Gamester Pty Limited & Anor v Rural Press Limited

[1991] HCATrans 149

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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 and

BARBARA ANN CAMERON

Applicants

and

RURAL PRESS LIMITED, JOHN

LINDSAY PARKER and TIMOTHY

ROY STARKEY

Respondents

Application for a stay and

summons to dismiss for want

of prosecution

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 JUNE 1991, AT 10.01 AM

(Continued from 23/5/91)

Copyright in the High Court of Australia

Gamester 36 20/6/91

MR R. NEWLINDS: If Your Honour pleases, I appear for the

applicants.

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

respondents in this matter.	(instructed by Sly &
Weigall).

Your Honour, there is one preliminary matter

which I wish to raise with Your Honour.
Your Honour will recall on the last occasion
Your Honour directed the transcript to be forwarded

to the Bar Association and the Law Society and, as I understand it, pursuant to the forwarding of the transcript, Mr Newlinds appears. It raises the

question in what capacity he appears.	He announced
his appearance for the applicants.	I am not sure

whether he is properly retained in this matter,

Your Honour.

HIS HONOUR:  I assumed that he was here in some capacity -

as a dock brief in which he was acting for the

applicants but it was a matter for the Bar

Association whether he acted with or not an

instructing solicitor.

MR MARTIN: That is the particular point that concerns us.

We have not received any notification of a

solicitor going on the record for the applicants.

HIS HONOUR: Well, I am not certain what the situation is.

Perhaps, Mr Newlinds - have you spoken to

Mr Newlinds about this at all?

MR MARTIN: Yes, I have raised it with him, Your Honour. It

might be better for-Mr Newlinds to explain what the

position is, Your Honour.

HIS HONOUR:	Yes.
MR NEWLINDS:	Your Honour, I think your assumption is

correct. As I understand it, I am here as if it
was a dock brief.	I do not have an instructing
solicitor.	I should say, I did have one until a

couple of days ago. As Your Honour is aware, a

copy of the transcript was also sent to the Law Society. They eventually found a solicitor but

whatever retainer he might have had has been

revoked. So, I am here without an instructing

solicitor. I am appearing for the applicants and I

have the appropriate dispensation from the

Bar Association to do that.

Mrs Cameron, who, as you are aware, is a

director of Gamester and is an applicant herself,

is not in Court today. She instructs me that she

is in hospital today. I have not conferred with

Gamester 37 20/6/91

her in person but I have had a number of telephone

conversations with her and she has forwarded direct

to me a number of affidavits that have recently

been filed.

HIS HONOUR:  Yes. Well, thank you, Mr Newlinds. Mr Martin,

it seems to me that the situation is that, in

effect, Mr Newlinds is acting as some form of agent

for the applicants themselves. There is old

authority for the proposition that any person can

have an agent act for him subject to rules of

Court, subject to the Court's jurisdiction. There

is the old story, the McKenzie friend, as you will

remember. As long the Bar Association has no

objections, I, myself, do not see any real problem

at the moment, but if you have any specific

problem, please tell me.

MR MARTIN:  Your Honour, I am instructed simply to object to

Mr Newlinds appearing in these circumstances

whereby he is not properly retained by a firm of

solicitors, simply on the basis that later on this

problem could arise again. As Your Honour is

aware, this is not the only piece of litigation

between these parties. There are a number of other

applications pending in lower courts whereby

Ms Cameron has been appearing in her own capacity and also for Gamester. If a precedent were

established, it could cause problems, Your Honour,

in relation to the conduct of those other pieces of

litigation.

HIS HONOUR:	I appreciate your concern but the problem is that on a previous occasion, on a special leave
application, the Court was faced with a litigant in
person.  The Chief Justice just sent a copy of the
transcript to the Bar Association who sent or
allowed a barrister to appear but on that
particular occasion, I think, there was probably an
instructing solicitor in the case. But it seems to
me that apart from the fact that Mr Newlinds is
acting as an agent, the situation is no different
from Ms Cameron appearing herself.  She and
Gamester are the principals and they are
responsible for what their agent does in the course of that agency.

MR MARTIN: Yes. Well, Your Honour, I cannot put anything

further to Your Honour.

HIS HONOUR: Well, I understand that and it may be that

something may have to be worked out between the

courts and the professional associations in

relation to these matters. I was concerned that

there was a complex piece of litigation where it

was possible that the applicants did.have a real

case which was not being properly presented and

Gamester 38 20/6/91

that they would be sent packing because of the fact

that it was not being properly prepared.	In that
sense, it is a special case.	The McKenzie friend

procedure applied for some years in New South

Wales, as you will no doubt recollect, until judges

put an end to it because it was being abused.	I
just see the present case is somewhat analogous.	I
do not know that it is precisely in point but at
the moment it is very much a "one-off" case and it
is to be no precedent at all so far as any other
litigation between you and Ms Cameron and Gamester
in other places.

MR MARTIN: Yes. Well, Your Honour, there is nothing

further I wish to put.

HIS HONOUR:  Yes, Mr Newlinds? I call on you because there

are two summonses, as you are aware, and your

summons is the key to the two of them.

MR NEWLINDS:  Yes, Your Honour. Your Honour, there is a

preliminary point. I do not know if Your Honour

has read the affidavits that, I believe, have been

filed by Ms Cameron recently?

HIS HONOUR:  Well, I have not read the whole of them. have been through some of them. I

In relation to the

affidavit about settlement, I really have not

looked at that at all; just the first couple of

paragraphs. The same with the matters relating to

the Bar Association, I really have not looked at

that. I have looked at the bigger affidavit. I

have not read every line in the thick affidavit

with the annexures.

MR NEWLINDS:  Yes, Your Honour. That is the affidavit that

throws up this preliminary problem or point and

that is that I am instructed that the large

majority of the annexures to that larger affidavit

are the documents that were being discussed with

you on the last occasion by Ms Cameron where she

had that problem, that she wanted to claim

privilege on the one hand and tender them on the

other. I am instructed that the position now is

that she wishes that affidavit read. She wishes

Mr Martin to see the annexures but requires him to

give an undertaking of confidentiality in the usual
terms, that he will not disclose the contents of

those documents to anyone.

HIS HONOUR:  Yes.

MR NEWLINDS: There is a second point that I am instructed

to put: that after he gives that undertaking, he

is to give an undertaking that from that point on

he disqualifies himself from taking part in any

proceedings. Now, I assume that that undertaking

Gamester 39 20/6/91

is not to apply to today but it is not clear

in - - -

HIS HONOUR:  Yes. Well, it could not apply to today.

MR NEWLINDS:  No. But perhaps if we take it one step at a

time. I have had some brief discussions with

Mr Martin and I do not expect there will be a

problem with the undertaking.

MR MARTIN:  No, Your Honour. Can I make my position clear?

One of the affidavits, the larger affidavit that was served on us on the 18th, seeks an undertaking

from me in relation to the documents. I have not

yet read the exhibits in deference to the request

for the undertaking being given. I have no

difficulties with the undertaking concerning the

confidentiality of those documents but I am not

prepared to give an undertaking on the basis that I

disqualify myself from further acting in this

matter after reading those documents, and that is

the difficulty that I have.

HIS HONOUR:	Yes.
MR MARTIN:	It seems to me that that is an undertaking that is well outside the usual undertaking that is given
to - - -
HIS HONOUR:	Yes, well, it certainly is. Well, what do you

say about that, Mr Newlinds? Certainly, I am not

prepared to go as far as to require any undertaking

that Mr Martin disqualify himself. Naturally

enough, one would think it would probably flow

automatically, if any litigation did arise having

regard to undertakings of confidentiality.	You
would be in such a dilemma, it would be very

difficult for him but it is possible that he may

not be, so I would not want to impose any

undertaking on him.

MR NEWLINDS:  I am instructed to ask for both undertakings.

There is no submission that I can put to you that advances why you should make the second order but, in my submission, they can be separated.

HIS HONOUR:  I am not prepared to require the second

undertaking that Mr Martin disqualify himself.

Now, in that situation, is your client prepared to

accept the first?

MR NEWLINDS: Yes, Your Honour.

HIS HONOUR:  Is the undertaking to be given by Mr Martin and

his instructing solicitor, or is Mr Martin the only

person to have access to the document?

Gamester	20/6/91
MR NEWLINDS:	I am instructed, Mr Martin, himself, only.
HIS HONOUR:	Mr Martin himself.

MR NEWLINDS: That is so.

MR MARTIN:	Your Honour, I can give that undertaking.
HIS HONOUR:	You will?
MR MARTIN:	Yes, I will.

HIS HONOUR:  Thank you, Mr Martin. Mr Martin, would you

want some time to read those documents?

MR MARTIN:  I would, Your Honour. I have read the affidavit

without reference to the exhibits and I have

gleaned certain things from the contents of the

affidavit itself, but I certainly would - - -

HIS HONOUR: Well, they are fairly voluminous.

MR NEWLINDS:  Your Honour, they are not that voluminous. I

suspect there is a number of documents there that

Mr Martin has already seen. At least two of the

exhibits are affidavits filed in other proceedings.

HIS HONOUR:	Some of these documents?
MR NEWLINDS:	Yes.
HIS HONOUR:	Yes, I see, yes.

MR NEWLINDS: So, I would assume that Mr Martin has already

seen them. I would anticipate the only documents

he has not seen are the correspondence between my

clients and the Legal Aid Commission and a couple

of other letters. If that helps in estimating

time.

HIS HONOUR:

Would 15 minutes be - - -?

MR MARTIN: Yes, that should be sufficient, Your Honour.

HIS HONOUR: Perhaps I might adjourn the proceedings for 15

minutes. Have you any objections to me reading the

affidavit myself in detail?

MR MARTIN:	No, Your Honour.
HIS HONOUR:	I hope we can get to the substance of the matter rather than be ruling on objections to every
line of this - - -
MR NEWLINDS:	Your Honour, before Your Honour goes off the

bench, do you propose to read all the affidavits

that have recently been filed?

Gamester 41 20/6/91

HIS HONOUR:  No, I was not proposing to read the settlement

matter which seemed to me - I said on a previous

occasion it was irrelevant. Unless you want to put

something to me, I do not really see that that has

got anything to do with the matter.	Have you got
any submission about that?

MR NEWLINDS:	Yes, Your Honour.
HIS HONOUR:	You have?
MR NEWLINDS:	My primary submission is going to be that

Your Honour should look at the whole circumstances

of all of the litigation between these parties when

determining, in the exercise of your discretion,

whether to either stay or adjourn this special

leave application for a period of time and it will

be my submission that the evidence relating to the

settlement dispute is relevant to that point.	I
would not ask Your Honour to read all the
correspondence annexed to it.	I think it is only a
two-page affidavit.

The affidavit I do not propose to read is the

one dealing with Ms Cameron's conversations with

myself, the Bar Association and the Court.

HIS HONOUR:	Very well.
MR NEWLINDS:	And that one has not been served, as I

understand it, but I ascertained yesterday that it

has been filed.

HIS HONOUR:  Yes.

MR NEWLINDS: It is not dated.

HIS HONOUR:  No. I assumed it set out the history of

representation and perhaps an explanation why the

affidavits had not been legally drafted but I do

not know whether it is or not and it does not seem

to me to be relevant even if it does seek to give

that explanation.

MR NEWLINDS: If Your Honour pleases.

HIS HONOUR: Well, I will adjourn these proceedings for

15 minutes.

AT 10.17 AM SHORT ADJOURNMENT

Gamester 20/6/91

UPON RESUMING AT 10.35 AM:

HIS HONOUR:  Yes, Mr Newlinds?

MR NEWLINDS:  Thank you, Your Honour. The first matter I

want to canvass with Your Honour is the situation

regarding the application for legal aid to the

Legal Aid Commission of New South Wales.

HIS HONOUR: Well, now, before we move on to that, Mr Martin

has given an undertaking in respect of

confidentiality, and that is binding between the

parties, but, prima facie, proceedings in a court

of justice are open proceedings. Why should any

order of confidentiality have to be made in

relation to these documents?

MR NEWLINDS: Because, Your Honour, Ms Cameron has made

certain allegations regarding the withdrawal of the

various grants of legal aid or the non-granting of

legal aid in respect to certain applications she

has made. Those allegations involve certain

specific allegations against Mr Martin's

instructing solicitors, amongst others.

HIS HONOUR:	I see.
MR NEWLINDS:	The concern is that if those allegations are

right and if Mr Martin's instructing solicitors

have been doing things as alleged or things of

those type, then the disclosure of at least part of

the allegations will be sufficient to tip them off
to let them do it again, cover up any investigation
that might be made into those allegations in the

future in whatever forum and that is the basis of the application for confidentiality as it relates

to the legal aid correspondence, if I can call it

that.

There are other documents annexed to that affidavit that, frankly - - -

HIS HONOUR: But, prima facie, those allegations would not

justify an order of confidentiality and if she and

Gamester want to use these documents, then it is

her choice and if it contains material which may be

contrary to her interests, well that is a choice
that she has got to make or your clients have got

to make, but why should they not be made public?

MR NEWLINDS: There is nothing I can say to add to what I

have already said, Your Honour.	I am instructed to
seek that order.

HIS HONOUR: Well, thank you. What do you say, Mr Martin?

Gamester 43 20/6/91

MR MARTIN:  We say there is no basis for confidentiality

once these documents come out in the public domain.

They thereby lose their confidentiality.

HIS HONOUR: Well, they will unless I make an order. In

seeking the application from you, the parties had

overlooked the fact - perhaps I should not say

that, but there still is left the outstanding issue

as to whether the publication of the documents

would be the subject of an order for

confidentiality. It was not enough that an

arrangement was made inter se between the parties,

but, anyway, I understand your attitude. Perhaps

you should take me to any precise passages that you

would want to rely on, Mr Newlinds.

MR NEWLINDS:  I do not really think that will be of any

great assistance. Can I say this though: all I

want to say about the Legal Aid Commission of New

South Wales situation is this, is to clarify some

matters Ms Cameron put before Your Honour on the

last occasion and the occasion before that, and

that was her suggestion that there was an

outstanding application to the Legal Aid Review

Panel and that as a result of that having not been

dealt with, the provisions of section 60 of the Act

gave rise to a stay and that stay applied to this

Court which gives rise to an interesting question

of law. Unfortunately, in my submission, we do not

get to that interesting question of law

because - - -

HIS HONOUR: It lacks an evidentiary foundation.

MR NEWLINDS:  Yes. The fact .of the matter is that all her

applications to the Legal Aid Review Panel that

could possibly be relevant to these proceedings

have been dealt with in so far as she has received
letters from the Legal Aid Review Panel saying, "We

have dealt with them and you've lost." She says,

of course, that they have not been dealt with

properly and that she was denied natural justice	in that she was not given a hearing or that they
did not see all the documents that she wanted them
to see. The difficulty with that is that there is
very limited evidence before you, if there is any, as to what documents they should have seen and how
that denial of natural justice - - -

HIS HONOUR: Well, it would not make any difference.

MR NEWLINDS:	- - - because there is a deeming provision in the Act that says once a decision has been made, it
is deemed to have been made properly. That was the
only submission I - - -

Gamester 44 20/6/91

HIS HONOUR: Well, in the circumstances, since you are not

really relying on the question of legal aid, there

is no question - you withdraw your tender of it.

MR NEWLINDS:	I think that is right, Your Honour.
HIS HONOUR:	Yes.
MR NEWLINDS:	As far as the rest of the annexures to the

affidavit go -

HIS HONOUR: Yes. Well, it is somewhat of a shame, I could

have disposed of this matter on 21 February last

year, by the look of things, but having read the

material myself, what you have stated from the bar

table seems to me to be the prima facie position,

that there just was not anything outstanding, or

there is not anything outstanding now. Could I

just ask you for one further fact, having regard to

the terms of one of the affidavits that has just

been filed, or it was dated 14 June, and that is do

you concede that there was nothing outstanding as

at 19 March 1990 when Mr Justice Pincus made his

decision?

MR NEWLINDS: No, Your Honour, I do not. In fact,

Your Honour, in my submission, the evidence shows

that at the time Mr Justice Pincus made his

decision, there was an outstanding application for

review and it had not been dealt with. Whether

that is relevant to what we are arguing today, I

have my doubts.

HIS HONOUR:  I am sorry, no, I did not see it as relevant

myself but seeing that your client alleges it in an

affidavit, do you rely on that at all in any way?

I am sorry to be so hard on you.

MR NEWLINDS:  No, I understand. I mean, in my submission,

that fact is relevant only if the question of the

prospects of success of the special leave

application itself has any relevance and I have my
doubts about that.	As you will have seen from one

of the affidavits, Ms Cameron says that we cannot

present evidence as to the prospects of the special

leave application because of the very reasons that

we are making this application and that is that she

needs legal aid and she is sick and so on.

HIS HONOUR:  I appreciate that but, I mean, how would you be

proposing to get that material before the High

Court on a special leave application in any event?

It is a point that does not seem to have been taken

at the trial. Then you have to seek to put on

these documents before the Court. There are some

formidable difficulties.

Gamester	20/6/91
MR NEWLINDS:	I concede that, Your Honour.

HIS HONOUR: Well, in any event - - -

MR NEWLINDS:	The answer to your question is, no, I do not concede that at the time Mr Justice Pincus made
his decision it had all been dealt with. In fact,
the evidence shows that it had not; that he was not
apprised of that,from the transcript and, as far as
I am aware, it was not raised before the Full
Court.

HIS HONOUR:  Yes. Thank you, Mr Newlands. Perhaps I will

just get you to clarify this, Mr Martin. Are you

going to make any submission in this case that I

should take into account the strength or weakness

of this special leave application?

MR MARTIN:	I think the answer to that is, no, Your Honour.
HIS HONOUR:	We can leave that aside. Well, perhaps now we

might get to grips with your summons. That really

means you now have nothing in support of your

summons, does it not? Well, I should not say that,

I suppose, so quickly. There is certainly nothing

on foot in relation to Legal Aid, New South Wales?

MR NEWLINDS: That is correct.

HIS HONOUR:  Now, do you rely on the appeal from

Justice Gaudron?

MR NEWLINDS:	Yes, Your Honour.
HIS HONOUR:	You rely on that?
MR NEWLINDS:	Yes, Your Honour.

HIS HONOUR: Well, can I put to you what seems to me the big

difficulty about that matter? Let it be assumed

that Justice Gaudron was wrong and that

Justice Lockhart was wrong also and the matter went

back to Justice Lockhart or one of the judges of

the Federal Court. It would be to review a

decision in relation to legal aid made, if my

recollection is right - was it March 1987? Is that

the one it was reviewing, or was there some later

application after that?

MR NEWLINDS:  I think it is March 1987.

HIS HONOUR:  March 1987. But that was an application for

legal aid to conduct, what I will call, the trial.

The trial itself has been dismissed. So, it

strikes me that the appeal on 8 August is

absolutely futile unless you get this special leave

up. The cases seem to be around the wrong way.

Gamester 46 20/6/91

MR NEWLINDS:	Yes, Your Honour.
HIS HONOUR:	This is the case that should have been pressed

on rather than the appeal against Justice Gaudron's

decision. So, it does not seem to me that there is
anything in the appeal from Justice Gaudron's

decision which can help you on this application.

To the contrary, it seems to me that it is

important that you get your special leave

application on before that was heard.

MR NEWLINDS:	Yes, Your Honour.
HIS HONOUR:	Do you accept that?
MR NEWLINDS:	I take it on board.
HIS HONOUR:	Yes. Well, that really means then that there

is nothing about legal aid that is outstanding, is

there, that is really relevant to your summons?

Can I just summarize for you: that is, there is

nothing on foot in relation to an application to

the New South Wales Legal Aid?

MR NEWLINDS: That is correct.

HIS HONOUR:  And even if your appeal to be heard on 8 August

was to be successful, on legal grounds, it would be

futile because you would be seeking to review a

decision made in relation to a trial which has been

finished. So that if Justice Lockhart, for

instance, was ordered to rehear the matter and he

himself then directed the Attorney-General or his

representatives to consider the application, there

could only be one answer to that application by the

Attorney-General's Department and that is the

application is now spent, it is futile. So, I

really cannot see any ground at all for relying on

legal aid.

MR NEWLINDS: Yes. Well, I understand all that,

Your Honour.

HIS HONOUR:  The other matter relied on in the summons of

7 February is an arrangement with Mr Jones. Well, even if there was such an arrangement, it seems to

me that it is also long since spent and the result

is, as far as I can see, there is now nothing in

support of your summons of 7 February. The real

issues now turns to Mr Martin's summons of

5 February.

MR NEWLINDS:  Yes, Your Honour. My summons of 7 February

seeks a stay of - - -

HIS HONOUR:  Yes, your summons of 7 February asks that:

Gamester 47 20/6/91

1.      The Applicants' Application for Special

Leave to Appeal be delayed until after the

hearing of legal aid appeals.

2. That the arrangements made with Mr Jones,
the Registrar, be upheld as set out in the

Affidavits in support of this summons for

medical reasons as with the Federal Court.

Well, any arrangement relating to Mr Jones, assuming there was such an arrangement, has long

since been spent. So, there is really no material

to support that particular summons.

MR NEWLINDS: There is no material to support an application

for a stay, Your Honour.	Can I just think about
that?

HIS HONOUR:  Yes, certainly. You certainly think about it.

I appreciate you are in a difficult position,

having come into a matter where there is a

voluminous amount of evidence which is repetitious.

MR NEWLINDS:  The biggest difficulty I have is I have only

seen the three recent affidavits and I quickly

perused the Court file yesterday but I do not make

any excuses for that.

MR MARTIN:  My friend is lucky, Your Honour.

MR NEWLINDS: Well, perhaps I am. Coming into it afresh, it

might help.

HIS HONOUR:	No, I am indebted for his assistance.
MR NEWLINDS:	I think what Your Honour has put about whether

this case should come before the Full Court hearing

or vice versa certainly has a considerable degree

of merit. I have some specific instructions to put

certain things and I -

HIS HONOUR: Yes. Well, you go ahead and put them. If you

do not think at any stage that you are not in

sufficient control of the material or have

sufficient knowledge of the material to answer

questions, do not hesitate to tell me.	You are not
in the position of an ordinary barrister.	You come

here under great difficulties and you are here to assist the Court to the extent that you can but I appreciate that you just have not had the

opportunity to be in complete control of this

case - all its facets. I mean, I understand that

you are on top of the central issues in the case

with which we are concerned but there are just so

many applications that have been heard in the

Federal Court in this case that it would probably

take you a month to get on top of them all.

Gamester	48	20/6/91
MR NEWLINDS:	Thank you very much, Your Honour.	As far as

the Full Court hearing is concerned, in my

submission, there is reason to stay this

application for special leave until after that

hearing because if the Full Court upholds the

appeal and if, subsequent to that, a Federal Court

judge directs the Attorney-General to make another

decision, and to make it properly, then it may well
be that that decision is to grant legal aid for

this very application for special leave and, as I

apprehend it, that is what my clients expect to

happen and the argument would go to the Attorney-

General, "Well, we made an application for legal

aid for the trial. You did not give us that

because you made your decision improperly or

irregularly. Because of that, amongst other

reasons, the trial did not go ahead. There was

then an appeal from that decision and once again,

because we did not have legal aid, amongst other

reasons, the appeal went off. We now have an

application for special leave before the High Court

and the legal aid you should have granted in the

first place now applies to that application."

HIS HONOUR:  But is that not your difficulty because it

would have to be a fresh application? You never

applied, originally, for an application for special

leave to appeal. I am not quite sure what the

terms of the grant of legal aid was or what the

application was but assuming everything in your

favour, it seems to be no more than an application

to proceed with the hearing of, what was it, G521

of 1986. The matter that Justice Lockhart dealt

with was a separate application altogether, G270 of

1989.

MR NEWLINDS: That is right.

HIS HONOUR:  Now, it seems to me that even if

Justice Lockhart was in error and the matter went back to him or some other Federal Court judge, he

would refuse to make an order on discretionary

grounds simply because there was nothing really to

review and a fresh application would have to be

made. So, that is why it seems to me very difficult

to see how you can rely on the appeal to the

Full Court in this application.

MR NEWLINDS: Well, Your Honour, there is nothing further I

wish to put on that point. She has, however, and

the evidence shows that she has made a fresh

application to the Attorney-General pursuant to

section 170 of the Trade Practices Act for a grant

to cover the special leave application.	Now, I
appreciate that is a different point.

Gamester	20/6/91
HIS HONOUR:	Yes, that is a difficult application

altogether. Is that a letter to Mr Duffy?

MR NEWLINDS:  Yes, I think so.

HIS HONOUR: It is one letter I did not read. Perhaps you

should take me to it. Is it a letter dated

1 May 1991?

MR NEWLINDS:  Yes, Your Honour, to Mr Duffy.

HIS HONOUR: Well, that does not seem to apply to this case,

does it, unless you can get out of paragraph (a):

intervened in the dispute re taking back of

our legal aid and provide aid for two

purposes:  (a) to continue the case in which

the government has already spent a

considerable amount of money and, (b) to

handle the appeal against the taking back of

the applicants' legal aid -

which is reference to the appeal to the Full Bench

against Mr Justice Pincus' order.

MR NEWLINDS:  Yes. I am instructed she has made an

application in relation to this special leave

application but I must say there does not appear to be any evidence that that is the case. It may well

be that I have misunderstood my instructions and

that what she has done is made -

HIS HONOUR: Yes. Well, one would think, prima facie, it

would be unlikely that there would be an

application for aid in this special leave

application simply because the applicant did not

want to prosecute it until after the disposal of

the other matter.

MR NEWLINDS: That may well be it. In any event, I would

have thought, in my submission, that these sort of

arguments that we are now moving into really are in

reply to Mr Martin's application to strike out.

HIS HONOUR: Well, they certainly are, there is no doubt

about that. It is all relevant to that. But you

have a specific summons on of 7 February and I have

to deal with that and, logically, that was the

starting point because if you succeeded on your

stay of the special leave application then

obviously there is nothing to argue in his case.

MR NEWLINDS:  Yes, Your Honour. Well, order 2 that is

sought in the summons, relating to the arrangements

made by Mr Jones:  now, I assume that those

arrangements were that this case be somehow put off

because she was sick.

Gamester so 20/6/91

HIS HONOUR: Well, that is right but when you look at what

the allegations are, it would seem to be no more

than that the matter be stood over until

8 December. If you look at the affidavit that

Ms Cameron - well, I am sorry - there is an

affidavit of 3 October 1990.	Have you seen that
affidavit?

MR NEWLINDS:  I am looking at Mr Martin's copy.

HIS HONOUR:  Yes. Now, that affidavit has not been filed

formally, I understand, but it seems to have been

served and it seems to have been treated as the

affidavit on which she relied in support of a

summons of 7 February 1991. Perhaps that document

might be formally tendered as an exhibit in these

proceeds. Could that be marked exhibit B.

EXHIBIT:  Exhibit B .... Affidavit of 3 October 1990

HIS HONOUR:  So, we will treat that as evidence. Now, there

are annexures to it.	The first one is a letter of
15 August.	The first paragraph:

I said that if we could not get a hearing date

before I went into hospital it would be better

left until after in which case a hearing next

year may be better .....

You also said that providing you knew what was

going on you would not press us for action in

our application for leave to appeal in the

case against Rural Press.

Then there is a letter dated 21 September, the

second paragraph:

We are concerned by the contents of your

letter having regard for the arrangement

Ms Cameron made with Mr Jones, the Registrar, that nothing would be done with our

Application for Leave to Appeal until at least

December and next year if Ms Cameron is not well enough to attend to the matter in

December. A letter was sent to Mr Jones at

his request confirming the above.

Now, that seems to be the extent of any evidence of

any arrangement, and since we are now well into

"next year" - - -

MR NEWLINDS: Yes, Your Honour. Well, in my submission, if

the evidence gives rise to some form of binding

arrangement between the Court and Ms Cameron, it

still is "next year" and the application now is

that it goes over until after 8 August which, on a

Gamester 51 20/6/91

broad reading of the agreement, if there was one,

would fall within it.

HIS HONOUR:	Yes. Well, I hear what you say.
MR NEWLINDS:	Thank you, Your Honour.
HIS HONOUR:	Is there anything further you want to put in

support of your summons?

MR NEWLINDS:  Not in support of the stay application, no,

Your Honour.

HIS HONOUR:  The stay application, yes. Well, I intend to

dismiss that summons but I will give my	reasons for
it when I deal with the other matter.	So, the
ball is now in your court, Mr Martin,	to deal with
your summons.

MR MARTIN:  If Your Honour pleases. The summons I move on,

Your Honour, it that dated 5 February 1991. It

seeks, firstly, an order that the special leave

application -

be dismissed for want of prosecution -

or, alternatively, that a timetable be entered into

for the applicants to file an affidavit in support
of their application for special leave complying

with the rules of Court. Then, an index to be

settled 14 days after that and an order that if the

applicants fail to comply with the filing of an

affidavit, that their application stand dismissed.

The affidavit I. move on in support of that relief is that of Mark Graham Williams, sworn on

5 - - -

HIS HONOUR:  I have read that affidavit.

MR MARTIN:  Thank you, Your Honour. That is the evidence.

HIS HONOUR:	Is there anything in that affidavit you object to, Mr Newlinds?
MR NEWLINDS:	No, Your Honour.
HIS HONOUR:	Yes, and that is the evidence you rely on?
MR MARTIN:	Yes, Your Honour.
HIS HONOUR:	Do you rely on the various affidavits that have

been filed?

MR NEWLINDS:  Yes, Your Honour, I rely on all the

affidavits.

Gamester 52 20/6/91

HIS HONOUR: Or tendered, yes. Well then, I can assume I

have all the evidence before me. Yes, Mr Martin,

you might put your submissions then.

MR MARTIN:  Thank you, Your Honour. Your Honour, it might

be convenient if I could just hand to Your Honour a

chronology which sets out what has happened or,

rather, what has not happened since.

HIS HONOUR:  Has Mr Newlinds a copy?

MR MARTIN:  I will give my friend a copy, Your Honour. One

will see that the Full Court's decision was on

20 July.	The application for special leave was
filed on 9 August of last year.	The application

and an affidavit in support was served on the

respondents on 13 August. Then, on 14 September

there was a letter from the Acting Registrar

directing the applicants to file an affidavit

complying with Order 69A. On 4 October, an

appointment to settle the index for the application

book was vacated without the consent of the

respondents. On 25 October the appointment to

settle the index for the application book, again,

was vacated at the request of the applicants

without the consent of the respondents. Then on

15 November 1990, an appointment to settle the

index for the application book, again, was vacated

without the consent of the respondents. Then on

5 November a letter from the Deputy Registrar,
again, informing the applicants of the need to

comply with Order 69A. On 4 January 1991, a letter

from the Deputy Registrar informing the applicants

of the need, again, to comply with the requirements

of Order 69A. Then, _10 January: Deputy Registrar

indicated that the index should not be settled

because the affidavit in support did not comply with the rules. The applicants did not appear.

Accordingly, the matter has been in limbo since.

The summons was then filed on 5 February.

Your Honour is no doubt aware of what

Order 69A says, in particular, rule 4 which requires

the -

application shall be supported by an affidavit

setting out briefly -

those matters.

HIS HONOUR:  Yes, I am familiar with that.

MR MARTIN:  Yes, Your Honour. The two matters particularly

which the affidavit in support filed by the
applicants have failed to comply with is, firstly,

the reasons for the judgment below were not

exhibited to the affidavit and, secondly, there was

Gamester 53 20/6/91

no draft notice of appeal setting out the grounds of appeal to be relied on in the event of special

leave being granted. Those are mandatory

requirements.

The other rule I should direct Your Honour to

is Order 69A rule 8 which gives the Registrar:

At any time, after the filing of an

application -

power to make -

directions as to any matter which appears to

the Registrar to be a convenient matter upon

which to give directions.

And we say a direction was given by the

Acting Registrar as early as 14 September 1990

directing the applicants to file an affidavit

complying with Order 69A.

HIS HONOUR:  Yes. Well, there is not the slightest doubt

that there has been gross delay from an objective

point of view but it seems to me that if an order

was made in terms of paragraph 2 of your summons

that it would be likely that this appeal will be

prosecuted, notwithstanding various claims that

there is no money and so on. Why is not the proper

course for me to take one in accordance with

paragraph 2 of your - - -

MR MARTIN:  I think Your Honour is referring to 3(a) and

( b) .

HIS HONOUR:	Yes, 3.
MR MARTIN:	Your Honour, I cannot put anything against that

in the light of the exchange that has already taken

place in relation to the applicants' summons. I

would concede that that seems to be the more proper

course that the Court should adopt.

HIS HONOUR:  Yes. Well, thank you, Mr Martin. Mr Newlinds,

now how can you object to order paragraph 3?	You
fail on your stay application.

MR NEWLINDS:  She is sick, Your Honour, and she has been

sick and, on my instructions, she is going to

continue to be sick for at least the foreseeable

future. So, in my submission, to put her on to

such a tight timetable is really the same as

striking her out. My instructions are that she is

in hospital today having some exploratory surgery.

That may lead to some more radical-type surgery.

She really is not in a position to tell me at all

when she might be able to comply with a timetable

Gamester 54 20/6/91

of some sort and I must say, Your Honour, I have

raised this with her and I really have tried to

ascertain what is a viable-type timetable that she

has got some hope of keeping to. My instructions

of that.

are that if she is to be put on to such a

timetable, it is not to start until after 8 August.

HIS HONOUR:	Yes.
MR NEWLINDS:	And I think she understands that that is

effectively asking for the same thing by a

different name but that is what she wants. All I

can put to Your Honour is that if she is to be put

on a timetable, perhaps she can be given leave to

approach the Court if her physical circumstances

are such that she simply cannot comply with it.

So, in summary, Your Honour, there are two reasons

why she is going to have trouble complying with it;

the first is she is sick and the second is the

legal aid problem. She really is not going to be

able to put on a draft notice of appeal, so her

affidavit tells Your Honour, without some competent

legal advice and she is not going to get that until the legal aid issues are resolved. I appreciate we are going round in circles but that is the

situation she finds herself in.

HIS HONOUR:  But looking at the matter realistically, having

regard to the attitude of the various legal aid

bodies, there just seems to me to be no realistic

prospect of her getting legal aid, having regard to

their stated views about the matter, and she has no

right to legal aid. It is all discretionary

grants. They have made it plain that they are not

going to grant legal aid. Miracles do happen; it

is possible that the Attorney-General may intervene

and there may be a direction to grant legal aid;

new material may come forward but looking at the

history of the matter up to date from 1987, bearing

in mind, on one estimate, $100,000 of legal aid

funds have been expended already in the matter, I

just do not think there is any realistic prospect

of her getting legal aid. So, in making any
orders, I think I would have to proceed on the

basis that she will not be assisted by legal aid

and therefore I might give her a bit longer than I

normally would to somebody who is legally

represented, but not very much longer, I can assure you, having regard to the history of the matter and

having regard to her competence. Mr Justice Pincus

formed the opinion that if any lay person was

capable of running a complex case of this nature it

was she and my own impression of her, on the two

occasions that she has been here, is that she is

highly intelligent, she has a good grasp of the

Gamester 55 20/6/91

material, she thinks quickly and she is as capable

as anybody would be of getting this matter ready.

Now, whether she will be able to get somebody

to do the special leave application is another

matter altogether, I do not know.

Is there anything further you want to say in

relation to the matter?

MR NEWLINDS:  No, Your Honour, except she is in hospital and

that is the problem.

HIS HONOUR:  Yes. Do we know how long she is in hospital

for?

MR NEWLINDS:	No, Your Honour.
HIS HONOUR:	Yes. Well, anyway, she has apparently been

instructing you in the last few days, has she?

MR NEWLINDS:	By telephone only.
HIS HONOUR:	By telephone, yes.
MR NEWLINDS:	From hospital.
HIS HONOUR:	From hospital.

MR NEWLINDS:  She tells me. No, Your Honour, there is

really nothing else I can put except if she could
be given leave to approach and ask for the order to

be varied if there are some special circumstances.

HIS HONOUR: Well, it is something I am very loath to do

because it would just simply be inviting an

application but anyway I - - -

MR NEWLINDS:  And I am instructed, Your Honour, to make an

application on Ms Cameron's behalf that when the

matter next comes before the Court, if it does, in

whatever capacity it comes before the Court, that

she, again, be given leave to represent herself.

HIS HONOUR: Well, I cannot make any order binding on

anybody else. If I am further involved in this

matter, I will deal with any such application on

its merits.

MR NEWLINDS:  Your Honour, there are just a couple of short

matters which I think I should put before you.	We
say that she has been denied, if not natural
justice, that justice has not been done to this
lady because her case, her main case has never
really got past the barrier.	Now, there might be

all sorts of good reasons why that has happened.

Ms Cameron says there is not, and that she made

Gamester 56 20/6/91

proper adjournment applications which were not

properly dealt with. She is basically asking for a

fair go from this Court which she says she has not

got from the lower courts.

One other point I should put:  I am instructed

that the respondents caused a considerable amount

of delay in the preparation of the trial matter

which is all to do with disputes about discovery

and whether it should happen or whether it should

not.

HIS HONOUR:  I appreciate that is the allegation she makes

but she brought numerous interlocutory applications

about discovery and failed generally. I do not

know whether she failed on everything but she seems

to have lost the battle for general discovery

anyway.

MR NEWLINDS: Well, Your Honour, unless I can be of any

further assistance, there is nothing further I can

put.

HIS HONOUR:  No. Well, thank you very much. I am indebted

to you, Mr Newlinds, for your very considerable

help.

Mr Martin, I have just asked the Registrar

whether there were any problems about the timetable

that you have got in relation to paragraph 3 and he

thinks there are difficulties about an application

book to be settled within 14 days of the date of

this order and so on. What I had in mind was

making an order which is perhaps more general but

it would be along the lines that the applicant file

an affidavit in support of the application in

accordance with Order 69A and take such steps as

are necessary to enable the application for special

leave to be listed for the sittings of the

High Court on, say, 4 October, and in the event

application for special leave stand dismissed for	that she fails to comply with the order, that the
want of prosecution. Now, do you have any problems
with that?

MR MARTIN:	Your Honour, time does not run until the index has been settled in respect of the rules, and that
seems to be the hurdle that has confronted us in
the past.

HIS HONOUR:  Yes. Mr McCluskey, is there any problem about

me specifying a time for the index to be settled?

DEPUTY REGISTRAR:  No, there is none, Your Honour.

HIS HONOUR:  Yes, thank you. I propose to give judgment in

these two summonses.

Gamester 57 20/6/91

I have before me two summonses, the first of

which is dated 5 February 1991 in which the

applicants are the respondents to a special leave

application. Throughout this judgment I shall
refer to them as the respondents and the applicants

to the special leave application as the applicants.

The first summons seeks three orders:

"l.	The Application for Special Leave herein
be dismissed for want of prosecution.

2.      The Applicants pay the Respondents' costs of the Application for Special Leave.

3.    Alternatively to paragraphs 1 and 2

hereof:

(a) within 7 days of the date of this Order 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 Rules;

(b) in the event that the Applicants comply

with Order 3(a) herein the Index for the Application Book is to be settled by the Registrar within 14 days of the date of

this Order:

(c)	in the event that the Applicants fail to
comply with Order 3(a) herein the Application for Special Leave is dismissed."
The summons is dated 7 February 1991.	The

applicants seek the following orders:

"1.	The applicants' Application for Special
Leave to Appeal be delayed until after
the hearing of legal aid appeals.
2.	the Registrar, be upheld as set out in

That the arrangements made with Mr Jones, for medical reasons as with the Federal Court."

The special leave application is in respect of

a judgment of the Full Court of the Federal Court

which was given on 20 July 1990. The application

for special leave to appeal was filed as long ago

as 9 August 1990. In its judgment, the Full Court

dismissed an appeal against a judgment of

Mr Justice Pincus given on 19 March 1990 in which

he dismissed an application by the applicants for

relief under the Trade Practices Act~ The

Gamester 58 20/6/91

Full Court also refused applications for leave to

appeal against various interlocutory orders which

had taken place in those proceedings. Those

proceedings were numbered in the Federal Court G521

of 1986.

The history of the proceedings and the nature of the claim of the applicants in the Trade

Practices proceedings is set out in part in a

judgment of Chief Justice Mason given in this Court

on 26 March 1991:

"The litigation in the Federal Court arose out of the sale of a magazine, "Rural

Chemicals", by the applicant, Ms Cameron, to

the first respondent and a repurchase agreement or agreements relating to that magazine and the respondent's conduct with respect to those

transactions. By their statement of claim the

applicants sought relief, inter alia, on the

ground that the sale was brought about by

threats, misrepresentations, duress and undue

influence, as well as taking advantage of

market power within the meaning of section 46

of the Trade Practices Act 1974 of the
Commonwealth. In addition, the applicants

allege breaches of sections 42, 45 and 47 of

that Act.

The respondents filed a defence to the

action. Thereafter there were a series of
interlocutory applications, including

applications relating to particulars, further

and better particulars, discovery, inspection,

notices to produce and subpoena, to mention

some but not all of the interlocutory
proceedings. Discovery was the subject of

contention between the parties over a period of

years. Following an application by the

applicants for general discovery, on

11 August 1988 Wilcox J. made an order at the

instance of the applicants for limited

discovery, restricted to those documents which

related (a), to the relationship between the
applicants, or one of them, and the respondents

or any of them, and (b), to the transactions

between such parties, reserving liberty to the

applicants to apply with respect to other

categories of documents.

It seems that the applicants' request for general discovery was not granted. The

applicants subsequently, on 22 August 1988,

filed a further notice for general discovery.

This resulted in Wilcox J. making a further

order for discovery on 16 September 1988 but

again the discovery order was limited in that

Gamester 59 20/6/91

it was restricted principally, if not

exclusively, to include documents in paragraphs

(1) to (4) of a notice to produce. The

applicants thereafter constantly complained of

inadequate discovery, the matter apparently

being debated before Wilcox J. on 21 March 1989

and 7 April 1989. As His Honour did not order

further or general discovery the applicants

sought to appeal to the Full Court. The Full

Court found that the discretion of the primary judge had not miscarried. Delivering the

judgment of the Full Court on 7 September 1989

Sheppard J., referring to the possibility that discovery might have been inadequate or might

be inadequate, said:

"That is a matter which can continue to

be explored at directions hearings and

even during the hearing itself as the

evidence unfolds."

It is significant that the applicants'

notice of motion to strike out the defence was
not filed until 8 February 1990, though an

earlier notice of motion seeking such an order

seems to have been filed at a much earlier

point of time. 8 February 1990 was some five weeks before the action was finally fixed for hearing on 12 March 1990. Presumably the

notice of motion was filed after the date for

the hearing had been fixed. In fact the action

had been fixed for hearing on two previous

occasions. The Full Court records in its

judgment of 22 July 1990 that Ms Cameron

informed Pincus J. and the Full Court that when

the action was fixed for trial in

September 1989 Ms Cameron was ready to go on

with it. At that stage there was no suggestion

that inadequate discovery would inhibit the

presentation of the applicants' case.

The estimated duration of the hearing

before Pincus J. was two weeks. At the

commencement of the hearing His Honour dealt

with a number of interlocutory matters. He

set aside a subpoena which Ms Cameron intended

to ulitize to bring about a form of discovery

on the ground that it was couched in vague

terms and called for the production of in

excess of 10,000 documents without it being

shown that the documents were relevant to the

issues. It seems that he also made orders for

the production of certain documents and

explored the possible production of other

documents as and when they might be needed

during the trial. What is more, His Honour

recorded in his judgment when dismissing the

Gamester 60 20/6/91

action on 19 March 1990 that he had canvassed

the possibility of interrogatories being
administered and answers to them being

obtained.

It was in this context that Pincus J.

heard argument on the notice of motion to

strike out the defence. A reading of the

transcript reveals that His Honour dealt with

the motion in a rather summary or peremptory fashion. Evidently His Honour took the view

that Ms Cameron was attempting to agitate

complaints about discovery which had already

been debated and dealt with before Wilcox J. and the Full Court in August-September 1989. Moreover, His Honour's reaction was

occasioned, apparently, by the way in which

Ms Cameron presented the application to strike

out the defence. She endeavoured to have the hearing of the application deferred until the

market issue was dealt with. Although His

Honour ruled that the application should be

determined immediately, Ms Cameron appears to

have persisted in stating that it was

premature to do so and in raising matters

which His Honour regarded as irrelevant. In

the upshot, His Honour struck out the notice

of motion after cutting argument short. The

transcript records Ms Cameron as stating that

the applicants would be appealing against the

order to the Full Court.tt

On 14 March, Mr Justice Pincus refused an

application to adjourn the proceedings for a

substantial period but did adjourn them until

19 March. Mr Justice Pincus ultimately dismissed

the action for want of prosecution on 19 March

1990.

It is convenient to begin with the summons of

7 February 1991. At the heart of that summons is

the assertion by the applicants that there are on	foot legal aid appeals which have not been
resolved. It is necessary to refer to the matter
of legal aid in some little detail. An application
for legal aid was made under section 170 of the Trade Practices Act to the Attorney-General. Legal
aid was originally granted but the grant was
withdrawn in approximately May 1987 by which time at least $70,000 had been expended on the
litigation - indeed on one account, somewhere near
$100,000 had been granted. It is possible that a
further application for legal aid was made in early
January 1990 for the reinstatement of the grant of
legal aid under the Trade Practices Act but, in any
event, that does not affect the matter.

Gamester 61 20/6/91

In 1989, the applicants took proceedings in

the Federal Court for a review of the decision
refusing to continue legal aid to them. That

application was No G270 of 1989.

Mr Justice Lockhart, who heard the matter, assumed

the application to be made under the Administrative

Decisions (Judicial Review) Act 1977. His Honour

also treated it as an application for prerogative

relief. His Honour dismissed the application on

15 September 1989 on the grounds that the

application was an abuse of process. His Honour

said:

The case has reached a point where I will

not allow it to go on any longer. To do so

would, I think, be a serious erosion of the

resources of this Court and of the

Commonwealth and a waste of everybody's time

and money. I have on many occasions

throughout the two days sought assistance from

Ms Cameron as to what she really wishes to

achieve and how she seeks to achieve it; but I

have not been helped in that enquiry. I do

not suggest that she deliberately refrained

from helping me, or refused to help me, but I

think she simply has no case whatever on which

she can help me.

That application was refused, as I have said,

on 15 September 1989. An application then came

before Justice Gaudron for a mandamus directed to

Mr Justice Lockhart. The application for mandamus

was refused by Her Honour on 17 May 1990. In the

meantime, as I have already said, the application

brought under the Trade Practices Act had been

dismissed on 19 March 1990. The applicants have

appealed against the decision of Justice Gaudron.

They did so on 7 June 1990 and the appeal is now

listed for hearing, I think, on 8 August 1991. The

applicants have also made applications to the Legal

Aid Commission of New South Wales for assistance in

relation to the Trade Practices case, No G521 of

1986, and the application G270 of 1989.

When the matter first came before me on

21 February this year, I was concerned as to

whether or not the applications in relation to legal aid were outstanding I adjourned the two

summonses until 23 May 1991 to have evidence

concerning the matter put before me. When the

summonses came on before me on 23 May 1991, the

evidence in relation to the question of legal aid

was still in an unsatisfactory state.

Consequently, I adjourned the proceedings until

today and directed Mr McClusky, the Deputy

Registrar, to forward a copy of the transcripts of the hearing before me to the relevant officers of

Gamester 62 20/6/91

the N.S.W. Bar Association and the New South Wales

Law Society to ascertain whether they would make

available any legal practitioner to assist the

Court in relation to this matter. I was told this

morning that the Law Society made a solicitor

available but it appears that his instructions were

withdrawn by Ms Cameron, one of the applicants.

But, with the consent of the Bar Association,

Mr Newlinds has appeared here today, uninstructed

by a solicitor, to act on behalf of the applicant.

I am very much indebted to his assistance in this

matter. He has examined the correspondence

between the applicants and the Legal Aid Commission

and its review committee. He has informed me that

there is no relevant legal aid application or

appeal on foot in that Commission at the present

time. That being so, there is no ground whatsoever

for making an order in terms of paragraph 1 of the

applicants' summons of 7 February 1991.

Mr Newlinds contended, however, that I should

also take into consideration the appeal to be heard

on 8 August 1991 since that involved a matter of

legal aid but, as I pointed out to him during the

argument, even if that appeal were successful, it

would not assist the applicants in respect of

paragraph 1 of this summons. The reason I say that

is that the appeal is against the order of

Justice Gaudron refusing to grant a writ of mandamus against Justice Lockhart in respect of

his Honour's judgment given on 15 September 1989

dismissing the application to review the decision

to refuse to continue legal aid in respect of the

application under the Trade Practices Act. But

that application under the Trade Practices Act was

dismissed on 19 March 1990. So that even if

Justice Lockhart was in error in dismissing the

application No G270 of 1989, the prospect of any
order being made that he should reconsider the

decision to refuse to continue legal aid is

extremely unlikely to say the least.	The
application under the Trade Practices Act has been

dismissed. Legal aid in respect of that

application cannot be granted. Moreover, so far as

appears from the materials, no application for

legal aid has been made to prosecute the present

application for special leave, although it appears

that the applicant has written to the Attorney-

General seeking the grant of legal aid in another

proceeding in which she seeks to enforce an

alleged settlement with the respondents or some of

them and to prosecute the appeal which is for

hearing on 8 August 1991.

Accordingly, there is no basis for making an

order in terms of paragraph 1 of the applicants'

summons of 7 February 1991.

Gamester 63 20/6/91

So far as the second paragraph of that summons

is concerned, it is plain that if any arrangement

was made with Mr Jones, it is now spent. In a

letter to the Deputy Registrar dated

21 September 1990, which is annexure C to an

affidavit of 3 October 1990 which became exhibit B

this morning, Ms Cameron, one of the applicants,

said:

We are concerned by the contents of your

letter having regard for the arrangement

Ms Cameron made with Mr Jones, the Registrar,

that nothing would be done with our

Application for Leave to Appeal until at least

December and next year if Ms Cameron is not

well enough to attend to the matter in

December. A letter was sent to Mr Jones at

his request confirming the above.

If any such arrangement to defer the special leave application was made with the Registrar, it is clear that it was never intended to operate in

1991. In those circumstances, there is simply no

evidence to support paragraph 2 of the summons of

7 February 1991. Accordingly that summons must be

dismissed.

That then brings me to the summons of the

respondents dated 5 February 1991. The first

order, as I have already pointed out, is that the

application for special leave be dismissed for want

of prosecution. There is no doubt that the history

of the matter establishes gross delay on the part

of the applicants in prosecuting the special leave

application. The application was filed on

9 August; on 13 August an application and affidavit

in support of the special leave application was

served on the respondents. However, the affidavit

did not comply with the requirements of Order 69A

rule 4 of the Rules of this Court. On 14 September

the Acting Registrar directed the applicants to

file an affidavit complying with Order 69A rule 4.

On 4 October, an appointment to settle the index

for the application book was vacated by the

applicants without the consent of the respondents.

The same thing happened again on 25 October 1990

and again on 15 November 1990. On 5 November, the

Deputy Registrar informed the applicants of the

need to comply with Order 69A.

It is, of course, true that throughout this period the applicants were maintaining that they had an arrangement with the Registrar that no steps

were to be taken in the matter but even if that

arrangement was operative during the period up

until December last year, it does not justify what

has happened this year. On 4 January 1991 the

Gamester 64 20/6/91

Registrar informed the applicants of the need to

comply with the requirements of Order 69A. On

10 January the Deputy Registrar indicated to the respondents that the index should not be settled because the affidavit in support did not comply

with the rules. According to paragraph 18 of the
affidavit of Mr Williams in support of the summons
of 5 February the applicants did not appear on that

day as appointed. That led to the summons of

5 February being filed by the respondents.	As I
have said, the matter has come before me on
21 February and on 23 May 1991.	The affidavit

required by Order 69A rule 4 has not been complied

with to this day. A period of 10 months has

elapsed since the application for special leave to

appeal was filed. The delay on the part of the

applicants cannot be objectively justified

although, in fairness to the applicants, they seem

to have been acting under some misapprehension that
they had applications or appeals on foot before the

Legal Aid Commission and that in some way that

operated as a stay of proceedings in this Court.

Because of this latter factor, I do not think, in the circumstances, that I should give effect to

the first order sought by the respondents, namely

that the application for special leave herein be

dismissed for want of prosecution. But it does

seem to me necessary to make an order which will

enable this matter to proceed expeditiously from

now on.

The order which I propose to make is that

within 28 days of this order 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 Rules. In the

event that the applicants comply with the order

which I have just made, the index for the

application book is to be settled by the Registrar

within 42 days of the date of this order.

I direct that the applicants also take all

such steps as are necessary to enable the

application for special leave to appeal in this

matter to be listed for the sittings of the High

Court on 4 October 1991. In the event that the

applicants fail to comply with the orders I have

made, or any part of them, the application for

special leave shall stand dismissed for want of

prosecution.

I give each party liberty to apply on seven

days notice.

Gamester 65 20/6/91

As to the question of costs, Mr Newlinds, it

seems to me - is there anything that you want to

say against making - - -

MR NEWLINDS:	No, Your Honour.
HIS HONOUR:	The applicants should pay the respondents'

costs of the summons of 5 February 1991 and the

summons of 7 February 1991.

Is there any further order that either party

requires?

MR MARTIN:	No.
HIS HONOUR:	Mr McClusky, the order I made in relation to the settlement of the index being within 42 days of
this order: is that sufficient for your purposes?

DEPUTY REGISTRAR: Certainly. That is sufficient,

Your Honour.

MR NEWLINDS:  Your Honour, I will do my best to communicate

these orders to Ms Cameron. However, I take it the

Court will also do something to - - -

HIS HONOUR:	I assume that your opponents will take out the order and serve them fairly quickly.
MR NEWLINDS:	Yes.

MR MARTIN:  I do not know whether Your Honour has formally dismissed the first summons. Your Honour has

stated in Your Honour's reasons for judgment that

you do so.

HIS HONOUR:  Thank you. I also dismiss the applicants'

summons of 7 February 1991. Adjourn the Court.

AT 11.52 AM THE MATTER WAS ADJOURNED SINE DIE

Gamester 66 20/6/91