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

HIGH COURT OF AUSTRALIA

GAMESTER PTY LIMITED and BARBARA ANN CAMERON v. THE HONOURABLE MR JUSTICE LOCKHART
F.C. 93/023
Number of pages - 4
(1993) 112 ALR 623
(1993) 67 ALJR 547

High Court of Australia
Brennan(1), Deane(1) and Dawson(1) JJ

CATCHWORDS

HEARING

Canberra, 7 August 1991 and 4 February 1993
12:5:1993

ORDER

Appeal dismissed with costs.

DECISION

BRENNAN, DEANE AND DAWSON JJ The appellants appeal from the whole of the judgment of Gaudron J refusing an application for an order nisi for a writ of mandamus and for a writ of certiorari directed to his Honour Mr Justice Lockhart of the Federal Court. On 15 September 1989 Lockhart J dismissed an application by the appellants for relief by way of judicial review of a decision made by the Department of the Attorney-General for the Commonwealth refusing them further legal aid to pursue proceedings under the Trade Practices Act 1974 (Cth) in the Federal Court. Lockhart J was satisfied that the case clearly attracted the Court's jurisdiction to dismiss the proceedings as vexatious and an abuse of that Court's process. The appellants, having allowed the time for appeal to the Full Court of the Federal Court to pass, applied for an extension of time but that application was dismissed. Thereafter the appellants made the application to Gaudron J for the order nisi for mandamus and certiorari.

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
whatever.
The case has reached a point where I will not allow
it to go on any longer. To do so would, I think, be a
serious erosion of the resources of this Court and of the
Commonwealth and a waste of everybody's time and money. I
have on many occasions throughout the two days sought
assistance from Ms Cameron as to what she really wishes to
achieve and how she seeks to achieve it; but I have not
been helped in that enquiry. I do not suggest that she
deliberately refrained from helping me, or refused to help
me, but I think she simply has no case whatever on which
she can help me."

" 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.

9. The appeal must be dismissed.