Gerard Michael McGuirk v The University of New South Wales

CATCHWORDS : PROCEDURE - Supreme Court procedure - New South Wales - procedure under Rules of Court - Application to restrain excessive communication by party to proceedings - power to grant - inherent jurisdiction of the Court - whether conduct an abuse of process - Supreme Court Act 1970, section 23 - Civil Procedure Act 2005, sections 56, 57, 58 & 61

LEGISLATION CITED : Supreme Court Act 1970 Civil Procedure Act 2005

Commonwealth Trading Bank v Inglis [1974] HCA 17; 131 CLR 311 Riley McKay Pty Ltd v McKay [1982] 1NSWLR 264 CASES CITED : Wentworth v Graham [2003] NSWCA 307 PNJ v The Queen [2009] HCA 6; 83 ALJR 384 Global Custodians Limited v Mesh [2000] NSWSC 845 Jenolan Caves Resort Pty Ltd v Field [2007] NSWSC 1117

TEXTS CITED : Ritchie: Supreme Court Practice (Butterworths)

PARTIES : Gerard Michael McGuirk (plaintiff) The University of New South Wales (defendant)

COUNSEL : In person (plaintiff) Dr A S Bell SC & M A Izzo (defendant)

SOLICITORS : In person (plaintiff) Sparke Helmore Lawyers (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/20106 Gerard Michael McGUIRK v THE UNIVERSITY OF NEW SOUTH WALES

JUDGMENT 1 HER HONOUR: The orders sought in the present proceedings are (it was acknowledged) somewhat unusual. By notice of motion filed on 6 March 2009, in substantive proceedings brought by the plaintiff, Gerard Michael McGuirk, against the University of New South Wales ("the University"), the University seeks orders to the following effect: · that two Notices to Admit Facts and Authenticity of Documents served by Mr McGuirk, on, respectively, 20 February and 27 February 2009, be set aside; · that Mr McGuirk be restrained, until further order, from serving on the University (or its solicitors) any Notice to Admit Facts or any Notice to Admit the Authenticity of Documents in relation to the proceedings; · that Mr McGuirk be restrained from sending, without the prior leave of the Court, any written communication concerning the proceedings to any officer or employee of the University (including, specifically, the Chancellor, the Vice-Chancellor and President, any member of the University Council and the University solicitor and any employee of the University legal office), counsel retained in the proceedings to act on behalf of the University and to the solicitor on the record for the University or any partner or employee of such solicitor. 2 So far as the last category is concerned, the orders as originally sought contain three exceptions, these being:

· documents required to be served on the University or its solicitor; · formal letters required to be sent for the purpose of Mr McGuirk's conduct of the proceedings; · formal letters required to be sent for the purpose of Mr McGuirk's conduct of any other proceedings to which he is a party and in which the University's solicitor is the solicitor on the record. 3 When the notice of motion came on for hearing on 23 March 2009, by reason of events that have occurred in relation to other proceedings between the same parties in the Court of Appeal, the University sought and was granted (without opposition) leave to amend the last order sought by adding, as a further exception: · any document responding to any offer to settle any proceeding in this Court, in the Court of Appeal and in the Administrative Decisions Tribunal, between the University and Mr McGuirk.

History and background 4 The University's evidence was given by way of two affidavits sworn by Ms Susan Bennett on, respectively, 9 March and 23 March 2009. 5 It will, regrettably, be necessary to set out some (but not all) of the history at some length. 6 The substantive proceedings were commenced by statement of claim filed on 31 March 2008 (proceedings number 20106 of 2008). Although the statement of claim ran to twenty-six pages, essentially the claim relates to a period during which Mr McGuirk was employed by the University, which employment, (according to the statement of claim), commenced in 1998. The University retained Messrs Sparke Helmore Lawyers ("Sparke Helmore") to act for it. The solicitor on the record is Ms Bennett. Sparke Helmore moved the Court for orders striking out or summarily dismissing the statement of claim. There followed a protracted period during which Mr McGuirk sought, and the University agreed to give him, an opportunity to file an amended statement of claim. On 23 February 2009 he served a proposed amended statement of claim on Sparke Helmore, a copy of which is exhibit A in the present proceedings. It has not been filed. On 5 March 2009, Sparke Helmore, on behalf of the University, notified Mr McGuirk that, if the proposed amended statement of claim were filed, they would move that it be struck out or summarily dismissed. Because of the uncertainty concerning the status of this statement of claim, the University has not filed a defence. 7 On 10 April 2008 Mr McGuirk served on Sparke Helmore a Notice to Admit Facts and Authenticity of Documents. Sparke Helmore responded by serving a Notice Disputing Facts and Authenticity of Documents. 8 On 18 February 2009 Mr McGuirk communicated by facsimile with Sparke Helmore, directed to the attention of Ms Bennett. Inter alia, he said: "I propose over the next several weeks (depending on my health and study commitments) to serve on you a series of short and targeted ' Notices To Admit Facts and Authenticity of Documents ' in respect of the matters under Supreme Court file number 20106 of 2008." (underlining and italics in original) 9 On 19 February 2009 Mr McGuirk communicated by facsimile with senior and junior counsel in the present matter, attaching a copy of the facsimile referred to in [8] above indicating that he intended to serve further such notices. On 20 February 2009 he sent by facsimile to Sparke Helmore a corrected version of the notice mentioned above, and on 27 February he again communicated with Sparke Helmore by facsimile, serving a further Notice to Admit Facts and Authenticity of Documents. 10 From the time of commencement of the pleadings Mr McGuirk has communicated, by a variety of means, with Ms Bennett, with a junior solicitor employed by Sparke Helmore (Ms Rhiannon Eagles), and with the managing partner of Sparke Helmore (Mr John Davis), with senior and junior counsel retained in this matter (Messrs Bell and Izzo), with a junior counsel who holds a brief for the University in another matter (Mr Singleton), and with two counsel who do not hold briefs either for Mr McGuirk or for the University, and with the Chancellor of the University (Mr Gonski), the Vice Chancellor (Professor Hilmer), and the University solicitor (Ms Kirby) and assistant solicitor (Ms Fleming). In many cases the correspondence is copied to other recipients. Mr McGuirk utilises e-mail, facsimile, text messaging, and letters sent by post. The bulk of his communication appears to be made by e-mail. 11 The correspondence is voluminous, and increasingly concerning. Some of it is bizarre, some offensive, some threatening. In some instances it may well, and in others almost certainly does, amount to criminal conduct. 12 It will not be possible, and I do not propose, to itemise every communication made by Mr McGuirk to any of the recipients I have identified above. What follows is a representative sample, taken over a period of about 10 months. 13 The first document to which I refer (which is not necessarily the first communication) was sent by e-mail on 11 May 2008 to Ms Eagles. Its subject was identified as "Notice of motion and letter accompanying", a reference to the University's notice of motion for summary dismissal or striking out of the statement of claim. 14 It is unnecessary to detail the content of this communication. Essentially, Mr McGuirk said that he was not prepared to consent to orders of the kind sought, and that his availability (for a hearing) over the following four months was uncertain. However, the communication, which covers more than a page and a half of small type, also gave gratuitous advice to Ms Eagles (to communicate to the University), and dealt with other matters of peripheral or no relevance. Of course, it was necessary for Ms Eagles to read the whole of the communication in order to be sure she had read such relevant matters as might have been buried within it. 15 On 5 August 2008 Mr McGuirk sent an e-mail to Ms Fleming, the assistant University solicitor. The dateline shows that the e-mail was sent at 10.40pm. I do not propose to repeat the vulgarities contained in this e-mail. It appears as tab 30 to the affidavit of Ms Bennett sworn 9 March 2009. Although legal practitioners may be expected to be robust in the performance of their duties, these vulgarities are of a kind to which no ordinary person ought to be subjected. 16 I propose now to set out, in short form, some description of and extracts from various communications sent by Mr McGuirk to various of the individuals identified above. 17 The first of these is an e-mail sent to Ms Eagles, and copied to Ms Bennett. It was sent on 27 June 2008 at 9.53pm. It runs for two-and-a-half pages. Its subject purports to be the proceedings number 20106 of 2008, with particular reference to "status conference". After some gratuitous commentary on one of the legal practitioners, references to proceedings in the Administrative Decisions Tribunal, and other irrelevancies, such as references to a psychiatrist said to have been de-registered by the Medical Tribunal of NSW, Mr McGuirk observed that Ms Eagles had: " … at all times conducted yourself in accordance with your obligations to the Supreme Court of New South Wales."

However, he immediately followed this by saying that she was the exception rather than the rule and suggesting that her appropriate conduct would soon be the cause of the termination of her employment. 18 He followed that by references to Nazi Germany, something which became a recurring theme. This may be the first of those references. He appears to have attempted to draw some kind of analogy with the conduct of the perpetrators of the Holocaust and the conduct of Ms Eagles. 19 On 16 July 2008, at 7.51pm, Mr McGuirk sent an e-mail to Ms Fleming, identifying the subject as: "Whatever it takes." (Tab 34, p 96)

He then referred to a former Federal politician, to Adolf Hitler, and to Joseph Stalin. This he immediately followed with a reference to the Chancellor of the University. He added: "As you must know, life is about winning - in the short terms (sic) at least. We will both soon be dead. (Is Jesus to be regarded as a hero or as a 'fuckwit'? How could he possibly presume to take on the might of Rome/UNSW?)"

He then made an unveiled accusation of fraud against one of the legal practitioners (who I decline to name). 20 Also on 16 July 2008, at 8.10pm, Mr McGuirk sent an e-mail to Ms Kirby, copied to Ms Fleming. The bulk of this was again concerned with references to Nazi Germany, but he made references also to two politicians. Finally, he purported to: " … reserve the right to provide a copy of this e-mail to any journalists who may be interested in the history of corruption at the UNSW - also Fred Hilmer and his colleagues." 21 On 21 December 2008, at 9.28pm, he sent an e-mail to one of the barristers not (apparently) associated with the litigation, and copied to the other barrister, also not (apparently) involved in the litigation. One of these he described as a "sleaze bag". He made comments about various individuals, including some legal practitioners. (It is to be observed that this e-mail was not sent to anybody involved in the proceedings, and does not bear any suit number linking it with his proceedings against the University.) 22 On 11 February 2009, at 10.45pm, Mr McGuirk sent an e-mail to junior counsel briefed in the proceedings, with a copy to Ms Bennett. After misspelling the Vice-Chancellor's name in such a way as to evoke Nazi Germany, he wrote the following: "I trust that you are not about to die - at least within the compass of the 'defence' mounted by Bennett/Kirby. If however the 'shit hits the fan', I have good contacts - as [another named junior counsel] knows - in the taxi driving industry." (Tab 41, p 125) 23 On 14 February 2009, at 3.18pm, he sent by facsimile, a three page letter to Ms Bennett, copied to senior and junior counsel. (Tab 42, p 131 - 133) He took issue with a number of things that (he claimed) had been said in correspondence from Sparke Helmore, and then extracted from that correspondence an observation that it was not appropriate for him to be communicating directly with the University's Council, and requesting that all future correspondence relating to the proceedings be directed to Sparke Helmore. 24 To this he said: "Let me make my position unequivocally clear in regard to this 'instruction'. Australia happens to be a 'free country' where the 'rule of law' applies. …. I will communicate with whom I like when I like." 25 On 20 February 2009 at 5.19pm, Mr McGuirk sent, by facsimile, a letter to Ms Bennett. It contained a heading identifying two Court of Appeal proceedings, and proceedings 20106 of 2008, as its subject matter. (Tab 46(a), p 141) 26 The letter opened with the following: "This facsimile is the Friday 20 February 2009 ' daily update on my health ' and progress report on 'Sparke Helmore matters' as I promised in my facsimile sent to you on Thursday 19 February … Today's report is as follows: 1. I was able to get a reasonable night's sleep last night with the assistance of two 'half tablets' …" (italics in original) 27 The letter continued over a page-and-a-quarter, and then concluded with the following: " … I propose to tender a cop (sic) of this report (together with all my other reports and all relevant correspondence) to Registrar Schell when the matters … are next before the Court of Appeal for directions. I appreciate that it may take him an hour or so to plow (sic) through the 'crap', but as a matter of procedural fairness to Sparkies, I am sure that he will be prepared t (sic) do so. (Registrar Bradford was certainly happy to accord you procedural fairness on Thursday 12 February … I cannot imagine that Registrar Schell would not be prepared do (sic) the same.)" 28 Finally, Mr McGuirk added a postscript: "PS: Forgot to mention - I did take a couple of 'toilet breaks'. I trust this is OK by you." 29 On 20 February 2009, at 11.16pm, Mr McGuirk sent, by facsimile, a letter to Ms Bennett, identifying it as referring to the proceeding 20106 of 2008. (Tab 46(b), p147) He referred to the earlier facsimile of the same day, and stated his intention of correcting some typographical errors he had detected in a Notice to Admit Facts and Authenticity of Documents sent at the same time. He then said: "I have also decided - in view of the fact that you (as Ms Susan Bennett, Partner with the firm of Sparke Helmore Lawyers, and agent for the University of New South Wales in respect of the instant matter) are 'suspicious' as to how I spend my time, and also appear to be of the view that you have a right to determine how I spend that time - that I should keep a log of my 'toilet breaks' (and of arguably unnecessary interruptions to the time I should be spending on preparing submissions in the 'Sparke Helmore matters') for the purposes of tender to the Court of Appeal of the Supreme Court of New South Wales - should this be necessary ." (italics in original) 30 On 25 February 2009, at 9.00am, Mr McGuirk sent, again by facsimile, a letter to Ms Bennett. It also nominated certain Court of Appeal proceedings and proceeding 20106 of 2008 as its subject matter. The letter began: "I was too exhausted after returning from my tax lecture last night to provide you with a progress report on my health for Tuesday 24 February 2009. My apologies."

There followed a reference to his preparation of a "First Amended Statement of Claim" and an account of his personal activities during the course of the day. It concluded with a quite irrelevant reference to sentencing proceedings taking place that day in respect of a former Federal Court judge who had pleaded guilty to serious offences. 31 On 16 February 2009, at 11.31pm, Mr McGuirk sent an e-mail to a Professor, who I will identify above only as Professor W, in New Zealand and copied it to the Chancellor of the University. (Tab 55, p 172) He alluded to the likelihood that Professor W would give evidence in the proceedings, and said: "Perhaps it is best if you stay in NZ - and don't travel to any conferences overseas (certainly not in Australia). 32 In a letter sent by facsimile on 18 February 2009 Mr McGuirk referred to Professor W, who, it was expected, would be a witness or potential witness in the substantive proceedings. Of him Mr McGuirk said: "As for Professor [W], you can be sure - as he well knows - that he has much to fear from being called as a witness in respect of the matters under the Supreme Court file number 20106 of 2008 - as also do Professors [X] and [Y]." (p 73, Tab 24) 33 There was more, but it is unnecessary to lengthen this already lengthy judgment by documenting further communications up to the date on which the notice of motion was filed on behalf of the University. That was on 6 March. This provoked an escalation in the offensiveness of the continued communications from Mr McGuirk. These communications are exhibited to Ms Bennett's second affidavit. 34 Again, I do not propose to extract from all communications. A sample will suffice. 35 On 15 March, at 8.07pm, Mr McGuirk sent an e-mail to Mr Davis, which he copied to the Chancellor (p 13). He identified the subject matter as proceedings number 20106 of 2008. He gave some quite gratuitous advice concerning the professional relationships between the partners of Sparke Helmore, and their mutual obligations. Inter alia, he said: "It is clearly up to you - as managing partner of Sparke Helmore Lawyers - to decide whether you and the other partners of Sparke Helmore Lawyers (apart from Susan Bennett) wish to have a 'Happy Christmas' in December 2009." 36 He added a postscript as follows: "Best that you not share this e-mail with Bennett or Kirby. Should you do so, you will lay yourself open to a charge of 'interfering with the course of justice' - or perhaps 'perverting that course' (a la Marcus Einfeld)." 37 On the same day (15 March), at 9.21pm, he sent an e-mail to junior and senior counsel, copied to the Chancellor (p 18) purporting to be in relation to proceedings 20106 of 2008. He cast aspersions upon the probity of one of the lawyers involved in the proceedings. 38 Also on 15 March, at 10.28pm, he sent an e-mail to the Chancellor (at two different addresses) and to Professor Hilmer with a copy to Ms Kirby (p 21), purporting to be in relation to proceedings 20106 of 2008. The e-mail reads, in part: "Sorry for the delay. Just done 'Legal Ethics' (wank, wank), Tax (boring), and Jurisprudence (which 'opened my eyes'). … Obama is your Hitler. (But you don't respect your forefathers. See 'Onkel Chatzel'. You 'spit in his grave' - along with the Nazis.)"

There was then a passage in German, an allegation of corruption, and an assertion that he held two University medals. He concluded: "You show me yours - I show you mine. (Not my genitalia - that would be unfair.)" 39 On 16 March, at 12.23am, he sent an e-mail to Mr Davis with a copy to a John McDonnell. (p 16) The subject line contained: "Prostate Cancer - and Susie Bennett." 40 He opened the message with: "I guess the deal is with cancer - you can either 'let it grow' (like Marcus) or you can 'cut it out'. Susie Bennett and her team are a bit like prostate cancer - not yet terminal - but may be 'fucking deadly'." 41 Again, he added a postscript, in the following terms: "I appreciate that you must feel that Faust is a bit unfair in calling in his bargain. On the positive side however you have enjoyed many benefits which - as a result of your conduct - you have denied many 'ordinary folk'. You have used your position and knowledge as managing partner of Sparke Helmore Lawyers - to use an aphorism - to 'fuck over' many persons who otherwise would have been compensated for their losses." 42 He then made further reference to the former Federal Court judge, and to another well-known businessman who had suffered criminal conviction. 43 On 17 March, at 8.40pm, he sent an e-mail to Mr Davis (p 75), identifying the subject as "conduct of Ms Susan Bennett …" He accused Sparke Helmore of playing a key role in 'covering up' the 'outburst of corruption' at the University. 44 On the same day, 17 March, at 10.00pm, he sent a letter by facsimile to junior counsel (p 69), identifying proceedings number 20106 of 2008 as the subject. 45 Among other things, he said: "I would prefer not to have to prosecute [senior counsel] and yourself before a Professional Conduct Committee of the Bar Council - and/or before the Administrative Decisions Tribunal. I will however do so if necessary … I am a student of German history. I know the Hart/Fuller debate only too well - and HLA Hart was a total 'wimp' in this matter. He would have killed Jews. 'Such was the law at that time'." 46 On the same day, at 11.23pm, he sent, by facsimile, a letter to Ms Bennett (p 73). He attacked her, apparently with respect to some material that she had had sent to him by courier, and concluded with: "A 'bill of rights' may assist - but it sounds a bit like an 'ermaechtigings Gesetz' - a proper law according to HLA Hart. ('Kill those Jews!')" 47 On 18 March, at 12.00 midnight, he sent a letter to one of the junior counsel not briefed, copied to senior counsel, again identifying the subject as the conduct of Ms Bennett (p 74). Inter alia, he said: "However - if you are interested in evidence, I have 'buckets' - I have been collecting such evidence (as you know) over the past five and more years. I have enough evidence to 'put down' many 'friends' of yours."

He made a further reference to the deregistered psychiatrist whom he has previously named. 48 On the same date and at the same time, he sent an e-mail to senior counsel (p 78). He identified the subject matter as "Improper Conduct" on the part of two of the legal practitioners (whom he named). He intimated that the e-mail ought not be communicated to the legal practitioners. 49 On the same date, at 12.46am, he sent another e-mail to senior counsel, copied to junior counsel (p 79). The subject matter of this appears to be the competence of senior counsel and his probity. After this, he wrote: "Izzo - I can put him in contact with his 'Eyetie mates'. They still do good stuff. Cops on the 'payola'." 50 Still on 18 March, at 1.46am, Mr McGuirk sent an e-mail to Ms Eagles, naming the subject matter as: "Corruption at Sparke Helmore Lawyers." (p 82)

He began: "I told you that if you 'stuck to the rules' - I would do the same."

This was followed by some vitriolic abuse, and concluded with the following: "I warned you - but, I hoped that you would be a 'person'. Too late. Dead Eagles. (Tote Adler.) I trust that you have no offspring. (They should not share your shame.)" 51 On the same day, at 2.46am, he sent a further e-mail to the Chancellor (p 83). He gave as the subject line: "Not suicide … or at least I hope not … yet - despite the depredations of [certain surnames]."

This e-mail contained some rather obscure (but nonetheless offensive) references, and: "Pay me $600k - otherwise I would work for Ron Walker - he is a mate of mine".

It finished with the following, unmistakeable, threats: "Check your super. Do you have children? Do they know you?"

and: "Let me know whether you would rather be buried in South Africa or Australia. I can do either. (Australia is more expensive - but the transport costs to SA make a big difference. I guess you would prefer to be buried where people care about you. Not sure where that is. Cremation plus ashes in the sea would appear to suit your lifestyle - i.e. 'fuck the world when I am dead'. Socrates and Aristotle would agree - who the fuck are you anyway?)" 52 On Friday, 20 March, at 8.09pm, Mr McGuirk sent a text message to Ms Bennett's mobile phone (p 100). Its contents are relatively innocuous, though a nuisance. One minute later, he sent another text message (p 101). It read: "PS I will need you in X [cross-examination] for approx three hours - McGuirk." 53 At 9.32 he sent another text message to Ms Bennett (p 102). It read: ""Would you believe it? My FS-3900 DN just spat the dummy. Sorry, I am sure John Basten will understand."

This last message appears to be a reference to proceedings listed for mention or directions in the Court of Appeal on 23 March, before Basten JA. 54 On these facts, I have not the slightest doubt that restraint upon the barrage of communication ought, provided the court has jurisdiction, to be imposed upon Mr McGuirk. Sparke Helmore have repeatedly requested Mr McGuirk to desist from communicating with any of the individuals other than the solicitor on the record. Their repeated requests have had no effect. 55 Indeed, in his submissions, Mr McGuirk quite clearly acknowledged that his conduct had been, to put it mildly, unacceptable and inappropriate. But he sought to explain that by claiming to have been under considerable stress (to a point this was supported by a medical report included in the bundle of documents annexed to Ms Bennett's first affidavit), for which he largely placed the blame on the shoulders of Sparke Helmore in their conduct of the litigation. He also pointed out that many of the communications were made late at night. Certainly this is so, especially of the more offensive, and more obscure of them, but quite how that is relevant is not apparent. I will treat this as an argument going to the exercise of discretion, when I come to that. 56 He was prepared to submit to orders of the kind sought, but only if they are mutual. There is no reason to impose restraint upon a party to litigation that has not in any way abused its position or acted in a way that calls for external restraint. 57 Before restraint is imposed, however, a source of power must be identified. 58 In a written outline of submissions filed on behalf of the University, counsel submitted that the power to make such an order derives from the inherent jurisdiction of the court, or, alternatively, from s 23 of the Supreme Court Act 1970. I shall examine each of these in turn.

The inherent jurisdiction of the Court 59 Counsel relied upon the decision of the High Court in Commonwealth Trading Bank v Inglis [1974] HCA 17; 131 CLR 311 as authority for the proposition that the jurisdiction to make an order of the kind sought is derived from the inherent power of the court. In my opinion that reliance was misplaced. 60 Inglis was a case in which the foundation for the application was what was said to have been: "Repeated vexatious applications in pending actions and the conduct of legal proceedings in a vexatious and time-wasting manner." (italics added) 61 Fundamental to the decision was the repeated institution of proceedings or applications. The court drew a distinction between the institution of fresh or new proceedings (which, it held, the court had no inherent power to restrain) and applications made in the course of existing proceedings (restraint of which, it held, does lie within the inherent power). Counsel particularly relied upon a passage in the judgment which reads as follows: "The cases to which we have referred provide authority for the proposition that there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court." (italics added) 62 It is to be observed that it is: " … the bringing of applications in the course of an action"

that is subject to the power. That is not this case. There is no suggestion that Mr McGuirk has brought any application (let alone repeated and vexatious applications) in the course of the proceedings commenced by the filing of the statement of claim numbered 20106 of 2008. 63 The University's written submissions were directed, in this respect, exclusively to the notion of an abuse of process. It was not suggested that, in any other way, the inherent jurisdiction of the court would provide an avenue for the making of the orders sought. 64 I will return to the notion of an abuse of process. It is not necessarily coextensive with, and does not cover the same ground as, the inherent jurisdiction. 65 It is apposite at this point to note an article written by Mr Keith Mason QC (as the former President of the Court of Appeal then was) published in the Australian Law Journal in 1983: "The Inherent Jurisdiction of the Court" (1983) 57 ALJ 449. The Court's inherent powers: " … are recognised and exercised because they are necessary for the administration of justice":

At p 458 the author wrote: "An inherent jurisdiction is a somewhat metaphysical concept. It involves a judicial power of last resort that will be invoked to block certain types of conduct which are not regulated by statutes or rules of court, or indeed expressly permitted by them. Its range of manifestations is a tribute to the readiness of certain judges to create and use powers designed to promote higher standards in relation to the conduct of litigation generally … There seems no reason to doubt that the scope of the inherent jurisdiction will continue to grow to meet new 'abuses' or to attack old ones, such as the delays and expense of litigation, in new ways. Writing in 1970, Master I H Jacob referred to the 'apparently inexhaustible variety of circumstances' in which this jurisdiction might be invoked and described the concept as 'so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits' ['the Inherent Jurisdiction of the Court', in Current Legal Problems 1970 ]. What of the future? The sky may not be the limit, but, if the 'rule' that a defendant is not to be ordered to pay security can be overturned [ Stanley Hill v Kool [1982] 1 NSWLR 460], why not the existing restraints upon judges calling witnesses? [Mr Justice Sheppard, 'Court Witnesses - A Desirable or Undesirable Encroachment on the Advocacy System' (1982) 56 ALJ 234] … If litigants can be restrained from disposing of their assets pendente lite, why cannot the courts develop new types of execution to the enforcement of judgements? … So long as judges are concerned about injustices caused by the delays, expense or technicalities of litigation, no rule relating to the 'administration of justice' will remain sacrosanct or incapable of further refinement."

Abuse of process 66 Closely related (possibly part of) the inherent jurisdiction argument was an argument that the authority to make an order of the kind sought lies in the (undoubted) power of the court to protect its process from abuse: see, for example Wentworth v Graham [2003] NSWCA 307. There is no doubt that the court has that power. But its applicability depends upon the meaning of the term "process". 67 Mr McGuirk referred me to a recent decision of the High Court concerning abuse of (criminal) process: PNJ v The Queen [2009] HCA 6; 183 ALJR 384. The Court, in a joint judgment, accepted that many cases of abuse of process will exhibit at least one of three characteristics, which the Court identified as: "(a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute."

The Court made clear, however, that this was not intended to be an exhaustive catalogue of what constitutes an abuse of process. 68 What is clear is that, common to every circumstance where "abuse of process" is invoked is the utilisation of some facility of the court - the filing of documents, the initiating of action, or the invoking of jurisdiction of the court in some way (whether interlocutory or final) - ie, as the term suggests, the use of the Court's processes or procedures. "Abuse of process" does not, so far as I can see, extend to conduct associated with but collateral to the use of the court's facilities or procedures. 69 Leaving aside the Notice to Admit Facts and Authenticity of Documents, what Mr McGuirk has done here does not in any way invoke the jurisdiction of the court, nor does it involve the utilisation of its facilities, its processes or procedures. What he has done is not an abuse of process. 70 In this application (leaving aside any that it may otherwise take) the University does not contend that the statement of claim filed by Mr McGuirk, or his proposed amended statement of claim, constitute an abuse of process. It is his correspondence that the University claims does so. 71 I am unable to accept that correspondence which is, undoubtedly, provoked by and associated with his claim against the University, but does not in any way invoke the court's processes, can be said to amount to an abuse of process.

S 23 of the Supreme Court Act 72 S 23 of the Supreme Court Act is in the following terms: "The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales." 73 On its face, the section is extraordinarily wide. It seems that the editors of Ritchie: Supreme Court Practice (Butterworths) (now defunct) regarded the section as a statutory formulation of the inherent jurisdiction: see the notes to s 23. 74 That does not appear to have been the view of the former President of the Court of Appeal, in 1983, when writing the article already referred to. 75 Although s 23 of the Supreme Court Act in the present proceedings, was invoked, I was referred to no decision under that section that would give any guidance as to its range. I will return to s 23. 76 Leaving that aside, the submissions related to what they asserted to be the s 23 jurisdiction, counsel cited two decisions of this Court, based upon broadly similar facts. 77 The first was the decision of Young J (as his Honour then was) in Global Custodians Limited v Mesh [2000] NSWSC 845. The second was the decision of Bergin J (as the Chief Judge then was) in Jenolan Caves Resort Pty Ltd v Field [2007] NSWSC 1117. 78 I say the decisions were based upon "broadly similar facts" because each involved unwanted or unsought communication by individuals involved in litigation. In the later case, Bergin J described the communication as "highly inappropriate". In the earlier case, Young J found that the author of the communication was guilty of contempt. (In neither judgment was any detail given about the nature or extent of the communication.) In the later case, although it seems that the proceedings were initially founded upon an allegation that the communications amounted to contempt ([14]), the plaintiff did not press for a formal finding to that effect. Nevertheless, an allegation of contempt was the structural basis for the application. Bergin J found it unnecessary to make such a finding, concluding that other powers enabled her to make orders: " … giving directions with respect to the conduct of proceedings as it considers appropriate …"

She considered that s 61 of the Civil Procedure Act 2005 was one such power. 79 Counsel also referred to ss 57, 58, and 61 of the Civil Procedure Act. 80 Before going to those sections it is convenient to remember the "overriding purpose" of the Civil Procedure Act, as stated in s 56(1). That is: "The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) … (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) … (5) …" 81 It is appropriate to bear this in mind in considering the extent of the various powers conferred by the Act and the rules and the construction of the Act and the rules. 82 S 57 provides: "(1) For the purpose of furthering the overriding purpose referred to in s 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment the object referred to in subsection (1)." 83 S 58 relevantly provides (under the heading "Court to follow dictates of justice): "(1) In deciding: (a) whether to make any order or direction for the management of proceedings, … the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: … (iv) the degree to which the respective parties have fulfilled their duties under s 56(3), … (vii) such other matters as the court considers relevant in the circumstances of the case." 84 S 61 relevantly provides (under the heading "Directions as to practice and procedure generally"): "61(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: … (c) It may give such other directions with respect to the conduct of proceedings as it considers appropriate." 85 During the course of argument I made it plain that I harboured misgivings about the power of the Court to make an order of the kind sought. This prompted an application for leave to make further submissions, in writing, and this leave was granted. I initially directed that any such submissions be served upon Mr McGuirk. However he made it plain that he did not wish to be troubled with any such submissions, and, indeed, he positively wished that they not be served upon him. I mention this at this stage because a supplementary written submission was provided to me within the time specified. However, a large part of the further submission concerned contempt of court. 86 That Mr McGuirk's conduct might have been in contempt was never raised prior to this submission. While I did give leave, and indeed invited, the University to identify any alternative source of power to make the orders sought, I did not give leave, or invite it, to change the basis upon which it was proceeding. In the circumstances, it would be quite unfair to allow that course now to be taken. Those circumstances include Mr McGuirk's expressed wish not to be served with any additional submissions. In my opinion the argument put in relation to contempt is a marked divergence from the course previously taken and one which is not now open to the University. An allegation of contempt is a serious accusation. 87 That leaves the question whether the order may be made either under s 23 of the Supreme Court Act or s 61 of the Civil Procedure Act. The meaning and extent of s 23 is obscure. In my opinion it does not confer power to make the order sought. "Power" is not coextensive with "jurisdiction". In considering whether an order can and ought to be made under s 61, it is necessary to bear in mind the provisions of ss 56, 57 and 58. In the light, especially of s 56, I think that s 61 ought to be given a liberal interpretation. 88 I return to the affidavit and oral evidence given by Ms Bennett. 89 In her affidavit Ms Bennett said: "My client and I are concerned that the above correspondence takes a substantial amount of time to read and respond to, and that this inhibits the just, quick and cheap resolution of the proceedings. Having regard to the fact that Mr McGuirk has persisted in sending correspondence of this nature despite having been asked repeatedly not to do so, I apprehend that, unless restrained, Mr McGuirk is likely to continue sending such communications throughout the course of the proceedings." 90 I was able to observe Ms Bennett in the limited time she was under cross-examination by Mr McGuirk. 91 That the volley of communications has caused stress to her is obvious from her appearance in the witness box. On occasion, while under cross-examination, she was close to tears. 92 When cross-examined about the most recent communications, the texts sent to her mobile phone after 8.00pm on a Friday evening, she said that she feared Mr McGuirk might have followed her from the office. (Mr McGuirk characterised this as an allegation of stalking.) That was, as I perceive it, an indicator of the level of stress to which she had been subjected. I accept that her mobile phone number appeared at the top of an e-mail to Mr McGuirk, and that the probability is that this is where he obtained it. Nevertheless, it is apparent that both the volume and the content of the communications is interfering with the orderly processing of the proceedings initiated by Mr McGuirk. In hindering the legal practitioners in the execution of their duties in the litigation, Mr McGuirk is in breach of his obligations stated in s 56(3). As well, I am satisfied that the sheer volume of the communications (given their substantial irrelevance to the proceedings) amounts to harassment of the various recipients, and causes a financial burden to the University. 93 Many of the communications carry, at their head, a reference to proceedings 20106 of 2008. Some do not. It is, however, quite apparent that all are sent under the guise of having some bearing on those proceedings. 94 Further, although a good number of the communications have been sent to individuals other than the legal practitioners, it may be assumed that it is necessary that they all be forwarded to the legal practitioners for assessment of any relevance they may have to the proceedings. And although many of the communications sent directly to the legal practitioners are of no, or peripheral, relevance to the proceedings, it will be necessary for each to be perused against the possibility that there is, buried therein, some item that is of relevance. The cost to the University is unconscionable. 95 I have come to the conclusion (fortified by the course taken by Bergin J) that, in these unusual circumstances, s 61(2)(c) is sufficiently wide to enable an order of the kind sought by the University. I note that s 61(2) is framed in terms of "directions" given "by order". The orders to be made should incorporate that terminology. 96 I further note that failure to comply with a direction given by order under s 61 may have all or any of the consequences specified in subs (3). 97 Notwithstanding what was said by Mr McGuirk about the circumstances in which he made the communications, there is no discretionary reason not to make the orders sought, and every compelling reason why they ought to be made. The Court's processes ought not to be allowed to be the occasion for extra-curial harassment.

The Notices to Admit Facts and Authenticity of Documents 98 Service of the notices was premature. No defence has been filed, and the matters in issue between the parties have not been defined. The status of the originating process is uncertain. The notices will be put aside. 99 I propose to make orders in accordance with the amended notice of motion. Subject to the observations I have made above, their formulation should be in accordance with the language of s 61.

Orders

1. The Notice to Admit Facts and Authenticity of Documents served by the Plaintiff, dated 20 February 2009, be set aside.
2. The Notice to Admit Facts and Authenticity of Documents served by the Plaintiff, dated 27 February 2009, be set aside.

3. Pursuant to section 61 of the Civil Procedure Act 2005, the Court, by this order, directs the Plaintiff: (i) not to send any written communication (whether by letter, facsimile, e-mail or any other means) concerning the proceedings to any officer or employee of the Defendant including without limitation: (a) the Chancellor of the University; (b) the Vice-Chancellor and President of the University; (c) any member of the University Council; and (d) the University Solicitor and any employee of the University Legal Office

(ii) not to send any written communication (whether by letter, facsimile, e-mail or any other means) to counsel retained in the proceedings to act on behalf of the Defendant (iii) not to send any written communication (whether by letter, facsimile, e-mail or any other means) to the solicitor on the record for the Defendant in the proceedings, or any partner or employee of such solicitor, apart from: (a) documents required to be served on the Defendant or its solicitors; (b) formal letters required to be sent for the purpose of the Plaintiff conducting the proceedings; and (c) formal letters required to be sent for the purpose of the Plaintiff conducting any other proceedings to which he is a party and in which the Defendant's solicitor is solicitor on the record. (d) responding to any offer to settle any proceedings pending in this Court, in the Court of Appeal and in the Administrative Decisions Tribunal between the Plaintiff and the Defendant (iv) not to serve on the Defendant (whether by its solicitors or otherwise) any Notice to Admit Facts or any Notice to Admit the Authenticity of Documents in relation to the proceedings without the prior leave of the Court.

4. The Plaintiff pay the Defendant's costs of the Notice of Motion filed 6 March 2009 (and as amended). **********

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