Gamester Pty Limited & Anor v Rural Press Limited

[1991] HCATrans 130

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4

"I

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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

Summons to dismiss for want

of prosecution

McHUGH J

( In Chambers)

Gamester 23 23/5/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 MAY 1991, AT 10.00 AM

(Continued from 21/2/91)

Copyright in the High Court of Australia

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

respondents. (instructed by Sly & Weigall)

HIS HONOUR:  Yes, Mr Martin. Ms Cameron, you appear for

yourself and also seek leave to appear for

Gamester, do you?

MS B.A. CAMERON:  Yes, thank you.

HIS HONOUR:  Yes, Ms Cameron? I have read your affidavit

that you filed, that is, this affidavit of 9 May.

Now, what is the position in relation to legal aid?

MS CAMERON:  We have applied for legal aid to effect a

settlement which we say has been reached in this

matter, and I have a letter here from Sly & Weigall

in which they say they note that we have accepted

the settlement. The letter says:

Whilst you and Gamester have now accepted our

clients' offer of settlement -

and they go on to say that agreement is required.

And they sent us the agreement and we signed it and sent it back to them and they just said, well, they

had changed their mind.

HIS HONOUR: Well, I have seen your letter because it is

somewhere annexed to one of those affidavits

but - - -

MS CAMERON:	The terms of that settlement are that we are to not take any further steps in the case.	Did you
read the letter which we wrote to all the
directors?
HIS HONOUR:	No, I did not.	I have not seen that letter.

MS CAMERON: That is a very important letter because we have

had a response to that and I think that that is

very important and it could save everybody a lot of

time.

HIS HONOUR:	Have you seen this letter?
MR MARTIN:	No, Your Honour.

MS CAMERON: Well, it was annexed to the affidavit, I am

pretty sure - exhibited to it, I am sorry.

HIS HONOUR:	Annexed to which affidavit?
MS CAMERON:	The one dated - the last one that I filed.

Maybe I did not.	I meant to exhibit it but I did
not perhaps.	I will just check quickly.

HIS HONOUR: Well, would you give Mr Martin a copy of it.

Gamester 23/5/91

MS CAMERON:	Yes.	I am sorry, I will just check it now.
MR MARTIN:	Your Honour, I have read that letter.	I have no

objection to Your Honour seeing it.

HIS HONOUR: Yes. Yes, I have read that letter. It can be

marked exhibit A in these proceedings.

EXHIBIT:  Exhibit A ..... Letter

HIS HONOUR:  It does not seem to me to take the matter very

far at all. In fact, in does not seem to take the

matter anywhere.

MS CAMERON: Well, we have had a reply from two of the

directors including Mr Fairfax who signed himself

as the chairman. We have now been invited by - he

told us to contact Sly & Weigall and who have now

said that they are prepared to pay the settlement

moneys, and we have got to write them a letter

about that and that has not been done yet.

HIS HONOUR:  What is this settlement to do with? I mean,

what does it settle? Does it settle these

High Court proceedings?

MS CAMERON:  Yes, it does. It does not settle the legal aid

dispute but it settles all the matter against Rural

Press. And we have applied for legal aid to

enforce the settlement but, unfortunately, I have

been in hospital and that application has only gone

recently. We wrote letters to all the other areas that are set out in this affidavit where the legal

aid is outstanding asking that replies could be
expedited but unfortunately those letters were not

posted until after I came out of hospital. So, the

fact that we have not got replies is probably

not

HIS HONOUR: Well, let me first of all ask: Mr Martin -

excuse me, Ms Cameron - what is the situation in

relation to this alleged settlement	in this action?
What does your side contend?

MR MARTIN:  Your Honour, there is no settlement; there is no

agreement to settle been reached between the

parties. There is presently an application on foot

before the Federal Court which is in for directions

next Monday concerning further conduct of that

application. The application, in effect, was

brought by Ms Cameron and Gamester seeking to

enforce an alleged settlement agreement.

Ms Cameron has been asked to put on file a

statement of claim, points of claim setting out her

allegations of material fact. The matter is back

before the Federal Court, as I say, on Monday.

Gamester 25 23/5/91

HIS HONOUR:  Is there any point in me hearing this

application while this matter is outstanding if

there is going to be proceedings in the Federal

Court next week?

MR MARTIN:  Your Honour, there is some point. We say,

firstly, there is no practical utility in

adjourning the application pending either
determination of the legal aid or, indeed, pending

the outcome of the settlement application before

the Federal Court. We are anxious that some

finality be arrived at in this litigation.

HIS HONOUR: Well, I can understand that and I appreciate

that.

MR MARTIN:  Your Honour, I can only put to Your Honour that

if the matter were adjourned on the basis of

determination of the settlement application, that

may well be subject to an appeal if Ms Cameron is

unsuccessful or if my client is unsuccessful and

that appeal process would have to be exhausted.

HIS HONOUR:  I understand that but what about these

proceedings? Supposing your application was

successful, you would still have this question of

the settlement outstanding?

MR MARTIN:  Yes, Your Honour.

HIS HONOUR:  Yes. Well, carry on, Ms Cameron. Ms Cameron,

all I have had so far are statements from you from

the bar table about legal aid. Where are the

application forms? Where is the correspondence?
Where is there any material from anybody in the

Legal Aid Commission informing me as to what is happening?

MS CAMERON: Well, I have got some of it here.

HIS HONOUR: Well, could I have it then, please.
MS CAMERON:	Yes. Could I just say a couple of points about

what Mr Martin has said?

HIS HONOUR:	Yes.
MS CAMERON:	One thing that I asked for in this affidavit

was that we could have leave to file other

affidavits about the public interest aspect.

HIS HONOUR:  The public interest has got nothing whatever to

do with this case - this application, nothing

whatever to do with it.

MS CAMERON:  Yes, right. And the other point is that

Mr Martin says that he is anxious to get this

Gamester 26 23/5/91

matter settled, whereas we say that there is

overwhelming evidence that they have wilfully

delayed this case, year, after year, after year -

irrefutable evidence.

HIS HONOUR: Well, that has got nothing to do with this

case.	What we are concerned with is the present
situation.	He says he wants to finalize it.

MS CAMERON:  Yes. The other thing is that what Mr Martin is

saying to you about opposing the settlement is

contrary to comments made to me by several of the
directors of Rural Press who say they are astounded

that the settlement has not been carried out.

HIS HONOUR: That is their statement. Their statement, as

directors, does not necessarily bind the company,

nor does it necessarily indicate that they are

familiar with what has happened. If there has been

an agreement, there has been an agreement, and if

you are successful in that then there is an

agreement but at the moment you have these

proceedings on foot and if there is an agreement,

the fact that you were ordered by this Court to do

things would not constitute any breach of the

agreement, particularly having regard to the

attitude of the other side who claim that there is

no such agreement.

MS CAMERON:  You see, we would like to subpoena Mr Parker

who is the managing director who has been

instructing Sly & Weigall who has said to me that

he is astounded that they have not carried out his

instructions.

HIS HONOUR:  This case has got nothing whatever to do with

these matters and you have really got to face up to

this situation, that the matter has dragged on for

nine months. On your own admission, on

21 February, when you were before me, your

application for legal aid in this matter has been
refused.	You said you do not accept that, it was

only done by telephone, but that seems to be the

position.

MS CAMERON: Well, I can go through exactly what the

position is, and I have got all the letters here.

If you turn to page 6 of the affidavit, the last

affidavit I filed - - -

HIS HONOUR: Yes. Well, I have read that.

MS CAMERON: Well, we are still waiting for a hearing date

for the High Court appeal about the legal aid and in regard to the Legal Aid Commissioner about the main case, we applied for legal aid for two things:

one, to run the case against Rural Press and, one,

Gamester 27 23/5/91

to run the appeal against the Legal Aid, and the

appeal against Legal Aid has not been heard because

they thought it was the one application.

HIS HONOUR:  You make that statement from the bar table.

Where is this in correspondence to indicate that is

the case?

MS CAMERON:  Yes, I have got it here.

HIS HONOUR: Will you show that document to Mr Martin,

please.

MS CAMERON:  I have been told to claim privilege for the

correspondence about the legal aid because we

allege that they procured the withdrawal of our

legal aid and they could become a party - become

involved in further disputes about the legal aid.

HIS HONOUR:  Ms Cameron, it is a matter entirely for you.

You may or may not be entitled to legal

professional privilege or public interest privilege

in relation to the matter, I do not know what the

answer is and I do not want to say anything about

it but if there is privilege then you are entitled

to waive it. It is a matter entirely for you

because at the moment there is no evidence at all
before me as to legal aid except your statements

from the bar table.

MS CAMERON: Well, there is. There is one affidavit which

sets out all the early materials, an affidavit

about this thick which sets out - - -

HIS HONOUR: Well, there is not an affidavit in these

proceedings.

MS CAMERON: Well, it should be, I filed - - -

HIS HONOUR: There is a large affidavit which I have read

and it is an affidavit dated 9 January 1991 but it

does not annex any documents. And the only other

document I have seen is this present affidavit of

yours filed on 9 May.

MS CAMERON: There is one dated 2 March which has attached

to it correspondence which the - - -

HIS HONOUR:	2 March: which year?
MS CAMERON:	1990, and it has got the exhibits to it - there

is a whole list of exhibits. There is a letter

from the Administrative Appeals Tribunal, a letter

to the Ombudsman, a letter from the Ombudsman,

three letters to the Ombudsman, a letter from the

applicants to the Legal Aid Review Committee - - -

Gamester 28 23/5/91

HIS HONOUR: Well, these matters have not been filed in this

matter - that affidavit. If it has been filed, it

has not been filed in this particular matter with

which we are dealing with but, in any event, it

only states the position as at 2 March 1990.

MS CAMERON:	Yes.
HIS HONOUR:	So, it cannot say anything about the question

of legal aid in this case since Mr Justice Pincus'

decision dismissing the action was not given until

19 March 1990.

MS CAMERON:  Yes. I have got all the letters since then

here.

HIS HONOUR: Well, as I have said to you, it is a matter for

you whether you want to tender those documents.

All I am telling you is that at the moment I have

no evidence in any strict sense concerning the

legal aid question.

MS CAMERON:	But you have got this older - - -
HIS HONOUR:	I have not got this affidavit.  It is not filed

in these proceedings. This is a separate action

altogether. Now, whether that affidavit has been

filed in some other action or not, I do not know,

but it certainly has not been filed in this one.

MS CAMERON: Well, I am sure I felt I exhibited it

somewhere.

HIS HONOUR: There is no document that I have seen which

indicates that you h~ve and there is no document in

the file.

MS CAMERON:  I am sorry about that. Well, I do not know

what to do because I have been told that they could

just cause more trouble if they see these letters.

I mean, I am happy to show them to you but - - -

HIS HONOUR:  You cannot show them to me without showing them

to the other side and the rules of natural justice

require that the other side be shown a copy of

those letters. I can understand your concern. It

may be that you are in trouble.	It really is
extremely difficult for me.	I want to do justice
to you, Ms Cameron.

MS CAMERON:  Yes, I am sure.

HIS HONOUR: But, on the other hand, I have to do justice to

the respondents who take the line that they are not

putting on any evidence in this case, they are

going to require you to justify the long absences

in the case. I am - - -

Gamester 29 23/5/91

MS CAMERON: Well, what happened was that first of all we

applied for expedition of this and then there was

not a hearing date available, so then we applied to

have it - to wait until I went into hospital, and

then I could not go into hospital at that stage.

But we did, first of all, apply to have it

expedited but there just was not a hearing date

available.

HIS HONOUR:	Yes.
MS CAMERON:	You see, I just do not know what to do is the

trouble.

HIS HONOUR:  Well, if you will just sit down for a moment.

I want to speak to Mr Martin.

MS CAMERON:	Yes, thank you.
HIS HONOUR:	Mr Martin, I am troubled by this case. It

seems to me at the moment, on the evidence I have

read so far, that there are powerful reasons why

the application that Ms Cameron has made that these

matters should be delayed should be rejected, and

that there are strong reasons, prima facie, for

making some such order as you seek in your

alternative order with some time limit on it. On

the hand, I may be doing a litigant in person an

injustice. It is obviously very difficult for her

to grasp the legal issues. I have been wondering

whether or not the Bar Association may not be able

to make somebody available as amicus curiae in this

case as they have done once or twice in the past to

my knowledge.

MS CAMERON:  We would be very grateful indeed if that could

happen.

HIS HONOUR:  Mr Martin, I know you will not be pleased with

this - - -

MR MARTIN:  Your Honour, I understand Your Honour's

position.

HIS HONOUR:  - - -and I am very much aware that every one of

the delays is costing your clients money and, as I

said on the previous occasion, it does not seem to

me that there are extremely strong prospects of the

special leave application succeeding; on the other

hand, I would not like to send a litigant in person

away on the basis that a case has not been properly

prepared.

In the circumstances, what I think I will do

is to adjourn this case until the next time I am in

Sydney, which will be in a couple of weeks time and

in the meantime direct the Registrar to send a copy

Gamester 30 23/5/91

either of those institutions are prepared to make somebody available to assist the Court in respect of this matter.

of the transcript of today's proceedings to the Bar

On a previous occasion, Ms Cameron has raised the question as to whether or not a stay under the New South Wales Legal Aid Act is operative here and

I have told her that the New South Wales

Parliament, as such, has no power to make any laws

which bind this Court. However, regard has got to

be had to section 79 of the Judiciary Act which makes the laws of a State applicable to a court exercising federal jurisdiction so far as they are

applicable, and it may be through that indirect

route section 57 is applicable. Whether section 79
of the Judiciary Act applies to the appellate
jurisdiction of this Court is an open question and

was so regarded as being an open question in the John Robertson case, 129 CLR. Off the top of my

head, I am not aware of any later discussion of the

problem.

It may be a short answer to the whole question

of section 57 of the Legal Aid Act is that on its proper construction the words "court or tribunal"

in that particular section simply mean a New South

Wales court or tribunal and therefore section 79

cannot give it any more force than that, so that it

does not apply here. And there are other problems.

But for the section 57 even to operate, one would

want to know the factual background of a legal aid

application and I am really not getting anywhere

here.

So at a date that is convenient to you and

Ms Cameron in the next couple of weeks - I will be

in Canberra next week and the week afterwards, but

I will be back in Sydney from the week of 12 June

for two weeks - I will adjourn it to a date. Is

there any particular date?

MR MARTIN:  Your Honour, I regret I did not bring my diary

with me this morning but, Your Honour, if a date

could be given, and if I could confirm that later,

if that is convenient.

HIS HONOUR:  What is your situation during that fortnight,

Ms Cameron, although it may turn out not to be so

important if some assistance is got from the Bar

Association or the Law Society.

MS CAMERON: Unfortunately I have to go back into hospital

urgently next week, but if it was towards the end

of the second week period, I would be out again.

But we would just be so grateful if somebody could

Gamester 31 23/5/91

assist and we know barristers who would assist if

they could get leave to do so without a solicitor.

HIS HONOUR:  That is a matter that the Bar Association may

take into consideration. Some year or two ago the

Bar Association assisted in a special leave

application after the Chief Justice had directed a

copy of the transcript be forwarded to the Bar

Association and the Law Society. I do not know at

this stage whether there was a solicitor involved,

but certainly there was a young barrister involved.

MS CAMERON:  I could give them all of this legal aid

material.

HIS HONOUR:	Yes.
THE REGISTRAR:	I think Thursday, 20 June, would be the

second week of the two weeks that you are back

here.

HIS HONOUR:  Yes. Does that ring any bell with you,

Mr Martin?

MR MARTIN:  I regret not, Your Honour, but I have no

objection for it to be set down at that time.

HIS HONOUR:  I will adjourn these proceedings until 20 June

and I direct a copy of today's transcript and also

the transcript of 21 February be sent to the proper

officer of the Bar Association of New South Wales

and the Law Society of New South Wales.	I reserve
the question of costs.

If there is no legal assistance forthcoming,

Ms Cameron, you will have to deal with the matter
on your own and you will have to make a decision to

what extent you want to waive any privilege you may

have in respect of this legal aid material because

at the moment there just really is not any

admissible evidence as to the state of the legal

aid. There are your statements from the bar table

but there is nothing at all from the Legal Aid.	So
if you do not get legal assistance, you will have

to deal with that situation. But whatever happens,

I plan to dispose of these two summonses on the

next occasion. There will be no further

adjournments.

MS CAMERON: If I could just say two things: by then we

should have replies, and we have been given

privilege for these letters before.

HIS HONOUR:  You do not get privilege given to you. It is

either there, which you can apply as a matter of

law, or it is not. But it is not a question I have

ever really studied in any depth. There are a

Gamester 32 23/5/91

number of cases on the question of legal
professional privilege. In relation to this matter

there may be questions of public interest

privilege.

MS CAMERON:  The Federal Court said that they could not see

them.

HIS HONOUR:	Yes.
MR MARTIN:	Would Your Honour be prepared to give a

direction concerning the filing and serving of any

further affidavit material or any other documentary

material.

HIS HONOUR:  Yes, certainly. How long do you need?

MR MARTIN:	Your Honour, we do not need -
HIS HONOUR:	No, I mean in terms of receiving that material.
MR MARTIN:	We, I would imagine, would only need a couple of

days, but seven days if we could have that time,

Your Honour.

HIS HONOUR:  I have directed that this matter be heard on

the 20th. I will direct that any further affidavit

material upon which you rely is to be filed and

served no later than the 17th, Ms Cameron, 4 pm on

17 June.

MS CAMERON:  Yes.

MR MARTIN: If Your Honour pleases.

HIS HONOUR: Anything further, Mr Martin?

MR MARTIN:  No, Your Honour.

HIS HONOUR: Anything further, Ms Cameron?

MS CAMERON:  I am a bit confused about this affidavit.

Would that be the legal aid material or could

HIS HONOUR:  It will be whatever you are advised to put on.

But certainly I think it is important from your

point of view that you give serious consideration

as to whether you lead evidence as to what the

situation is with the legal aid. It may be an

affidavit from some Legal Aid officer, it may be

the correspondence; but the present situation is

entirely unsatisfactory. I do not know when this

application was made for legal aid in respect of

this special leave application; I do not know when

it has been dealt with or how it has been dealt

with or what its present state is at all.

Gamester 33 23/5/91

MS CAMERON:  Does the fact that the Federal Court has

granted privilege before make any difference?

HIS HONOUR:  The question is if the documents are

privileged, then if its your privilege, you are

entitled to insist on it. All I am saying to you

is that if you do not lead any evidence in relation
to this what might be privilege matter, you will

find yourself in a position that there is no

evidence before me concerning the state of the

legal aid application, assuming that there is one.

That may well be the end of your application to

have these proceedings delayed.

MS CAMERON:  Yes. Mr Jones, the Registrar, could tell you

that there are appeals outstanding in the High

Court with regard to the legal aid - - -

HIS HONOUR:  I am well aware of the history and various

matters in this case. There has been a veritable

orgy of litigation and something has to be done

about it. It has got to come to a head sooner or

later.	We cannot have these interlocutory hearings
dragging on.	They are not good for your health and

they are not good for the pocket of your opponent.

MS CAMERON:  The amazing thing is that Rural Press have

spent a million dollars in legal fees over this

matter which could have been settled eight years

ago, for the same amount of money it can be settled

for now.

HIS HONOUR:  No doubt, if that is the case, they have some

sound commercial reason for following that

particular course. ·rt is a matter that is

irrelevant, as far as these proceedings are

concerned.

MS CAMERON:  But I think it is very relevant, because what

they are doing is trying to put a publisher out of

business.

HIS HONOUR:  It is nothing whatever to do with this

particular application which is an application by

you to have proceedings in the High Court which you

have brought adjourned. You have to justify why

proceedings which you instituted in this Court

should be delayed when almost nine months has

passed, or perhaps more than nine months have

passed, since you originally filed the application

in which nothing really significantly has been

done.

Gamester 23/5/91

I will adjourn these proceedings until

20 June.

MS CAMERON:  Thank you very much indeed.

AT 10.34 THE MATTER WAS ADJOURNED

UNTIL 20 JUNE 1991

Gamester 35 23/5/91