Gamester Pty Limited & Anor v Rural Press Limited

[1991] HCATrans 286

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S89 of 1990

B e t w e e n -

GAMESTER PTY LIMITED

First-named Applicant

BARBARA ANN CAMERON

Second-named Applicant

and

RURAL PRESS LIMITED, JOHN

LINDSAY PARKER and TIMOTHY ROY

STARKEY

Respondents

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 OCTOBER 1991, AT 10.20 AM

Copyright in the High Court of Australia

Gamester(S) 1 4/10/91

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for

the applicants with my learned friend,

MS J.L. SAUNDERS. (instructed by E.H. Tebbutt &

Sons)

MR A.S. MARTIN: If the Court pleases, I appear for the

respondents. (instructed by Sly & Weigall)

MR BENNETT:  Your Honours, I hand up an outline of

submissions.

BRENNAN J: Yes, Mr Bennett?

MR BENNETT:  If Your Honours please. I should say I am

relying only on the affidavit filed on 28 September

and not on any of the earlier material.

Your Honours, it is a very short point.

BRENNAN J: Perhaps you might draw our attention to any

specific part of that affidavit which you think is

of significance.

MR BENNETT: Yes, certainly, Your Honour. The first passage

is in the judgment of Mr Justice	Pincus. It is the
second of His Honour's judgments	which is exhibit 2

at page 8. I apologize that the whole document

does not seem to be numbered.

TOOHEY J:  Can you just identify the top of the page,

Mr Bennett?

MR BENNETT:  "I have referred to", Your Honour, and

Your Honours see the middle paragraph there, the

third line of the middle paragraph:

The medical certificates which I have previously been shown and which I have

mentioned briefly show, in my opinion, that

the stress-related illnesses 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
quite quick-witted, looked well and never
showed any sign of being unable to answer as
quickly as anyone could reasonably be expected
to answer. She was, I thought, capable of
carrying on vigorous debate over long periods of time.

This is a litigant in person who has not entered

the witness-box. Medical evidence has been filed.

The matter was adjourned for a few days. On the

subsequent occasion, counsel appeared for her; she

is not present. Medical evidence is handed up.

There is no suggestion of its inadmissibility and

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His Honour says, "Well, I disbelieve the medical

evidence", in effect, "because of the impression I

formed of the witness at the bar table."

BRENNAN J:  Do we have copies of the material that was then

laid before His Honour by counsel for the

applicant?

MR BENNETT: It is summarized conveniently in the judgment,

Your Honour. The answer to Your Honour's question

is, yes, if Your Honour wishes to go through the

previous appeal books but I had not intended to do

that and I certainly would not be able to locate it

quickly.	I believe most of it is there but it may
not be.

BRENNAN J:  My question was really directed to seeing what

it was that His Honour was there discounting.

MR BENNETT: Well, that is set out, Your Honour, at the

bottom of page 9, the following page. His Honour

says:

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 -

and he then says:

medical records ..... "

"The complaints and pain being experienced by

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

I have taken Dr Cunningham's affidavit

that he has apparently never seen the lady	into account but it is necessary to notice
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.

TOOHEY J: Is it right to say, Mr Bennett, that His Honour

disbelieved the medical evidence or, rather, that

he regarded it as falling short of what was

necessary to warrant a further adjournment?

MR BENNETT: Well, he seems to have gone further,

Your Honour, because what he says is, that - he

refers to the medical evidence, perhaps on page 8

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Your Honours see. This is the second paragraph again, line 3:

The medical certificates which I have previously been shown and which I have

mentioned briefly show, in my opinion, that the stress-related illnesses were connected

with the case.	They were, in short, nervous
disabilities.

They -

can be distressing.

So, he accepts that but he then says:

I have taken into account my own impression of

Miss Cameron in court.

And that, Your Honour, is what we submit His Honour

is not entitled to do. The Full Court seems to

regard the question as being raised quite squarely

because the Full Court, at page 16 of the

Full Court decision, which is the next exhibit - the page is numbered 30 at the bottom of the page

and 16 at the top - and Your Honours see in the

last paragraph there:

The argument which Miss Cameron presented

to us comes down to the proposition that it is

wrong for a judge to reject medical evidence

on the basis of his own evaluation of it, combined with his own observations of the

patient.

Well, that is not quite the way we would put it.

What we would say is that he is not entitled to

take into account his observations of a litigant in

person in court, not in the witness-box, with a

view to forming a view about her medical condition.

Then the Full Court said:

would put medical evidence in a position of Such a proposition cannot be sustained. It unique invulnerability.

Then at line 9 on the next page:

So far as the present case is concerned,

the judge had a very good opportunity to

observe in court whether the appellant was

actually able, without any (or much) apparent
distress, to conduct difficult litigation over

a lengthy period; while the doctors could only

theorize as to whether it was likely she would

be able to do so, despite which the material

furnished by them barely condescended to any

Gamester(S) 4 4/10/91

discussion of the basis of their predictions.

Dr Cunningham's affidavit does not suggest he had ever seen Miss Cameron, apart from on the one occasion for an unspecified period at some

time during one of the days when the judge had

himself had a prolonged opportunity to observe

her. It would fly in the face of common sense
to say his Honour could not, when he was

evaluating the evidence, take into account

what he himself had seen. Part of the medical

evidence involved a doctor's opinion that the

appellant could not concentrate for more than two or three hours; a consideration of such a

claim, about someone who has actually been
conducting a court case, is not the peculiar

province of a medical practitioner.

DAWSON J:  You say there is no authority on the question,

Mr Bennett. I seem to recollect a Victorian - I

cannot say that it was an authority - certainly a
decision that the trial judge could take into

account the behaviour of an accused in deciding, I

think it was fitness to plead, but - - -

MR BENNETT:  Yes. Your Honour, I am not aware of that case.

That may be a special case because of the type of

litigation involved but it may be also that that is

in the situation where he is in the witness-box.

DAWSON J:	No, no, in the dock.
MR BENNETT:	Your Honour, in my submission, if the decision

is in that form it is incorrect. My submission,

very simply, on the law is this, that a judge is

entitled to take into account evidence in the

witness-box. He is entitled to take into account the demeanour of a witness, documentary evidence, things which are tendered. If there is a view,

there are very strict rules on the way the judge

can use that. It is to understand the evidence, not

to see the evidence, and Your Honours are familiar

with that line of cases.

We would submit what goes on in the court room

is very much in the same category as a view.

Mr Justice Young, who has written an article on the

subject which we have taken the liberty of

exhibiting to the affidavit, seems to suggest that

a lot of these questions are substantially

undecided. The example he gives which is closest

to this one is the example of the judge who sees a

supposedly independent witness wink at the

plaintiff as he leaves the witness-box and the

conclusion His Honour draws in relation to that is

that in that case the judge may have to disqualify

himself if the wink is denied and there is an issue

Gamester(S) 4/10/91

about it because he is not entitled to take into

account that type of observation.

His Honour, at the second page of the article,

page 200 of the article, having set out the seven
examples he gives of what a judge may or may not

take into account, refers to a case in 1406 where:

King Henry IV demanded of Gascoign J -

I he saw one in his presence kill JS and

another that was innocent was indicted for it

before him, and found guilty of the same

death, what would he do in such a case?

And His Lordship announced:

that he would respite judgment (ie make sure

the prisoner was not hung until the

application for a royal pardon had been

considered) because he knew the party was

innocent and make further relation to his
Majesty to grant his pardon, and the King was

well pleased that the law was so; but there he could not acquit him, and give judgment of his

own prior knowledge.

Then there is reference to judicial knowledge.

Situation 4 that His Honour refers to is at

the foot of page 1 - that is the wink example - and

His Honour deals with that at page 206 where, at

the top of the page His Honour says, in relation to

that situation:

(4) This is more awkward. The older

authorities appear to say that this situation

is no different to a judge who is in a

restaurant after a day's hearing, and has the

misfortune to hear the independent witness

conferring with the plaintiff in terms which

show that they are great friends. He has no

option but to disqualify himself.

There are some South Australian cases referred to and perhaps the most useful one is at page 203

of the article where in Minagall v Aryes, (1966)

SASR 151, there was a drunken driving case and part

of the issue was whether the defendant's conduct

was such that he did it all the time and the judge

said:

I had the opportunity of having the defendant

under constant observation for nigh on three

days during this case, and as a result, I have
come to the conclusion that his actions,

mannerisms, and idiosyncrasies could have been

Gamester(S) 6 4/10/91

honestly mistaken by the witnesses for the

prosecution. Therefore ... the

complaint ... shall be dismissed.

In allowing the Crown's appeal -

the Full Court said the judge was not allowed to do

that.

It is of course proper and usual for the court to take note of the demeanour of a witness within the witness box giving evidence. This

is one of the most common and valuable means

available to the court for arriving at the

truth of a matter. It is entirely different,

however, for a court to take into account the "actions, mannerisms and idiosyncrasies" of a party while he is sitting in the body of the

court -

we would say, or conducting a case in person -

that is to say, while he is out of range of

vision of both his own and opposing counsel,

when the conduct in question may be calculated

to lead the court to a decision in his favour.

Et cetera.

TOOHEY J: But this is quite a different case, is it not,

Mr Bennett? It is a case in which an adjournment

had already been granted and when the matter came

on for hearing again the present applicant was

represented by counsel?

MR BENNETT: Yes, Your Honour.

TOOHEY J:  Who made an application for a further

adjournment?

MR BENNETT: Yes, Your Honour.

TOOHEY J: Which was refused?

MR BENNETT: Counsel, I think, was briefed, as I understand

it, for the sole purpose of seeking the

adjournment.

TOOHEY J:  I rather took that to be the case. Did counsel

then simply withdraw?

MR BENNETT: Yes, Your Honour, he had no instructions to

fight the case nor was able to.

TOOHEY J:	And there was no one to prosecute the action?
Gamester(S)	4/10/91

MR BENNETT:  That is so, Your Honour. But His Honour

refused the adjournment by saying, "Here is some

medical evidence. Prima facie, that medical

evidence might be sufficient, but I have observed

the applicant conducting her own case only last

week, in one situation on the same day as a doctor

saw her, and I have formed a view, having seen her,

that she is able to conduct it and that she does	II
not	-

TOOHEY J: But it is a rather grey area, is it not, because

litigants in person are ordinarily under stress.

Judges can, to some extent, cope with that in the

way in which the action is handled: granting

adjournments, assisting the litigant within proper

limits and so on.	I mean, it is not a black and
white case in this case.	If the applicant had been

present then questions might have arisen as to how

she could have best presented her case with the

legitimate assistance of the court, but the

application having been made for a further

adjournment and refused, that was really the end of

the matter.

MR BENNETT: Well, Your Honour, my submission is this, that

the case is a convenient vehicle for determining

what is a very important and very general question

on which there seems to be very little direct

authority and that is the question that is

discussed by Mr Justice Young in his article as to

the extent to which a judge is entitled to use his

own observations.

TOOHEY J: But the judge is not setting up his own

observations, as it were, in direct conflict with

the medical evidence. It is not as if the judge

was faced with a medical certificate which said the

plaintiff had a broken leg and he said, "Well, I've

seen the plaintiff in court.	I don't think she's
got a broken leg."	I mean, that would be a fairly
rash thing for a judge to say.	But this case is
sort of surrounded with notions of stress and the

effect on the applicant and the trial judge's view

seems to have been, "Well, it would have been in

her interest to get the litigation out of the way."

MR BENNETT:  Your Honour, with respect, that is not a matter

he is really entitled to take into account. We do

not know what the trial judge would have done had
he just had the medical evidence and not taken into

account his own observations. And the Full Court

has dismissed an appeal in relation to which one of

the matters argued is that he is not entitled to
take his observations into account. If he was not

entitled to take them into account, then, in my

respectful submission, the result must be that it

goes back to a trial judge for the purpose of

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hearing the matter.	The decision not to grant the
adjournment is vitiated.	Once the decision not to

grant the adjournment is vitiated by the error of

law, if one puts it in administrative law terms,

the taking into account of irrelevant
considerations or matters that are not properly
evidence, then it is a matter for that court again,

but the ultimate issue is whether the judge can do

that.

As I have said in the submissions, it can

really be put at two levels of generality. The

broad level is can a judge observe things in the

court room: a witness winking at the plaintiff.
The other example Mr Justice Young gives is the
custody case where the wife gives evidence that the

5-year-old child will not go to his father and then

during the hearing the child breaks away from its

mother and rushes up to the father, saying, "Daddy,

daddy." Now, to what extent can the judge take

that into account or not? And the better view is
that unless someone gives evidence of what just

happened, he cannot.

DAWSON J:  So that in this case, if someone swore an

affidavit that they observed Ms Cameron acting in a

way from which you could draw an inference that she

was in sufficient health to conduct the case, the

judge can consider it; but he cannot take into

account what he sees with his own eyes?

MR BENNETT: Yes, Your Honour, subject to the question of

whether it is expert evidence or not expert

evidence that the witness gives.

DAWSON J: No, no, just - - -

MR BENNETT:  But subject to that, yes, Your Honour, that is

the difference.

BRENNAN J:  Mr Bennett, one could readily understand the

views that you have been canvassing, based on

Mr Justice Young's article, when the issue for

determination is one of the issues joined between
the parties but here the question was not one of
those issues. Here, the question was whether or

not the plaintiff was capable of conducting her

litigation. One could think of no more expert

evidence available as to capacity to conduct

litigation than the judge who had heard the party

conducting that litigation. It is not quite the

same case.

MR BENNETT: Well, Your Honour, in my respectful submission,

that illustrates the vice of it because His Honour,

really, in that situation, is becoming an expert

Gamester(S) 9 4/10/91

witness in his own case where he cannot be

cross-examined.

BRENNAN J:  Well, it is not in his own case. It is in the

conduct of these proceedings.

MR BENNETT:  I am sorry, "his own case" is the wrong phrase:

in the case he is trying.

DAWSON J: But, Mr Bennett, if it were allowed, then someone

could take a film of what Ms Cameron was doing in

the court. Obviously, then that could be shown to

the judge but he cannot take into account what he

saw of his own eyes without the film.

MR BENNETT: Well, Your Honour, may I come back to the

witness. Suppose a supposedly independent witness in a motor accident case gives evidence, comes out

of the box and winks at the plaintiff and let us

suppose he is immediately put back in the box and

the judge says to him, "Didn't you just wink at the

plaintiff?", and he says, "No, I didn't." Now,

Your Honour, as Mr Justice Young says, the judge

cannot continue to try a case in which that may be

an issue. Certainly, if he does, he has to ignore

what he has seen and either accept or reject what

the witness tells him, based on the witness's

demeanour but not on the other thing.

It certainly may be there are other ways of

doing it. Certainly, someone else could have got

in the witness-box and said, "I've observed her in

front of Your Honour for the last two days and my

observations are as follows." That is fine. That

can be tested on appeal like any other finding.	It
can be determined like a finding.	But the judge
cannot do it himself.

One can test it this way, Your Honour: an

application for adjournment on medical grounds is

no different to any other hearing.	It is a hearing
in which the court has to determine a question of

fact combined with a question of discretion. There

is a question of fact as to the medical ability of
the plaintiff to continue to conduct the case and a

question of discretion, having determined that, of

weighing it against the considerations relating to

the other party and prior adjournments and so on.

But in deciding that first question, the judge

must hear evidence in the normal way. If there is

a contest, one can hear two doctors: one doctor

says she is all right; one doctor says she will

have a heart attack if she continues, and they can

be cross-examined and they can give their evidence.

But what the judge cannot do is say, "Well, I've

observed you. I form a view not on the question on

Gamester(S) 10 4/10/91

which the judge is an expert which is how much

stress is involved in running a case." That is

only half the question. But on the other half of

the question which is, "How sick are you and how is
that stress going to affect you?" - and what the

learned trial judge did here was to apply his own

observations and weigh that with the other

evidence.

In my submission, that is an important

question. The narrower question, which is l.b. in

my submissions is, while perhaps less generally
important than the broader question, still an

important one. Litigants in person are, whether we

like it or not, an increasing factor in our court

systems and problems do arise which the courts have

to solve in relation to dealing with them. In my respectful submission, the problem which arose in

this case is not an uncommon one and it is of

importance that courts should know whether or not a
judge can take into account observations of the
medical condition of a person conducting a case in
person.

Your Honour, I do also submit that the general question arises squarely; that the questions

Mr Justice Young refers to are questions which need

to be determined, and the matters are sufficiently

important for this Court. It would be, of course, a very short appeal. It involves one short point. If it succeeds, the matter would go back; if it

fails, it does not. The problems which arose in

relation to the unfortunate prior history of this

matter would not arise in relation to this appeal

which is a very discrete point of law and for which

I am instructed that the present intention of the

applicants is to brief counsel.

As I say, it is a very short question and, in

my respectful submission, it is an appropriate case

for special leave. May it please the Court.

BRENNAN J:  We need not trouble you, Mr Martin.

MR MARTIN: If the Court pleases.

BRENNAN J: 

We see no error of principle in the judgment of

the Full Court of the Federal Court and, in
particular, in the observations made by the court

as to the evaluation by Mr Justice Pincus of the

plaintiff's capacity to conduct her litigation.

Despite the careful presentation of the

application for special leave by Mr Bennett, we are not persuaded that special leave should be granted. The application is refused.

Gamester(S) 11 4/10/91

MR MARTIN:  We ask for costs.

MR BENNETT: There is nothing I can say.

BRENNAN J: It must be refused with costs.

AT 10.43 AM THE MATTER WAS ADJOURNED SINE DIE

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