Gamester Pty Limited & Anor v Rural Press Limited

[1991] HCATrans 253

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 and

BARBARA ANN CAMERON

Applicants

and

RURAL PRESS LIMITED,

JOHN LINDSAY PARKER and

TIMOTHY ROY STARKEY

Respondents

Application for extension of

time for filing application

books

McHUGH J

Gamester(3) 1 4/9/91

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 4 SEPTEMBER 1991, AT 10.20 AM

Copyright in the High Court of Australia

MR K. HORLER, QC:  Your Honour, in this matter, so far as

the two applicants are concerned, that is, the

company, Gamester, and Miss Cameron, I do not

appear as counsel, I appear, if that is the right

verb, as friend of the Court, amicus curiae, to

help her and to assist, Your Honour.

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

respondents. (instructed by Sly & Weigall)

HIS HONOUR:	Yes, Mr Horler.
MR HORLER:	Your Honour, this matter has a history and I

know very little of it. Sufficient to say that

it - - -

HIS HONOUR:  Much of it is set out in a judgment I gave in

this matter.

MR HORLER:  I have not had the benefit of reading it.

Your Honour, one aspect of this litigation was in

the High Court on or about 7 August. I think

Your Honour was not sitting on that bench.

HIS HONOUR:	No.
MR HORLER:	And Miss Cameron, appearing for herself and for

the company, of which she is a director and

shareholder, that is Gamester, was appearing - it

was certainly the Chief Justice and two others - I

am sorry I cannot remember - I think, and I was in

the matter following and I made an application to

adjourn those proceedings which, as much as I

understand them, were appeal proceedings that this
lady has brought, without the benefit of legal

advice, and the named respondent in those

proceedings on 7 August was Mr Justice Lockhart,
but that suggests only that it is the Federal Court
part of the litigation that brought Miss Cameron into court on that day, and I, as amicus curiae,

had that matter adjourned - no further date was

fixed - so that she might be put in touch with

lawyers so that the very complicated and

many-headed aspect of this litigation could receive the benefit of legal advice, and I undertook to the

High Court, on or about 7 August, to assist her in

that regard. Some efforts, but they have been so

far unavailing, have occurred in relation to getting back the grant of legal aid that she

previously had.	She had a grant of legal aid
supported - -

HIS HONOUR:  I am familiar - - -

MR HORLER:  I am sorry. Your Honour, let me just - why are

we here today? There are certain orders that I

have not seen that Your Honour made which, if

Gamester(3) 2 4/9/91

Miss Cameron and the company do not comply with

today, so she tells me, will have the effect of

putting an end to all or most of the appellate

litigation, and Your Honour has made, at least on

two occasions, I am told, and I have her summons,

certain orders that require her to do or to have

done certain things by today.

Now, she clearly needs, in the conventional

way, the benefit of legal advice. There has to be

some limit as to what I can do for her as amicus

curiae. This morning, a gentleman who is an

employed solicitor, not a partner, of Tebbutt and

Sons, Solicitors - and I have had a message from a

Mr Peter Tebbutt, but not been able to speak to him

this morning - is here and I understand he is

prepared to take her instructions, well knowing

that she has no money and the chances of getting

back the earlier revoked legal aid may be slim. I

do not know what the whole story on that aspect is.

She has a summons, the effect of which is - - -

HIS HONOUR:  Can I interrupt you?

MR HORLER: Please.

HIS HONOUR:  I expressed the view during the argument of the

summonses, which were filed, I think, on 5 February

and 7 February this year, respectively, that it was

difficult to see what the point was of the appeal
against Mr Justice Lockhart's order. It was an
application for legal aid in respect of a matter

which is finalized. So that if Justice Gaudron was in error, if Justice Lockhart was in error, so that

the matter was sent back, the very proceedings

before him would appear to be futile. There would

be nothing he could order.

MR HORLER:  I am reluctant to give a 100 per cent assent to

that today.

HIS HONOUR:	Yes.
MR HORLER:	I see the logic and the force of it, but I do

not want to throw in the towel on that without
having further looked at it, but it seems a huge

and perhaps impossible hurdle for her to overcome.

I accept that.

HIS HONOUR:  And I must say, it has always surprised me that

it was not this application which was not pressed

on with rather than the other application.

MR HORLER:  I am not sure what Your Honour means in that distinction.

Gamester(3) 3 4/9/91

HIS HONOUR: Well, there are two separate matters. This

current matter is an appeal against a judgment of

the Full Court of the Federal Court. The other

matter, the matter that you apparently intervened

in, is a matter in respect of a prerogative writ,

or perhaps an application under the AD(JR) Act, but

although they arise out of the same general

subject-matter, they are distinct actions.

MR HORLER:  Yes. Well, that is something that her lawyers

will have to inform themselves, and quickly.

Your Honour, I accept, and I make it very clear,

and I have told this lady, that litigation is

finite, the respondents are entitled to have the

matter concluded. All we ask today, and I have

seen her summons and supporting affidavit, that she

have 28 days so that the solicitor who has come

forward who can brief me in a proper way, can

tender her some advice. It is no part of my

function as a member of the Bar or the solicitor to

encourage people to run hopeless appeals, and we do

not want to do that. I just do not know enough

about it. I do not understand the case: I think I

cannot be criticized for that. I need some time.

She has proceedings in the Federal Court before

Mr Justice Sheppard, so I am told, that may or may

not resolve the whole matter. She tells me that

she is seeking to enforce there what she says was an agreement to settle this litigation. Well, if

that be right and she succeeds there, we will not

be back here, but I do not know about that either.

So for the reasons that she set out -

HIS HONOUR:  I have seen the document in that particular

case upon which she relies. It was a deed, and

appears to have - there is a Masters v Cameron-type

point in the particular case as to whether there

was an agreement which bound the parties

immediately, or whether it was subject to the

execution of a document. That seems to me, as far

as I can understand it, to be what the issue is in

relation to that. But the special leave

application in this case was filed in the middle of

last year.	It was put off until the beginning of
this year.	Summonses were filed on 5 February and

7 February from memory. The matter was adjourned,

I think, on two occasions, to enable Miss Cameron

to put before me evidence that she had an appeal or

pending in relation to legal aid, or that there was

some legal aid application still on foot. I sent

the matter off - the papers - to the Law Society

and to the Bar Association. Mr Newlinds of counsel

appeared in support of the summons: that was, I

think, on 20 June, and he told me that having

examined the relevant material, there was no

pending application for legal aid.

Gamester(3) 4 4/9/91

More than a year has passed since the special

leave application was filed and I made orders which

I thought gave the applicants every opportunity to

comply with the orders which I had made, and

frankly, unless there is something further you can

put to me, I am not prepared to change any of the

orders I have made, Mr Horler.

MR HORLER: Well, Your Honour, do you have before you her

recent affidavit setting out her medical history?

HIS HONOUR:	Yes, and I have seen her medical history on numerous occasions.
MR HORLER:	Your Honour will see that in paragraph 11 of her

affidavit of 30 August she speaks of the difficulty

she has had in getting copies of a document; she

has no money. The documents are voluminous. She

is required to put on application books, I think,

by today. She has been unable to do it. It is

work that requires a lawyer. She is a highly

intelligent woman, but this is a task quite beyond

her. I ask, on her behalf, that she be given one more chance and I will explain to her that next

time is it. If, in between, having examined the

material, it seems that there is nothing in it, we

will not persist and trouble the Court more, but I

do not want to come to that position until I have

had an opportunity to properly explore it, and I

ask the Court for some time to permit me to do it.

She has been laggard in the conduct of her own

litigation, I accept, but in the material that

Your Honour knows better than I, there is a good human explanation for it.

HIS HONOUR:  Yes. Well, Mr Horler, what is it specifically

that you want?

MR HORLER:  I need a little guidance from Your Honour. I am

told that there are certain orders made by

Your Honour on earlier occasions which take

effect -if Your Honour does not make some order

vacating them today, which would have the effect

this day of putting to an end the appeals. Now, I

am sorry I cannot be more precise in that - - -

HIS HONOUR: Well, on 20 June I made - ordered that the

applicants', that is Gamester and Miss Cameron,

summons of 7 February be dismissed.	I need not go
into details that.	I made a further order:

that within 28 days -

of my order -

Gamester(3) 5 4/9/91

the applicants file an affidavit in support of

the application for special leave which

complies with the requirements of Order 69A

rule 4 of the High Court Court Rules.

I have not seen any suggestion that that was not

complied with.

MR HORLER:	That that was not complied with.
HIS HONOUR:	Yes.
MR HORLER:	Well we got something right.

HIS HONOUR:  Yes. And then, a third order was that:

In the event that the applicants comply with -

order 3 - and that turned out to be a mistake, the

way they had drawn up the order -

the index to the application book is to be

settled by the Registrar within 42 days of the

date of this order.

I directed:

the applicants also take all steps as are

necessary to -

have the application for special leave listed for
hearing at the sittings commencing on 4 October and

I ordered that in the event of the applicants'

failure to comply with orders 3 and 4 -

the application for special leave shall stand

dismissed for want of prosecution.

Now the orders I have read to you are the

formal orders of the Court.	They did not represent
what I said on the occasion. They had been drawn
up in an incorrect form.	So a further summons was

taken out which came before me in Chambers
on 22 July and I amended those orders, extending

the dates in terms of some of them, and so I am not

myself familiar with the precise dates on which

documents have been filed. I do not know for

certain when the index was filed - the index was

settled.

MR HORLER:	I do not know.
HIS HONOUR:	You do not know?
MR HORLER:	I do know that one of her complaints is that is

was, (a), done in her absence, and, (b), there is irrelevant material in it and certain significant

Gamester(3) 6 4/9/91

material is not there. Whether that is accurate or

not, I do not know, but that is what she tells me.

HIS HONOUR:  Yes. So far as paragraph 11 of the affidavit

is concerned, they are documents of the Court.

They are filed in the Court. It is my

understanding that the practice is that those documents are never, or very rarely, uplifted unless it is done by consent of the parties.	They
are the Court's documents and usually for the

purpose of preparing appeal books or application

books, the parties use their own documents.

MR HORLER: Well, of course, what she did was to file in

Court her one and only set of documents, not being able to pay for the cost of copying - foolishly

perhaps - she then deprived herself of the

documents that she needs, and she is told that she

has got to find $2 a page, and there are a lot of

them.

HIS HONOUR:  Yes. It would be very surprising if many of

those documents - and that is if she seeks to

uplift the lot of them - have any relevance to this

particular application.

MR HORLER: That has to be right, but that is why she needs

a lawyer to tell her that. At the moment, unaided,

she believes out of abounding caution she has got

to have them all there, and it needs some editorial

function that only a trained lawyer can perform.

That is why we ask for a little time to put our

house in order. On my assurance, if there is

nothing in it, we will not be back.

HIS HONOUR:  Yes. One difficulty I have about this matter

is that because of the contents of paragraph 11 of

the affidavit, it seemed to me proper that

Mr McCluskey, the Deputy Registrar, should not be

in Court this morning while this application was

being heard and at the moment I am just not quite

sure when the index was settled.

MR MARTIN:  Your Honour, I can assist Your Honour. My

instructions are, Friday, 2 August.

HIS HONOUR:  Yes, my associate tells me. Well now, I am

just at a loss to know what is the relevance of

today, Mr Horler?

MR HORLER:  Your Honour, I believe, doing the best I can on

very limited material, that if Your Honour does not
make orders which have the effect of staying or

vacating certain orders earlier made, particularly

that order that Your Honour read out to me that

relates to the application books, her appeal,

whether it be misconceived or not, is at an end,

Gamester(3) 7 4/9/91

and that is what we want to stop so that we can

have an amount of time in order to consider the

position. If the appeal is hopeless or without

merit, she will not get back her legal aid and she

will lose me, but if there is something in it, we

ask - we know it is a bit late in the day but we
ask for a little time. There was an order,

Your Honour, read to me, saying that if she does

not do certain things the appeal is at an end, or

something of that kind.

HIS HONOUR: Well, what is probably - the point is that the

application have got to be filed and served within

30 days of the receipt of the index, and the

30 days apparently would expire today.

MR HORLER: That is right, and she is in breach of that,

amongst other things, but that seems to be the one

which she is most vulnerable in respect of today.

HIS HONOUR:  Yes. Is there anything further you want to put

at the moment, Mr Horler?

MR HORLER:	No, Your Honour.
HIS HONOUR:	Yes, Mr Martin.

MR MARTIN: Well, Your Honour, we oppose any extension of

time.	Your Honour will recall the comments
Your Honour made on 20 June.	Your Honour made it

clear that the delay that had taken place was

gross. Your Honour made it clear that Your Honour

would make orders to enable the matter to proceed

expeditiously.

HIS HONOUR:  Mr Martin, I am not going to make any order

today that will have the effect of vacating

4 October. At the moment I am considering whether

I can extend the time for filing the application

books to enable the matter to be heard

on 4 October, but that would be the only thing

that, at the moment, I would consider.

MR MARTIN: Well, Your Honour, we would oppose that for

these reasons.

HIS HONOUR:	Yes.
MR MARTIN:	Your Honour on 20 June directed that the

applicants take all such steps as to enable the

application for special leave to be able to be

listed for hearing in the sittings

commencing 4 October. Your Honour will see from

the letter - there is some correspondence from the

Deputy Registrar to Miss Cameron - on 2 August, the

appeal index was settled and specifically it was

drawn to Miss Cameron's attention the requirements

Gamester(3) 4/9/91

of Order 69A rule 7(6) which provided that 30 days

after the date of receipt of the index it was

expected that she would file the application books.

That expired on 4 September 1991.

HIS HONOUR: Well, this document that you are talking about

does not seem to be an exhibit in the case.	Do you
have a copy of it?

MR MARTIN: Well, Your Honour, yes, I do.

HIS HONOUR:	Well show it to Mr Horler.
MR HORLER:	I am sorry, what is this?
HIS HONOUR:	Annexure A of Miss Cameron's second affidavit

refers to a letter of the Deputy Registrar

of 2 August.

MR HORLER:	Am I being asked did we received that?
HIS HONOUR:	No, no. Asking if you have any objections to

the tendering of it.

MR HORLER:  I regret that nothing is simple in this case. I

think what happened was Miss Cameron said she did not get it through the mail, although that is her

mail box, however we got it in that my assistant

attended upon the Registry and through the good

offices of Mr McCluskey, after I appeared amicus

curiae in Canberra, we were provided with a copy.

So, yes, we have had a copy but we did not get in

the ordinary way of the post after 2 August.

HIS HONOUR:  When did you appear in the High Court?

MR HORLER:  On or about 7 August. I checked that before I

came. 7 August.

HIS HONOUR:	Yes.
MR MARTIN: Well, Your Honour, I would seek to tender that

letter of 2 August.

MR HORLER:  Your Honour, I have no objection, of course, to

the tender of it. If it is relevant and I hope it

will not be, there is some issue as to when we

actually received it.

HIS HONOUR:  No, ·I do not see - yes, that can be exhibit A

in these proceedings.

EXHIBIT:	EXHIBIT A ..... Letter of 2 August.
MR MARTIN:	You see, Your Honour, it specifically refers

Miss Cameron to the deadline of today in relation to the application books.

Gamester(3) 9 4/9/91

HIS HONOUR:	Yes.
MR MARTIN:	As to when she received it, Your Honour will see

in Annexure A to her affidavit. It apparently

bears the date of 9 August 1991, but she says in

paragraph 9 of her affidavit that she, on or

about 9 August, wrote to the Registry of the

High Court. She had at least received that letter,

exhibit A, by then.

HIS HONOUR:	Yes.
MR MARTIN:	So Miss Cameron was conscious of the deadline at

that stage.

HIS HONOUR:  Yes, as at the ninth.

MR MARTIN:  At the very latest. And, in accordance with

Your Honour's direction, that all such steps be

taken to enable the matter to be ready for hearing

on 4 October, it is clear that such steps have not

been so taken by Miss Cameron. Her affidavit

acknowledges that the first she became aware of any

difficulties concerning the payment of copies being
made of exhibits in the Registry was on Friday,

30 August, five days before the deadline, with the

weekend intervening. That left her Monday and

Tuesday, in effect, to obtain copies of the relevant exhibits and to prepare the application

books. In other words, she left herself in a

position whereby it was clear she could not comply

with Your Honour's directions by that date.

Your Honour, in relation to the health

grounds, on 20 June, it was specifically submitted

to Your Honour and put to Your Honour the

difficulty she was experiencing in relation to

health and it could be taken that Your Honour took

that into account in making the directions

Your Honour did on 20 June.

In relation to other grounds, Your Honour will

see that in the summons it seeks a stay of the

orders made by Your Honour on 20 June and 22 July,

to enable the hearing of an appeal against the

settled index. As I understand it - - -

HIS HONOUR: Well there is no provision, is there, for an

appeal against an index in a special leave

application? There is in relation to an appeal.

MR MARTIN:  Yes. Your Honour, it might well be that

Miss Cameron is contemplating an application under

the AD(JR) Act and that the decision by the

Registrar is an administrative decision under a

Commonwealth enactment, but we would certainly

oppose that. We would say it is a judicial

Gamester(3) 10 4/9/91

decision and it is not subject to review under that

legislation. But, in any event, Your Honour, no

such application is on foot. It is merely

foreshadowed in the summons in paragraph 1.

Again, with respect, Your Honour, it

highlights the fact that Miss Cameron is seeking to

clutch at any possible straws that might exist to

delay this matter being heard by 4 October and,

frankly, Your Honour, in the light of what is put

to Your Honour that the only basis that some

solicitor is now prepared to assist her in relation

to the preparation of the application for special

leave to appeal, there is no suggestion that such

assistance could not have been obtained any

earlier. It is not a basis upon which, with

respect, it is a matter that would prevent or

necessitate any extension of time being granted.

Your Honour has been most lenient to the

applicants.	Your Honour gave them adequate time on
the 20th and extended that time on 22 July.	Now
when the time has arrived we are met with this
application. With respect, no basis has been

shown, Your Honour, for any further extension of

time being granted.

HIS HONOUR:  Yes, interesting. What documents are you

seeking to uplift, Mr Horler?

MR HORLER:  I cannot answer that question, Your Honour. My

client has a view but I do not understand what she

tells me. As a lawyer I must, of course, know

there would be certain relevant documents

initiating process, affidavits, judgments,

interlocutory orders of that kind. As a lawyer I

know there must be documents of that kind, but what

there would be over and above the normal things

that one finds in a court file in litigation I do

not know.

I would like to think the task is not as large

or herculean as I have been told. I do not know.

Your Honour, I would have a better idea were

Your Honour's judgment - you referred to it

earlier - available. That might permit me to get a

handle on the case. Has that been taken out?

HIS HONOUR:	Yes, it is only in transcript form, I think, but I can make - Mr Horler, would it assist you,
and would it inconvenience you, Mr Martin, if I adjourned these proceedings for half an hour to allow Mr Horler to have a look at this judgment?
MR MARTIN:	No, Your Honour.

Gamester(3) 11 4/9/91

MR HORLER: Well, it sounds as though it might. Does it

inconvenience you?

MR MARTIN:  I do have a difficulty elsewhere.

MR HORLER: Well, we will accommodate you, or His Honour

will.

HIS HONOUR:	What is your difficulty?
MR MARTIN:	I am before Mr Justice Young in the equity

division.	He is the equity duty judge,
Your Honour.

HIS HONOUR:  Yes. Well, are you going to be there all day?

MR MARTIN: No, I am not, Your Honour. It is just that I am

not sure as to when my case is going to be reached.

There are a number of other matters which

His Honour has before him.

HIS HONOUR: Well, this is one occasion in which the

High Court allows a supreme court to take

precedence over it. So, if you have any problem

let me know. I will adjourn these proceedings to a

time that is suitable to you.

MR MARTIN:	Thank you, Your Honour.
HIS HONOUR:	But I think it would perhaps assist Mr Horler

if he at least read this judgment and perhaps I can

refresh my own recollection of all the material in

the matter again.

MR MARTIN: Yes.

MR HORLER:  Your Honour, while that is being done would

Your Honour's indulgence extend to permitting me to

look at the Court file so that I may have a

context?

HIS HONOUR:	Yes, there is no problem with that.
MR HORLER:	Thank you very much. Well, I might undertake,

given that I am being the indulgence, to tick-tack

with my friend and get a message as to what his

position is. I will do that.

HIS HONOUR:  Yes, well, I will be in my chambers, Mr Horler.

I do not· ~now whether a copy of my judgment is in

the file. I assume it is.

MR HORLER:	Your Honour, we will wait in the precincts of the Court to receive such material that you can
make available and I will speak to my friend once
he knows his position on the list and let you know.

Gamester(3) 12 4/9/91

HIS HONOUR:  The material is to be examined by you and your

solicitor.

MR HORLER:  My prospective solicitor.

HIS HONOUR: Prospective solicitor, yes. Very well,

Mr Horler. Will you let me know when you are

ready?

MR HORLER:  Yes, and I will also convey a message as to

Mr Martin's availability at the same time.

HIS HONOUR:  Yes, thank you very much.

AT 10.55 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.03 PM:

HIS HONOUR:	Yes, Mr Horler.
MR HORLER:	Your Honour, firstly, thank you for the opportunity to read or glance at the Court files.
I have done that and I have glanced at the
transcript of what occurred before Your Honour on
20 June and subsequently.  I am in a position,
therefore, to identify with some precision at last
certain documents - and there are not as many as I
thought - that I believe we need.  I can do it in
one of two ways:  I can read it onto the transcript
or I can, subject to some order, provide a list to
the Registrar.
HIS HONOUR:	I am sorry, what is the purpose of this now?

Just to inform me or - - -

MR HORLER:  Your Honour asked that question and I am

responding to that.

HIS HONOUR: Well, if you just might tell me.

MR HORLER:  Yes, very well. They are - and we followed the

numbering on the Court files, Your Honour: in
volume 3, document 43, the exhibits to

Miss Cameron's affidavit in support of the

application for special leave, that affidavit

having the date 18 July 1991; in volume 1, the

order of this Court of 1 May 91, that is

document 19.

HIS HONOUR:	The 1st of May?	I cannot remember any
Gamester(3)	13	4/9/91

MR HORLER: Well, according to the index, an order was made

on 1 May.

HIS HONOUR:	Was it?
MR HORLER:	We believe, out of abounding caution, we should

have all the orders if we are going to start to

comply. The order of 1 May 1991, that is document

19; the order of this Court of 28 May 1991, that

is document 25; the order of this Court of

25 June 1991, that is document 36; the summons of

11 July 1991, that is document 37; the transcript

which we do not yet have of 16 July 1991, that is

document 39.

HIS HONOUR:	Of 16 July?
MR HORLER:	16 July.
HIS HONOUR:	Yes.
MR HORLER:	The summons of 17 July 1991; the order of

16 July 1991, that is document 46; the order of

22 July 1991, document 47. And that brings me to

three related documents concerning the index.

There is a draft index of 24 July 1991, that is

document 48; there is a redrafted index of

25 July, that is document 49; and then there is a

final index of 2 August 1991, that is document 51.

Those are the documents that we would urgently

need, Your Honour.

HIS HONOUR: Well now, for example, the transcript of 16

July - what has that got to do with the special leave application?

MR HORLER:  I do not know, Your Honour, but I want to be

able to inform myself of what has transpired here

and what has occurred. I do not know how long it

is and its strict relevance, Your Honour, but we

get off the index on the file that there is a

transcript of that date and I feel I ought to look
at it.

HIS HONOUR:  But most of the matters that you are talking

about are matters that have been concerned with

whether or not orders ought to be made in relation

to the special leave application. But what would

come on for hearing on 4 October would be the

special leave application itself.

MR HORLER:  Yes. Are you suggesting, Your Honour, that I

could narrow that list by reference to - - -

HIS HONOUR:  It just did not seem to me that any of those matters were relevant except the draft indexes,

Gamester(3) 14 4/9/91

although I do not see the relevance of those, Mr

Horler.

MR HORLER: Well, can I, on my feet, try to edit it down?

HIS HONOUR:	Yes, certainly.
MR HORLER:	One thing that particularly concerns my client is that she does not have the exhibits to her own
affidavit. That is the first one on the list I
gave you.

HIS HONOUR: That is the affidavit of - - -

MR HORLER:  18 July 1991 and there are certain exhibits

which she has not kept.

HIS HONOUR:	I appreciate it, but I just do not see what the relevance that is to this application book that has
to be filed.  One would have thought that the
documentation finishes back last year. After all,
the question is whether special leave to appeal
should be granted against the judgment of the Full
Court of the Federal Court.  Now, any documents
that have taken place in this Court about stays and
so on have really got nothing to do with that
special leave application.

MR HORLER:  Well, that has to be right. I am asked to get

that document, Your Honour. I am in a bit of

difficulty to surrender that request.

HIS HONOUR: Well, I appreciate that. PI am just not

prepared to make such an order, Mr Horler. I am

prepared to make an order that will facilitate the

preparation of the special leave books.

MR HORLER: Well, on that basis that would bring us to the

indices, perhaps only the final index.	And can I
return the three Court files?

HIS HONOUR: Perhaps I might get some assistance from

Mr Martin on this.

MR HORLER: Yes.

HIS HONOUR:  Mr Martin, two documents which are not in the

draft index are the transcript of proceedings

before Justice Pincus on 12 March and 19 March.

They are in there but they are not to be

reproduced. It just seemed to me that that may

have some relevance.

MR MARTIN:  It could, depending upon the grounds. We are not sure which Miss Cameron is seeking to rely on.

Gamester(3) 15 4/9/91

HIS HONOUR:  Yes, thank you for that. That is what I had in

mind. There are two documents that I thought that

you might be interested in, Mr Horler.

MR HORLER:	Which documents, Your Honour?
HIS HONOUR:	A document called "Index of Reference", I think

it is.

MR HORLER:  I am sorry, Your Honour, I have the whole of the

index of reference. Yes, I have that.

HIS HONOUR:  You see item 10, item G - - -

MR HORLER: Transcript of proceedings before

Mr Justice Pincus, 12/3/90, yes.

HIS HONOUR:  - - - and His the transcript of proceedings

before Justice Pincus on 19 March. Now, my

recollection and understanding is that on 12 March

there was an application about discovery and there

was an application for adjournment, and the matter

was adjourned to 19 March. Then on 19 March the

application under the Trade Practices Act was

dismissed for want of prosecution. It occurred to

me that those two documents may be relevant to this
special leave application since it seemed to me

that the heart of your client's claim was - perhaps I should not call her your client - the applicant's claim is that they have been denied natural justice

in some way and that the proceedings should have

been adjourned.

MR HORLER: Well, Your Honour, can I deal with that and ask

that in respect of any order in relation to

documents access and copying and so on, that it be

expanded and extended to include those two?

HIS HONOUR: Yes, certainly, Mr Horler. Perhaps I just

might ask Mr Martin. Mr Martin, despite the fact

that this index has been settled, I think those two

documents should go in the application book.

MR MARTIN: Well, if the applicants say it is necessary.

HIS HONOUR:	I am sorry, yes, if they say it is necessary.
MR MARTIN:	Yes, I might not contend otherwise.
HIS HONOUR:	That would mean the settled index will have to

be amended by crossing out the letters "NR" in

relation to that. But I am anxious to have this

matter finally disposed of. I really do not think

it is in your client's interests for this matter to

terminate breve manu???? as a result of a failure

to file the appeal books today. All it would

probably mean is that you would be faced then with

Gamester(3) 16 4/9/91

an appeal against my order and the matter would

just drag on and on. I have in mind amending my

orders, perhaps for 10 days, to allow the appeal

books to be filed - for 10 days. That will enable

the matter to be heard on 4 October. And I have in

mind, if the instructing solicitor who is assisting

Mr Horler is prepared to undertake to accept copies
of any of the relevant documents to direct the

Registrar that they be handed out to him for the

purpose of printing the appeal books.

MR MARTIN:  The only comment I wish to make, Your Honour, is

simply this: that Miss Cameron says that she needs

to photostat all of these documents to prepare the

application books. She cannot afford to do so, so

therefore, she cannot prepare the application

books. My only concern is as to whether giving her

10 days or any further period of time it is going

to be capable for her to prepare the application.

HIS HONOUR:  Well, whether she can do it in 10 days or not

is going to be a matter for the applicants. So far

as I am concerned, the special leave application is

going to be heard by this Court on 4 October.	If
the applicants fail to comply with this further

indulgence I am proposing to give them, then that

is the end of the matter. The application will

stand dismissed for want of prosecution.

MR MARTIN: Certainly, Your Honour.

HIS HONOUR:	I think when you study the history of the matter, it can fairly be said that the Court has
been very indulgent.
MR MARTIN:	Thank you, Your Honour.
HIS HONOUR:	Mr Horler, subject to anything that you may

want to say to me, what I propose to do would be to

amend my orders so that the applicants will have

until 4 pm on Friday week to file the application

books. If the solicitor, whose name I can no

longer - - -

MR HORLER:  Mr Sainsbury, who is sitting behind me, is a

solicitor in the employ of Tebbutt & Sons.

HIS HONOUR:  Is it Mr Tebbutt who is prepared to act in the

matter?

MR HORLER:  He is the principal - yes, the answer is yes to

that.

HIS HONOUR:  Would either Mr Sainsbury or, if necessary,

Mr Tebbutt be prepared to give an undertaking to sign for the receipt of the documents and be

Gamester(3) 17 4/9/91

responsible both for their collection and their

return to the - - -

MR HORLER:  Yes, I do not know whether we can give that

undertaking from Mr Tebbutt but I think we can get

one from Mr Sainsbury.	Mr Sainsbury gives that
undertaking, Your Honour.

HIS HONOUR:  I can give a short judgment if you want,

Mr Martin. Otherwise I propose to make some

orders. Do you want me to give a short judgment?

MR MARTIN:	No.
MR HORLER:	I have nothing to add to what Your Honour has

semaphored.

MR MARTIN: Except just two matters, Your Honour. Firstly,

it seems the actual obligation contained	in
Order 69A rule 7(6) is for the applicant	to prepare
and file seven copies of the application	book and
supply three copies to each respondent.

MR HORLER:  Could we have some relaxation from the rigor of

that, Your Honour?

HIS HONOUR:  Yes. Two copies for your side should be

sufficient, should they?

MR MARTIN: It should be, Your Honour, yes.

HIS HONOUR:  Thank you. Is there anything further?

MR MARTIN: Secondly, Your Honour will see the summons seeks

numerous unrelated orders which I take it are no

longer being pressed by the applicants. We would

simply ask for the summons to be dismissed with

costs, Your Honour.

HIS HONOUR:  Mr Horler?

MR HORLER:  Your Honour, that which Your Honour has said you

are about to do is contemplated by paragraphs (1)

and (2). I do not understand what (3) means. I

say nothing about (4). As to (5) I have no

material that suggests that in formal terms the

respondents have not complied. Your Honour, rather

than prolong it and cause aggravation would

Your Honour just stand over the matters contained

in paragraphs (3) to (7) inclusive, rather than

dismissing - - -

HIS HONOUR:  Mr Horler, one thing that concerns me greatly

is that each time some summons is brought or it is

adjourned, the respondents are brought back to

court, legal costs are running, orders for costs

are being made, one would have to - Gamester is a

Gamester(3) 18 4/9/91

company, as I understand it, with a paid up capital

of $2 and no assets.

MR HORLER:	I say nothing further in relation to any other matters other than those that have been the subject
of discussion between Your Honour.
HIS HONOUR:	Yes, well, Mr Horler, just before you sit down,

could I just clarify the question of the documents.

Do you understand me to be saying that the order I

would make in respect of the documents was to order

all documents necessary for the preparation of the

application book to be given to Mr Sainsbury - - -

MR HORLER:	Yes, I understood that.
HIS HONOUR:	- and they include only those documents

which are referred to in the index, other than the

two transcripts.

MR HORLER:  The Pincus J matters in March? Yes, I

understood that.

HIS HONOUR:  Yes, thank you very much, Mr Horler. It is a

formal matter in a sense.	You are seeking
indulgence.	I will have to make an order for costs
in this case.

MR HORLER:	Yes, I would accept that.
HIS HONOUR:	The orders I propose to make is that in so far

as is necessary I vary the orders made by me on

20 June 1991 and 22 July 1991 as follows:

I direct that the time for preparing and

filing copies of the application book be extended

until 4 pm on Friday, 13 September 1991.

I also direct, pursuant to the power conferred

on a Justice of this Court by Order 69A rule 7(6),

that the applicant prepare and file five copies of

the application book and supply two copies to the

respondents, that is to say, a total of two copies

to the respondents.

In so far as is necessary, I direct that the

index of reference of the application book be

amended by deleting from item l0G the letters "NR"

standing for "Not Reproduced".

Upon the undertaking of Mr Sainsbury to sign for and return the documents to the registry, I

direct that all documents necessary for the

preparation of the application book be handed to

him for the purpose of preparing the application

book.

Gamester(3) 19 4/9/91

I think I should also require, Mr Horler, an

undertaking that those documents be returned to the

Court upon the filing of the application books.

MR HORLER:  Yes, that undertaking is given.

HIS HONOUR: Otherwise the summons is dismissed with costs.

Is there anything further?

MR MARTIN:  Just one further matter. Would Your Honour

certify that this is a matter proper for attendance

of counsel?

HIS HONOUR:	Yes, I certify that this is a matter proper for the attendance of counsel. Thank you for your
assistance Mr Horler and Mr Martin.
MR HORLER:	May I reciprocate by thanking you, Your Honour,

for your patience in this matter, thank you.

AT 12.26 PM THE MATTER WAS ADJOURNED SINE DIE

Gamester(3) 20 4/9/91