honour that he would stand it

over until the settlement matter had been disposed
of and the other that the term of the settlement

agreement provides that we do not proceed any

further and the court's time would have been wasted

had these matters been dealt with; and the third
being that we just did not have the physical or the

financial resources to deal with two appeals on the

one day and no extra time was allocated; it still

remained the two days.

And then we came to the hearing of 31 January,

which was just the other day and all we had before

the court - we had two motions before the court:

one was to seek an adjournment of the timetable in

the settlement appeal because we could not meet it,

because we had applied for legal aid and we had
been refused legal aid and we had appealed and I

have got the letter here from the legal aid people. Section 57 of the Legal Aid Commission Act provides

that there is an automatic stay. So that we had

before His Honour on 31 January - unfortunately I

was not there - but we had two notices of motion

before His Honour: one was that - there were three

matters - there would be a stay under the Legal Aid

Gamester(6) 5/2/92

Commission Act; one that there would be an

extension of the timetable for the settlement

matter, because we were having trouble meeting it

because of the legal aid and the other was that the

appeal for the notices of motion, the 6 December

matter, be adjourned until after the hearing of the

settlement appeal.

The orders that came back - and I must say

that this minute of order which I have just been

handed down, there was a lot of discussion about

this in the court yesterday. This is a typed up

copy prepared by Sly & Weigall and it does not

accord with what the registrar, Mr Jurd, read to me

on the phone on Monday and what the solicitors read

to me. These are only the orders in 521 of 1986,

which was not before the court.

HIS HONOUR:  I think I had just better check with our own

Registrar to see what the source of this document

is. Ms Cameron, I understand from Mr Jones that an

order in the terms of this minute has been

extracted today - entered by the Court, is perhaps

a more accurate way of putting it - so I must take

it that this reflects the orders made

by Mr Justice Lockhart on 31 January.

MS CAMERON: Well, yes, if I could just explain. If you

look at the number on this, this is G521 of 1986.

I am just coming to this point now. You see the

two matters which were before His Honour at the

hearing were 646, which was the number for the

settlement appeal, and 839, which was the number

allocated to the dismissal of the notices of

motion.

Now there is a third category of matters in

that going back before 1 October when His Honour

dismissed the settlement hearing, and there were a

considerable number of notices of motion which he

said he would set over, and I use the words again

On 6 December he took a handfull of those motions	he used "until we decide the settlement problem".	and heard them and there were a number that were
not heard. What Sly & Weigall did on 31 January -
that was last Friday - without finding a notice of
motion, they asked if all of the outstanding
notices of motion could also be heard on the same
day as our original appeal, the settlement appeal.
So now we have listed on 27 February, the appeal
against the dismissal of the settlement
proceedings, we have the appeal against the
dismissal of the notices of motion that were heard
and we have a hearing of every outstanding notice
of motion.

Gamester(6)	5/2/92
HIS HONOUR:	Does that explain the NG521 that is referred to

in paragraph 2 of the minutes of order?

MS CAMERON:	Yes.
HIS HONOUR:	Do you understand that to be a reference to all

other matters, for want of a better term, other

than the appeal against the settlement, dismissal
of the settlement enforcement motion, the dismissal

of the other group of motions that

Mr Justice Sheppard was seized of, and that all

these matters now - all appeals and all matters,

speaking generally, are now to come before the

Full Court on 27 February.

MS CAMERON:  Yes. The motions alone could take a minimum of

a week to hear. There is enough work in it -

Mr Justice McHugh said that it would take a

solicitor a month to become familiar with them all.

HIS HONOUR:  But when you put the matter that way, can you

not see the difficulty that you are placed in in

coming before this Court at this stage, because

what has happened is that Mr Justice Lockhart has

made a number of directions - orders - clearly

designed to have all outstanding matters before the

Full Court on 27 February. Now, that may well

present problems for you but this is not the Court

to come to at this stage.

MS CAMERON: Yes, I know, but I have not reached the reason

why I am here.

HIS HONOUR: Well, perhaps we had better get to that stage,

Ms Cameron.

MS CAMERON: Yes, I am sorry. You see, Mr Justice Lockhart

Legal
refused an adjournment under the terms of the here, because the solicitors who were helping us

just threw up their hands in horror and said,
"Sorry, we can't do it; it's impossible".	My

doctor - and I have got medical certificates here -

say that I cannot go to court again and argue day-

in day-out on this case or I will drop dead.	I
cannot do it.

That means that the case collapses. The

problem with that is: on one hand, it might seem

to be a wonderful thing if the case collapses, but

the problem with it is that - and I would perhaps

like to just say this. Sly & Weigall are running

round trying to say that I am the next best thing

to Mr Trimboli reincarnated, but I come from

probably a very noble, judicial family. I do not

know whether you know Sir Adrian Solomons or not,

but he helped us with this case year in, year out,

Gamester(6) 10 5/2/92

and it was his view that there should be a Royal

Commission into the conduct of it.	It is simply an
extraordinary - - -

HIS HONOUR:  Do not let us drift too far from the matter in

hand, Ms Cameron.

MS CAMERON:	I am coming to the point, I am sorry.
HIS HONOUR:	I will just take a moment.  Mr Jones has just

handed me what I take to be the transcript of the

proceedings before Mr Justice Lockhart on

31 January. I do not propose at this stage to read

what went before His Honour's decision, but he

says:

Late last year, on 30 December 1991 I directed

that, amongst other things, that all extant

notices of appeal and notices of motion in

matter 521 of 1986 be listed for mention

before the court today and I said on that

occasion that the intention of that order was

to enable the court to determine today the

procedures to be followed with respect to the

extant notices of motion and notices of

appeal, with a view to having brought on for

hearing before the full court all those

matters on 27 February insofar as the same may

be practicable, 27 February being the date

selected, because it was the date for which

earlier a judge of the court conducting the

callover of full court matters in November

1991 had fixed as the hearing date for appeal
in matter No 646 of 1991, which is the

substantive matter now extant between the

parties in this dispute.

Then His Honour goes on to say that there are two appeals presently on foot, 646 and 839 of 1991,

many notices of motion still outstanding, describes

the appeals and motions as, to use His Honour's

term: 

satellites to the principal appeal ..... which

is the appeal from an order of Sheppard J,

....• which in effect dismissed the motion of

the applicants to enforce an alleged
settlement between the parties of the

substantive dispute between and under the

Trade Practices Act 1974.

I will not read what follows.

There is material, though not in proper

evidentiary form, to the effect that

Miss Cameron was taken to hospital last

night .....•

Gamester(6) 11 5/2/92

The course that I propose to take is to

decline the motions of counsel for Gamester

and Miss Cameron this morning, namely that

appeal No 646 of 1991 be the only matter that

be heard on 27 February, .... I do so because

already a judge of this court, Sheppard J, did

on 26 November last year, ordered that certain

other matters should be listed before the full

court on 27 February. I see no reason to

vacate hs Honour's order. Indeed, I see every reason to confirm it. Also,I am not persuaded

that the task of preparing appeal books and

matters of cost or health are sufficient to

lead to a vacation of the hearing date of

appeal No 646 of 1991.

Then His Honour goes on:

What I think should happen is that on

27 February, he full court should have before

it two appeals, 646 and 839 of 1991 and all

extant notices of motion in relation to those appeals, or the substantive proceeding 521 of

1986, so that it can decide what to do with

this matter.

His Honour refers to the difficulties that might

arise in regard to the settling of the index, but

the matter can come back to him for further

directions on 24 hours notice.

And then His Honour reads out the orders that

he makes, and I have not checked them against the

minute of order but I take it that the minute of

order confirms or accords with what His Honour

said. Now, you can see what Mr Justice Lockhart

was aiming to do and that is - - -

MS CAMERON:	Yes, indeed.
HIS HONOUR:

- - - with an appeal in 646 being before the

Full Court on 27 February, it was clearly

desirable, given the history of this matter, that

any other appeals and indeed any outstanding

matters be before the Full Court so that the

Full Court could be properly seized of all issues

and make its own decision as to what would then

happen.

MS CAMERON:  If I could just take a couple of minutes and

just tell you a few more relevant things. The

problem we have got is that yesterday we attempted

to settle the indexes, but on the face of it, what

His Honour says would be a good idea; on the face

of it, but when you look into it, when we attempted
to settle the appeal books yesterday - these are

the only copies I have, but if I could let you see

Gamester(6) 12 5/2/91

this. This is what Sly & Weigall want in the

appeal book and Mr Bennett said that we needed an

appeal book which would be about an eighth of an

inch thick and that material photocopied would mean

an appeal book about seven inches thick.

HIS HONOUR:  Yes, but can you not see the problem, that is

that bringing this matter before this Court, which

ordinarily is here to hear appeals from the Full

Court of the Federal Court or the Full Court of the

States - - -

MS CAMERON:  No, really, everything I am saying is

background to this one point. We are here because

His Honour refused a stay which we have by right

under the Legal Aid Commission Act.

HIS HONOUR:  Now, what section of the Legal Aid Commission

Act do you say gives you that right?

MS CAMERON:	Section 57. You see, the problem we have is that without legal aid we are faced with a massive
impossibility and the case ends.  Now, when the
case ends, I am sorry if I sounded emotional, but what happens if the case ends is that we are then
going to be set upon by politicians, by the media,
there is a publisher wanting to publish a book
about the story of this attempted takeover. Now,
all of that is fine, it would mean a lot more money
to us than the settlement, but it is not my desire.
I do not believe that people should have to obtain
their damages from the indignity of publicity. I
think it is a function of the court and I think we
ought to be given a fair opportunity to have our
appeal heard uncluttered by these other matters.

HIS HONOUR:  I can understand that. Please sit down if it

is more convenient. But the section 57 reads:

Where it appears to a court or tribunal, on

any information before it:

and it then goes on to set out the question of an

appeal and various other conditions such as:

the appeal ..... is bona fide and not frivolous

or vexatious ..... and

that there are no special circumstances that

prevent it from doing so,

the court or tribunal shall adjourn the
proceedings.

Now, I suppose there could well be a question as to whether that section applies to the Federal Court

as opposed to a court of the State, but I am just

Gamester(6) 13 5/2/92

saying I do not propose to get involved in that

this afternoon.

MS CAMERON:  But I am a full book on that, if I may be so

bold.

HIS HONOUR:	Pardon?
MS CAMERON:	I said I am a full book on that.
HIS HONOUR:	You may well be, and although I am always happy

to be enlightened, I do not think this application

really requires me to go into the operation of

section 57. It seems to me there are two things

arising out of that section that are relevant, and

I do not mean relevant in the sense I need to deal

with them, but one is whether the section has any

application to the Federal Court. The other

question is that assuming that the section does

apply - and I just make that assumption for the

purposes of the next point - the stay is not
automatic in the sense that there are - well,

perhaps it is unless certain other conditions

referred to in section 57 exist, such as no special

circumstances to prevent the court from doing so.

All I am saying to you is that that seems to

me at this stage essentially to be a matter for the

Federal Court to determine.

MS CAMERON: Well, there are two other points. You see, I

went to the registrar of the Federal Court and

said, "We are going to appeal because we must have

this stay".

HIS HONOUR: Appeal from whom to whom?

MS CAMERON: Appeal from Mr Justice Lockhart's decision to

not give us a stay, and the registrar said that

there was a recent case in which you could no

longer appeal from a single judge to the Full Bench

where matters were preliminary to an appeal
hearing.	He said there was no right of appeal.

But if I could just show you two things here.

There is the letter from the legal aid people - I

think you have a copy of it there - and you see,

the young solicitor who made the application forgot

to put in the application the two most crucial

documents. One was the letter stating our

prospects of success, and the other was evidence of

our impecuniosity, and the legal aid letter calls

for evidence of those two matters. So it is my

view and his view that if we provide those two
pieces of evidence then legal aid ought to be

forthcoming.

Gamester(6) 14 5/2/'!2

HIS HONOUR:  That may well be but what you are asking this

Court to do, in one way or another, is to intervene

in respect of orders made by a judge of the Federal

Court, made essentially for the purpose of ensuring

that all outstanding appeals and other matters are

before the Full Court of the Federal Court on

27 February. I understand your argument that that

is a deadline you may have difficulty in meeting.

MS CAMERON:  No, it is not a difficulty, it is an

impossibility.

HIS HONOUR: All right, let us put it higher: an

impossibility of meeting. But that must be a

matter, at least initially, for the Full Court of

the Federal Court.

MS CAMERON:  Mr Jurd said that there is no avenue of appeal

and it was because of that, I discussed with him, I
said, "What do we do?", and he said, "Well, you do
have rights under the Legal Aid Commission Act.",

and we took further advice which is why I am here.

I mean, had we had an avenue of appeal we would

have appealed to the Full Bench of the Federal

Court. I am not a lawyer but I have acquired some

knowledge and I do know that is the procedure.

HIS HONOUR:	Was Mr Justice Lockhart asked to order a stay?
MS CAMERON:	He was asked to order a stay twice, according

to the solicitor.

HIS HONOUR:  No, but by reason of a section of the Legal Aid

Commission Act?

MS CAMERON:  Yes.

HIS HONOUR: Are you sure about that?

MS CAMERON: Yes, because Mr Sainsbury, the solicitor, said

he had mentioned it at the hearing before that we

had applied and he said he handed the letter up in
court.	I am quite clear of that because I had to

go the court to get a copy of it because he handed

the only copy up in court on 31 January.

HIS HONOUR:  It is just that there is nothing that I can see

in the minute of order that would suggest that

Mr Justice Lockhart directed his attention to that

matter.

MS CAMERON:  This is the problem, that he did not make an

order.

HIS HONOUR:  Can I just interrupt you again and just ask

Mr Jones - on your reading of the transcript, is

there any reference to the legal aid?

Gamester(6) 15 5/2/92

MS CAMERON:  I saw the letter yesterday and it was marked as

an exhibit of the court, the original letter, and

the solicitor said that it was handed up. And it

was raised at the - he was told of the application

a month earlier.

HIS HONOUR:  Mr Jones has just drawn my attention to page 13

of the transcript. Is it Mr Anygal?

MS CAMERON:  "Angel", it is pronounced, yes. I do not have

a copy of the transcript because - - -

HIS HONOUR:  Well, you are welcome to have a look at it in a

moment, but at page 13 Mr Anygal says, "Could I

come back" - no, let me go back a step further.	He
says:

Your Honour, I'll tender in a moment when my

friend has seen it, a letter dated 23 January

from the Legal Aid Commission of New South

Wales refusing legal aid in these proceedings,

against which refusal I am instructed Mrs

Cameron seeks to appeal.

HIS HONOUR:	Yes.
MR ANYGAL:	Could I come back to my first

point very briefly---

HIS HONOUR:  When you say to appeal - what's

the right of appeal?

MR ANYGAL: There's a right under section 56

of the Legal Aid Commission Act, at least

according to the letter, your Honour.

HIS HONOUR:	To appeal to whom?
MR ANYGAL:	To the Legal Aid Review Committee.

HIS HONOUR:  I see, within the structure?

MR ANYGAL: Yes, your Honour. Not within this

court, your Honour.

HIS HONOUR:	Not to a court, no.	I
misunderstood.

But that seems to be the only reference to that

matter. There is nothing to indicate that

His Honour was asked to grant a stay by reason of

the operation of the Legal Aid Commission Act.

MS CAMERON: Unfortunately I was not there, but we

instructed him in the strongest terms in writing

that he must seek a stay and he handed the letter

up to the court.

Gamester(6) 16 5/2/92

HIS HONOUR:	Who was your solicitor?
MS CAMERON:	Mr Sainsbury from Tebbutt & Sons.  He is a

young man, only in his second year out of law

school, I think. I am sure that was their

intention, otherwise they would have - - -

HIS HONOUR: At any rate, that is the passage of the

transcript that Mr Jones has drawn my attention to.

There is no reference on that page to a stay and so

far as I can see nothing at the end of the

transcript where His Honour dealt with the orders

he proposed to make.

MS CAMERON: 

My interpretation of what you have just said is

that I would imagine that Mr Anygal thought - I
mean he said that we were going to appeal, and I

think the appeal has been lodged now. But the fact

that the letter says we can appeal and Mr Anygal

said we had appealed - - -

HIS HONOUR: 

That may well be but if what you say is right, that is that the operation or the effect of the

Legal Aid Commission Act is to bring a stay to all the proceedings in which you are involved in the Federal Court, and I express no opinion on that matter, but if you are right then surely your

remedy must be to go to the Federal Court.

MS CAMERON: 

Mr Jurd said he would refuse to accept our notice of appeal on it.

HIS HONOUR: 

I do not know that it is a notice of appeal.

You see, there has been no order made by

Mr Justice Lockhart. I do not want to suggest to

you what the appropriate step is for two reasons:

one is that I do not think it is the function of

this Court and, secondly, it is obviously such a

complex story about which I know virtually nothing,

but if you claim to have a right to a stay by

reason of the operation of the Legal Aid Commission

Act, there must be avenues within the Federal Court

where you can pursue that.

MS CAMERON:  But there are not. I went -

HIS HONOUR:	But you speak in terms of an appeal.
MS CAMERON:	I raised the matter with Mr Jurd and said we

want to appeal about the fact that he did not order

a stay, and he said - - -

HIS HONOUR:  But do you not understand that on the face of

it Mr Justice Lockhart was not asked to order a

stay?

Gamester(6) 17 5/2/92

MS CAMERON: Well, I feel that from what you read out to me,

I would read that as - if the letter was	handed up
it says we are entitled to a stay and Mr	Anygal
said we had appealed, I would read that.	I mean,
it is a bit untidy, but - - -

HIS HONOUR: Well, Ms Cameron, I can see nothing there that

would indicate that your legal representative asked

for a stay. I mean, that is the first thing you

would look for if - - -

MS CAMERON:	But if he said that we - - -
HIS HONOUR:	- that is what you were complaining about.
MS CAMERON:	But they handed the letter up which said we are

entitled to a stay.

HIS HONOUR: Well, Mr Anygal did, not - - -

MS CAMERON: Mr Anygal was our barrister.

HIS HONOUR:  I thought I asked you who your legal

representative was and I thought you said it was

somebody else.

MS CAMERON:	Yes, Mr Sainsbury instructed Mr Anygal.
HIS HONOUR:	Oh, I see. All right, it does not really alter

the complexion of things, that again there does not

appear to be, as far as I can see, no request to

Mr Justice Lockhart.

MS CAMERON:  It is probably an untidy way of doing it, but I

feel that if they handed the letter up which says we are entitled to appeal and then Mr Anygal said

we had appealed or we do intend to appeal - I am

not sure what he said - I would read that as

tantamount to saying we want a stay. I mean it -

HIS HONOUR: Well I am afraid I cannot read it that way and

it points up the problem, that you are asking this

Court to issue an order for mandamus which is an

order, if made, which would call upon a judge of

the Federal Court to do something in circumstances

where it is said that the judge had a duty to do

that thing and that he declined to do it.

MS CAMERON:	Yes.
HIS HONOUR:	Now that is not the situation that emerges at

all from the papers.

MS CAMERON: Well, you see, unfortunately, I was not there

but we - - -

Gamester(6) 18 5/2/92

HIS HONOUR:  That may well be, but your difficulty is that

you are asking this Court to intervene in the

course of proceedings before the Federal Court and,

in particular, a whole series of directions orders

that were made in respect of the hearing to take

place on 27 February. Now, Ms Cameron that must

remain within the Federal Court until such time as

the court has made orders of such a nature that you

can, appropriately, come to this Court by way of

appeal or whatever other right of challenge you

have and I am afraid that time has not arisen.

MS CAMERON:  Yes. I am sorry about that. I mean, our

instructions to the solicitor which we gave in

writing were absolutely emphatic that they must ask

for an adjournment.

HIS HONOUR:  You may well be - I do not question that, I am

in no position to do so, but I am simply looking at

it from the point of view of this Court and I am

afraid this, or what I take to be your application,

because at the moment I am only concerned with the
waiver of fees, although we seem to have gone a

long way from that, but it is entirely premature.

MS CAMERON:	Is that the only mention in the transcript?
HIS HONOUR:	I have not read the transcript.  I asked

Mr Jones and he tells me that that is the only

reference.

MS CAMERON:  My problem is that Mr Justice Lockhart ordered

that the solicitors could have access to the

transcript but the court would not let me have

access to it because I am not a solicitor which

again prevents me from having - you see how can I

go along to the court and say, "We want an order"

when it was not asked for when I have not got the

transcript?

HIS HONOUR: His Honour says on page 29:

I further order that the court copy of the

transcript of today's proceedings be made

available by the New South Wales District

Registry to the solicitors for the applicant on the condition that it does not leave the custody of those solicitors or their counsel,

or counsel instructed by them and is returned

to the registry on or before - now, when

Mr Anygal? Can you get it early next week, or
Monday, say, of next week. That'll be

possible, would it?

Mr ANYGAL: Thursday of next week,

your Honour.

Gamester(6) 19 5/2/92

His Honour: All right. On or before, say,

Friday, 7 February, next

Now, I do not read that as in any way excluding you

from reading the transcript in the presence of your

own solicitor or counsel.

MS CAMERON:  You see, the problem is that our solicitor,

because we did not get an adjournment - and he said

this, so their view must have been that they asked

for a stay, because Mr Sainsbury said to me that

because we did not get a stay, they could not

continue to act for us without the prospect of

legal aid or any payment. You see, we no longer

have a solicitor; this is the point. This is the

main reason why we are here, because unless we can

get legal aid, I cannot go to the court and conduct

this case; I cannot do the work.

HIS HONOUR:  I understand what you are saying, but it does

not alter the fact that what you are seeking to
have this Court do at this stage is in my view

entirely premature. That takes us back to the

application for waiver of fees. As I said to you

at the beginning, before I would consider it

appropriate to order a waiver of fees I would need

to be satisfied that the matter in respect of which

this Court's relief is sought at this stage is

appropriate or has substance. In other words, that

there is some matter that ought to attract the

attention of the Court here and now.	I am afraid I
am not persuaded of that.

MS CAMERON: This is the problem, that I had not seen the

transcript. Had I seen the transcript, I might

have picked up what you have picked up, but I have

not seen the transcript, so I was unaware of that.

HIS HONOUR:  I have just spoken to Mr Jones, and there is no

reason why you should not read the transcript.

Again, it cannot leave the control of the Court,

but I am afraid that - I am not suggesting that the

matter should be stood over while that is done.	I
am simply acceding to your wish to see the
transcript. It just seems to me clear beyond any

argument at this point that you have to continue to

pursue whatever avenues are available to you within

the Federal Court. If this Court's jurisdiction is

properly attracted, it must be at some later stage,

not at this stage.

MS CAMERON: Well, I am awfully sorry to have troubled you.

HIS HONOUR: It may have helped clear your own mind, and if

it has done that it has achieved something.

Gamester(6) 20 5/2/92

MS CAMERON:  If you are of the view that there was not a

specific enough request, then we will go back to

the Federal Court.

HIS HONOUR: Well, that is a matter for you, but at the

moment I am simply asked to waive the fees on the

application that you seek to bring and I decline to

do that for the reasons that I have already given,

which essentially are that it is premature to seek

any relief from this Court at this stage in respect

of the matters now before the Federal Court.

MS CAMERON:  If I could just say this while I have your ear,

that there is a real problem in regard to

particularly impecunious litigants not having

access to the transcript.

HIS HONOUR:	I can see that.
MS CAMERON:	And it is not possible to conduct litigation

without the transcript because it is just not

possible to remember everything and write notes.

HIS HONOUR:  You are speaking here of the transcript of the

hearing before Mr Justice Lockhart ·and that really does not, I think, again not having read it except

those particular passages that I have drawn your

attention to, I am not sure that it would assist

you very much in the sense that it culminates in a

series of orders made by Mr Justice Lockhart and

they are reflected in the minute of order. So I
think what I will have to do for the moment,

Ms Cameron, is in respect of your application,

being the summons of 4 February 1992, that the an order nisi against His Honour

Mr Justice Lockhart without the need for a filing

fee to be paid - in respect of that application I

am afraid I must dismiss it.

MS CAMERON:  Yes, well I am awfully sorry to have troubled

you.

HIS HONOUR: Well, you are entitled to come before the Court

in respect of that summons. If it has helped to

clarify the matter at all, then it has served some

purpose.

MS CAMERON: Well I think it has served another purpose too,

in that I think it is a good example of the

problems that arise when litigants do not have

access to the court transcript.

HIS HONOUR: Yes, I see that. Thank you, Ms Cameron I am

afraid we must now - is there anything else that

you wanted to raise with me?

Gamester(6)	21	5/2/92
MS CAMERON:	Yes.	It is very important that I get that list

back of the notices of motion.

HIS HONOUR:  Yes. Well, make sure you have got that back.

Mr Jones is now handing that to you.

MS CAMERON:	If I could read the transcript now I would be most grateful.
HIS HONOUR:	You are free to read that, but just - I will

adjourn now, but on the basis that Mr Jones will

make available the transcript to you in whatever

circumstances he sees appropriate.

MS CAMERON:  Yes. Thank you for your time and I am sorry to

have troubled you.

HIS HONOUR:  Thank you, Ms Cameron. The Court will now

adjourn.

AT 5.11 PM THE MATTER WAS ADJOURNED SINE DIE

Gamester(6) 22 5/2/92