Gamester Pty Limited & Anor v Rural Press Limited

[1991] HCATrans 266

~ ~ ,_ .... r

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 variation of

orders

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 23 SEPTEMBER 1991, AT 11.30 AM

(Continued from 18/9/91)

Copyright in the High Court of Australia

Gamester(4) 63 23/9/91

HIS HONOUR:	Yes, Ms Cameron?
MS CAMERON:	I was to find the summonses for the - - -
HIS HONOUR:	Yes, well that is one thing.  Ms Cameron, I

understand that those original documents have still

not been returned to the Court.

MS CAMERON:  I am afraid that is right and, unfortunately -

please do not blame Mr Sainsbury because he gave

them to me and my recollection is that Mr Horler

took them from me but Mr Horler's secretary cannot

find them. But I have written a letter to Sly &

Weigall asking if they would provide to the Court

their original copies.

HIS HONOUR:	Yes.
MS CAMERON:	I am awfully sorry about it.

HIS HONOUR: Well, Ms Cameron, it is something that the

Court will have to take up but I just draw your

attention to that fact. Now, what about the matter

that is listed for hearing today?

MS CAMERON: Yes. Well, I have found the summonses.

HIS HONOUR:	Have the summonses the Court seal on them?
MS CAMERON:	One of them has, yes.
HIS HONOUR:	One of them has.
MS CAMERON:	What I have been able to sort out is that there

were four applications. One was for the legal aid

matter before Justice Gaudron and she dealt with

that, and then there was another application to

waive the fee for the appeal to the Full Bench, and

that has not been dealt with and I have got that

one here.

HIS HONOUR:	Yes.
MS CAMERON:	And then the one for the Rural Press matter, the S89 of 1990, I could not find one for that.	I

do not know whether that means there is one or what

has happened to it.

HIS HONOUR: Well, that obviously means there is not one

because there is none in the Court and you cannot

find one, so I think we can safely assume that that

does not exist.

MS CAMERON:  Well, I recall drafting it. I think it is

stored in another place from where I looked.

HIS HONOUR:  Anyway, yes, that is two.

Gamester(4) 64 23/9/91

MS CAMERON:  Yes, and then the fourth - well, those are the

three fees that have been filed. Then the fourth

one was the one for Mr Justice Pincus.

HIS HONOUR:  You wanted leave to appeal against the judgment

of the Chief Justice - sorry, you wanted to file an

appeal and waive the fee?

MS CAMERON: Well, in the summons for that I put - seeking

an order to waive the fee that had been paid and

also to waive the fee for the appeal. So, those

two are in the one and that has not been filed yet.

That is the one that we wanted to get the fee

waived for before -

HIS HONOUR:	Where are these documents that you - could you hand them up, please, so I can - - -
MS CAMERON:	Yes.
HIS HONOUR:	Do not worry about Justice Gaudron's one

because that has been dealt with, has it not?

MS CAMERON:  Well, only one of them. Yes, the one that she

dealt with, yes.	I really am awfully sorry about
that.

HIS HONOUR: Well, these documents seem all concerned with a

filing fee in relation to an appeal against the

order of Sir Anthony Mason. Four of them all seem to be copies of the one document. I am sorry, no,

one is S36 of 1990.	Who has put these numbers on
them?

MS CAMERON:  The Court. I am sorry, it really is an awful

muddle. The trouble is that I have got things

stored in different places and I have only been

able to go to one place since I last saw you.

HIS HONOUR: Well, what is S65 of 1990? Which matter is

that?

MS CAMERON:  I am sorry to say, I do not know.

HIS HONOUR: Right. Well, S36 seems to be the order nisi.

I was wrong when I said the four of them seemed to

be copies of the other; they are not. S36 was

that, "The filing fee of $300 for the filing of the

order nisi in the above matter be waived." Now,

that matter, as I understand it, has already been

dealt with and that fee has been waived.

MS CAMERON: That is the - the only one that has been dealt

with is the one that Justice Gaudron - - -

HIS HONOUR: Right. Well, I can hand those back to you.

That is S36.

Gamester(4) 65 23/9/91

MS CAMERON: But that is a copy, I think, of the - I used

the same affidavit for both.

HIS HONOUR: Well, we will not worry about that. Now, the

other document before me is S65 of 1990, and I do

not know what this is in relation to.

MS CAMERON:  I think that is the appeal against

Justice Gaudron. That is the Full Bench, the one that has not been heard. That is what I meant by

that notice of motion the other day, if that legal
aid appeal could be heard before the application

for leave to appeal.

HIS HONOUR: But you are already part-heard in that.

MS CAMERON:  Yes. Mr Horler has had to go overseas for a

month and	he has not had time to do anything about
it and we	wanted it heard before the application
for leave	to appeal.

HIS HONOUR:  But this order, S65 of 1990, it seeks an order

that, "The filing fee be waived." Now, if the

matter relates to the appeal which is currently part-heard before the Full Court, then you must

have paid the fee.

MS CAMERON:  Yes, I have paid all the fees. I had an

argument with Mr McCluskey several times because I

said that the Rules meant that we did not have to

pay the fee and he said we had to pay the fee, and

I have paid the fees all along which has been - - -

HIS HONOUR:	Well then, you are seeking
MS CAMERON:	A refund.
HIS HONOUR:	- - - a refund?
MS CAMERON:	Yes.

HIS HONOUR: 

Ms Cameron, ordinarily, I would deal with that

particular matter but this matter is before the
Full Court at the moment, it is part-heard, and I

suggest that you bring that on a summons in proper

form before that Court when the matter resumes and

ask for the fee to be repaid to you.

MS CAMERON:  But the only trouble is, there are two things:

one, I need the money urgently and the other is

that the Court has power to not take the fee in the

first place. It does not have to wait until the

matter is over. That is what the Rules say.

HIS HONOUR: Well, Order 72 says:

Gamester(4) 66 23/9/91

The Court or a Justice may, in a particular

case for special reason, direct -

(a) that a fee shall not be taken -

and there is no doubt about that. Now, you make a

statement from the bar table about this matter.

Mr McCluskey is presently away, I think, on sick

leave and will be away certainly for the rest of

this week. I think he may be back next week. But,

first of all, the summons that we heard last week,

the orders 6 and 7 - order 6 sought an order:

That a hearing date be given for the

outstanding summonses filed seeking waiver of

filing fees.

Well, as you pointed out the other day, it is a bit

unintelligible. And then 7 was:

That the filing fee for the filing of an

appeal against the index be waived should

order number 5 -

Now, none of those orders in 6 and 7 have anything

to do with these summonses today.

MS CAMERON: Well, I have not got that with me but I think 6

I meant to - - -

HIS HONOUR: Well, let us not worry about anything except,

for the moment, what we are dealing with presently,

namely, this, was is called S65 of 1990.

MS CAMERON:	May I please sit down?
HIS HONOUR:	Yes, certainly, Ms Cameron.  Now, you seek an

order that, "The filing fee of $300 for the filing

of the appeal in the above matter be waived."

MS CAMERON: Well, it should be "refunded" because I paid

it.

HIS HONOUR:  Yes.

MS CAMERON: Justice Gaudron waived it.

HIS HONOUR:	Yes, I know that.
MS CAMERON:	And so has the Federal Court.  I have got

receipts somewhere.

HIS HONOUR: Yes. Well, Ms Cameron, I will treat this

application as an oral application in Court. The

order I propose to make in relation to matter S65

of 1990 is that I order that the filing fee of $300

Gamester(4) 67 23/9/91

paid in respect of the filing of the notice of

appeal in matter S65 of 1990 be remitted.

MS CAMERON:	Thank you very much.
HIS HONOUR:	Right. Now, that takes care of that. Now, is

there anything else outstanding?

MS CAMERON:  Yes. In the order nisi matter against

Mr Justice Pincus I have asked for that in a summons which - is the summons which I have not

filed which was the one that I wanted to file

when - the day that Mr McCluskey would not take

them. Also, with that is that I wanted the fee for

the appeal in that matter to be waived before I

filed because the fact - I just do not have the

money to file that and it has been held up week

after week because I do not have the money.

HIS HONOUR: Well, could I tell you this: I have studied

the relevant authorities on Order 72 rule 12; I

have studied the judgment of the Chief Justice in

this matter, and leaving aside any question of the

fact that it is now over five months out of time,

the fact is I would not be prepared to make an

order waiving the fee, and I will tell you shortly

the reason:	I do not think that your appeal is
arguable.

MS CAMERON:  I have - and I have brought it with me - read

the three pages of the transcript which relate to

it and a barrister very kindly read it for us and

he said that it is quite clear that

Chief Justice Mason was - he understood it to be

something different from what it was. He thought

the issue was whether or not we would get discovery

through the trial, whereas the issue was that we

said that the respondents had failed to comply with

the orders made for discovery.

HIS HONOUR:  It would not matter what it was, the point is

that you are seeking mandamus in relation to an

interlocutory order in proceedings which have been

dismissed. Now, that is the point that the

Chief Justice made, and it is unanswerable. Until

you get the order dismissing your action set aside, the matters in relation to defences, discovery and all those interlocutory orders, are of no moment at

all.

MS CAMERON: Well, you see, the trouble is that we have been

advised that - - -

HIS HONOUR:  Look, the matter is so clear it is beyond

argument. I do not care what advice you have had.

You are entitled to get it but, Ms Cameron, it is

just simply erroneous advice. As the Chief Justice

Gamester(4) 68 23/9/91

pointed out in his judgment in the plainest terms

and I will read to you what he said.	Do you have a
copy of what he said?

MS CAMERON:	No, but I can remember it.
HIS HONOUR:	The Chief Justice, having referred to the

circumstances, said:

I am not disposed to infer from the transcript

of what transpired on 13 March that Pincus J.

refused to exercise jurisdiction. It seems to

me that he exercised jurisdiction by striking

out the notice of motion, having come to the

conclusion that it was without merit; that it

was seeking to agitate matters previously

ventilated and that it was calculated to
interfere with a prompt, efficient and just

disposition of the action. At that time the

applicants seemed to have viewed the order as

an exercise of jurisdiction because, as I have

pointed out, they applied unsuccessfully for

leave to appeal against it.

Then the Chief Justice goes on:

That is not the least of the obstacles

confronting the applicants. Their action
stands dismissed and their appeal against that

dismissal was dismissed by the Full Court.

That is the end of the matter. It would not

be right for this Court to grant mandamus to

hear and determine an interlocutory

application in an action which has been

finally disposed of by the Federal Court while

the order dismissing the action remains on

foot, more particularly when the applicants

sought and were refused leave to appeal from

the order now the subject of challenge in

proceedings for mandamus.

Now, nothing could be clearer than that, and

what the Chief Justice said is not even open to
argument as being incorrect. It is absolutely

correct.

MS CAMERON: Just for what it is worth: what we have been

told is that the matter should not have been

dismissed while we were appealing against it. You

see, the.Full Bench saw it - the issue, in their

judgment - they thought that I was arguing about

whether or not we would get discovery through the

trial whereas, in fact, the argument was that they

had not complied with the orders for discovery. I

do not know whether you have read the transcript of

it before Mr Justice Pincus. I have got that here.

Gamester(4) 69 23/9/91

HIS HONOUR:  I have read part of it. But, Ms Cameron, it

does not matter what was in the transcript. It
does not matter whether Justice Pincus was

incorrect in relation to that point. In fact, it

probably does not matter that he may have not

exercised jurisdiction which he should have

exercised, even assuming that you are correct in

that contention. What matters is the fact that

your action, the main action, has been dismissed.

MS CAMERON:  Yes, but you see, what we have been told is

wrong, that the dismissing of our action has served

to stop an appeal.

HIS HONOUR:  The dismissing of your action means that all

the interlocutory steps are no longer on foot.

They have come to an end. Now, until you get that

order set aside then everything else is absolutely

futile and pointless.

MS CAMERON: Well, the advice - I am just explaining this so

you know why I have done it.

HIS HONOUR: Well, I understand people give you this advice.

MS CAMERON: Well, we have been advised that the

interlocutory - the case should not have been dealt

with finally until the interlocutory matters were

complete.

HIS HONOUR:  That may well be accepted by the Full Bench

which hears your argument on 4 October and if they

do that will be a ground for setting aside the
order that Mr Justice Pincus made. You will have

to argue - whatever counsel appears for you will,

no doubt, make those points but, at the moment,

your action under the Trade Practices Act is

dismissed.

MS CAMERON: Well, if I could just say two things: one, we

are hopeful that we will have a QC there.	He is
going to be in Japan the day before but we are

hopeful that he will be able to do it but, you see,

the problems that I am coming up against is that,

for example, this morning I have had an awful bun
fight with Mr Justice Sheppard about the legal aid

matter because we have a notice of motion before
the Federal Court asking for the settlement -
hearing of the enforcement of the settlement to

wait until the legal aid matter has been dealt with

and he said, no, he will not do that because you

found that there was no legal aid outstanding.	I
mean, I am just in all sorts of flack at home

because - I mean, the correspondence which, if the

Court would read, clearly shows that we have got

one matter before the High Court which, I

understand, now, you say is the - I understand your

Gamester(4) 70 23/9/91

point that the leave to the High Court is only

leave to appeal, not an appeal. But the point is

that if the Court condones the conduct of the Legal

Aid Commission, something is terribly wrong.

HIS HONOUR:  But we are not condoning the conduct of

the - - -

MS CAMERON:  We should have time to go to Mr Justice Grove

about it and have something done. We should have

time to make contact with the Attorney-General.

HIS HONOUR:  Ms Cameron, we are now moving into territory

quite divorced from here.

MS CAMERON: No. Well, the point - - -

HIS HONOUR:  Ms Cameron, I have done, I think, everything I

can possibly do to assist you in this matter.	As I
said to you the other day, I do not know of any

case in recent years involving an application for
special leave to the High Court which has taken up

as much time as your matter.

MS CAMERON: Yes. Well, I am sure that is probably right.

HIS HONOUR:  Nothing that is in the Chief Justice's

judgment, it seems to me, affects your special

leave application in any way whatsoever.

MS CAMERON: Except that if it is a final judgment and the

Court has made a decision on it, if we do not

appeal against it, then it is accepted as being

final.

HIS HONOUR: Well, it is a final order in relation to that.

I will just allow you to take up this much more of

my time. Supposing you had the order set aside,

that is, the order dismissing your application for

leave to appeal. Well, then the question would

have to be considered as to what was to be done in

relation to the defences.

MS CAMERON:  Yes.

HIS HONOUR: Well, it could be done at that stage.

MS CAMERON:	It is not too late then to do it?
HIS HONOUR: Well, it may be said that it	is too late in the

sense that you should have taken	your application
for a mandamus in the week prior	to the date on
which your action was dismissed.	When was that,
19 March?

MS CAMERON: Well, you see, the reason why we have not been

able to do all of these things is because of money

Gamester(4) 71 23/9/91

and because I have been doing everything and

finding out what the law is well after the event.

HIS HONOUR: Well, I appreciate that. But, Ms Cameron, I

really cannot take up any more time. If you want

me to give a formal judgment in relation to the

appeal against Chief Justice Mason, I will give it

for you.

MS CAMERON:  Oh no, it is just the point - I mean, you have

said that one ground on 4 October would be the

interlocutory matters were not finished but if -

and then the other side will say there is no appeal

against Chief Justice Mason. I mean, I can only do

what I am told to do.

HIS HONOUR:  But Chief Justice Mason was dealing with a

jurisdictional matter. It does not -

Justice Pincus may have acted within jurisdiction

but have been wrong.

MS CAMERON: 

You see, if we got leave to appeal and we went

back before the Court and we then said the defence
should be dismissed for wilful avoidance of

discovery, the other side would rightly say there
is a final judgment by the Chief Justice of the

High Court, you cannot upturn it.

HIS HONOUR: 

They would say it is the final judgment in

relation to an application for a mandamus. At some

later stage you can consider your options; you may

seek to appeal out of time against the order of the

Chief Justice; or you may seek to bring a fresh application. There are any one of a number of things that you may or may not be able to do but one thing is certain: as the position stands at the moment, any appeal against the judgment of
Chief Justice Mason is misconceived, futile and has

no prospects of success. Having regard to what

members of this Court have said In Re Louis (Nol);

Re Louis (No 2) and In Re Limbo, I would not be

prepared to waive the fee in those circumstances.

MS CAMERON: Well, the only other outstanding fee is the fee

remember doing a summons for that but I think it is

for S89, that is the application for leave to

appeal in the Rural Press matter and the Trade

probably stored somewhere else, but I do not

remember jiling that one.

HIS HONOUR:	Yes.
MS CAMERON:	I would be most grateful if you could do that

on an oral application as well because I

desperately need the money.	I have a feeling that
one was a - - -

Gamester(4) 72 23/9/91

HIS HONOUR:	That is S89 of 1990?
MS CAMERON:	Yes.  I have a feeling it was only $200.
HIS HONOUR:	Yes.  In relation to matter S89 of 1990, I

order that the whole of the fee paid in respect of

the application for special leave to appeal be

remitted.

MS CAMERON:  Thank you very much. There is just a couple of

other loose ends.	The documents that I have handed
up to you are my only copies.	Do you need to keep
those?

HIS HONOUR:  No, no, I do not need to keep them. I will

hand them all back to you.

MS CAMERON:  The other problem - unfortunately it has only

been brought to my attention today - is that these

appeal books have got rather a serious problem in

that the printer - they were done in such a rush

that the printer has left out seven pages.

HIS HONOUR: Well, if they are pages that should have been

in have been left out, Ms Cameron, then those pages

can be put in administratively or, if necessary, a

supplementary book can be filed although it is

probably best that it be done. I am sure it can be

arranged administratively with the Deputy

Registrar.

MS CAMERON:  Yes. I have spoken with her this morning. The

only problem is as the books are prepared there is

no provision for slipping them in.	They would
really need to be rebound.	The question arises,
do - - -

HIS HONOUR: Rebinding, is that a matter for the applicant

or is a matter for - - -?

THE DEPUTY REGISTRAR: For the applicant.

HIS HONOUR: Well, they can either be - well, it is not for

me to say.	Deputy Registrar, how should it be
done?

THE DEPUTY REGISTRAR: This matter is on next week, is it?

HIS HONOUR:  Yes.

THE DEPUTY REGISTRAR: Well, there is very little time.

MS CAMERON:	Yes. There are problems for me for -
HIS HONOUR:	So, what do you suggest about putting

them - - -

Gamester(4) 73 23/9/91

THE DEPUTY REGISTRAR:  I suggest that we could just add

in - - -

MS CAMERON: Staple them in.

HIS HONOUR: Staple them in?

THE DEPUTY REGISTRAR:  Yes.

HIS HONOUR: Well, if that is the way it has been done in

the past, there is no reason why it cannot be done

although I cannot recollect seeing so many pages

being stapled in. Occasionally one sees a page or

two.

MS CAMERON:  They are not terribly important pages. The

ones that we are really worried about are the pages

of the transcript which were where I have mentioned

that there were 10 pages. But I think the best

thing would be if we just did a supplementary book.

HIS HONOUR: Well, I have told you that you cannot do a

supplementary book but you can put the material

before the Judges and ask them to read it on the

particular day and explain why they should be read.

MS CAMERON:  Yes. The only other - a couple of other

things: one, that what I meant by No 7 or what I

meant to put in that last summons was whether or

not the legal aid before the Full Bench could be
heard before Friday. But I suppose you do not want

to do that?

HIS HONOUR:	What is it, Ms Cameron?
MS CAMERON:	The legal aid hearing before the Full Bench in

Canberra which is part-heard. What I meant to ask

for was whether or not that could be heard before

4 October?

HIS HONOUR: Well, it is a matter completely out of my

control but the answer would be, no. The list is

set for this week and next week and this matter

will be on on the 4th.

MS CAMERON:  Yes. Well, the only other thing I want to say

is that I am awfully sorry about those orders that

have gone missing. I realize it is very serious.

Would you like a copy of the letter I have

written - - -

HIS HONOUR:  It is a matter for the courts. The Registrar

will have to take it up with Mr Sainsbury who has

given the undertaking in relation to the matter.

It is not a matter for me to be dealing with today.

Gamester(4) 74 23/9/91

MS CAMERON:  But I just want to try and impress - ask you to

try not to be cross with Mr Sainsbury because he

gave them to me. He wanted to copy them and give

me copies and I talked him out of it because of the

cost. So, it is certainly not his fault.

HIS HONOUR:  Yes, very well. Adjourn the Court sine die.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

Gamester(4) 75 23/9/91