Gamester Pty Limited & Anor v Rural Press Limited

[1991] HCATrans 50

Afrt	.J,, AUSTRALIA c:-
--'>>)~~~ftt(<.t...l.:.

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 1 21/2/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 21 FEBRUARY 1991, AT 10.04 AM

Copyright in the High Court of Australia

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

respondents. (instructed by Sly & Weigall)

MS B.A. CAMERON:  And I appear for Gamester. I am not a

solicitor, I am just doing it.

HIS HONOUR: Yes, thank you. It is Ms Cameron, is it?

MS CAMERON:	Yes.
HIS HONOUR:	How do you like your name, Miss or Ms?

MS CAMERON: It does not matter.

HIS HONOUR:	Yes.
MR MARTIN:	Your Honour, there are two summonses returnable

today; one filed on behalf of my clients, one

filed on behalf of Ms Cameron and Gamester. The

summons filed on behalf of my clients is dated

5 February 1991. It seeks, firstly, an order that:

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

Or:

Alternatively ..... 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.

In the event of that being done, then a timetable for the index to be settled within 14 days.

In the event of the Applicants fail to

HIS HONOUR: Yes. Well, I have read the summonses.

Mr Martin, there is a summons put on on behalf of

Ms Cameron and Gamester Pty Limited.	If the relief
in that summons is granted, your summons becomes

irrelevant, does it not?

MR MARTIN: That is correct, Your Honour.

HIS HONOUR:  So, is it not better to proceed with your

opponent's summons first to see what the position

is there?

MR MARTIN: If Your Honour pleases.

HIS HONOUR:	Did you understand that, Ms Cameron?
MS CAMERON:	Yes, thank you.

Gamester 2 21/2/91

HIS HONOUR:  Could I raise a matter with you which does

concern me slightly, Ms Cameron, and it is this:

strictly speaking, a company can only appear in

Court through a solicitor or barrister and no

person who is not a qualified legal practitioner can appear for a company, whether that person is

the sole shareholder in the company or the public

officer of the company or otherwise. I understand

that that point has not been taken against you so

far in any of this litigation, is that so?

MS CAMERON:  No. Mr Justice Wilcox of the Federal Court

gave me leave to act for Gamester, and this is the

very reason why we seek a stay until the legal aid appeals have been heard because I - whether or not

I can act for the company is one thing, but I

cannot act before the High Court because I am not

qualified.

HIS HONOUR: Well, that is certainly the case. Could you just tell me what the situation is with Gamester

Pty Limited? What is its shareholding? I do not want to know the amounts but who are the shareholders in it?

MS CAMERON: Well, I am a shareholder and Mr Maunder, from

Tamworth, is another shareholder.

HIS HONOUR:	Are there any other shareholders?
MS CAMERON:	No, we are 50 per cent shareholders.
HIS HONOUR:	Is Mr Maunder aware of this litigation?

MS CAMERON: Indeed, very much so.

HIS HONOUR:	Do you have his authority to - - -
MS CAMERON:	Yes, it has all been filed in the Federal

Court.

HIS HONOUR: Has it? Yes.
MS CAMERON:	Yes.

HIS HONOUR: Well, in those circumstances, but only for the

purposes of this morning's hearing, I will give you

leave to appear on behalf of Gamester Pty Limited

as well as appearing for yourself.

MS CAMERON:	Yes, thank you.
HIS HONOUR:	You might proceed with your summons. I have

read it. Paragraph 1 seeks an order that the

special leave application:

Gamester 21/2/91

be delayed until after the hearing of the

legal aid appeals.

Ms Cameron, it is not clear to me what is the legal

aid appeal that you are talking about. Sorry,

could I interrupt myself to ask you this question:

am I right in thinking that no affidavit as such

has been filed in support of the summons of

7 February 1991?

MS CAMERON:	Is that the summons dated 2 October 1990 which had the date changed?
HIS HONOUR:	The only document which has been filed is a

document by you, apart from the special leave

application, is a summons dated 7 February 1991 and

underneath it it has got the words, yes, "2/10/90."

MS CAMERON:  Yes. Well, there are two affidavits which were

filed on 3 October 1990.

HIS HONOUR:  I do not think they were filed. They may have

been lodged. They bore the heading - certainly,

the affidavit bore the heading, "In the Federal

Court of Australia". Is that an affidavit dated

3 October 1990?

MS CAMERON:  Yes. There were two affidavits. They are both

headed up, "The High Court" and one was dated

3 October and one was dated the 17th. The Court

office did say that they could not find the summons
so maybe they could not find the affidavits as

well, but they were hand-delivered to the office by

a solicitor.

HIS HONOUR: Well, you see, you make that statement by

hearsay but they are not lodged in the Court's

files and they have not been stamped, and have you

got a receipt for their lodging?

MS CAMERON: Well, the solicitor, Mrs Hildebrand, said that

the lady out at the office said that they would be

stamped and would be returned to her.

HIS HONOUR: 

They have not been filed and in the ordinary

course of events I would have imagined that - is
there a filing fee payable, Mr -

DEPUTY REGISTRAR: No, there is not, Your Honour. There is

no filing fee payable.

HIS HONOUR:	So, what is the practice in relation - - -
DEPUTY REGISTRAR:	The practice is ..... the affidavit is

actually filed in Court and added on the Court

file. There is no fee payable because the only

fees collected by the Court are originating fees.

Gamester	21/2/91
HIS HONOUR: Is there any receipt given?
DEPUTY REGISTRAR:	No, there is no receipt given.
HIS HONOUR:	The document has never been served on anybody?
MS CAMERON:	Yes, it has.
HIS HONOUR:	Do you have a copy of it?
MR MARTIN:	Your Honour, I have a copy of an affidavit sworn

3 October 1990 by Ms Cameron headed, "In the

Federal Court of Australia". The 17 October

affidavit, I am instructed, we have not seen.

MS CAMERON:  They were served with a copy, then they were

posted a second copy because they said they had not

received it and that was months ago, last year.

HIS HONOUR:  There is no affidavit of 17 October, I think, in our Court file, is there?

DEPUTY REGISTRAR: Perhaps there has been some

misunderstanding in regard to an affidavit. There

was an affidavit lodged ..... accompanying a summons

in October. I am not sure of the correct date but

that summons was not proceeded with at that time

and then subsequently I think that Ms Cameron

indicated she wished the affidavit in support of

that to be used for today's proceedings.

HIS HONOUR:  Yes. Well, certainly, in a matter of this

nature I do not want to be involved in

technicalities. Mr Martin, you have got the

affidavit of 3 October?

MR MARTIN:	Yes, Your Honour.
HIS HONOUR:	Have you any objections to its use on this

application?

MR MARTIN:  No.

HIS HONOUR:  Now, what is the situation in relation to the

affidavit of the 17th? Have you got a copy there?

MS CAMERON:  Yes. It was filed in the Court and two copies

have been - one was hand-delivered and one was

posted to Sly & Weigall. And, also, Mr Williams

asked me the other day if he could go to the court

and get another copy of it. You would not be aware

of it because this is the first time you have heard

this case but this business of saying they have not

got the documents is something they have done

before.

Gamester	21/2/91
HIS HONOUR:	I do not want any reflections made on Court

officers in this particular - - -

MS CAMERON:  No, no, I mean Sly & Weigall.

HIS HONOUR: Well, it is up to you to prove service. If

documents are delivered on the other side, you have

got to be in a position to be able to prove service

of those documents. If an occasion arises when

there is no appearance for the other side, then you

must be in a position to be able to prove that

documents have been served.	Have you got any proof
of service?

MS CAMERON: Well, I could get it from the solicitor who did

it.

HIS HONOUR: Well, it is a bit late today to be getting any

proof of service.

MS CAMERON:	Yes.
HIS HONOUR:	I think, Mr Martin, I will get Ms Cameron to

outline for me the nature of her case in relation

to paragraph 1 of the summons and if you have any

objections at any stage then you can rise to your

feet and make those objections.

MR MARTIN: If the Court pleases.

HIS HONOUR:  But I do not want you to be unduly technical

about the matter.	I want to get to the substance
of this.

MR MARTIN:	I understand that, Your Honour.
HIS HONOUR:	Yes, Ms Cameron?
MS CAMERON:	The legal aid was originally granted by the federal Attorney-General's Department under
section 170 of the Trade Practices Act and it was
granted on the basis of public interest and
prospects of success and the favourable opinions were from the trade practices partner of Minter
Simpson - I cannot remember his name.
HIS HONOUR:	Yes, I have read that material and I am aware

of that and I am aware of the fact that as a result
of advice of Mr Mr Nigel Cotman of counsel, legal

aid was withdrawn.

MS CAMERON: Well, that is the first I have heard of that.

Mr Nigel Cotman has never given an advice.

Mr Wheeler stated on affidavit that he withdrew it

because he changed his mind about the opinions.

Gamester 6 21/2/91

HIS HONOUR:  I only looked at documents in relation to this

matter.	I thought that I saw something to that
effect.

MS CAMERON:  That is a new one on me. Mr Cotman declined to

give an opinion because there was not a statement

from me at that stage and there was not any

affidavit evidence from the witnesses.

HIS HONOUR:  Any way, you carry on. I will just see if I

can pick up wherever it was I thought I saw -

MS CAMERON:  Yes. We would be most interested to know

because there have been no unfavourable opinions on

this case.

HIS HONOUR:  Was Mr Cotman involved in this matter in some

way?

MS CAMERON: Cutler Hughes and Harris were going to brief

Mr Cotman and there was an initial consultation

with him and then Cutler Hughes and Harris withdrew

and Mr Cotman said he could not give an opinion

because a statement had not been taken from me.	He
said he wanted affidavits from the main witnesses.
That had not been done either. He said he could
not properly comment on it without both of those
things.	He did make an oral comment to a solicitor

who was involved in it later, that he thought we

had a good strong case.	Mr Cotman has never seen
my - - -

HIS HONOUR:  Speaking of it, it is an annexure marked B

referred to in the affidavit of "B.A. Cameron,

sworn at Sydney on this ninth day of August 1990"

and paragraph 9 says - this is your affidavit in

support of the special leave application. Annexure

B contains a paragraph 9 - I do not know what it is

from. Yes, you have got:

Exhibited hereto and marked Bis a true copy of page 4 of Mr Wheelers affidavit dated

14 July 1989. Attention paragraph 9.

Paragraph 9 says:

On 10 April Mr Hughes reported on the case by

telephone, and later by letters of 30 April

and 4 May. On 11 May Mr Renwick solicitor of

Cutler Hughes telephoned me and said words to

the effect:- "Mr Cotman of counsel has stated

in conference that he thinks the applicant

does not have a case under s. 46".

MS CAMERON:  Yes. But just because Mr Renwick said that,

it does not mean it is true. That was after Cutler

Hughes and Harris withdrew.

Gamester	21/2/91
HIS HONOUR:	Well then, Mr Cotman did express that opinion?
MS CAMERON:	No, Mr Cotman did not express that opinion and

I was with him in his chambers when Mr Renwick was

with him.

HIS HONOUR:  What was the purpose of putting on this

affidavit?

MS CAMERON:  The purpose of putting it on was because

Mr Wheeler said on the affidavit that he withdrew

legal aid on the basis of that telephone call which was made after Cutler Hughes and Harris withdrew in

circumstances which we were advised by a very able and well-respected solicitor would not stand up to scrutiny and Mr Wheeler then later on in his

affidavit said he withdrew the legal aid because he

changed his mind about the written opinions.

HIS HONOUR:  In any event, what I said to you originally was

that legal aid was withdrawn because the

Commonwealth Attorney-General's Department or

whoever is responsible for the legal aid was told

that Mr Cotman of counsel thought that you did not

have a case.

MS CAMERON: Yes. Well, I telephoned Mr Cotman after I got

that - - -

HIS HONOUR: Well, that is the fact then?

MS CAMERON:	Mr Cotman denies saying that to Mr Renwick.
HIS HONOUR:	No, no, please listen to my question. The

legal aid was withdrawn because the authorities

were told that Mr Cotman had said that you did not

have a case?

MS CAMERON: Well, further on in Mr Wheeler's affidavit he

said he withdrew it because he had changed his mind

about the written opinions.

HIS HONOUR:	Yes.
MS CAMERON:	And somewhere else he said he withdrew it

because he had already spent 70,000 on it, so I

suppose you could take your pick.

HIS HONOUR:  Yes. Well, in any event, legal aid was

withdrawn. Now, what was the next step in relation

to the legal aid?

MS CAMERON: Well, we appealed.

HIS HONOUR: Appealed against what?

MS CAMERON: Well, we have made several appeals.

Gamester 8 21/2/91

HIS HONOUR:	No, but what did you appeal against?
MS CAMERON:	The withdrawal of it.

HIS HONOUR: Right, and how did you appeal?

MS CAMERON: Well, we first of all went to the

Administrative Appeals Tribunal and they said they did not have jurisdiction, that we should ask the

Federal Court as to whether or not it had

jurisdiction. We did not do that at that stage

because we were advised to apply under the

Administrative Decisions (Judicial Review) Act to the Federal Court, which we did, and we say that the judge who heard it said he could only allocate

two days to it and Mr Wheeler filed his big

affidavit, which was about that thick, in court and

we did not have time to - I did not have time to

read it. And I was not permitted to cross-examine

Mr Wheeler on it and we say that our evidence was

not put before the court and at the end of two days

the judge said he could not spend any more time on

it. He said that at the beginning, that he could only spend two days. So, he dismissed it as an

abuse of the court's process and we appealed to the

High Court and - - -

HIS HONOUR:	The High Court?
MS CAMERON:	Yes.  We filed an order nisi seeking a writ of

mandamus making him hear the evidence and we lost

that on the basis that Justice Gaudron said that it

was a denial of natural justice if he did not hear

our evidence but he had a right not to hear it if

the evidence appeared to be not relevant. We were

advised by Sir Adrian Solomons that that is a

ground for appeal, so we have appealed to the Full

Bench because he has to examine the evidence before he can decide whether or not it is relevant.

HIS HONOUR:  When you say you have appealed to the Full

Bench, what Full Bench? The Full Bench of the

Federal Court or - - -

MS CAMERON:  Of the High Court. And, also, I applied to the

Legal Aid Commission for legal aid to do two things, one to run the - - -

HIS HONOUR: 

Which Legal Aid Commission?

MS CAMERON: 

In New South Wales - for legal aid to run the

case and for legal aid to argue the appeal in the
Federal Court against the legal aid and they - yes,

that is right: they had the appeal - they rejected

that because the lass, Mrs Jude, said that she had

been told by Mr Wheeler that she was not to go

against his decision.  Mr Wheeler is the officer in

Gamester 9 21/2/91

the federal Attorney-General's Department who

withdrew the legal aid.	She said he had told her
she was not to go against his decision.	And we

appealed and asked to submit documents for them to

consider and that appeal has not been properly

processed yet.

HIS HONOUR:  So, is this the position, that you have an

appeal in this Court against the refusal of the Federal Court to intervene in the withdrawal of legal aid for the purposes of your trade practices

case?

MS CAMERON:  Yes, and we also have an appeal in the Legal

Aid Commission which comes under the Legal Aid

Commission Act which says that there must be an

automatic stay if an appeal is outstanding.

HIS HONOUR:  There cannot be an automatic stay of

proceedings in this Court. New South Wales

Parliament has got no constitutional authority to

stay any proceedings in this Court.

MS CAMERON:  Yes. Also, we have written to the federal

Attorney-General asking if he would - you see, we

wrote to him asking if he would use his power to

intervene to provide legal aid for this matter

because I have got extremely serious health
problems which are life threatening, and there is a

medical certificate there on the file about that,

and letters we write to him are answered by an

officer in the Legal Aid Department with whom I

have had quite a substantial clash and we are

trying to make contact with him to get him to

properly consider our request.

So, there are three avenues of appeal; one is

to the High Court and one is to the Legal Aid

Commission and one is that we are trying to make

contact with the federal Attorney-General.

HIS HONOUR:  But unless you can get legal aid for your

High Court appeal against Justice Gaudron's

decision, you cannot get your case off the ground,

can you, because you need legal aid to appear in

the High Court?

MS CAMERON:  No, apparently not. I think it was Mr Jones

said that - I am not sure who said it but somebody

said that in regard to a writ of mandamus a

litigant in person has right.	The rules,
apparently - - -

HIS HONOUR: That is in relation to - yes, this is in

relation to your appeal, not your special leave

application.

Gamester 10 21/2/91

MS CAMERON:	Yes.
HIS HONOUR:	So, what are you proposing to do then in relation to that matter, if legal aid is refused?
MS CAMERON:	In regard to the - well, other -
HIS HONOUR:	Can I just be more specific about this. When

was your application lodged for legal aid to assist

you in your High Court appeal against

Justice Gaudron's judgment?

MS CAMERON:	It would have been about six months ago.
HIS HONOUR:	And legal aid was refused by an officer of

that - - -?

MS CAMERON:	Yes, and the reason she gave was because -
HIS HONOUR:	Well, do not worry about the reason. When was

the refusal?

MS CAMERON:  It was about two or three months afterwards.

They have been awfully slow in all their

correspondence.

HIS HONOUR:  You lodged an appeal. When was the appeal to

be heard?

MS CAMERON:  Well, they say it has been heard. We say it

has not and this is what we are arguing about at

the moment, and a solicitor who has been helping us, Mr Graham Molloy, says there has not been an appeal.

HIS HONOUR:  The legal aid people say that the appeal has

been heard?

MS CAMERON:  Yes, and we say it has not. We have been

writing and asking them to provide us with

information about it and we have not yet got a

reply.

HIS HONOUR:  Yes. So, the situation at the present time is

that so far as the Legal Aid Commission is

concerned, you are not getting legal aid?

MS CAMERON:  They have not put that in writing. We have

just been told it on the phone, and we are asking

them to put it in writing and put their reasons in

writing. But there are a number of other reasons

why we seek a stay which are probably equally as

important.

HIS HONOUR:  Yes, well what are they?

Gamester 11 21/2/91

MS CAMERON: Well, we have - I will just have to look at my

notes. We filed a notice of motion asking if the

defence to this case could be dismissed for wilful

delay and wilful avoidance of discovery because we

say the respondents have delayed the case for six

years.

HIS HONOUR:  But that has got nothing to do with the present

application before the High Court.

MS CAMERON:  Yes, but I am just - what has happened in

regard to that:  we filed a notice of motion asking

an order - we are seeking a writ of mandamus to

to have the defence dismissed and the judge in the

have that enforced and that went before the

Chief Justice Sir Anthony Mason on Tuesday, and he

did not dismiss it, he has asked me to get the

documents in proper order, and - that has not been

dismissed.

Also before the Federal Court is a notice of motion seeking to enforce a settlement which we say

has taken place in this matter and that is to be

heard on 20 March.

HIS HONOUR:	Yes. Anything further that you want to put in support of your - - -?
MS CAMERON:	Yes. Yes, also the affidavits, the one of

3 October and of 17 October, set out details that -

I think it was about September of last year

Mr Justice Shepperd, in the Federal Court, gave me

three months to get my health in order and I was to

have surgery for a stomach ulcer and also I spoke

with Mr Jones at the High Court and he said that he

would delay matters in the High Court for three

months.	That did not happen.	The respondents kept
on

HIS HONOUR: Well, I have seen that correspondence.
MS CAMERON:	The end result of it was that I could not have

the surgery. Dr Hugh treated me with a new drug

which has just come on the market but unfortunately

it has not worked because of the stress that I am

under. The problem is that, for health reasons, I

just have not been able to do the work to get this

High Court application in order.

HIS HONOUR:  But what you are asked to do in relation to the

High Court matter is very simple. You are asked to

comply with Order 69A rule 4 and, as I understand

it, what you are really required to do is to file

copies of the judgment below and the reasons for

judgment and state the grounds upon which the

judgment below is sought to be challenged.

Gamester 12 21/2/91

MS CAMERON:	Yes, we have done all that.
HIS HONOUR:	You have not filed the reasons for judgment,

have you?

MS CAMERON:	Yes.
HIS HONOUR:	Have you.
DEPUTY REGISTRAR:	Not that I have seen ..... .
HIS HONOUR:	Have you filed them in this Court?
MS CAMERON:	Yes.  I recall it because Sir Adrian Solomons

helped me draft it.	We set out the reasons and we
filed - - -

HIS HONOUR: 

No, no, I have read your affidavit in support

of your application but where are the judgments of
the Federal Court.

MS CAMERON: 

Yes, they were all exhibited to it.

HIS HONOUR: 

On its face, there is nothing in the affidavit

which shows that.	Your affidavit does not exhibit
the judgments.

MS CAMERON:  I remember there were two bundles of documents

that went in with it and there was the transcript -

I remember there was some problem that we did not

have the transcript; maybe that was it, because we

did not have the transcript of it and we have only

just got that just recently.

HIS HONOUR:  But why is it that you cannot comply - it seems

a simple matter to comply with the orders which are

asked?

MS CAMERON:  The problem is the workload. There are many

days when I cannot do anything at all and other
days which I can only - - -

HIS HONOUR:  But quite apart from anything else, what about

the other shareholder in the company, why can he

not do things?

MS CAMERON: Because he is in Tamworth and he does not know

anything about the case. He feels that it is my

responsibility to get us out of the mess because I

got us into it by trusting Mr Parker.

HIS HONOUR:  Timetables are laid down by the Court,

Ms Cameron, for the purpose of ensuring litigation

proceeds expeditiously.

Gamester 13 21/2/91

MS CAMERON:  But you see the point is that once the

timetable starts running it is self-crucifying

because I cannot act in the High Court.

HIS HONOUR: That may well be the case, but - - -

MS CAMERON:	We are told that we have got a very good strong claim for getting legal aid back because there are
five favourable opinions from Mr Jucovic and Trade
Practices Commission professional officer and
Mr Taperell and there are no unfavourable opinions
even, you know - if we get Mr Cotman here, he will tell you what I have told you.
HIS HONOUR:	That may be the case but the fact is that the matter has just been allowed to drag on - - -

MS CAMERON:  It is not that it has been dragging on. I

mean, I have just about killed myself trying to

keep up with the work.	It is just that it has been
physically impossible.

HIS HONOUR:  What is sought against you at the present

time - - -

MS CAMERON:  And also these people, we say, have wilfully

and scandalously delayed this case and that is the

matter that is before the Chief Justice of this

Court now.

HIS HONOUR:	I am not here to examine what has happened in the Federal Court but to determine what has
happened in this Court and what has been happening
cannot be allowed to go on. The matter has got to be brought to a conclusion. Legal aid has been
refused and it seems to me at the present time that
you have not established any grounds whatsoever for
delaying this case until after the hearing of what
you call legal aid appeals.

MS CAMERON:  I have been told that - I think it is the Acts Interpretation Act says - and also I have been told

by a solicitor that where there are no Acts or law

or legislation pertaining to the High Court, that
the State legislation prevails and that there is no

other legislation with regard to appeals in the

High Court and that this would apply.

HIS HONOUR:  The High Court of Australia declares what the

law in this country is and State laws do not

regulate and cannot constitutionally regulate the

business of the High Court of Australia. Whatever

advice you have been given to that effect is

erroneous.

MS CAMERON:  Yes. I think the main reason why - I mean it

would just be a total denial of justice if there

Gamester 14 21/2/91

cannot be a delay until the legal aid appeal is

heard.

HIS HONOUR:  Ms Cameron, justice is a many faceted figure or

concept and justice to the respondents is just as

important as justice to you. You have brought a

special leave application against a judgment of the

Federal Court; so far you and Gamester Pty Limited

have failed at all levels and appear to have failed

dismally. The matter cannot be allowed to go on.

The matter has to be brought to a head. It seems

to me that there are no grounds for delaying the

hearing of the special leave application until

after the hearing of what you call legal aid

appeals and I - - -

MS CAMERON: If I could just say this: the respondents will

not suffer in any way if there is a delay.	If it
is forced on, it will just terminate the case

because I cannot do the work within a week because

I have to get other things ready for the High Court and I also have to go into hospital within the next

week for tests. It is just an impossibility, which

means it is the end of the case.

My bank, I have got a letter from it

threatening to bankrupt me. Gamester has no money whatsoever. My only income is a sickness pension.

They are not going to achieve anything by

terminating the case, nothing at all. It just

means that after six years - I mean, we say we have

not lost this case because the court has not heard

our evidence. Cases are lost - - -

HIS HONOUR:  You have got a judgment against you at the

moment and until those judgments are set aside, you

have lost your case. That is the present position.

MS CAMERON:  Yes, but I mean I am told by very respectable

people in the legal profession that they have never

heard of a case of graver miscarriage of

justice - - -

HIS HONOUR:  What other people tell you is hearsay and this

matter has got to be judged on the evidence before

us.	Now, there is no evidence before me in a
strict technical sense.	I have allowed you to

state from the bar table the nature of the case you

seek to make. Now, is there anything further that

you want to put in support of your summons of

7 February?

MS CAMERON:  Yes. I just want to again bring to your

attention the fact that there is a notice of motion

to enforce a settlement before the Federal Court

and also a writ of mandamus in train in this Court

Gamester 15 21/2/91

to have the defence dismissed for wilful avoidance

of discovery.

HIS HONOUR:	Who is that a mandamus against?
MS CAMERON:	Mr Justice Pincus.

HIS HONOUR: Ordinarily mandamus will not be granted if

there is a right of appeal.

MS CAMERON:  Yes, well we appealed and that was refused.

You see, the thing is if you do not allow - - -

HIS HONOUR:	So your appeal against Mr Justice Pincus' decision was refused as well.
MS CAMERON:	He refused to hear the notice of motion, which he cannot do, but if you do not grant a stay until
the legal aid matter is heard in this Court, well I
do not know whether that puts an end to the
settlement proceedings or to the - - -
HIS HONOUR:	It has nothing to do with the settlement

proceedings.

MS CAMERON:	It means the case is finished, it is over.
HIS HONOUR:	No, it is not.  The case is finished now.

There is no case before the High Court at the

present time; all there is is an application.

There are no parties before us, and the judgment

stands. It is not stayed in any way.

MS CAMERON:  You see, this is the situation we are up

against is that I do not like publicity; I have

more than had enough of this case; it has destroyed

my health, but the other people in this company are

most anxious - we have got publishers wanting to do

a book about this case and they -

HIS HONOUR:  Ms Cameron, that is the whole point. If there

are other people involved in this company and your

health is bad, then they should be doing work in

relation to it.

MS CAMERON:  But they do not have any legal knowledge and

they live in the country and we cannot afford to

pay anyone.

HIS HONOUR: That is not a reason for just allowing this

matter to drift on.

MS CAMERON: It is not drifitng on; I have just about killed

myself - - -

Gamester	16	21/2/91
HIS HONOUR:	It certainly is drifting on.	The matter is one

where there has been appointments for the filing of

index; they have not been complied with.

MS CAMERON:  They should never have been made because

Mr Jones said they would not be made.

HIS HONOUR:  Mr Jones, as I understand it, denies the

situation, but having regard to the terms of your

letter of 13 August setting out what the agreement

was with Mr Jones, it certainly does not take you

anywhere near as far as you want to go. Whatever

the Registrar might have told you administratively,

there comes a time when the respondents are

entitled to insist upon their rights.

MS CAMERON:  Part of the settlement that Mr Mackay from Sly

& Weigall is trying to negotiate with us is that

the book about this case will not be published and

if this case is dismissed from here, well that is

the end of everything and that is the course we

have to take, unfortunately. I have been told that

if there is a settlement hearing pending, usually

there is a stay.

HIS HONOUR:  I am afraid that is not correct. Thank you,

Ms Cameron. Mr Martin, in what way would your

client be prejudiced if this matter was stood

over?

MR MARTIN:  The only prejudice would be having this

application hanging over its head and not being

dealt with in the ordinary course of business of

the Court.

HIS HONOUR:  I appreciate that, but that is the only thing

that you can - - -

MR MARTIN:  That is the only thing I can put to Your Honour.

We are anxious to bring to an end this

litigation - - -

HIS HONOUR:	I can understand that, but you are not going to bring this litigation to an end when you have got
matters in the Federal Court still going on. On
the materials I have seen so far - and admittedly
they have only been prepared by Ms Cameron, who is
not a trained lawyer - the prospects of success in
a special leave application do not appear to me to
be overly strong.  They seem to be seeking to
interfere with discretions made by the trial judge in determining whether to go on for the hearing, and that is not the sort of case in which special
leave is usually granted.

On the other hand the issues themselves that

underlay it seem to be quite important in terms of

Gamester 17 21/2/91

the Trade Practices Act. There does seem to have

been legal aid granted by the Commonwealth

Attorney-General's Department which was then

withdrawn. I am hampered by the fact that I do not

have before me all the evidence and while the
applicants are not represented by lawyers it is

unlikely that it will be put in a proper and

admissible form.	But the matter has got to come to
a head.	Would you excuse me.

Ms Cameron, I am loath to put the case in a

position where this matter may, in practice, be

brought to a conclusion because nothing else will

happen and you will not be able to comply with any

orders that I make about filing documents, but the

matter is totally unsatisfactory. What I am

proposing to do is, subject to what Mr Martin may

say in a moment, to stand this matter over and

adjourn the special leave application to give you

an opportunity to get your house in order. But I

want to make it plain to you that I am not going to

be trifled with. I will want, when the matter next

comes before me, evidence before me as to what the

correct position is in terms of legal aid; I do not

want hearsay statements in affidavits; I do not
want hearsay statements from the bar table. If

evidence is to be put before me, it is to be put

before me in proper form.

MS CAMERON:  I am awfully sorry about the fact that it is

not done properly.

HIS HONOUR:  You do not have to apologize. What you have

put on shows commendable skill for a person who is,

I assume, untrained in the law.

MS CAMERON:  I have worked as a legal publisher. But what I

would like to do is give you this affidavit and ask

if we could adjourn for half an hour for you to

read it so that you can see how they have wilfully

delayed this case.	I mean, my health is a result
of their wilful delay. Before this happened I was

in good health.

HIS HONOUR:	One thing that might be better for your health generally is if this litigation came to an end and
came to an end quickly.
MS CAMERON:	Not really, because if we do not get justice

then the other people will publish the book and I

have been threatened I will be murdered if it is

published and, you know, it just goes - I think

that the Court should address justice.	We should
not have to rely on publicity.

HIS HONOUR: Well, justice is justice according to law and,

as I told you before - - -

Gamester	18	21/2/91
MS CAMERON:	But that is what we have not had, you see.	If

we could have justice according to the law, we
would not have any problems. That is all we have

asked for.

HIS HONOUR:  Mr Martin, I am thinking of standing the matter

over for two months to see if some finality can be

reached in relation to this legal aid question

which, at the moment, is very vague. Ms Cameron, I

am proposing to stand the matter over for two

months.

MS CAMERON:  Yes, thank you very much. I will bring the

correspondence files.

HIS HONOUR:  It is for the purpose only of allowing

clarification of the legal aid situation and I

intend to keep control of the matter myself so the

matter will come before me on the next occasion,

but I want an affidavit on from you and I will want

it served on the other side and I will set a

timetable for that. I will want to know what the

result of the legal aid is, and your correspondence

with the legal aid, both in respect of the special

leave application that you are seeking to adjourn

today and the legal aid in respect of the appeal

against Justice Gaudron's judgment.

I will also expect an account of the history

of the matter. When I say the history of the

matter, at least the history of the matter from
today until the next time this matter comes before

me. The respondents are incurring costs. They are represented here by counsel and you are seeking an

indulgence, and although they may never be able to

enforce the costs order against you, at the moment

I see no reason why you should not pay the costs of todays proceedings. It is you who seek the indulgence.

MS CAMERON: Against that I say that these people knew that

Mr Jones and Mr Justice Sheppard of the Federal

Court gave me three months to get my health in

order and knowing that, they then tried to activate

it in the High Court and they have done that

before. As soon as they know - - -

HIS HONOUR:  Yes, but what you are asked to do in the High

Court in terms of settling the index was a

very -

MS CAMERON:  If you would read this affidavit you would see

that as soon as I go to hospital they start to

activate it in the court, and this is all set out

in this affidavit.	What they have got - they have
harvested what they have sown.	What they have got

is exactly the consequence of their trying to

Gamester 19 21/2/91

activate it when they knew that it was not possible

and they did that to try and get - - -

HIS HONOUR: Well, one story is good usually until the other

is told, and they have not had the opportunity to

tell their story.

MS CAMERON:  Yes, but it is a matter of evidence.

HIS HONOUR: It is a matter of your assertions.

MS CAMERON:  No, no, evidence. Mr Justice Sheppard - they

were in court when he said that I could - - -

HIS HONOUR:  I may have to deal with that on a future

occasion. I am proposing to stand this matter over

until Thursday, 23 May.

MS CAMERON:  If we have to pay the costs of today, can we

have a stay of that order until the whole matter is

determined, because otherwise they will just try

and harass me with payment of it, which is what

they have done before. Mr Justice Sheppard has put

a stay on the costs orders in the Federal Court.

HIS HONOUR:  Yes, I will deal with that in a moment. At the

moment I am concerned about setting a timetable. I

think that I will order you to file an affidavit

and serve it on the respondents no later than

9 May 1991 setting out the evidence upon which you

rely in support of your summons dated

7 February 1991. I am not going to give you any

advice about what should be in that summons; it is

no part of my function to do so, but you would be

well advised to deal with the question of the legal

aid, in particular, whether you are going to get

legal aid, because if you are not going to get

legal aid it seems to me that this matter is fairly

future to allow it to - - -

MS CAMERON:  We have got two problems in regard to the legal

aid, I do not know if you can help us with them:

one, that we cannot write to the federal Attorney-

General because a person in Mr Wheeler's office,

the legal aid office, answers the letters; and the

other is that Mr Wheeler told the court reporting

department not to report sections of the transcript

of the legal aid hearing and they say they cannot

go against what Mr Wheeler told them to do.	We
went to issue a subpoena - - -

HIS HONOUR:  That is a matter you will have to deal with

yourself.

MS CAMERON:  Can we issue subpoenas in this Court to get it?

Gamester 20 21/2/91

HIS HONOUR:  You can always issue subpoenas in this Court.

Whether or not they are issued will depend upon their form and to whom they are directed and

whether or not people are required to produce

documents will depend on various legal

considerations.

Mr Martin, if you are served with an affidavit

on 9 May, would you be in a position to answer that

within seven days?

MR MARTIN:  We could, Your Honour.

HIS HONOUR: Before I make some formal orders, Ms Cameron, I

should inform you that unless you succeed in your

summons and persuade me in some way that there

should be a further adjournment of the special

leave application, then it is very likely that what

I would propose to do is order you to comply with

the alternative order that the applicants seek in

this particular case - the respondents to your

summons seek in this particular case, that is to

require you to comply with Order 69A rule 4 and so

on, and that in default of that matter being
complied with, then your special leave application

will be dismissed with costs. I am talking about

paragraph 3 of the respondent's summons.

MS CAMERON:  You see, the problem that we are up against is

delays in getting replies to letters and the

influence of Mr Wheeler. See, Mr Wheeler says that

nobody can touch him because there is nobody -

HIS HONOUR:  I am not going to allow you to use this Court

and the privilege in this Court as a platform for

attacking people who are not here to defend

themselves.

MS CAMERON:	I am just explaining the delay.
HIS HONOUR:	No, I have given you a great deal of latitude

and I am not going to allow you to use it as a

platform.

Now, the orders I propose to make in this

matter is that I stand over for further hearing

until 23 May 1991 the respondents' summons of

5 February 1991 and the applicants' summons of

7 February 1991.

I direct the applicants, Gamester Pty Limited

and Barbara Ann Cameron, to file and serve no later

than 9 May 1991 an affidavit setting out all the

evidence which they rely on in support of the

summons of 7 February 1991 and the evidence they

rely on in opposition to the respondents' summons

of 5 February 1991. ·

Gamester 21 21/2/91

I direct that any affidavit be filed on each

of the respondents by that day, 9 May 1991.

I further direct the respondents to file any

affidavit in reply and to serve it on the

applicants, Gamester Pty Limited and Ms Barbara Ann
Cameron, on or before 16 May 1991.

I order that the costs of today be paid by the applicants but I stay the enforcement of that order until the final disposition of the summons.

Now, is there any further order that you would

seek, Ms Cameron?

MS CAMERON:  No, thank you very much. I will certainly try

to get it ready and I will bring the correspondence

files, if there is any doubt.

HIS HONOUR:  Thank you. Mr Martin, anything further?

MR MARTIN:	No, .if Your Honour pleases.
MS CAMERON:	Do you want this affidavit?
HIS HONOUR:	If there is any material in that affidavit that

you want to put on or bring before me, it can be

part of your affidavit that has to be filed on or

before 9 May 1991.

MS CAMERON:  Thank you very much.

HIS HONOUR: Adjourn the Court.

AT 10.58 AM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 23 MAY 1991

Gamester 22 21/2/91