JUDGMENT No. 2.2, 2emmal K288, LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 345 of 1986 GENERAL DIVISION BETWEEN: CAMERON'S UNIT SERVICES PTY LIMITED and DONALD ALISTAIR CAMERON Applicants KEVIN R. WHELPTON & ASSOCIATES (AUST. ) PTY LIMITED and KEVIN RICHARD WHELPTON Respondents EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. In this matter, the respondents seek an order that the proceedings be stayed pending final determination of an application for an order of review in proceedings No. G.535 of 1986. The review proceedings relate to a grant of legal aid to the applicants under s.170 of the Trade Practices Act 1974. The matter has a long history, which I have already discussed in the judgment which I delivered on 24 September last, upon a previous application for a stay, and for security for 2. _costs. In that application, the stay was sought on grounds that related to outstanding costs of earlier proceedings, and as I have said, there was an application for security for costs. I dismissed those applications, and a direction was given fixing a date for filing of the respondents' statement of defence. That direction has not been complied with, but instead, the present motion has been taken out, and on 20 November, the application referred to in the motion - that is, an application under the Administrative Decisions (Judicial Review) Act 1977 - was filed, relating to the decision of the Attorney-General under s.170. The applicants are not parties to that separate proceeding. In my previous judgment, to which I have referred, I mentioned that legal aid had been sought a considerable time ago, and had been rejected, though the possibility of aid under s.170 had been held out. That aid was eventually granted on 13 November 1985, though 'then subject to conditions. There was a change of solicitor for the applicants, and apparently the conditions were eventually fulfilled. There were also proceedings taken by the respondents for the winding-up of the applicant company, which it is suggested spurred the final institution of the present application. In the Supreme Court, the winding-up proceedings have been stayed. 3. The order of McLelland J. in the Supreme Court was made on 29 September 1986, It should perhaps more accurately be described as an order of adjournment of the winding-up proceedings, and it was made upon an undertaking not to carry on business, or voluntarily incur debt, pending the final determination of the winding-up proceedings, and apparently not upon an undertaking to prosecute them with diligence. But liberty was reserved to the plaintiff in those proceedings to apply for an order to have the winding-up proceedings restored to the list for hearing on the ground, either that the proceedings in the Federal Court have concluded, or that those proceedings are not being prosecuted with reasonable speed and diligence. The plaintiff in the winding-up proceedings is the respondent company in the proceedings in this Court. As far back as 18 August, the fact that legal aid had been granted under s.170 was indicated in an affidavit which was filed in the equity proceedings. It is therefore apparent that the application under the Administrative Decisions (Judicial Review) Act was made over three months after the date when the fact that legal aid had been granted appeared from an affidavit. As I have said, the application under s.170 for legal aid had been referred to much earlier than that, and the respondents would have been in a position to make any representations they wished to the Attorney-General. But, of course, at that stage they would not have been aware when the application was going to be granted, or whether it would be granted. It seems to me that it would be, generally speaking, unfortunate if proceedings in the Court, under grants of legal aid, became generally subject to possibly lengthy delays pending the resolution of challenges, under the Administrative Decisions (Judicial Review) Act, to the eligibility of the application for legal aid or the propriety of the particular grant of legal aid. In my view, so far as it is possible to secure this result, the Proper resolution of any conflict between the legally aided proceedings and any such collateral challenge should rather be the making of an application for expedition of the proceedings under the Administrative Decisions (Judicial Review) Act than the making of an application to stay the legally aided proceedings. After all, there is a significant principle of the law that impecuniosity does not bar a person from making a claim in the courts; the doors of justice are not closed because a person is embarrassed for lack of funds. It should not be concluded that, if the proceedings under the Administrative Decisions (Judicial Dy Review) Act in a particular case are successful, an applicant's application in the court will necessarily be smothered by the failure of the Attorney-General, or other legal aid authority, to sustain his or its grant of legal aid. In the present case, it is true that there have been Statements which might lead to the inference that that would be so, but no-one is bound by such statements, and it is readily understandable that the applicants may have been unwilling to 5. - prosecute proceedings unaided while there was a chance of obtaining aid, but might nevertheless, if all prospects of aid were closed off, prefer to maintain the proceedings themselves rather than not maintain them at all. It is unnecessary to speculate about such a matter, but I think that in principle it would be wrong to approach the exercise of discretion on the footing that successful proceedings under the Administrative Decisions (Judicial Review) Act to challenge a grant of legal aid would necessarily stultify the principal proceedings in this Court. In this particular case, it is said that I should grant a stay because of the burden of costs involved in preparing the principal proceedings for trial. However, as against that, it should be borne in mind that the present proceedings are extremely similar to the proceedings that previously were stultified by the inability of the applicants to finance legal representation or, at that Stage, to obtain a grant of legal aid, and that those proceedings had advanced to the point where a date for hearing had been fixed. Indeed, I think it had been fixed more than once. Accordingly, the costs of filing pleadings and discovering documents must, to some extent at any rate, be ameliorated by the work that has already been done. It is said that there may be further interrogatories, but the fact is that interrogatories were administered in the 6. "previous proceedings. And, again, this must limit the interrogatories, or limit the expense involved in the administration of interrogatories, in the present proceeding, should an order be made giving leave to administer interrogatories again. It seems to me that it is, at any rate, premature to stay proceedings at this stage, when nothing is known of what may occur in the application under the Administrative Decisions (Judicial Review) Act, which may be the subject of either an application to expedite it or of some other summary proceeding. In due course, at a directions hearing, it will be open to take into account the stage arrived at in each of the proceedings, before a hearing date is fixed; and, of course, the efforts made by the parties to proceed expeditiously in each proceeding. The applicants are clearly at risk in the proceedings in the Supreme Court in equity, having regard to the possibility of restoration of that proceeding to the list, in respect of which the judge of the Supreme Court would clearly be concerned, not only with the interests of the parties to the present proceedings in this Court, but also to have regard to the interests of creditors generally. And I think that factor provides an additional reason for refraining from staying the proceedings at this stage. In all the circumstances I refuse the motion. I think what I should do is to give a direction fixing a date for the 7. respondents' compliance with the direction previously given in respect of the filing and service of the statement of defence, and directions in respect of production of any further documents, and filing of further affidavits of discovery, and the making of any applications for the administration of further interrogatories, and I should fix some date for further directions which will enable the situation to be reviewed in the light of the progress of the proceeding under the Administrative Decisions (Judicial Review) Act. I think in the circumstances it is appropriate that the unsuccessful respondents should pay the costs of the motion, and I so order. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. { Sto Ge Associate Dated: 1 December, 1986.