Day v Smidmore and ors

APPLICANT Mr A P Joseph with Mr Kerrigan Solicitor: Mr S Walker Steve Walker and Associates LEGAL REPRESENTATIVES: RESPONDENTS Mr M J Kimber SC with Mr T Dixon Solicitor: Mr W Barry Beilby Beilby Poulden Costello

JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 18 November 2004

Matter No IRC 3177 of 2001 HARRY MARK DAY v JOHN SMIDMORE AND ORS Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT ON APPLICATION FOR PERMANENT STAY [2004] NSWIRComm 287

1 The applicant, Harry Mark Day, has commenced proceedings against John Smidmore and Christopher Michael, partners in the law firm "Neville and Edwards", and a third respondent, Adolphi Pty Ltd, which is an administration company utilised for that law practice. The proceedings were brought under s 106 of the Industrial Relations Act 1996 ("the Act"). In the summons for relief the applicant alleges that he was employed as a solicitor with Neville and Edwards from June 1995 until 16 October 2000 when his employment was summarily terminated by the respondents. He alleges that he was encouraged to establish his own personal injury law practice and to promote and market the law firm and that due to his efforts he introduced new clients to the firm. He alleges that his contract of employment with Neville and Edwards was or became unfair in a number of respects, which I shall summarise briefly. The applicant alleges that the respondents refused to adjust his salary commensurate with and to reward him for his contribution to the growth in the work of the law firm, that the respondents failed to honour representations that he would be offered a partnership, that excessive workloads were imposed upon him to the detriment of his health, that he was not given adequate assistance in conducting his practice, that he was not granted sick leave and that there were no grounds to justify termination of his employment on any basis. Furthermore he claims that he was not adequately compensated upon termination of his employment. The proceedings are strenuously resisted by the respondents.

2 The respondents by notice of motion have sought an order from this court that the proceedings be permanently stayed. The respondents rely on certain behaviour and conduct of the applicant which they allege constitutes a serious abuse of process and which will adversely impact upon the conduct of these proceedings. The respondents assert that by his conduct and behaviour the applicant has forfeited his entitlement to maintain these proceedings in this court.

3 It is first necessary to deal with some of the factual material upon which the respondents relied in support of the stay application. In this context it should be noted that the summons for relief was filed on 10 May 2001 and at that stage Messers Baker and MacKenzie, solicitors, were acting for the applicant. The solicitor having the conduct of the proceedings was Mr Brian Jebb.

4 Prior to the issue of the summons it seems that Harmers Workplace Lawyers had been acting for the applicant. There is in evidence correspondence between that firm and Messers Beilby Poulden Costello, solicitors, acting for the respondents dating back to 2 February 2001.

5 On 23 April 2001, whilst Harmers Workplace Lawyers were acting for the applicant and within a short time of the issue of the summons, the applicant personally forwarded to Neville and Edwards, solicitors, marked for the attention of one of the respondents, a letter which stated as follows: "I have gone to great lengths to date to minimise any embarrassment to your firm. I am now ready to commence proceedings and of course that will be the end of any confidentiality as this will result in a public hearing of our dispute. For the sake of the profession and your firm, I would invite you to reconsider your position. I am open to discuss settlement with you but only until proceedings commence". Also forwarded with that transmission was a copy of a four-page letter written by Mr T N Small, barrister, addressed to the applicant personally dated 23 April 2001. Mr Small said in the letter that he had been employed by Neville and Edwards and that he was actively involved in entertaining their clients. The letter contains disparaging remarks about one of the respondents in terms of his penchant for taking the best office, using the most senior employed staff, leasing a flashy car and the like. Mr Small described that partner also as being the type of person who would "buy" friendships. The letter discussed the inability of the respondents to attract new clients and the techniques used by them for entertaining clients.

6 On 1 November 2001 the applicant personally forwarded an email to Mr Smidmore referring to the direction hearing before this court on 5 November 2001. The email sought information of an address for service of a summons for each of five named persons who were at one stage employees of Neville and Edwards. The email said: "I don't think it would be very nice for the girls to be met with a burly process server trying to serve them in person. Therefore, for those still in your employ I suggest they be sent to you to hand out. Please advise the last known contact address for any of these staff who have left your employ".

7 In the same email communication the applicant sought from Mr Smidmore the names and addresses of all his treating doctors "who have treated you for any mental health aspects in the period June 1995 to date. These will be the subject of Summons to Produce".

8 On 6 November 2001 the respondent's solicitors wrote directly to the applicant asking him to desist from communicating directly with their clients and asking that he communicate with them.

9 Notwithstanding the above letter on 18 February 2002 the applicant communicated directly with the respondents by email in connection with a workers compensation claim which he had brought against the respondents. In the email he objected to Messers Beilby Poulden Costello representing the respondents in his compensation claim and threatened to refer any further correspondence from Mr Beilby to the Legal Services Commissioner. The email communication said in part: "You are about to be served with material in my Industrial Relations case. Please treat as having been served upon you in my Workers' Compensation case all that material as well".

10 The applicant again communicated by email direct with the respondents on 23 April 2002. The applicant said that he intended making a formal complaint to the Legal Services Commissioner about the conduct of each of the respondents since the termination of his employment. That complaint would be made after the current litigation was concluded. The applicant also said, among other things, that he "long ago tired of your imperious nonsense and fully intend to expose the both of you for the weak, scheming, lying and bullying cowards that you are. I'm sorry if these words offend you but any hurt you might be feeling now is a minnow compared with the injury you've inflicted upon my family and myself".

11 On 25 June 2002 the applicant filed an affidavit in the Compensation Court of New South Wales. In that affidavit he complained that Messers Beilby Poulden Costello had been appointed by the respondents' workers compensation insurer to represent it on behalf of the respondents in the workers compensation proceedings. Under a heading "Irrelevant Issues" the applicant narrated "a long history of misconduct" by the respondents including complaints of sexual harassment, breach of solicitors' duty to act honestly, allegations of race based discrimination, sexual harassment of a female claims officer, regular drunkenness and the like. The applicant noted that the respondents' workers compensation insurer was a "cornerstone client" of the respondents. He asserted that each of the matters to which he had referred would obviously embarrass the respondents and that is why they sought to have Beilby Poulden Costello represent them so that any damage to their reputations in the eyes of the workers compensation insurer could be minimised. The affidavit concluded: "Most important of all the conduct and irregular behaviour detailed above is the Respondents' failure to reach reasonable standards of competence and diligence in the practice of law and in particular in the management of their legal firm Neville and Edwards…".

12 In an email forwarded direct to the respondents by the applicant on 6 August 2002 the applicant said that he would shortly be instructing solicitors with respect to a complaint to be made to the Legal Services Commissioner about each of them. The email concluded that it was "a great disappointment that I must now reveal the behaviour of former work colleagues in addition to your behaviour. No doubt the Law Society will also be interested in the drug habits and sexual habits of Neville and Edwards' staff and principals".

13 An affidavit had been filed in the proceedings in this court on behalf of the respondents by a female solicitor who was an employee of the respondents. By email to her on 23 May 2002 the applicant made a number of bizarre and serious allegations about her. He said among other things that he was preparing a brief for the Legal Services Commissioner in relation to matters which concerned her, that she was behaving unethically in withdrawing briefs from a barrister in favour of another barrister who was her "boyfriend of the day", that she had unethically formed "a serious personal relationship" with a client, that she had been guilty of a serious dereliction of duty in a particular matter which contributed to the client attempting suicide, and the like. By email dated 18 March 2004 the applicant communicated again with the same female employee. After making a number of statements about the respondents' practice and some other statements of a personal nature the applicant asked this person "why don't you make an appointment with my solicitor Mr Brian Jebb and recant some aspects of your affidavit…If you don't, you're putting your whole professional future in jeopardy for a pair of duplicitous hypocrits (sic) in Smidmore and Michael". In that email the applicant then went on to say "if you want to know what evidence your (sic) going to have deal with at Court, ask the bullfrog for a copy of the affidavit I filed in the Compensation Court in August 2003…You feature prominently". It was commonly accepted that the reference to "bullfrog" was to one of the respondents.

14 That affidavit is entitled as a reply to the affidavit sworn by that female employee, presumably in the Workers Compensation Court proceedings. The contents of the affidavit traverse a large number of personal matters in a rambling and disjointed form. I am unable to comprehend what relevance the contents might have either to any workers compensation claim that the applicant has brought against the respondents or to any matter which is the subject of these proceedings. For example the applicant makes mention of the circumstances in which this female employee came to be employed by the respondents and then proceeds to deal randomly with a number of different events. It deals with the fact that the applicant took this female employee home with her boyfriend three or four times a week and that he was often invited upstairs for a glass of wine. The applicant said that he and the female employee "shared a lot of intimate details about our personal lives. We discovered that we had sex on the bonnet of a car in the same car park …". There is reference to the female employee's sexual experiences, the fact that she has taken both hard drugs and other drugs, that she had argued strenuously with some "old ladies" at a football match and the like. It is only after 9½ pages of narration of events and circumstances of the kind to which I have referred that, in the affidavit, the applicant turns to deal with specific material contained within the female employee's affidavit.

15 There is other material which the respondents seek to rely on in aid of the stay application. For example, the applicant threatened to reveal a personal matter associated with a member of the family of one of the legal practitioners in the respondents' solicitors' firm. There is other evidence relied upon but, for present purposes, it is not necessary that I refer to it for the purpose of determining these proceedings.

16 The applicant did not choose to adduce any evidence personally in response to the evidentiary material filed on behalf of the respondents. There was, however, tendered into evidence a medical report of Dr John Shand, psychiatrist, who was asked to give an opinion concerning the applicant's behaviour. Dr Shand was given a copy of much of the material which was tendered into evidence on behalf of the respondents. Dr Shand diagnosed the applicant as suffering from "Personality Disorder of Borderline type with dependent features, associated with depression and anxiety, instability of mood and inappropriate disorder of behaviour and transient stress-related paranoid ideation". Dr Shand explained the applicant's behaviour by reference to this diagnosis. He expressed the opinion that the applicant had some insight into his personality disorder but that this did not necessarily guarantee any behavioural change.

17 The applicant was examined by Dr Peter J Morse, a consultant psychiatrist on behalf of the respondents. It was the opinion of Dr Morse that it was unlikely that the applicant was suffering from a personality disorder of borderline type. This was because, in the opinion of Dr Morse, the applicant was aware of and appreciated the effect that his behaviour might have on other persons and that the applicant was aware of the impact that his conduct might have on others. Dr Morse was unable to "justify" any of the behaviour and conduct of the applicant in terms of any psychiatric illness.

18 There was also tendered into evidence an affidavit of the female employee of the respondents to whom previous reference has been made. She said that she was "extremely upset" after receiving the applicant's email of 23 May 2002 and was equally upset when she received the applicant's affidavit filed in the Compensation Court proceedings. She characterised the applicant's material as constituting "an extremely vicious and personal attack, which also contained a lot of fabrication". She had expressed concern about being in the same room as the applicant and about giving evidence in front of him. She says that he is "volatile" and is concerned not to do anything that might aggravate the applicant's "negative feelings towards me". She was not cross-examined on this affidavit.

19 There was no contention between the parties that this Court as a superior court of albeit limited jurisdiction had inherent power and jurisdiction to stay proceedings on grounds of abuse of process. Relying on the judgment of the High Court of Australia in Walton v Gardiner (1993) 177 CLR 378 it was submitted that there is no closed set of categories in connection with the use of a court's inherent power to control its own processes. These powers may be exercised as and when the administration of justice required the court to do so. This statement of principle was not contested by the applicant. However, the applicant stressed that the power to grant a permanent stay of proceedings which would have the effect of depriving the applicant of a fundamental right to maintain proceedings in a court of law should only be exercised "in exceptional cases", "sparingly and with the utmost caution" (as referred to by Gaudron J in the High Court of Australia in Jago v District Court (NSW) (1989) 168 CLR 23 at 76).

20 Whilst there are a number of instances where the inherent jurisdiction and power of courts to permanently stay proceedings have been exercised, it is difficult to find any other proceedings which are sufficiently similar in terms of the factual matrix to be of assistance in the application of the relevant principles to the particular facts. One obvious example where a permanent stay is often granted is where it can be demonstrated that the proceedings have been commenced for an ulterior purpose and not for the purpose of prosecuting the claim which is at the heart of the proceedings. Counsel for the respondents in support of the permanent stay application referred me to a decision of the English Court of Appeal in Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200. Those proceedings involved a strike-out application based upon an attempt by a director of a company to pervert the course of justice by producing documents known to be forged during a discovery process. It was alleged that a fair trial of the proceedings was impossible. The strike-out motion was dismissed at first instance but was upheld on appeal. In the course of his judgment Chadwick LJ said: "…where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke" (at [54]).

21 The respondents submitted that the communications made by the applicant directly to them were intended to seek to embarrass them and to deter them from defending the proceedings. This was reinforced by reference to the respondents' relationship with clients and the like and the reference to matters which on any view of it could have no conceivable relevance to any issue in the proceedings, at least as currently constituted. Specifically this includes reference to certain alleged behaviour of the respondents, the details of which I have previously summarised. In the same way the conduct of the applicant in attacking the respondent's solicitors cannot be seen to bear any relevance to the proper determination of the issues in these proceedings but must as a matter of logic be designed to intimidate them in some manner which is presumably intended to affect the representation which they are providing to the respondents. The approach made by the applicant directly to the female witness which I have previously described was said to be more blatant. It was designed to persuade her to change her evidence by reference to allegations of a scurrilous and scandalous nature.

22 All of these matters, were submitted by the respondents, to have been directed solely to forcing them to settle the applicant's case.

23 The medical evidence which I have previously summarised was to the effect that the applicant had insight into what he was doing and the impact of his conduct on others. There is no suggestion in the medical evidence that the applicant was suffering from any condition which affected his ability to control his behaviour.

24 I have already referred to some of the authorities in this area. Unfortunately some of them deal with criminal cases rather than civil proceedings. I instance the decision of the High Court of Australia in Williams v Spautz (1991-1992) 174 CLR 509. That case is of assistance, however, by emphasising that where conduct of a litigant constitutes or creates an abuse of the processes of a court the court may nevertheless permanently stay the proceedings even though the party instituting the proceedings has a prima facie case or must be assumed to have a prima facie case (see the discussion in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at 521-2). The difficulty, however, in utilising statements of principle in connection with appellate court authorities in the area of abuse of process concerning criminal prosecutions is that there is a significant public interest in the maintenance of criminal proceedings and in ensuring in the interests of both the prosecutor and a defendant that the proceedings are brought to finality in a regular and appropriate manner. This is emphasised in the joint judgment in Williams v Spautz to which I have referred (at 519) and also in the several judgments in the High Court of Australia in Jago v District Court (NSW) (1989) 168 CLR 23.

25 However, Jago is significant in that the several judgments emphasise that if it is possible for a fair trial to be obtained then the proceedings ought to be permitted to continue and ought not to be permanently stayed. For example, in Jago, Brennan J (as his Honour then was) said: "By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution" (at 49).

26 My understanding of the authorities in this area is that the power of a court to control and supervise its process so as to prevent an injustice is directed to the maintenance of proceedings which are fair. This involves the ability of litigants and legal practitioners to advance cases fearlessly and appropriately (of course, by reference to proper and appropriate standards of conduct) and the ability of the court to determine the matter in an impartial and just manner, consistent with the application of the principles of natural justice. An example of circumstances where a fair trial was held to be compromised is provided by Rodney Morrison v Joy Manufacturing Co Pty Ltd [2002] NSWIRComm 366. Criminal proceedings were permanently stayed because it was held that they had been compromised by actual and imputed disclosure of confidential information to the prosecutor about the defendant's business. The disclosure was made by solicitors who were contemporaneously acting for both the prosecutor and the defendant's workers compensation insurers.

27 The process by which a court determines the prospect of the possibility of a fair trial must involve an ability to contemplate future events by reference to past conduct with some degree of comfort that the assessment is based on something other than mere conjecture. The difficulty inherent in this process was described by Deane J in Jago, admittedly in the context of consideration as to whether delay in a hearing created unfairness, in the following terms: "The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g. adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one" (at 57).

28 On one view, the conduct of the applicant in these proceedings is more readily characterised in terms of the authorities dealing with contempt. I refer for convenience to the analysis undertaken by Mason P in the New South Wales Court of Appeal in Harkinakis v Skalkos (1997) 42 NSWLR 22. His Honour's perceptive summary of the relevant principles enables one to focus attention on whether or not conduct had the impugned tendency to interfere with the course of justice. This would include, obviously, communications instituted by a party designed to influence a witness to proceedings and designed to create improper pressure on an opponent or an opponent's legal representative. My understanding of the relevant principles adduced from appellate decisions in the area of contempt, many of which are referred to in the judgment of Mason P, is that the focus of attention is predominantly on the conduct of the party by ultimate reference to the impact on the processes of the court. There may be a difference of approach when dealing with contempt cases as opposed to abuse of process cases, and that approach may, ultimately, be of little consequence. If there is a difference in approach, perhaps it is conditioned by the ultimate power invested in the court, which in the case of contempt involves a sanction imposed personally on a party found guilty of contempt but in the case of abuse of process will impact upon the underlying proceedings.

29 I approach the matter on the basis that I am required to assess the applicant's conduct by reference to its effect, if any, on the fair conduct of the proceedings. This leads me to deal with one aspect which I have not hitherto considered in any detail and that is the fact that the applicant is a solicitor. Not only is the applicant a legal practitioner but he clearly has had extensive experience in the conduct of litigation in this State. Anyone familiar with the protocols associated with the litigation process would know that communications between parties are usually conducted by the legal practitioners representing them. In the same way, I would hope that every person associated with the practice of law would understand that the communications made by the applicant to the respondents, to the respondents' legal practitioners and to the female witness which I have described were, by their nature, inappropriate. Again, the recipients of the applicant's communications have all been legal practitioners. Should it be inferred that, as legal practitioners, they should all have some immunity to the "rough and tumble" of court processes, including the type of conduct which the applicant engaged in?

30 In terms of the characterisation of the applicant's conduct by reason of the fact that he is a legal practitioner, my understanding of the authorities to which I have referred is that this should be taken into account only in connection with the ability of this court to ensure that there is a fair trial. That is, the fact that the applicant is a legal practitioner as opposed to a litigant who might be entirely uninformed and unfamiliar with the protocols associated with court processes will only have relevance in this context.

31 However, the situation may well be different in terms of the examination of the impact of the applicant's conduct on the respondents, the respondents' legal practitioners and the female witness. In my opinion this matter may conveniently be determined by analogy with the approach adopted by the courts in assessing the impact of conduct on parties to proceedings in the context of proceedings for contempt. I summarised the principles to be applied on the basis of authorities in this area in Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 in the following terms: "3. There is "a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material." Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for "interference in the litigant's freedom to conduct the litigation as he or she chooses." Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere. 4. There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of "the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude who might be capable of influence by similar pressure applied in similar circumstances." ( Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd [2002] NSWCA 160 , after referring to Harkianakis and other authorities, Spigelman CJ observed at par [49]: These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety. In the same case, in agreeing with the Chief Justice, Ipp AJA said at par [54]: [A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications" (at [36]).

32 I proceed on the basis that the determination of whether or not the conduct of the applicant has impacted upon the ability of the court to conduct a fair trial in these proceedings should be evaluated objectively but by reference to "the subjective characteristics of the recipients of the communications" as referred to by Spigelman CJ and Ipp AJA (as his Honour then was) in Bhagat.

33 It is now necessary to review such evidence as exists concerning the ability of this court to conduct a fair trial of these proceedings.

34 Neither the respondents nor the respondents' solicitors filed any direct affidavit evidence or gave evidence in these interlocutory proceedings concerning the impact on them of the applicant's conduct and as to whether this would in turn have any impact upon a fair trial of the proceedings. However, there is in evidence correspondence from the respondents' solicitors addressed to the applicant complaining about his conduct as raising issues irrelevant to the proceedings, as attempting to embarrass the respondents and as possibly constituting "an abuse of process". There is nothing within that correspondence which is indicative that either the respondents personally or the respondents' legal practitioners were other than annoyed by the applicant's conduct and determined to reject his allegations. On this basis I am unable to find that the conduct of the applicant has had such an effect on the respondents and the respondents' legal practitioners that, in some way, the fairness of the proceedings has been relevantly affected.

35 True it is, that much of the applicant's material is prima facie irrelevant and objectionable. However, these are matters which are capable of being cured both within the case management process and within the trial process itself.

36 This leads, then, to a consideration of the impact of the applicant's conduct on the female employee. As I have previously indicated she is a solicitor. She had previously worked with the applicant whilst employed by the respondents and continues to be an employee of the respondents. Her untested affidavit evidence is to the effect that she regarded material referred to in the applicant's affidavit filed in the Compensation Court proceedings as constituting "an extremely viscious and personal attack, which also contained a lot of fabrication". She continued "I contemplated an Apprehended Violence Order against Harry at that stage but did not take any steps to obtain one". She further deposed to having cried when she read the email from the applicant forwarded to her in March 2004 in which the applicant asked her to make an appointment with his solicitor, Mr Jeb, and recant some aspects of her affidavit. It was that email which contained the assertion that "…if you don't, you are putting your whole professional future in jeopardy for a pair of duplicitous hyprocits (sic) in Smidmore and Michael. (Believe me, I have a thousand other adjectives for those two)". It is that email which referred to the affidavit filed by the applicant in the Compensation Court. The female employee said that she "felt intimidated and frustrated" upon receipt of that email. Thereafter she requested the respondents to activate a security lock so that no-one could gain access to the office floor on which she worked because she said she was concerned about the prospect of the applicant gaining access to her work premises. She also deposed that she was "worried about giving evidence, only because I do not know how I will go giving evidence in front of Harry. I know that just being in the same room as Harry while I am giving evidence will upset me…I am anxious whenever I go to the District Court (and previously the Compensation Court) at the John Maddison Tower in case I should see Harry. I have been this way for quite some time…I do fear for my safety because I have seen Harry 'lose it'. I know how volatile he is and I know that he blames me for the mess his life is in. However, I am also fearful of taking any action that may aggravate Harry's negative feelings towards me".

37 I was not referred during the course of the interlocutory proceedings to the affidavit sworn by this female employee and filed in these proceedings. No suggestion was made on behalf of the applicant that the evidence of this person is not relevant to these proceedings. Accordingly, I proceed, on the basis that her evidence is relevant. In my opinion the uncontradicted evidence of this female employee, a solicitor, is indicative of her real concerns about giving evidence againt the applicant in these proceedings. Those concerns are based upon apprehension for her own safety and fear of harm at the hands of the applicant. Viewed objectively, having regard to the subjective concerns of this female witness and accepting those concerns I am of the opinion that a fair trial of these proceedings has been compromised by the conduct of the applicant. I cannot discern any mechanism which will allow a fair trial to be conducted in terms of the amelioration of the concerns and fears of this female witness. The applicant has offered an undertaking to the Court that he will not approach or in any way communicate with this witness. In my opinion, in all the circumstances, this is insufficient and, on the part of the applicant, represents an offer of too little too late. As I have previously indicated, the medical evidence is to the effect that the applicant had insight into his conduct and into the likely impact on the recipients of his communications.

38 The subject matter of the applicant's communications to this female employee was described in brief terms in paragraphs [13] and [14] of these reasons for judgment. I have not set out all of the details contained within the applicant's affidavit filed in the Compensation Court proceedings which were referred to by him when communicating with this female employee. Suffice to say that some sense of the material covered may be gained from what I have summarised in those paragraphs. A closer reading would reveal details to the same effect which include allegations of conduct which is clearly of a criminal nature. I regard the material included within the applicant's Compensation Court affidavit, to which reference was made for the purpose of intimidating the female employee with respect to her evidence to be given in these proceedings, as bizarre, scurrilous, scandalous and utterly offensive. I uphold the submissions made on behalf of the respondents that these communications have seriously impacted upon the ability of this female witness to give her evidence freely and without fear of retribution. The applicant is a solicitor well-versed in the conduct of litigation and must be taken to have known and be aware of the necessary protocols which attach to the litigation process and the conduct expected of litigants. To this extent I find that the fact that the applicant is a solicitor is one of a number of relevant factors but not the decisive factor in concluding that his conduct is such that the proceedings may be characterised as an abuse of process and that there are no means readily available to cure this.

39 For completeness I should state that no other means of curing what have occurred has been put forward on behalf of the applicant. Whilst some measure of personal security might be provided during the court proceedings through the officers of the Sheriff of New South Wales, there would obviously be great difficulty in providing any further means of personal security for this female witness.

40 Each and every citizen has a fundamental entitlement to utilise the court system established by government for the prosecution and defence of claims. Associated with this entitlement to certain privileges. These include by way of example the privilege of securing the production of documents from an opponent or third parties, the right to undertake discovery and inspection of opponents' documents and the right in certain circumstances to make assertions free from the reach of the laws of defamation. However, there are certain correlative obligations which go hand in glove with this entitlement and these privileges. The processes of a court can only be used for the purpose of prosecuting or defending a claim or entitlement and cannot be used for any ulterior purpose. The privileges cannot be abused in any way and the processes of a court cannot be allowed to be conducted in a manner which offends principles of dignity and respect which are the fundamental entitlements of all members of the community. For the reasons which I have previously outlined, the conduct of the applicant in these proceedings is such as to create an abuse of process and to entitle the Court to deprive the applicant of the fundamental entitlement otherwise available to him to utilise this Court in order to pursue a claim against the respondents.

41 I order that the proceedings be permanently stayed. The applicant is to pay the respondents' costs of the proceedings in an amount assessed under the Legal Profession Act in default of agreement.

42 I direct the Industrial Registrar to forward a copy of this judgment to the Legal Services Commissioner of New South Wales.

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