High Court of Australia|1993-05-12|Before: Gaudron J, Dawson JJ

Gamester Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623; (1993) 67 ALJR 547 (12 May 1993)

GAMESTER PTY LIMITED and BARBARA ANN CAMERON v. THE HONOURABLE MR JUSTICE LOCKHART

[1993] HCA 79; (1993) 112 ALR 623

2. The appeal from her Honour came on for hearing before a Full Court of this Court on 7 August 1991. Ms Cameron appeared for herself and for Gamester Pty. Ltd. and endeavoured to put the appellants' case. Although she proceeded to address the Court for some time, she was unable to articulate any reason which would support an appeal from the judgment of Gaudron J. Ms Cameron's lack of understanding of the legal process was unfortunately manifest in the course of those proceedings which were interrupted by a member of the Bar offering Ms Cameron some legal help. The Court adjourned and subsequently resumed to hear and grant an application that the further hearing of the matter be adjourned generally. The matter was relisted upon request on 4 February 1993. Ms Cameron again appeared and asked that the Court consider written material which she proposed to file after obtaining some further legal advice. She disavowed any wish to have a further hearing of oral argument. The Court agreed. The written material was duly received.

3. To understand the written submission now made, it is necessary to refer to the proceedings before Lockhart J in which his Honour dismissed the appellants' application for judicial review. It appears that towards the end of the second day of a hearing in which the appellants had filed a great deal of material and in which Ms Cameron had examined one witness and cross-examined another at some length, Lockhart J formed "the plain view that the case must be dismissed as an abuse of process". His Honour's reasons for dismissing the application include the following passage:

" I stopped further cross-examination of Mr Wheeler as I

sought to elucidate from Ms Cameron, as I had indeed with

her examination of Mr Fernando, the subject matters that

she wished to ask questions about. It was very difficult

to obtain any rational account of those matters and at

times impossible to do so. But doing the best I could I

allowed her to ask questions where it seemed to me to be

appropriate. I regret to say they did not show any matter

that I regard as relevant to this proceeding or even if

it were relevant that would have had any probative value

The case has reached a point where I will not allow

it to go on any longer. To do so would, I think, be a

serious erosion of the resources of this Court and of the

Commonwealth and a waste of everybody's time and money. I

have on many occasions throughout the two days sought

assistance from Ms Cameron as to what she really wishes to

achieve and how she seeks to achieve it; but I have not

been helped in that enquiry. I do not suggest that she

deliberately refrained from helping me, or refused to help

me, but I think she simply has no case whatever on which

" The Court has of course inherent jurisdiction to control

its own process and the orders that I propose to make

are pursuant to that and pursuant to Order 20 rule 2 of

this Court's rules. I am plainly satisfied that there is

no reasonable cause of action disclosed in the proceeding

presently before the Court, that the proceeding is

vexatious and that it is an abuse of the Court's process.

It is, I think, a very clear case for invoking this

Court's jurisdiction to dismiss the proceedings on these

grounds: see Co-Ownership Land Development Pty Limited v.

Queensland Estates Pty Limited ((1) (1973) 47 ALJR 519; 1

ALR 201.) and Salemi v. MacKellar ((2) [1976] HCA 45; (1976) 137 CLR 388.).

It is a jurisdiction which should only be

exercised in the clearest of cases and the power to make

the order should be exercised sparingly; but the principles

establishing these propositions are very well known

and I need only refer to the judgments in General Steel

Industries Inc. v. The Commissioner for Railways

(NSW) ((3) [1964] HCA 69; (1964) 112 CLR 125.). See also H 1976 Nominees Pty

Limited v. Galli and Apex Quarries Limited ((4) [1979] FCA 74; (1979) 30

ALR 181.).

Although I mean no disrespect to Ms Cameron, I must say

that the case seems to me to be absolutely hopeless."

4. As has been said, the appellants applied to the Full Court of the Federal Court for an extension of time within which to appeal to that Court from the judgment of Lockhart J. On the morning when that application was listed for hearing, the Court was informed that the Registrar "had received a telephone call from Miss Cameron in which she said that she was in the country, not identifying where she was, and that she was ill and asking that the appeal be adjourned". The Court then decided to stand the matter over until the next day and directed the Registrar to give notice to the appellants at their address for service that the matter would be listed again on that day for hearing. When the appellants did not appear on the following day, the Court dismissed the application. Subsequently, a further application to set aside the Full Court's order was dismissed.

5. On 26 March 1990 the appellants made the application to this Court for an order nisi for mandamus directing Lockhart J to "proceed with the hearing and determination according to law of the Application by the (Appellants) under the Administrative Decisions Judicial Review Act for review of the decision" not to provide further legal aid. The grounds on which mandamus was sought included the ground that in dismissing the application Lockhart J "did not observe the rules of natural justice and/or of procedural fairness". In the course of hearing the application for an order nisi, Gaudron J permitted the appellants also to seek an order nisi for certiorari directed to the members of the Full Court. Gaudron J dismissed the application on 17 May 1990. Her Honour accepted that a summary dismissal of proceedings as an abuse of process might constitute a constructive refusal to exercise jurisdiction in some circumstances but not where there is -

"a defect in the evidence to be adduced, which defect must

result in the refusal of the relief sought. In that

situation there is, in effect, a decision on the merits of

the case, albeit that the decision is given in proceedings

that have not run their full course. The only matter which

might, in that situation constitute a constructive failure

to exercise jurisdiction is a denial of natural justice as,

for example, by denying a reasonable opportunity to remedy

the defect or to lead argument that there is no such defect."

6. Gaudron J held that, by taking the view that the affidavit material and oral evidence before him had shown nothing relevant to the proceedings or nothing of probative value, Lockhart J in effect had determined the appellants' application for review on the merits. Gaudron J then examined the material before her to see "whether there was a breach of the rules of natural justice". She concluded:

" It seems to me that there is no denial of natural

justice involved in terminating an opportunity to be heard

when the evidence appears not to support the relief claimed

and requests to state the matters which are said to support

the grant of relief fail to produce a statement of those

matters."

No error appears in her Honour's reasons for dismissing the application for an order nisi for mandamus and certiorari.

7. However, Ms Cameron has now attached to her submissions to the Full Court a transcript of the proceedings before Lockhart J. She founds two submissions upon that transcript. She submits that Gaudron J placed reliance on the description of the proceedings contained in the reasons of Lockhart J and that that description is "not substantiated in the transcript". The proceedings have been only partially transcribed. It seems that the transcription covers substantially his Honour's rulings and the evidence of witnesses whom Ms Cameron examined or cross-examined. Submissions have not been transcribed. So far as the transcript goes, it bears out the description which Lockhart J gave in his judgment. There is not the slightest reason to doubt the accuracy of what his Honour said. It is unnecessary to advert to the obvious problems involved in relying on the transcript - or, more accurately, in relying on the gaps in what is transcribed - on this appeal when the transcript was not placed before Gaudron J.

8. Ms Cameron also submits that the passage which we have cited from the reasons of Gaudron J reveals that her Honour "found ... that evidence can be evaluated on its appearance without examination of its content is a denial of natural justice". Apart from the obscurity of the submission, it seems to proceed on a false basis. It suggests that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.

Gamester Pty Ltd v Lockhart [1993] HCA 79;

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Gamester Pty Ltd v Lockhart [1993] HCA 79; (1993) 112 ALR 623; (1993) 67 ALJR 547 (12 May 1993)

Parties

Legislation Cited (1)

Cases Cited (5)