Re His Honour Mr Justice Pincus; Ex parte Gamester Pty Limited

[1991] HCATrans 87

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S8 of 1991
In the matter of -

An application for a writ of

mandamus against HIS HONOUR

MR JUSTICE PINCUS

Ex parte -

GAMESTER PTY LIMITED and

BARBARA ANN CAMERON

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 MARCH 1991, AT 10.21 AM

Gamester(2) 1 26/3/91

Copyright in the High Court of Australia

HIS HONOUR:  Yes, Ms Cameron?

MS B.A.CAMERON: Well, I just thought you were going to read

the affidavits.

HIS HONOUR:	Yes.	Would you speak up.
MS CAMERON:	I am sorry, I do not know if I have to say anything to you this morning.	I thought you were
going to read the affidavits.
HIS HONOUR:	Yes.	I have read the affidavits actually but

could you list the affidavits for me?

MS CAMERON:  Yes. There was the order nisi and the

affidavit of 9 January 1991 and the exhibits; then

the affidavit of special circumstances and, I am

sorry, I have not got the date of that but that is

the green folder,	and the exhibits; and then
yesterday -

HIS HONOUR: That is 20 March.

MS CAMERON:  Yes. And then yesterday I sent in an affidavit

which was dated yesterday.

HIS HONOUR:  25 March. Now, has that been sworn?

MS CAMERON:  Yes, I managed to get it sworn before I sent it

in. That affidavit sets out what happened at the

settlement hearing in the Federal Court.

HIS HONOUR: It sets up - - -

MS CAMERON:  It sets out what happened at the settlement hearing in the Federal Court. We had a notice of

motion before the Federal Court asking to enforce a

settlement.

HIS HONOUR:	Now, what is this document, Errors of Fact, in the judgment dated 20 July 1990?
MS CAMERON: That is part of an exhibit. That should be in

the green folder.

HIS HONOUR:  I see, it has come out of the green folder.

MS CAMERON: Yes. That is part of exhibit A. It was

attached to the judgment. But the affidavit that I
sent in yesterday I see as a very important

affidavit because it contains a lot of material

which I would like you, if you could, to consider

in regard to expediting this matter, if it is going

to be - depending on what is going to happen with

it, because of my health and there were medical

certificates, fresh medical certificates, attached

to it.

Gamester(2) 2 26/3/91

HIS HONOUR:  Ms Cameron, is the application for special

leave to this Court, which is pending, an

application for special leave to appeal from the

decision of the Full Court of the Federal Court on

20 July 1990?

MS CAMERON:  Yes.

HIS HONOUR: It is?

MS CAMERON:	Yes.
HIS HONOUR:	How long has that been pending in this Court,

the special leave application?

MS CAMERON: Well, it was filed around about August, I

think, last year but the problem with - I have a

notice of motion asking if that can be stood over
until the Legal Aid appeal has been heard because I

just cannot cope with the workload. Also, I cannot

act before the High Court in regard to an

application for special leave to appeal because I

am not qualified.

HIS HONOUR:  What has happened to the Legal Aid appeal?

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

that. Mr Jones said he thought it would be in June

or, if there was a cancellation, earlier. But we

have also written to the federal Attorney-General
asking if he could intervene and provide legal aid

for this matter and the letters are answered by an

officer in the Legal Aid Department and we cannot

make contact with - - -

HIS HONOUR: Well, I am not concerned with that at the

moment. I was merely concerned with the lapse of

time in relation to the special leave application.

MS CAMERON:	The application was filed in time.
HIS HONOUR:	Yes, I am not suggesting it was not filed in

time. I am just concerned that it has been

outstanding for so long and I was anxious to know

when the present causes of delay are likely to be

resolved.

MS CAMERON:  Yes. Well, it was delayed because - we asked

for either an expedited hearing, in the first

instance, which Mr Jones said was not possible and

then we asked if it could be delayed three months

while I went into hospital. So, that is what

happened. And now I have asked for it to be

delayed until the Legal Aid appeal is heard because

I cannot do all the work. But I am wondering, if

you have not read the affidavit that I had sent in

Gamester(2) 26/3/91

yesterday, if you may be able to read that because

I think it is - - -

HIS HONOUR:	Yes.
MS CAMERON:	If you do not have a copy of it, I have one

here.

HIS HONOUR:  No. There are some questions I wanted to ask

you, Ms Cameron.

MS CAMERON:	Yes.
HIS HONOUR:	Now, the order for discovery that was made in

August 1988, on 11 August 1988, was that made by

Mr Justice Wilcox in the Federal Court?

MS CAMERON:	Yes.
HIS HONOUR:	Now, when the applicants filed a notice for general discovery on 22 August 1988, an order was
subsequently made on 16 September.
MS CAMERON:	Yes.
HIS HONOUR:	Who made that order, Mr Justice Wilcox again?
MS CAMERON:	Yes.
HIS HONOUR:	Now, there seems to have been a court hearing

on 21 March 1989 which, again, seemed to have

concerned inadequate discovery.	Was that before
Mr Justice Wilcox?

MS CAMERON:	Yes.
HIS HONOUR:	And what about 7 April, was that again before

him?

MS CAMERON: Yes. Yes, I am sorry, I did not put that in.

HIS HONOUR:	7 April?
MS CAMERON:	Yes.  I did not put the dates - I think the

dates are in the transcript which - - -

HIS HONOUR: 

The difficulty is - yes, I have got dates out

of the materials that are either on the Court file
or in the documents that you have filed in this
application, but it does not always say before whom
the judge was, you see.

MS CAMERON:  Yes. The solicitor who has been helping us

read that - was not able to read that affidavit

before it was filed but he has read it since and he

has suggested a lot of things that I could do to

Gamester(2) 4 26/3/91

make it easier to follow and, if you like, I could

do that.

HIS HONOUR:  No, no, do not do that because although it is

not easy to follow; indeed, I think it is a

rambling affidavit - - -

MS CAMERON:  Yes, that is what he said.

HIS HONOUR: Although it is not easy to follow, I think your

difficulties lie in other areas. You see, you are

endeavouring to say that Mr Justice Pincus refused

to exercise jurisdiction but, as I read the
transcript of the proceedings before him, he was

not refusing to exercise jurisdiction. It may be

that he dealt with the application in a fairly

summary or peremptory way.

MS CAMERON:  Well, I did not put my case to him at all. He

would not hear me. Sir Adrian Solomons has been

helping us and he has read it and he said that it

was a refusal to hear me, a refusal to hear - - -

HIS HONOUR:  Yes, but I am not interested in what legal

people say, Ms Cameron.

MS CAMERON:	Yes, I am sorry.
HIS HONOUR:	I mean, you must not quote what other people say to you by way of expression or opinion or legal
advice.

MS CAMERON: Well, the reason I do it is because I am not

qualified and - - -

HIS HONOUR:  I realize that but I am merely saying to you

that I am not influenced by your recounting to me

what other people say.

MS CAMERON:  No, but I would say it so that you do not think

it is my idea and that it might be the basis of an

unqualified -

HIS HONOUR:  I realize that but still it is not permissible for you to say it.

MS CAMERON:  Yes. I will not do it.

HIS HONOUR: But, you see, it seems to me, on reading the

transcript, that His Honour was of the view that

you were not accepting a ruling that he made that

he was going to hear that application there and

then. You wanted it deferred until after evidence

had been given concerning the market issue.

MS CAMERON:  Oh no. When he said that he wanted to hear it

then I said, "Yes, I want to", and then he said,

Gamester(2) 26/3/91

"Well, I am not going to hear it." I said, "Well,

I haven't started to say anything about it."	I
asked him if it might - - -

HIS HONOUR:	He did not say he was not going to hear it.
MS CAMERON:	He said, "I've dealt with it.  I've dealt with

it by dismissing it." I said, "Well, I haven't

said anything. I haven't started." I do not have

my transcript with me, unfortunately, but my

recollection was that I said, "Would it be better

if we waited?" and he said, "No, I want to deal

with it now."

HIS HONOUR: That is right.

MS CAMERON:  Then I said - I was extremely tired,

unfortunately, and in a lot of pain and I said, "I

want to tell you about it", and he said, "No,
you've had your opportunity" or something to that

effect. He said, "I've dealt with it by dismissing

it." I said, "I haven't started to say anything

about it", and he had not read any of the affidavit

material that was filed or anything.

HIS HONOUR:  Ms Cameron, the other point I wanted to raise

with you is this: how can you obtain a mandamus in

relation to this interlocutory application when the

case has been finally disposed of in the Federal

Court?

MS CAMERON:  Because - again I am going to say I have been

told - but he was supposed to hear it before

hearing the main case for two reasons: he is

supposed to deal with notices of motion, and the

other is that we were entitled to have discovery

that had been ordered or the relief which arose

from the respondents refusing to comply with the

orders. It was impossible to have a trial without

discovery. No justice could have been done if

there had been a trial without discovery.

HIS HONOUR:  But you see there is in existence an order

dismissing the action and that order has been

confirmed by the dismissal of the appeal to the

Federal Court.

MS CAMERON:  But this all happened before that. You see,

our argument is that the notice of motion should have been dealt with and their contempt of court should have been dealt with, their non-compliance

of the court orders, before the trial started.

HIS HONOUR:  Yes, but you see you are still left with an

order dismissing the action.

MS CAMERON:  Yes, but that came after.

Gamester(2) 6 26/3/91

HIS HONOUR:  I follow that, but it is still there.

MS CAMERON: Yes, but it is tomorrow. It is was today, the

events have been. As I understand it, a subsequent

action should not be used as an excuse for not

doing what he should have done at the time. I mean

it could be said that he did that - on that theory

it could be said that he started the trial in order

to avoid dealing with it.

HIS HONOUR:  Ms Cameron, is there anything else you want to put to me in support of the application?

MS CAMERON:  Yes. I would like if you could read the

affidavit I brought in yesterday because it clearly

shows that our only hope of getting any justice in

this case is through this mandamus because we are

clearly not going to be able to enforce a settlement hearing and I cannot act in an application for leave to appeal to the High Court

for two reasons:	I am not qualified and the rules
do not permit it.	The other is because of my

health which h~s been ruined as a consequence of
this case. It is absolutely imperative and there

are fresh medical certificates in the affidavit

which came in yesterday to say that I must get

relief from it immediately.

The other reason, and this is probably nothing

to do with the law, but I find it very upsetting

and if you would permit me, I would like to say it.

You see, we are being pressured to let a book be

published about this trial and I do not want that

to happen but the others think that if I die and we

just ended up with the costs, it is just going to

be a great mess, and one of the other directors is

a young man with young children and he is awfully

worried about it.	You know, I just do not want
that to happen.	I think it should be dealt
with -

HIS HONOUR:  Ms Cameron, all that really is irrelevant to the legal outcome of this action.

MS CAMERON:  Yes, I know it is irrelevant but I just find it

very upsetting.

HIS HONOUR: 

I can understand you might find it upsetting

but it is not a matter that I can take into account
in deciding whether or not you have a case for

mandamus.

Now, I will adjourn. I will resume at 11.30

and in the meantime I will read more closely this

affidavit of yours which was filed on 25 March.

Gamester(2) 26/3/91

MS CAMERON: Unfortunately I have not been able to get the

transcript yet of the hearing on 20 March. I could

perhaps go to the Court Reporting Department and

see if it is available.

HIS HONOUR:	20 March?
MS CAMERON:	Yes, that was the settlement hearing.
HIS HONOUR:	I see, yes.  I do not know that there would be

any point in that. It would take too long anyhow,

Ms Cameron.

MS CAMERON:  See I just did not understand a lot of what

happened.

HIS HONOUR:  Very well. I will adjourn now and I will

resume at 11.30

AT 10.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

HIS HONOUR: This is an application for an order nisi for

mandamus directed to Pincus J., a judge of the

Federal Court of Australia, requiring that:

"at an expedited hearing of case

No G521 of 1986 in the Federal Court of

Australia he exercise his duty and hear the

notice of motion seeking to dismiss the
defence to G521 of 1986 in the Federal Court
of Australia for wilful avoidance of
discovery, non-compliance with court orders
and wilful delay and that the respondents of

G521 of 1986 be found in contempt of court

which notice of motion His Honour refused to

hear on 12 March 1990."

The application is presented by Ms Cameron on

behalf of the applicants. She is not a lawyer.

The ground on which the mandamus is sought is that

His Honour refused to exercise jurisdiction.

Much of the rambling and disjointed principal affidavit filed in support of the application deals

with the long and complicated course of

interlocutory proceedings in the Federal Court.	No
doubt this recitation of events is intended to
establish that the respondents avoided discovery,

failed to comply with interlocutory orders and were

Gamester(2) 26/3/91

guilty of wilful delay. But these are not matters

which concern me in this application.

The application is unusual, to say the least

of it, in two respects: first, it has been made
outside the time limited by Order 55 rule 30. That

rule requires:

An application for ..... mandamus to a

judicial tribunal to ..... be made within two

months of the date of the refusal to hear or

within such further time as is, under special

circumstances, allowed by the Court or a

Justice.

The alleged refusal to hear is said to have taken place on 12 March 1990 though, in my view, the

relevant date was 13 March 1990. The principal

affidavit in support of the application was not

filed until 9 January 1991 so the applicants are

under the necessity of showing the existence of

special circumstances.

The second unusual aspect of the case is that

Pincus J., at the time when it is alleged that he

refused to exercise jurisdiction, went on to refuse

an application by the applicants for an adjournment
and to dismiss their action. From the dismissal of

the action the applicants appealed to the Full

Court of the Federal Court; the Full Court

dismissed the appeal on 20 July 1990 and there is
presently pending in this Court an application for

special leave to appeal from that decision.

From my reading of the reasons for judgment of

the Full Court of the Federal Court, that court

heard not only an appeal against the dismissal of

the action but also applications for leave to

appeal against various interlocutory decisions.

These applications were refused. One such

application related to the decision of Pincus J.

not to strike out the respondent's defence because

of the respondent's alleged failure to give

adequate discovery.

Given this history of events one might be

forgiven for thinking that if there was thought to

be any substance in the ground now put forward it

would have been raised in the appeal to the Full
Court or in the applications for leave to appeal to

that court. However, in that court the applicants saw fit to accept that Pincus J. had exercised the

jurisdiction invoked by the notice of motion and

sought to have the decision made in the exercise of

that jurisdiction reversed.

Gamester(2) 9 26/3/91

Be that as it may, in order to obtain mandamus

the applicants must show an actual or constructive

refusal to exercise jurisdiction. The applicants

rely on a passage in the transcript of argument

before Pincus J. on 13 March 1990 which indicates

that His Honour struck out the notice of motion at

a time when Ms Cameron wished to present further

argument in support of that motion. But when this

passage is seen in its context I am not inclined to

think that it sustains an inference that His Honour

declined to exercise the jurisdiction which was

invoked by the filing of the applicants' notice of

motion.

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 it was restricted principally, if

not exclusively, to include documents in paragraphs

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

Gamester(2) 10 26/3/91

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 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

Garnester(2) 11 26/3/91

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.

In these circumstances, I am not disposed to

infer from the transcript of what transpired on
13 March that Pincus J. refused to exercise
jurisdiction. It seems to me that he exercised

jurisdiction by striking out the notice of motion,

having come to the conclusion that it was without

merit; that it was seeking to agitate matters

previously ventilated and that it was calculated to

interfere with a prompt, efficient and just

disposition of the action. At that time the
applicants seemed to have viewed the order as an

exercise of jurisdiction because, as I have pointed

out, they applied unsuccessfully for leave to

appeal against it.

That is not the least of the obstacles confronting the applicants. Their action stands

dismissed and their appeal against that dismissal was dismissed by the Full Court. That is the end

of the matter. It would not be right for this

Court to grant mandamus to hear and determine an

interlocutory application in an action which has

been finally disposed of by the Federal Court while

the order dismissing the action remains on foot,

more particularly when the applicants sought and

were refused leave to appeal from the order now the

subject of challenge in proceedings for mandamus.

It remains for me to mention the evidence

relating to special circumstances. The case of

special circumstances seems to be: (1), that the

applicants were not legally aided and the

applicant, Ms Cameron, had to attend to the

preparation of the documents by herself; (2), the

time taken by the applicants in misguided attempts

Gamester(2) 12 26/3/91

to have the notice of motion relisted after

Pincus J. had dismissed the action; (3), the extremely restricted financial position of the

applicants; (4), the ill health of the applicant,

Ms Cameron; (5), the applicant, Ms Cameron, as a

consequence of the matters already mentioned,

particularly the matter mentioned in (4) above and,

as a consequence of threats and intimidation, has

been unable to attend to the making of the

application as diligently as might otherwise have

been expected.

I have some misgivings about accepting all the

statements made by Ms Cameron on the score of
special circumstances. However, as I take the view

that the application is entirely misconceived, I am

not disposed to find that a case of special

circumstances has been made out.

Accordingly, the application for an order nisi

for mandamus is refused.

Yes, Ms Cameron.

MS CAMERON: There was one point which I wanted to mention

before, which was what I have been told to do all

along and I just have not had been able to do it,

and that is to clarify the confusion that arose

before at the hearing when the issue split.

Mr Justice Pincus said that he would split the

trial and hear the trial immediately and the market

later. And in regard to the market he said that

discovery was available. But we were forced to

trial without even the agreement that the matter

was about. We had one rate card and it was that

notice of motion which related to the fact that we
had not had discovery. There were two - I have put

it down in notes which I was going to give to you

and there are some cases here about the fact that

we were entitled to have discovery as a matter of

right because they had put it on affidavit.

But that is where the confusion is and that is

the point that is rambling in my document which I

have been advised to correct, that -

HIS HONOUR:  Ms Cameron, I am not disposed in any way to

alter the judgment I have just delivered on the

application.

MS CAMERON:  But I would be grateful if you could read this

because you said in your judgment that

Mr Justice Pincus said that he would attempt to

have discovery dealt with in regard to the market.

You see, we asked for another order for discovery

when he dismissed the subpoena which - we

subpoenaed all the material that had been ordered

Gamester(2) 13 26/3/91

previously and not produced - and he dismissed

that, so I said, "Well, can we have a fresh order

for discovery?" and he said, "No, I will deal with

it as I deal with the market." But the fact
remained that we were then faced with a trial

without any discovery.

HIS HONOUR:  But, Ms Cameron, I have made my reasons

perfectly clear for refusing the application. What

you now say to me does not bear on my reasons for

refusing the application. Now, I am not going to

get into a debate with you about this.

MS CAMERON: Well, I am sorry I have not been clearer in the

beginning, and this is the problem of not having

legal aid. I mean, I think you are quite right,

apparently, that that whole huge affidavit is off

the point and here is the point here in two pages,

which was what I was told to make. There were two

separate issues. One was that Mr Justice Pincus

said he would deal with discovery as he went along

and that was what was dealt with by the Full Court,

whereas the important issue has never been dealt

with and that is that after six years delay we were

forced to trial without discovery and we were

advised by a QC we could not win without the

documents that they said on affidavit were

discoverable. And there is case law - - -

HIS HONOUR: But, Ms Cameron, this does not go to the ground

on which I have refused the application.

MS CAMERON: But, yes - well, I think it does because

Mr Justice Pincus refused to hear the notice of

motion that we wanted the defence dismissed for

wilful avoidance of discovery. What he did here

was our application for fresh discovery and what he

refused was to hear the notice of motion seeking to

dismiss the defence. And that is what is confused

in the transcript. It is not even mentioned in

that affidavit.	You see, I have been doing these
documents when I have been taking painkillers and

they are - well, I am ashamed of them, and this is one of the reasons why we say the legal aid should

be dealt with first because I cannot - - -

HIS HONOUR:  But there is nothing I can do about that,

Ms Cameron. There is nothing I can do about that

at all.

MS CAMERON:  Yes, but you see we have got a notice of motion

before the Court asking that everything be stayed

until the legal aid matter is heard because I	,
cannot do this case.	You see, as soon as somebody

checked that affidavit they said, "You've missed

the point and here's the point here", and I think

if you - you see, I only included one page in that

Gamester(2) 14 26/3/91

affidavit which was the page with the wording where

he says, "I'm not dealing with it", whereas if the

whole transcript was read, you could see that there

were two issues: one was the - and I should have

put the whole transcript in. One issue was that he refused to hear the notice of motion to dismiss the

defence, and I have read the rules - and I have got

20 pages here of authorities which I forgot to give

you which says that where we have suffered damage

because of refusal - avoidance of discovery, we are

entitled to have the defence dismissed.

Now, that has all become confused with the

issues that - - -

HIS HONOUR:  Yes, but I am not going to rehear your

application, Ms Cameron. I gave you every

opportunity of presenting what arguments you wanted

to present to me and I am not going to allow you to

run over that ground again.

MS CAMERON: Well, no, you see, the point - and this is why

people who are not qualified should not be before

the Court. I have not put - - -

HIS HONOUR:  I know. I entirely agree with you, Ms Cameron,

but there is nothing I can do about that.

MS CAMERON: Well, could I ask you to just read this and

consider this point because this is what we should

be considering. That, as you say, is a flight of

journalism, as somebody has called it, whereas this

is the point and I have - -

HIS HONOUR:  But what is a flight of journalism?

MS CAMERON: Well, all of that material which is not

relevant to the point and the point is that in that

week which you could say, I suppose, comprised the

hearing - - -

HIS HONOUR:	Hand up the document, if you would.
MS CAMERON:	Yes, thank you.	I am awfully sorry about this.

I just cannot think clearly any more and the longer

this goes on the more confused I become.

HIS HONOUR:  I have read that, Ms Cameron, but it makes no

difference to the judgment I have delivered.

MS CAMERON: Well, these are the two cases which say we are

entitled to discovery by right once it has been -

the documents.

HIS HONOUR:  Look, I am not going to look at those cases.

The problem is this: that the Full Court has

held - that is the Full Court of the Federal Court

Gamester(2) 15 26/3/91

has held that you are not entitled to discovery as

of right.

MS CAMERON:  Yes, but what we are entitled to - that was not

the issue.	The issue was that we are entitled to
have the court orders adhered to.	The issue was

not that we were entitled to have discovery by

right, we were entitled to have Mr Justice Wilcox's

orders obeyed, that was the issue, and they did not

address that issue.

HIS HONOUR:  Well now, what are these cases that you have

got there?

MS CAMERON:	Here are two cases - - -
HIS HONOUR:	But what do they say?
MS CAMERON:	They say that once a party has said that they

have documents that are discoverable on affidavit,

the other side must have them, and the other one

says that - - -

HIS HONOUR:  But, Ms Cameron,~ cannot make it clear to you

that I am really not going to review, in this

application, the decisions of the Federal Court in

relation to discovery.

MS CAMERON:	Yes, I know, but what
HIS HONOUR:	I have no power or jurisdiction to review

interlocutory decisions made by the Federal Court

in connection with discovery.

MS CAMERON:  No, I understand that but that is not what I am

asking you to do. What I am saying is, you see, I

only put one page of the transcript in there and

what you should have had is the whole transcript so

that you could see the two issues: one, the

refusal to hear the notice of motion and the other

was dealing with our request for discovery because	we have not had discovery. But you see - and the
thing that Mr Justice Pincus refused to go into was
I did not say anything to him about the fact that
we had not had discovery; he did not look at any of
the evidence, and these are the authorities here
which say that once they have disclosed on
affidavit that they have got the documents, that we
are entitled to have them. But we could not have
won that trial, it would have been a waste of the court's time if we had gone ahead without
discovery. It would have been impossible and the
issue is that we were entitled to have
Mr Justice Wilcox's orders obeyed and all sorts of
other things have come in - - -

Gamester(2) 16 26/3/91

HIS HONOUR:  Ms Cameron, I just cannot go into all these

matters. I have read the voluminous materials you

have put before me and I have given your

application every consideration that I can.

MS CAMERON:  Yes, I am sure you have, but I have put the

wrong material to you because I was not able to get

HIS HONOUR:  But what you are putting to me does not

influence my mind in relation to the judgment I

have delivered.	I cannot make that clear to you,
but that is the position.	I propose to adjourn
now.	The Court will adjourn sine die.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

Gamester(2) 17 26/3/91