Harry Day v John Smidmore and others

CORAM: Walton J Vice-President; Boland J; Backman J

Appeal - Unfair contract - Summons for relief under s 106 of Industrial Relations Act 1996 permanently stayed on the grounds the applicant/appellant by his conduct had compromised the prospects for a fair trial - Consideration of the tests to be applied in permanently staying proceeding for abuse of process - Effect of applicant/appellant's conduct on respondents, respondents' legal representatives and respondents witnesses - Notice of contention contending judge at first instance erred in not upholding respondent's motion on other grounds put at first instance - Applicant/appellant's conduct described as disgraceful - Applicant/appellant's conduct not such as to give rise to an unacceptable risk of injustice - Leave to appeal granted - Appeal upheld - Proceedings remitted for trial CATCHWORDS: Practice and Procedure - Appeal - Unfair contract - Summons for relief under s 106 of Industrial Relations Act 1996 permanently stayed on the grounds the applicant/appellant by his conduct had compromised the prospects for a fair trial - Consideration of the tests to be applied in permanently staying proceeding for abuse of process - Effect of applicant/appellant's conduct on respondents, respondent's legal representatives and respondents witnesses - Notice of contention contending judge at first instance erred in not upholding respondent's motion on other grounds put at first instance - Applicant/appellant's conduct described as disgraceful - Applicant/appellant's conduct not such as to give rise to an unacceptable risk of injustice - Leave to appeal granted - Appeal upheld - Proceedings remitted for trial

Crimes Act 1900 LEGISLATION CITED: Industrial Relations Act 1996 Legal Profession Act 1987

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Arrow Nominees Inc and Anor v Blackledge and Ors [2000] 2 BCLC 167 Bhagat v Global Custodians Ltd [2002] NSWCA 160 Box Valley Pty Ltd v Price (2000) 97 IR 484 British American Tobacco Australia Services Limited v Cowell (2002) 7 VR 524 Crewdson v New South Wales Department of Community Services & Anor (2003) 131 IR 217 Day v Smidmore & Ors [2004] NSWIRComm 287 Dun and Bradstreet (Australia) Pty Ltd v Robbie (1999) 91 IR 150 House v The King (1936) 55 CLR 499 Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 Jago v District Court (NSW) (1989) 168 CLR 23 CASES CITED: King v State Bank of New South Wales (2003) 126 IR 443 Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 Melmeth v Monier PGH Holdings Ltd (1997) 90 IR 248 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 Rodney Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 Strathfield Group Ltd v Hall (2002) 121 IR 158 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Walton v Gardiner (1993) 177 CLR 378 Weisser v Spur Group Pty Limited (2003) 121 IR 89 Williams v Spautz (1992) 174 CLR 509

HEARING DATES: 08/08/2005; 08/09/2005; 08/22/2005

APPELLANT Mr J N West, QC with Mr A Joseph of counsel Solicitor: Mr S Walker Steve Walker & Associates

RESPONDENT Mr M J Kimber, SC with Mr T J Dixon of counsel Solicitor: Mr W Beilby Beilby Poulden & Costello

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH CORAM: Walton J, Vice-President Boland J Backman J

Application by Harry Mark Day for leave to appeal and appeal against a decision and order of Justice Marks given on 18 November 2004 in matter no IRC 3177 of 2001

1 In May 2001 Harry Mark Day ("the appellant") filed a summons for relief under s 106 of the Industrial Relations Act 1996. Mr Day, a solicitor of the Supreme Court of New South Wales, claimed that the contract or arrangement between he and John Smidmore ("first respondent"), Christopher Michael ("second respondent") and Adolphi Pty Limited ("third respondent") was unfair. The first and second respondents, also solicitors, practised as partners in the firm Nevill & Edwards. The third respondent was the service company of the first and second respondents and was used to engage staff and attend to administrative matters. 2 In a judgment given on 18 November 2004 Marks J granted the respondents a permanent stay of the s 106 proceedings: Day v Smidmore & Ors [2004] NSWIRComm 287. Mr Day now seeks leave to appeal and, if leave is granted, to appeal the judgment of his Honour. Background 3 On 2 February 2001, the respondents' solicitors, Beilby Poulden Costello, wrote to the appellant's solicitors whom at the time were Harmers Workplace Lawyers indicating that they had been instructed to refer a matter involving the appellant to the Law Society unless they were convinced otherwise. The matter concerned the appellant's contact with Ms "X", an associate of Nevill & Edwards, informing her he intended to call her to give evidence at the hearing of his intended unfair contracts claim. During the course of the conversation with Ms "X" it was alleged the appellant said words to the effect: I can't believe you like Chris [Christopher Michael] and John [John Smidmore] because they are both fuckwits. 4 There followed an exchange of correspondence between the respective solicitors about the appellant's conduct and then on 23 April 2001 the appellant wrote to Mr Smidmore indicating he had "gone to great lengths to date to minimise any embarrassment to your firm" and that he was ready to commence proceedings, which would "be the end of any confidentiality". The appellant invited Mr Smidmore to re-consider his position and indicated he was open to "discuss settlement with you but only until proceedings commence." The letter had attached to it a further letter from Mr T N Small, Barrister, to Mr Day dated 23 April 2001. 5 Mr Small's letter provided information about the time he was employed by Nevill & Edwards as a solicitor. The letter was supportive of Mr Day and disparaging of Mr Michael and some of the firm's practices. Mr Day's letter and the attachment prompted a further complaint from the respondents' solicitors to Mr Day personally, threatening the prospect of a complaint to the Legal Services Commissioner regarding the appellant's unsatisfactory professional conduct. 6 On 10 May 2001, the appellant filed his summons for relief. His solicitors at this time were Baker & McKenzie. In his summons for relief the appellant asserted he had been employed with Nevill & Edwards from June 1995 until 16 October 2000 when the respondents summarily terminated his employment. During his employment with Nevill & Edwards the appellant practised in the area of personal injury litigation, including workers' compensation, medical negligence, public liability and motor vehicle accidents. The appellant asserted he was highly successful in bringing new work to the firm and the firm grew dramatically because of his efforts. 7 With the increased business the appellant claimed his workload increased significantly to the extent that he began working six or seven days a week often working more than 12 hours a day. He alleged that, whilst he received increases in his salary from time to time, the increases did not reflect his contribution to the firm. Further, he alleged that he sought assistance from the respondents to manage his practice but the assistance provided was neither timely nor adequate. Mr Day also asserted that his workload had a significant adverse impact on his health. 8 Mr Day alleged that on or about 1 May 2000 the first and second respondents invited him to be come a partner in the firm. Nothing developed in this respect until 1 September 2000 when the first and second respondents told the appellant they would make him a salaried partner. An issue arose as to whether the appellant had an unrestricted practising certificate. The appellant believed the issue could easily be overcome but the respondents took no further steps to confirm the partnership offer. 9 By October 2000 the appellant said he could no longer cope with the workload and became seriously depressed because of the respondents' failure to ensure a reasonable workload, failure to appoint sufficient legal and secretarial assistance and failure to honour the promise of partnership. 10 On 7 October 2000, the appellant dictated a memo to the respondents that amongst other things complained of his workload, set out the fees he generated for the firm, was critical of the first and second respondents and their capacity to work and manage, and raised again the issue of partnership. The first and second respondents took exception to the tone of the memo and after a heated exchange between the appellant and the first and second respondents on 10 October the appellant left the firm's premises. That afternoon the appellant received a letter indicating his employment had been suspended. 11 On 14 October 2000 the applicant advised the firm that he was ill. On 16 October 2000 Nevill & Edwards terminated the appellant's employment summarily. 12 In his summons for relief the appellant alleged the contract was unfair on some 17 grounds including that: (a) it allowed the Respondents to impose excessive workloads on the Applicant, to the detriment of his health; (b) it allowed the Respondents to fail to honour representations made to the Applicant as to the offer of a partnership; (c) it failed to provide the necessary support to the Applicant; (d) it failed to adequately recognise the Applicant's contribution to Nevill & Edwards in bringing in substantial amounts of work; (e) it allowed the Respondents to fail to grant the Applicant sick leave for an occupationally induced illness at appropriate times; (f) it allowed the Respondents to avoid giving the Applicant a fair and reasonable period of notice that his employment was in jeopardy; … (h) it allowed the Respondents to fail to give the Applicant any or adequate reasons for termination of employment; …. (q) it allowed the Respondents to terminate the Applicant's employment unfairly and without notice or compensation, knowing the impact this would have upon his professional and personal reputation. 13 The appellant sought monetary compensation of $2,430,000 not including statutory entitlements and "Notice of termination of partnership agreement". 14 By their Reply to the summons filed on 9 July 2001, the first and second respondents foreshadowed that personal matters of and concerning the appellant, were to be explored in their defence, including: (a) The appellant's gambling habits; (b) The appellant's plan to gain control of the firm; (c) Alleged misconduct and inappropriate behaviour on the part of the appellant "over several years" pre-dating the partnership discussions in 2000. This included attempts to poach clients from the appellant's former employer, an offensive telephone call to a partner of his previous employer, offensive language towards a female secretary, threatening and abusive conduct towards staff members, involvement in a fist fight with a staff member of his previous employer, sexual advances towards a junior staff member and unauthorised entertainment expenses of $5,000 for one afternoon at "Mens' Gallery". 15 On 19 July 2001, the appellant filed his Response to the respondents' Reply. In it the appellant alleged misconduct and inappropriate behaviour on the part of the first and second respondents.

16 It may be seen that from an early stage the proceedings were degenerating into a personalised, bitter and acrimonious dispute, with much of the allegations in the pleadings having questionable relevance. 17 On 1 November 2001, the appellant emailed Mr Smidmore seeking the addresses for service of a number of the female staff employed or once employed by the respondents. The email further stated: 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 names and addresses of all your treating Doctors, including GPs, Specialists, Counsellors and the like 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. 18 On 6 November 2001, the respondents' solicitors wrote directly to the appellant asking him to desist from communicating directly with their clients and asking that he communicate with them. 19 On 18 February 2002, the appellant again communicated directly with the respondents by email in connection with a workers' compensation claim that he had brought against the respondents. In the email he objected to 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 stated 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. 20 The appellant again communicated by email direct with the respondents on 23 April 2002. The appellant 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, he said, would be made after the current litigation was concluded. The appellant also said, among other things, that he: [L]ong 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. 21 On 23 May 2002, the appellant emailed Ms "X" stating "I am preparing a brief for the Legal Services Commissioner in relation to a number of matters, some of which concern you." The appellant insinuated Ms "X" had engaged in unethical conduct and that a client had attempted suicide because of Ms "X" "failure to file an Affidavit of Service with the Court resulting in a client's case being struck out …" 22 The email concluded by stating: Again, this is something for which I think you are not responsible and your employers will be held to account in due course. I simply worry for you that you did not receive the proper guidance that a young person like you, with your obvious abilities, deserves. You needn't fear anything from the Law Society as I'm sure they will see the above issues in the same light as me and it was really no fault of yours although I doubt the Law Society would be happy with any further repeats of such behaviour. 23 On 6 June 2002, the respondents' solicitors wrote to the appellant's solicitors in relation to the email to Ms "X" and requested that the appellant "cease all attempts to pressure" the respondents' witnesses. 24 On 25 June 2002, the appellant filed an affidavit in the Compensation Court of New South Wales. In his judgment at [11] Marks J referred to the contents of the affidavit in the following terms: 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…"

25 The unsent letter to Ms "Y" expressed the appellant's extreme disappointment with Ms "Y"'s affidavit filed in the Commission in Court Session on behalf of the respondents. The letter appears to have been a response to the affidavit and traversed what could only be described as some bizarre issues. It also threatened to call Ms "Y"'s treating doctors and her psychologist to give evidence in the proceedings as to her mental state and also threatened to reveal sensitive information about Ms "Y" that he only knew courtesy of his former professional relationship with her. 26 On 6 August 2002, the appellant emailed the respondents in which he indicated he would shortly be instructing solicitors "in respect of my previously mentioned complaint to the Legal Services Commissioner regarding each of you." The email also stated: In (sic) it (sic) 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 Nevill & Edwards staff and principles (sic). 27 In an email to Mr Smidmore dated 29 November 2002 the appellant stated: You know, I always knew Chris [Michael] would blatantly lie in his affidavit but I NEVER picked you as one who would lie as well. It is very sad really. Each of you may consider recanting aspects of your evidence before you receive my evidence in reply if you have any intention of saving yourself. 28 In an email to Ms "X" dated 18 March 2004 the appellant, after referring to some personal matters and alleging the respondents' practice was declining, stated: So ………………… 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 are putting your whole professional future in jeopardy for a pair of duplicitious (sic) hypocrits (sic) in Smidmore & Michael. (Believe me, I have a thousand other adjectives for those two). If you want to know what evidence your (sic) going to have to deal with at Court, ask the bullfrog [apparently one of the personal respondents] for a copy of the affidavit I filed in the Compensation Court in August 2003 …… you feature prominently. 29 The 26-page affidavit to which the appellant referred was headed "Reply to Ms "X"'s Affidavit". The first nine and a half pages discusses the personal relationship between Ms "X" and Mr Day after Ms "X" came to work for the respondents; apparently it was at one time a strong friendship according to the appellant but one that the appellant considered had been betrayed by Ms "X" for "monetary reasons". Mr Day referred to an amount of $5,000 he loaned to Ms "X" and his request for re-payment that Ms "X" refused on the grounds that she "accepted the money in the spirit it was given". 30 The remainder of the affidavit dealt with what the appellant described as Ms "X"'s specific allegations against him in the compensation proceedings. Even this part of the affidavit was potted with material of questionable relevance to those proceedings. 31 Ms "X"'s affidavit in the compensation proceedings was not in evidence so it is difficult to know the nature or strength of her personal attack on Mr Day but it is evident from the appellant's affidavit that he was seeking to denigrate Ms "X"'s character and embarrass her. Notice of motion 32 On 6 April 2004 the respondents moved the Court for: a permanent stay of proceedings; an order directing the Industrial Registrar to refer the papers filed in connection with the motion to the Attorney-General so that consideration might be given to whether the appellant should be prosecuted pursuant to sections 319 and/or 322 of the Crimes Act 1900; an order directing the Registrar to refer the papers to the Legal Services Commissioner so that consideration might be given to initiating a complaint against the appellant (for professional misconduct or unsatisfactory professional conduct) or taking such other appropriate action in accordance with s 59D of the Legal Profession Act 1987; and, costs. 33 The grounds in support of the motion asserted that the appellant's conduct was a serious abuse of process. The conduct referred to was: (a) … repeatedly seeking by direct means (namely via direct contact) to threaten and/or expose and/or intimidate both the First and Second Applicant [on the motion] and one of the Applicants' witnesses in the Proceedings, namely,Ms "X"; (b) …seeking by indirect means (namely via contact with the Applicant's solicitors) to intimidate two of the Applicants' witnesses in the Proceedings, namely Ms "X" and Ms "Y"; (c) … seeking to embarrass and/or expose the Applicants' solicitors in the Proceedings (and in particular Mr Beilby and). Evidence in support of motion 34 There were two affidavits filed in support of the respondents' motion, one by Mr Beilby and the other by Ms "X". Attached to Mr Beilby's affidavit was all of the written material we have thus far made reference to as part of the background to the proceedings. Additionally, Mr Beilby deposed: On 17 February 2004, I attended the hearing of a Notice of Motion in these proceedings before Justice Marks concerning the production of documents. Ms Inoka Ho of BPC [Beilby Poulden Costello] also attended. Ms Kate Eastman of Counsel appeared on behalf of Day, who was present during the hearing. After the hearing concluded Ms Ho and I walked out of the Industrial Relations Commission building into Phillip St. Day was standing in front of the entrance to the building with Ms Eastman and Mr Michael Nightingale from Bakers [Baker & McKenzie]. As Ms Ho and I walked past Day, he said to me loudly words to the following effect, "Barry, make sure you get some counselling for Ms "X"'s cocaine habit." To the best of my recollection, Ms Eastman then said, "Harry" in what I perceived to be a restraining tone of voice. Ms Ho and I then walked away from Day. 35 Ms "X"'s affidavit was filed on 21 April 2004. Ms "X" deposed, inter alia: … 4 I worked with Harry Day ("Harry") from the time I commenced employment with N& E [Nevill & Edwards] until the time that Harry left the firm in or about 10 October 2000. … 6 Receiving communications from Harry or seeing him upsets me greatly. I was extremely upset after receiving an email from Harry on 23 May 2002 …I was teary and upset for some weeks about the May 2002 email. I was most upset at the suggestion in that email that I had acted improperly in any way and that I was being referred to the Legal Services Commissioner. I was upset to the point that I was considering leaving the legal profession. 7 In August 2003, Mr Christopher Michael ("Chris") one of the partners at N & E …showed me an affidavit of Harry's filed in the Compensation Court … in or about that time. Part of Annexure C to Harry's Compensation Court Affidavit, which is purported to be a response to my Affidavit of 3 July 2002 in the Proceedings [i.e., s 106 proceedings] upset me greatly. That part of Harry's Compensation Court Affidavit dealing with me is referred to in Annexure "CC" in the Beilby Affidavit. I saw that response as an extremely vicious and personal attack, which also contained a lot of fabrication. I contemplated an Apprehended Violence Order against Harry at that stage but did not take any steps to obtain one. 8 On 18 March 2004, I received a further email from Harry … and it made me cry when I read it … I felt intimidated and frustrated and so I printed it off and showed it to Chris as well as John Smidmore ("John") … in the hope that something could be done to stop Harry from contacting me further. 9 Soon thereafter, I requested Chris and John reinstall the security lock on our office floor so that no one can gain access to our floor without an access key so as to minimise the prospect of Harry gaining access to my work premises. 10 There is nothing in my affidavit of 3 July 2002 that I wish to recant. I am 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 with Harry while I am giving evidence will upset me. 11 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. 12 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 action that may aggravate Harry's negative feelings towards me. 36 At first instance neither Mr Beilby nor Ms "X" was cross-examined on their affidavits. The applicant chose not 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. Dr Shand was provided with a copy of the material that was tendered into evidence on behalf of the respondents and carried out an assessment of Mr Day on 2 June 2004. The questions to which Dr Shand was asked to provide answers were: a. The causes of the behaviour engaged in by Mr Day in particular in correspondence which is exhibited as annexures to the affidavit of Barry Beilby …and annexures to the affidavit of Ms "X"… b. Diagnosis of Mr Day's condition if any and likely effects of the same. c. A treatment plan and likely outcome if followed. 37 In a 20-page report Dr Shand: (a) Answered the second question asked as follows: Psychiatric diagnosis of best fit is 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. (b) Explained the applicant's behaviour by reference to this diagnosis. For instance: To my questioning he said that as a solicitor he knew the appropriate rules for behaviour during matters of litigation, over his long years of experience, but, because he has become the target in this case he has concluded that he is justified in doing to his opponents what they did to him. In other words, his intense emotions have overwhelmed his logic and knowledge of legal procedures because of the way that his opponents and their witnesses are trying to expose him in an extremely unpleasant and unacceptable fashion. In other words, he has found it intolerable personally to be depicted as the kind of person which (is) (sic) the very opposite to how he desperately needs to see himself in the eyes of others, especially in a public area such as a court. He said, casting discretion to the winds "if they can do it to me I'll do it to them". To further questions and discussion he admitted that he can recognise when not so affected by his emotions, that he can only harm himself personally and with respect to the current litigation by doing that. And The same disorder of personality and emotions have been responsible for his flouting of the proper communications between the two legal teams on either side. (c) Stated in relation to the third question: From my consultation on 2/6/04 it would appear that Mr Day does have some degree of insight into his personality disorder, presumably as a result of counselling from Nina Moss. That does not necessarily guarantee behaviour change. However, he tells me that his symptoms of both anxiety and depression have settled down and he is no longer so dependent upon positive emotional responses from others to feed he self-esteem … … He is still under stress from the current litigation and particularly about the very large legal costs if litigation fails and he is unable to sue Nevill & Edwards for compensation. He is still taking an anti-depressant drug. He tells me he has made arrangements to join a legal practice in Brisbane with good conditions. I think he should have access to an appropriate psychotherapist/psychiatrist in Brisbane in case of relapse. 38 The applicant was examined by Dr Peter J Morse, a consultant psychiatrist on behalf of the respondents on 22 June 2004. Dr Morse had previously seen Mr Day on 31 October 2001 and 14 April 2003. In his 15-page report Dr Morse stated: I asked Mr Day whether or not he regarded the material he sent to various people which is contained in the affidavit referred to. He said he had. I asked further what he thought of the material in the terms of whether or not he thought it was malicious, unduly disparaging, defamatory and likely to cause offence to the person or persons about whom it was addressed. Mr Day said that yes it was probably upsetting to the people about which it was concerned but it was "truthful" and that he thought that it needed to be said.

I asked whether or not he regarded it as professional and within the bounds of the ethics of legal practice. He said he thought it was.

I asked did he regret what was written and/or the manner in which it was written, the wording and the various pejorative remarks made about various individuals and groups of people.

In reply to this question Mr Day was somewhat hesitant in that he said he does not regret some of the material and way (sic) he put it. He recognises that it could have caused hurt and distress and may not have been in his best interest. However, he went on to say that the way he was treated by the partners in the firm and by victimising and "abandoning him" justified a strong response. 39 Dr Morse referred to Dr Shand's report. He stated in this respect: I canvassed in my previous report the possibility of making a diagnosis of Personality Disorder. Dr Shand has had a longer association with Mr Day and his opinion must be respected. I really cannot agree or disagree regarding this diagnosis as I have outlined in my previous reports it is not valid to make a diagnosis of Personality Disorder without prolonged contact and with the aid of other materials and opinions. Certainly as outlined above as an explanation though not an excuse for Mr Day's comments and behaviour some of which have been referred to above Personality Disorder would be the most likely explanation. 40 Under the heading "OPINION" Dr Morse stated: My opinion regarding Mr Harry Day's past psychiatric state is the same as outlined in my previous report. He says he has been well no with no significant depressive symptoms for a prolonged period. He hasn't had panic attacks for some months. It is noted that he continues on his Zoloft, an antidepressant, but not other treatment. He currently does not present as suffering from any significant emotional disorder. … Even accepting the diagnosis of Personality Disorder Borderline type cannot explain or excuse his behaviour or writings … Certainly part of any severe personality disorder, particularly in Borderline, is a lack of appreciation of other people's feelings and the effect of one's own behaviour however in Mr Day's case there is no indication that he was not aware of what he was doing and that the very reason he made the damaging personal comments about other people was to discredit them because of his perception of the impact of their statements and affidavits in his case i.e. he was aware of the deliberate manner in which he carried this out and a diagnosis of Personality Disorder is no explanation or excuse for this behaviour. Decision at first instance

41 After canvassing the evidence in the proceedings Marks J noted at [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." Further, his Honour observed at [20] that it was difficult to find any other proceedings which were sufficiently similar in terms of the factual matrix to be of assistance in the application of the relevant principles to the particular facts. Marks J referred to an example where a permanent stay is often granted is: [W]here 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]).

42 In relation to the medical evidence, Marks J considered it was to the effect that the appellant had insight into what he was doing and the impact of his conduct on others. His Honour found there was no suggestion in the medical evidence that the appellant was suffering from any condition which affected his ability to control his behaviour. 43 After referring to Williams v Spautz (1991-1992) 174 CLR 509 and Jago v District Court (NSW) (1989) 168 CLR 23, Marks J stated at [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. 44 At [28] his Honour drew a comparison between the circumstances of the matter before him and contempt of court. In this regard his Honour stated: 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. 45 In the context of his consideration of the approach taken by the courts to contempt, Marks J also referred to Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 which, in turn, referred to Bhagat v Global Custodians Ltd [2002] NSWCA 160. 46 The approach taken by his Honour to the respondents' motion was described at [29] where he stated, "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." And at [32] Marks J said: 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 . 47 Marks J undertook a review of the evidence and at [34]-[35] found: 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. 48 His Honour then turned to a consideration of the impact of the applicant's conduct on Ms "X". After referring to her untested evidence, Marks J opined at [37]-[38]: In my opinion the uncontradicted evidence of this female employee, a solicitor, is indicative of her real concerns about giving evidence against 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. 49 Marks J concluded that the appellant's conduct was such that the proceedings may be characterised as an abuse of process and that there were no means readily available to cure this: [38]. 50 At [40] his Honour stated: 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 (sic) 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. 51 Marks J ordered that the proceedings be permanently stayed. He also ordered the appellant to pay the respondents' costs of the proceedings and directed the Industrial Registrar to forward a copy of the judgment to the Legal Services Commissioner. Leave to appeal

52 An appeal to the Full Bench of the Commission under Pt 7 of the Act must be by way of leave: s 188(1) of the Act. The Full Bench is to grant leave where it is of the opinion that the matter is of such importance that, in the public interest, leave should be granted: s 188(2). 53 Leave will not be lightly or automatically granted: Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 at 265; Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 at 381. Leave is rarely granted where an appeal seeks, by and large, to challenge findings of fact which are otherwise open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; King v State Bank of New South Wales (2003) 126 IR 443 at [54] and Weisser v Spur Group Pty Limited (2003) 121 IR 89 at [33]. In appeal proceedings, the Full Bench is not engaged in a rehearing of the proceedings at first instance, but is focused upon the correction of error: Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420; Strathfield Group Ltd v Hall [2002] NSWIRComm 373 (20 December 2002) at [45].

54 Factors that have been held to be relevant to the grant of leave include: (a) Whether the appellant brings a substantially different case on appeal. If so, it may be the basis for the refusal on an application for leave: Knowles at 381; (b) Whether or not an appeal raises substantial and important considerations. This concept embraces issues of principle or law and also whether or a matter has wider implications for the jurisdiction of the Commission including whether the decision has widespread practical application: Knowles at 382. 55 The appellant submitted leave ought be granted in this case on the following grounds: (a) Whilst applications for a permanent stay of proceedings are not entirely novel to the Commission in Court Session, this appeal raised matters of public importance as to the proper principles to be applied upon such applications. (b) It was a fundamental principle that a plaintiff is, prima facie, entitled to have his case heard and that any application to deprive him, her or it of that right should only succeed in a clear case: Melmeth v Monier PGH Holdings Ltd (1997) 90 IR 248 at 252-253 per Hungerford J. This must particularly be the case where the stay is granted by reference to the behaviour of the litigant rather than the lack of merit of the substantive application. (c) The deprivation of an applicant of their right to proceed is such a fundamental one that such power should only be exercised in exceptional cases and where no other cure for the alleged defect is available: Jago v District Court (NSW) (1989) 168 CLR 23 at 74-77 per Gaudron J. (d) A decision permanently to stay proceedings could only be made in an exceptional case. This was not such an occasion. In these proceedings the complaint of the respondents was not about the effect of Day's conduct but about the conduct itself. (e) It was conceded that the respondents had not suffered insurmountable prejudice and that the litigation could continue. This concession was not referred to by his Honour. (f) Marks J erred in a number of respects and the Full Bench ought correct such errors on appeal. (g) Day's case on appeal was substantially the same as at first instance. At first instance Day contended that: (i) Whilst his behaviour had been reprehensible, it had not affected the prospects of a fair trial; (ii) The evidence filed by the respondents on their motion did not justify the ultimate sanction being granted against Day; (iii) In any case, Day was prepared to consent to regulatory orders of the Court (and in fact offered undertakings to the same effect) to deal with any concern raised by his opponent's; (iv) An order granting a permanent stay may only be made in the most exceptional cases. This was not such a case. Day's cause of action was not alleged to suffer from any difficulty which might warrant the grant of such an extraordinary order. Day's position was the same on appeal. 56 The respondents strongly resisted leave being granted. The respondents submitted, inter alia: (a) In this case, the error(s) alleged do not involve one of principle, but rather of discretion; it was a discretionary matter for his Honour to decide whether there was an abuse of process in the proceedings before him based on the appellant's conduct and whether the observance of the proper administration of justice required the proceedings to be stayed. (b) The discretion to stay proceedings is a broad one and "involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression": per Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247-248; applied in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. (c) His Honour's findings (at paragraphs [37] to [40] of his Reasons for Decision) were reasonably open on the evidence and, in making them His Honour was entitled to be, fortified by the fact that the appellant did not:- (i) challenge through cross-examination or otherwise the accuracy any of the allegations made against him; (ii) challenge through cross-examination of Ms "X" any of her expressed fears and concerns about the appellant and about giving evidence against him; (iii) give any evidence in his own defence of the respondents' motion, whether by way of justification, explanation, apology or otherwise. (d) Whilst his Honour reached his decision, seemingly based only on the appellant's reprehensible conduct towards Ms "X" (erroneously in the Respondent's view hence the Notice of Contention), the undisputed conduct of the appellant (as a senior solicitor of the Supreme Court of New South Wales) included the following: (i) Repeatedly sought to correspond directly with the respondents themselves in spite of requests and demands that he not do so, with such correspondence indicating the appellant's intention to "expose" the respondents as "weak, lying cowards" and demanding that the respondent, Mr Smidmore, produce the medical records of his psychiatric consultations; (ii) Having failed to convince a former client of his, namely Ms "Y", to swear an affidavit on his behalf in the section 106 proceedings (to confirm that he had not behaved improperly towards her at any time), and then learning that Ms "Y" had put on an affidavit for the respondents, the appellant then drafted a letter addressed to Ms "Y", but sent to the solicitor for the respondents (rather than to Ms "Y" directly) wherein he indicated that he would now need to subpoena her medical records to reveal that she was unstable and irrational at the time that he dealt with her (pre his termination by the respondents). That is, that he would reveal details of the sexual assault that had caused her psychiatric problems (information that he only obtained as a consequence of being Ms "Y" solicitor); (iii) Having failed in his attempt to get Ms "X" (his former assistant solicitor whilst working for the respondents) to swear an affidavit on his behalf in the section 106 proceedings, the appellant "turned on" Ms "X" both before and, even more so, after he learnt that she had sworn an affidavit for the respondents that was highly critical of him. That is, the appellant engaged in a concerted campaign of harassment and intimidation of Ms "X", unless she decided to "recant" some of her evidence against him; (iv) Indicated to the solicitor for the respondents (Mr Beilby), that he intended to expose the "full details" of his (the appellant's) relationship with a person who had no involvement whatsoever with the case; and (v) In workers' compensation proceedings that he commenced against the respondents (and in which he was representing himself), being a closed period stress claim said to have arisen by the respondents' suspension of the appellant whilst the respondents were deciding whether his services should be terminated, the appellant filed a scandalous affidavit making scurrilous and "irrelevant" allegations against the respondents and a number of employees of the respondents (including Ms "X"), and in circumstances where the appellant knew that such material would, undoubtedly be read by the respondents' workers' compensation insurer (EMI) that the appellant knew was one of the respondents' cornerstone clients. (d) His Honour was well entitled on the unchallenged evidence to conclude that the Applicant's "prima face" right to have his case heard should be lost because it was a clear/exceptional case of abuse of process. (e) It was more than reasonably open for His Honour to conclude that the belated undertaking proffered by the appellant, to, inter alia, remain outside the court while Ms "X" gave her evidence was not an effective "cure" for the damage already done to the trial process by the appellant's threatening and intimidating behaviour towards Ms "X". (f) It is contrary to the public interest to grant leave to appeal to an appellant who elected to give no evidence whatsoever by way of justification or explanation or apology with respect to exceptionally reprehensible conduct. (g) There was no basis for contending that his Honour did anything other than conduct a "careful assessment of the evidence" and give "proper consideration of the other alternatives that were open to the court". Furthermore, insofar as the appellant now seeks to complain, on appeal, that the respondents had not made an earlier complaint to the court about the appellant's behaviour, the respondents contend that this is a new point that was not taken by the appellant at first instance (and so is not a point that supports the application for leave to appeal). (h) The respondents complained at first instance not only about the "conduct itself" but also about the effect of the appellant's conduct. Furthermore, insofar as his Honour found that there was "no substantial effect on the ability of all of the respondents or the legal representatives to meet the proceedings" the respondents submit that his Honour misunderstood the respondents' contentions with respect to the appellant's behaviour vis a vis the respondents and their legal representatives (hence the respondents' Notice of Contention on appeal). The respondents contended below (and again on this appeal) that the appellant's conduct towards the respondents and their legal representatives provided a separate and further foundation for his Honour's conclusion that a permanent stay was appropriate in all the circumstances.

(i) As to the appellant's contention that the respondents had not suffered insurmountable prejudice and that the litigation could continue, this is a new point sought to be advanced on appeal for the first time (and so is not a point that supports the application for leave to appeal) and in any event misrepresents the nature and effect of the "concession" that was made. (j) That the other errors that the appellant asserted were made by Marks J were not errors at all. (k) Although the factual circumstances were unusual, there was no error in the application of relevant principle and no demonstrable case of error in his Honour's exercise of discretion such as to warrant the granting of leave to appeal: Dun and Bradstreet (Australia) Pty Ltd v Robbie (1999) 91 IR 150 at 151; Strathfield Group Ltd v Hall [2002] NSWIRComm 373 (20 December 2002). 57 A decision to permanently stay proceedings based on, inter alia, an abuse of process is an interlocutory decision: Rodney Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 at [33]. Interlocutory appeals are generally to be discouraged: Strathfield Group Ltd v Hall [2002] NSWIRComm 373 at [36]. However, as the appellant submitted, it is recognised that an exercise of discretion which determines substantive rights to bring an application will generally be viewed differently: Crewdson v New South Wales Department of Community Services & Anor [2003] NSWIRComm 417 at [17]-[19]. 58 At first instance Marks J, after considering questions of legal principle and the evidence in the proceedings, exercised his discretion to grant the respondents the relief they sought, at least in part. We have some reservations about his Honour's resort to drawing analogies with the law relating to contempt and his reliance on Bhagat v Global Custodians Ltd [2002] NSWCA 160. At [32] his Honour stated: 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 . 59 Further, at [37] his Honour found that "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." 60 In granting a permanent stay of proceedings on the basis of an abuse of process, Marks J appears to have adopted the objective test applied by Spigelman CJ in Bhagat, which was a contempt case. We are not convinced this is the correct approach for granting a permanent stay in the circumstances before us, which are not contempt proceedings. However, there must be some doubt whether his Honour did, in fact, apply an objective test given he relied upon the "subjective concerns" of Ms "X" as the basis for reaching a conclusion that a fair trial had been compromised. In any event, regardless of whether Marks J adopted an objective test or a subjective one, or a combination of both, we do not consider Ms "X"'s evidence supported the pivotal conclusion arrived at by his Honour that the appellant's communications "seriously impacted upon the ability of this female witness to give her evidence freely and without fear of retribution." 61 We are conscious, of course, of the injunction in House v The King (1936) 55 CLR 499 that "It is not enough that the judges composing the appellant court consider that, if they had been in the position of the primary judge, they would have taken a different course" and that there must appear that some error was made in the exercise of the judge's discretion either, for instance, by the application of the wrong legal principle or because the judge mistook the facts. In the present case, we consider Marks J mistook the facts. The error committed was such as to deprive the applicant of his right to bring proceedings under s 106 of the Act. However, we ultimately consider that leave should be granted in this matter as the appeal raises significant issues of principle as to the grant of applications to permanently stay proceedings, particularly in the light of the contentions of the respondent as to the width of the applicable tests. 62 Given the consequences for the appellant if leave were not granted, in light of the error at first instance it is appropriate that we grant leave to appeal.

63 We should make the observation at the outset of our consideration of this appeal that we regard the appellant's conduct in seeking to threaten, embarrass, influence and intimidate the respondents, the respondents' solicitors and witnesses for the respondents, as utterly reprehensible and scandalous behaviour by an officer of the Court. 64 In making that observation we have had regard to the reports of Dr Shand and Dr Morse. Dr Shand considered that the appellant was suffering from Personality Disorder of Borderline type. That condition may well have contributed to the appellant's behaviour as Dr Shand seems to believe but we have reservations about whether all of the appellant's conduct can be put down to his psychiatric condition. As senior counsel for the respondents submitted, the appellant did not assert, let alone establish by his own evidence, that he was 'overwhelmed by emotions' on all or any of the occasions when he misconducted himself vis a vis Ms "X" and others. We note also that it does not appear that Dr Shand commented on or analysed the extract from the affidavit filed by the appellant in the Compensation Court, where he sought to denigrate Ms "X" and offered no opinion as to what might have motivated the appellant in that regard or whether what he did was a consequence of his psychiatric condition. 65 Dr Morse indicated his respect for Dr Shand's diagnosis because he had treated Mr Day over a longer period, apparently. But as we noted from Dr Morse's report earlier, he considered that even accepting the diagnosis of Personality Disorder Borderline type, that could not explain or excuse the appellant's behaviour and writings. Dr Morse opined that diagnosis of personality disorder "is in no way equal to a state which leads to a suspension of proper judgment of the reality of the situation". 66 Further, there was no apology, explanation, remorse or contrition exhibited on the part of the appellant. Indeed, in his interview with Dr Morse on 22 June 2004 it is apparent that Mr Day felt he was justified in his "strong response" to the respondents and whilst what he said may have been hurtful, he considered it was truthful and "needed to be said". Mr Day expressed these views at a time when Dr Morse considered his mental state was normal. 67 We intend, as did Marks J at first instance, to direct the Industrial Registrar to refer the papers of the appeal to the Legal Services Commissioner.

68 This case, however, is not about the punishment of the appellant for his conduct; these are not contempt proceedings, although nothing we have said in this judgment should be taken as precluding a charge of contempt being brought or initiated. This case is about whether or not Marks J was correct in permanently staying the proceedings on the grounds of an abuse of process in that "a fair trial of these proceedings has been compromised by the conduct of the [appellant]" and whether his Honour erred, as contended for in the respondents' notice of contention, in not finding the appellant's conduct was so oppressive, improper and a misuse of the forensic process as to warrant a conclusion that he had perpetrated such injustice or unfairness that he should be denied a hearing of the merits of his claim. 69 As the respondents submitted, the Court's jurisdiction and power to permanently stay proceedings for abuse of process was not raised as an issue in the appeal. Accordingly, it was submitted, in considering whether his Honour fell into error in his determination at first instance, the Full Bench should have regard to the following accepted principles, namely: (a) The jurisdiction "to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness": Walton v Gardiner (1992-1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392-393. (b) In Walton v Gardiner (1992-1993) 177 CLR 378 the majority of the High Court stated that the grounds upon which a permanent stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the Court affording the affected party a fair hearing. The power may be exercised if the Court is satisfied that the continuation of proceedings would involve an unacceptable risk of injustice. The question whether proceedings should be permanently stayed for abuse of process is to be determined by a weighing process involving a balancing of a variety of considerations (at 395-396). (c) Similarly, in Rogers v The Queen (1994) 181 CLR 251, McHugh J stated (at [16]) in general terms that "abuses of procedure usually fall into one of three categories: (i) the court's procedures are invoked for an illegitimate purpose; (ii) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (iii) the use of the court's procedures would bring the administration of justice into disrepute." (d) The interference with a witness has the potential to seriously undermine the administration of justice. In addition to affecting extant proceedings, such conduct has the pervasive effect of tending to interfere with the administration of justice as a continuing process: Gribbin v Fingleton [2002] QSC 390 (27 November 2002) per Mackenzie J at [46] and cases cited therein. (e) The power to grant a permanent stay of proceedings is a discretionary power…the expression 'discretionary power' generally signifies the power exercisable by reference to considerations no one of which an no combination of which is necessarily determinative of the result. In other words, it is a power which involves a considerable latitude of individual choice of a conclusion … notwithstanding this latitude, a discretionary power is necessarily confined by general principle. It is also confined by the matters that may be taken into account and by the matters, if any, which must be taken into account in its exercise: see Jago v District Court (NSW) (1989) 168 CLR 23 at 75-76. (f) The nature of the power to grant appeal in a stay of proceedings itself reveals and important principle which confines its exercise. The power is in essence a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima face right in the person invoking that jurisdiction to have it exercised … thus, the power is one that is readily seen as exercisable, whether in civil or criminal proceedings, only in exceptional cases or "sparingly and with the utmost caution": Jago at 76. (g) The limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied and the purpose directs attention to legal propriety of the process or proceeding as distinct from any broad consideration of the general merits of the case: Jago at 77. 70 It was further submitted by Mr Kimber SC for the respondents: The test on an application for a permanent stay of proceedings based on an abuse of process is not that there must be some actual 'insurmountable prejudice' …which prevents litigation from proceeding. The question of whether the conduct complained of undermined the prospect of a fair trial remained in issue … The court has an inherent power, inter alia , to prevent misuse of its process where, for example, such misuse would be manifestly unfair to the other party or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v Chief Constable of West Midlands Police [1982] AC 529 per Diplock LJ at p 536C-D. The proper test to be applied in these circumstances when considering the Court's exercise of its implied power to prevent an abuse of process, is whether there is conduct which: (i) "is such that any judgment in favour of the litigant would have to be regarded as unsafe"; or (ii) would "render any further proceedings unsatisfactory and prevent the Court from doing justice". See also Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 per Chadwick LJ at [54] and see at [58] (English Court of Appeal); as cited with approval in British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197 (6 December 2002) [150] - [152] and [158]-[160]. 71 It may be accepted that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined or closed categories, but may be exercised as and when the administration of justice demands": Jago per Gaudron J at (1989) 168 CLR 23 at 58; Walton v Gardiner [1992-1993] 177 CLR 378 at 394. Mr West QC, for the appellant, submitted, however, in relation to the principles relied upon by the respondents: Certainly one cannot get from Jago or Walton the notion that "bad behaviour" on the part of a litigant will or should result in the termination of his proceedings otherwise implemented in conformity with the rules of court and not suffering from any of the well known and accepted conditions which would brand the proceedings as vexatious or oppressive. This is not to say that bad behaviour, and repeated bad behaviour, will go unpunished or unrestrained. But it is a colossal step in legal principle to conclude that headstrong, even threatening or intimidating behaviour in a litigant towards an opposing witness will or shall result in the first order of the court being to terminate the party's proceedings and deny a trial on the merits. Were such conduct to underpin charges of contempt, the Court would proceed to examine the matter on the criminal standard of proof and if guilt is proven, impose an appropriate penalty. But that did not happen here. 72 Moreover, Mr West contended, the power to grant a permanent stay (in essence, a power to refuse to exercise jurisdiction) was exercisable only in exceptional cases or sparingly and with the utmost caution. As Gaudron J held in Jago at 76-77, the exercise of the power: [N]ecessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding as distinct from any broad combination of the general merits of the case. 73 We agree with the inference in Mr West's submission that the current state of Australian law as stated in Jago does not hold that "headstrong, even threatening or intimidating behaviour in a litigant towards an opposing witness will or shall result in the first order of the court being to terminate the party's proceedings and deny a trial on the merits." Mr Kimber, however, relied on Arrow Nominees Inc and Anor v Blackledge and Ors [2000] 2 BCLC 167 as cited with approval in British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197 (6 December 2002) to contend that the conduct of a party to proceedings per se may establish the necessary basis for the grant of a permanent stay, even if a fair trial may be otherwise possible. 74 In Arrow Nominees it was held that fraudulent conduct had made a fair trial impossible. However, at [54] Chadwick LJ stated: 54. It would be open to this Court to allow the appeal against the judge's refusal to strike out the petition on that ground alone. But, for my part, I would allow that appeal on a second, and additional, ground. I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But 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. 75 Ward LJ agreed with Chadwick LJ but he added there was an error on the part of the trial judge because he did not give sufficient weight to the Civil Procedure Rules which provided "The court may strike out a statement of case if it appears to the court ... (c) that there has been a failure to comply with a rule, practice direction or court order" and that the trial judge did not give sufficient weight to the "overriding objective" provided by the Rules for enabling the courts to deal with cases justly. Roch LJ agreed with the judgments of Chadwick and Ward LLJ. 76 It does not seem to us that Arrow Nominees provides support for the proposition that threatening or intimidating behaviour by an applicant towards the respondent or respondent's witness will necessarily result in an order of the court terminating the party's proceedings and denying a trial on the merits if the prospect of a fair trial remains open. Arrow Nominees, in our opinion, is not inconsistent with current Australian law nor does it add another dimension unknown in Australian law. If the fairness of the trial is placed in jeopardy, or if to proceed to trial would give rise to a substantial risk of injustice or unfairness, or if an abuse of the process of the court rendered further proceedings unsatisfactory and prevented the court from doing justice, then consistent with Walton v Gardiner and Jago if the defect attending the proceedings cannot be eliminated or remedied, it would be open to the court to permanently stay the proceedings because the continuation of proceedings would involve an unacceptable risk of injustice or unfairness. 77 The respondents also placed reliance on Williams v Spautz (1991-1992) 174 CLR 509, contending that by his conduct the appellant had undermined the prospect of a fair trial even though such a conclusion was not a necessary prerequisite for a permanent stay of proceedings. But that authority must be seen in the context in which it was considered. What was said by the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) at 519 was: If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought. If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. 78 Spautz was concerned with improper purpose. That is, Dr Spautz had instituted criminal proceedings against a number of university officers for the purpose of exerting pressure to have himself reinstated in his employment as a lecturer. The High Court (Mason CJ, Dawson, Toohey and McHugh JJ) held that a stay may be granted where, even if the trial is fair, the proceedings had been brought for an improper purpose and hence were an abuse of process. 79 In the present case, it is readily apparent that the appellant was seeking, amongst other things (including the embarrassment of some individuals in a tit for tat exchange), to bring pressure on the respondents to settle his claim without the matter going to trial. There was no suggestion that the unfair contract proceedings were brought merely to extract money from the respondents with no intention to proceed to trial; to that extent the appellant's conduct was not an abuse of the Court's process. 80 Whilst the appellant's methods were quite disgraceful and may have provided or may provide the basis for various individuals initiating criminal and/or civil proceedings against the appellant, the main question we have to ask ourselves in this appeal is whether the appellant's conduct was such as to jeopardise the prospects of a fair trial of the unfair contract proceedings. 81 Our consideration, though, of the judgment at first instance is not confined to whether a fair trial was possible. We consider there is substance in the respondents' contentions that the grounds upon which a permanent stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the Court affording the affected party a fair hearing. The power may be exercised if the Court is satisfied that the continuation of proceedings would involve an unacceptable risk of injustice or unfairness: Walton v Gardiner.

82 That brings us to a consideration of the reasons underpinning the decision of Marks J to grant a permanent stay. His Honour did not grant the stay other than for reasons related to the evidence of Ms "X". In this respect, his Honour found at [37]-[38]: In my opinion the uncontradicted evidence of this female employee, a solicitor, is indicative of her real concerns about giving evidence against 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. ... 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. 83 In respect of the respondents and the respondents' legal representatives Marks J found at [34]-[35] that there was no basis to consider a fair trial was in jeopardy: 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. 84 The only evidence of Ms "X" before his Honour was her affidavit sworn on 7 April 2004 and filed on 21 April 2004. Ms "X" was not cross-examined on her affidavit. At paragraph 6 of her affidavit Ms "X" deposed: Receiving communications from Harry or seeing him upsets me greatly. I was extremely upset after receiving an email from Harry on 23 May 2002 …I was teary and upset for some weeks about the May 2002 email. I was most upset at the suggestion in that email that I had acted improperly in any way and that I was being referred to the Legal Services Commissioner. I was upset to the point that I was considering leaving the legal profession. 85 It is to be noted that the communication referred to by Ms "X" was sent to her some two years prior to swearing her affidavit in support of the respondents' motion for a permanent stay. In a later email on 23 May 2002 the appellant indicated he was "preparing a brief for the Legal Services Commissioner in relation to a number of matters, some of which concern you". 86 The email would undoubtedly have been upsetting and whilst there was an undercurrent of nastiness about the communication, it contained no threat by the appellant. The appellant indicated in the email he did not consider there was anything Ms "X" had to fear from the Law Society and that the matters referred to were no fault of hers, putting it down to her inexperience. The email provides no basis for concluding that as a consequence of receiving it Ms "X" was in any way intimidated about the giving of evidence in the substantive proceedings because she swore an affidavit in those proceedings on 3 July 2002. There was no evidence that in doing so she expressed any reservations about giving evidence. 87 In August 2003 Ms "X" was shown by Mr Michael that part of the appellant's affidavit filed in the Compensation Court that month which Ms "X" described as purporting to be a response to her affidavit of 3 July 2002 in the unfair contract proceedings. The affidavit, as we earlier described, was disparaging of Ms "X". Ms "X" said the affidavit upset her greatly and that: I saw that response as an extremely vicious and personal attack, which also contained a lot of fabrication. I contemplated an Apprehended Violence Order against Harry at that stage but did not take any steps to obtain one. 88 Ms "X" did not say in her evidence, and there is no other evidence, that she or the respondents challenged the appellant's August 2003 affidavit in any way despite stating it "contained a lot of fabrication". Indeed, it would appear that Ms "X" took no action in relation to the affidavit until she swore her affidavit in April 2004 in support of the respondents' motion. Ms "X" stated she contemplated an Apprehended Violence Order against the appellant and whilst such orders may not be limited to apprehensions of physical violence, Ms "X" did not directly suggest in her affidavit that the appellant was a physical threat to her. 89 On 18 March 2004, Ms "X" received a further email from the appellant. Ms "X" said it made her cry when she read it. She said she felt intimidated and frustrated. This was the email where, after referring to some personal matters and alleging the respondents' practice was declining, the appellant stated: So ………………… 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 are putting your whole professional future in jeopardy for a pair of duplicitious (sic) hypocrits (sic) in Smidmore & Michael. (Believe me, I have a thousand other adjectives for those two). If you want to know what evidence your (sic) going to have to deal with at Court, ask the bullfrog [apparently a reference to one of the personal respondents] for a copy of the affidavit I filed in the Compensation Court in August 2003 …… you feature prominently. 90 Ms "X" was not sufficiently intimidated by the email such that it led her to recant any part of the affidavit she swore in July 2002 because she said in her April 2004 affidavit, "There is nothing in my affidavit of 3 July 2002 that I wish to recant." Putting aside for the moment Ms "X"'s concern for her safety, which we will deal with shortly, the fact that Ms "X" swore an affidavit in the substantive proceedings and that she had, in effect, confirmed the contents of that affidavit, despite the fact that she may face cross examination on the basis of the appellant's August 2003 affidavit, Ms "X" must be taken to be prepared to swear to the truth and correctness of her affidavit. 91 As for the appellant's advice to Ms "X" that he intended to rely on his August 2003 affidavit in the unfair contract proceedings, Ms "X" not only had been aware of the contents of that affidavit for eight months but she also understood in August 2003, when she first saw it, that the appellant's affidavit purported to be a reply to her July 2002 affidavit. It is, therefore, reasonable to assume Ms "X" expected, in August 2003, that Mr Day would make use of the contents of the affidavit in some way in the unfair contract proceedings. Yet despite her concern about the affidavit, "as an extremely vicious and personal attack" and containing "a lot of fabrication", she took no action in relation to it until April 2004. That is, for some eight months Ms "X" must have expected that the material in the appellant's August 2003 affidavit might be used by him in the unfair contract proceedings but in that time she expressed no concern about the prospect of giving evidence in those proceedings. 92 Ms "X" deposed in her April 2004 affidavit: I am 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 with Harry while I am giving evidence will upset me. 93 Ms "X" was an experienced solicitor and obviously would have known of the importance of precision and clarity in framing her affidavit, particularly given her employers' application to deny a hearing of the merits of the appellant's claim. Nowhere did she state in her affidavit an unpreparedness to give evidence. Her evidence was "only" that she did not know how she would go about giving evidence in front of the appellant because being in the same room with him while giving evidence would upset her. 94 Ms "X"'s evidence in chief had already been filed and she stated there was nothing in that evidence she wished to recant. That leaves the prospect of Ms "X" being intimidated in the giving of any evidence under cross-examination and re-examination and her evidence being thereby tainted and consequently unreliable. Ms "X"'s concern about the appellant being in the courtroom while she was giving evidence could be easily overcome by an appropriate direction from the trial judge that required the appellant to leave whilst Ms "X" gave her evidence. 95 The respondents' contention was, however, that Ms "X" harboured a residual concern for her safety even after she gave evidence and, in this respect, relied on what Ms "X" said at paragraph 12 of her affidavit: 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 action that may aggravate Harry's negative feelings towards me. 96 In this regard, we note firstly, that apart from written communications, Mr Day has not sought to make contact with Ms "X" for three and a half years. Secondly, he has not sought to communicate with Ms "X" at all since March 2004. Thirdly, we have some difficulty in accepting the proposition that Ms "X" is concerned about her safety if she takes the witness stand in circumstances where she has already filed an affidavit the contents of which she does not wish to recant. If Mr Day's negative feelings towards Ms "X" were going to be aggravated by Ms "X"'s evidence, we would have thought her evidence in chief which has already been filed and confirmed by her, would have had that effect but there has been no threat by Mr Day that could be construed as jeopardising the safety of Ms "X". 97 Fourthly, whilst Ms "X" has expressed concern for her safety if she were to give evidence in the substantive proceedings she did not express the same concern nor seek the protection of the Court in filing her affidavit in support of the respondents' motion despite the fact she must have had an expectation that she might be cross examined on the affidavit. We would have thought the potential for aggravating the appellant by filing an affidavit to support a motion for a permanent stay of proceedings would have been at least as great as giving evidence in the substantive proceedings. 98 Fifthly, whilst Ms "X" stated in her affidavit she had seen the appellant "lose it", which we take to mean he lost his temper on one or more occasions, and that he is volatile, Ms "X" was careful not to say that Mr Day's anger or volatility was directed at her or that the giving of evidence may lead to retribution against her. There was no evidence that Ms "X" had ever faced a threat of physical violence from the appellant. If she had, it would have been a most material factor to be taken into account in assessing the motion for a permanent stay. Ms "X" would have understood that in framing her affidavit. 99 It appears that Ms "X" had for some time been "anxious" about the prospect of coming into contact with Mr Day. We can understand that Ms "X"'s anxiety might increase if she were required to give her evidence in the presence of Mr Day. As we have said, that can be avoided. We cannot understand, however, for the reasons we have expressed, how the prospect of giving evidence in the substantive proceedings in the absence of Mr Day's presence could lead to any increase in Ms "X"'s state of anxiety such that she would be unable to give her evidence freely and without fear of retribution. 100 That Mr Day has caused Ms "X" to be anxious by his written communications is a matter that we condemn. But as we have stated, these are not proceedings for the purpose of punishing Mr Day for the anxiety he has created in Ms "X" and we consider that if we were to dismiss the appeal that is in fact what we would be doing - punishing the appellant. Ms "X"'s anxiety does not, in our opinion, compromise the prospects for the holding of a fair trial. 101 In his judgment at first instance, Marks J referred to an undertaking offered by Mr Day to the Court that he would not approach or in any way communicate with Ms "X". The appellant also indicated a preparedness to give an undertaking that he would "not be present within the environs of the court, if and when Ms "X" or Ms "Y" give evidence in the substantive proceedings." His Honour described the undertakings as "too little too late".

102 Given that the central concern of Ms "X" about giving evidence was that she was worried about giving evidence "in front of Harry" and that "being in the same room with Harry while I am giving evidence will upset me", we consider that Marks J gave insufficient weight to the undertakings proffered by the appellant. If Ms "X"'s state of mind was that she was worried about giving evidence "only" because of Mr Day's presence, it seems to us that an undertaking that the appellant would not be present in the Court whilst Ms "X"'s evidence was being taken could hardly be regarded as an undertaking offered "too little too late". 103 The undertakings are a material consideration in considering whether a fair trial can proceed. In light of our conclusions in this appeal and the orders we propose to make, undertakings of the nature offered by the appellant would still have some utility and it is our expectation they would be maintained.

104 We find Marks J erred in holding that a fair trial has been compromised by the conduct of the appellant because Mr Day's "communications have seriously impacted upon the ability of this female witness to give her evidence freely and without fear of retribution", especially in light of the undertakings proffered by the appellant for the conduct of the trial. Notice of contention 105 The respondents put on a notice of contention to the effect that his Honour erred in not upholding their motion on other grounds that were put to him at first instance: In this respect, the respondents submitted (references to evidence omitted): 69. His Honour's decision to permanently stay the proceedings was also supportable on other grounds. His Honour should also have upheld the Motion on the following grounds: (a) The Appellant (by all of his conduct, when considered together) misused the forensic process so as to perpetrate injustice, and so forfeited his prima facie right to a hearing ( Oceanic Sunline v Fay (1988) 165 CLR 197 at page 239.9) (b) The Appellant's conduct toward the individual Respondents gave rise to an abuse of process warranting a permanent stay of proceedings. Such conduct included, inter alia the following: (i) threatening public embarrassment to the Respondents if early settlement was not attained; (ii) seeking to embarrass the Respondents with a statement from a barrister which was highly defamatory of the Respondents and of their firm; (iii) sending two highly critical management plan documents to the Workers Compensation insurer EMI which was one of the Respondents' principal ('cornerstone') clients with a view to causing maximum embarrassment and damage to the Respondents; (iv) pressuring the Respondents by disingenuously requesting the addresses for service for "summonses for witnesses" of five female staff members who would otherwise be " met with a burly process server trying to serve them in person "; (v) requesting that the Respondent Mr Smidmore provide the name and address of "all of his treating doctors, including GP's, specialists, counsellors and the like who have treated you for any mental health aspects in the period June 1995 to date" with the purpose being to embarrass and intimidate the Respondents;

(vi) threatening the Respondents with "as much embarrassment as possible" by directly approaching the Respondents' cornerstone client EMI; (vii) threatening the Respondents with a formal complaint about them to the Legal Services Commissioner concerning the conduct of each of them since the termination of the Respondent's employment; (viii) threatening to "expose the [individual Respondents] for the weak, scheming, lying and bullying cowards that you are"; (ix) threatening the Respondents that the Appellant would "not settle any proceedings I am pursuing against you"; (x) filing an affidavit in his Workers Compensation proceedings that contained a litany of scandalous and entirely irrelevant allegations against the Respondents with a view to embarrassing, intimidating, damaging the Respondents relationship with the cornerstone client EMI and pressuring the Respondents into a settlement; (xi) attacking the character of the Respondents and threatening to "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 & Edwards' staff and principals"; (xii) communicating directly with the Respondent Mr Smidmore (who had also sworn an affidavit in the principal proceedings) wherein he indicated that: " you know, I always knew that Chris would blatantly lie in his affidavit but I never picked you as one who would lie as well. It is very sad really. Each of you may consider recanting aspects of your evidence before you receive my evidence in reply if you have any intention of trying to save yourself "; (c) The Appellant's conduct toward the Respondents' legal practitioners gave rise to an abuse of process warranting a permanent stay of proceedings. Such conduct included, inter alia the following: (i) complaining directly with the Respondents about the alleged impropriety of Beilby Poulden and Costello representing the Respondents and improperly attacking Mr Beilby as a person apparently not capable of rendering independent advice; (ii) filing an affidavit in his Workers Compensation proceedings that contained patently irrelevant and obviously scandalous personal information, inter alia , about Ms "Z"; (iii) threatening the Respondents' solicitor Mr Beilby with exposing "the full details" of his (the Appellant's) relationship with Ms "Z" with the Legal Services Commissioner in an attempt to bring improper pressure to bear in order to achieve a settlement of the matter; (d) The Appellant's conduct toward the Respondents' witness Ms "Y" gave rise to an abuse of process warranting a permanent stay of proceedings.

Such conduct included, inter alia the following: (i) deliberately attempting to intimidate one of the Respondents' witnesses in the s.106 proceedings by sending the Respondents' solicitors a detailed letter addressed to Ms "Y" (a former client of the Respondents) which, inter alia , threatened to call Ms "Y"'s treating doctors and her psychologist to give evidence in the proceedings as to her mental state. The Appellant threatened to reveal sensitive information about Ms "Y" that he only knew courtesy of his former professional relationship with her; (e) The Appellant maintained the proceedings for the improper purpose of using the Court's processes to improperly pressure the Respondents' into paying over monies without the need to go to a full hearing, such as to amount to an abuse of process: Christopher George Murtough v Betham & Anor [2004] NSWSC 753 (18 August 2004) esp. at [65]. (2) To the extent that His Honour failed to consider at all the evidence with respect to the Respondents' witness Ms "Y", and then failed to decide, that the conduct of the Appellant towards her provided a proper foundation for a permanent stay, His Honour erred. (3) To the extent that His Honour failed or refused to decide that the Appellant forfeited his right to a hearing as a result of the conduct of the Appellant vis a vis : (a) Ms "X";

(d) the witness Ms "Y", because that conduct taken together constituted a serious abuse of process warranting a permanent stay in its own right i.e. quite apart from the fact that such a conclusion was supportable on other grounds (adverse effect on witnesses compromising the prospect of a fair trial. (4) His Honour should have found that the Appellant's conduct vis a vis : (a) Ms "X";

(d) the witness Ms "Y" amounted to a misuse of the forensic process so as to perpetrate injustice warranting a permanent stay of the proceedings i.e. quite apart from whether some of that conduct had also "compromised" the prospect of a fair trial. 106 Mr Kimber submitted the respondents were fortified in making the above contentions about the appellant's motives or purposes in so conducting himself given the forensic election made by the appellant not to give evidence on the motion.

107 It was submitted that, at first instance, it was alleged that the appellant's conduct was, inter alia, "both deliberate and designed to intimidate, threaten and embarrass and had no other legitimate or defensible purpose". The appellant elected not to respond to these very serious allegations, leaving all the available inferences open to the Court. Such inferences, it was submitted, should have been drawn by his Honour.

108 It was submitted the appellant's conduct was so unfairly burdensome, oppressive, unwarranted, improper, and designed to apply improper pressure to achieve a settlement and to create an uneven playing field so as to warrant the Court's intervention. Further, as a result of this egregious conduct, the appellant misused the forensic process so as to perpetrate injustice, brought the administration of justice into disrepute, abused the Court's processes and, as a result, forfeited his prima facie right to have his matter proceed to hearing. The proceedings, it was submitted, should have been permanently stayed on those additional grounds. 109 It may be seen from the respondents' submissions that in support of the notice of contention they were not relying principally on the ground that the appellant's conduct jeopardised the prospect of a fair trial but rather the submissions were more in the territory of the appellant, having misused the forensic process so as to perpetrate injustice and having brought the administration of justice into disrepute, he thereby forfeited his prima facie right to a hearing. Moreover, that the appellant's conduct was "oppressive, unwarranted, improper, and designed to apply improper pressure to achieve a settlement and to create an uneven playing field" thereby warranting the Court's intervention. 110 We agree with Marks J where his Honour was unable to find that the conduct of the appellant has had such an effect on the respondents and the respondents' legal practitioners that, in some way, the fairness of a trial has been relevantly affected. As his Honour observed, neither the respondents nor the respondents' solicitors filed any direct affidavit evidence or gave evidence in the interlocutory proceedings concerning the impact on them of the appellant's conduct and as to whether this would in turn have any impact upon a fair trial of the proceedings or result in an injustice of the kind described in Jago and Walton. Whilst Marks J did not mention Ms"Y", there was no evidence from her either that the appellant's conduct would have the relevant adverse consequences for a fair trial. 111 However, when one considers the whole of Mr Day's conduct it is difficult to avoid the conclusion that it was "oppressive, unwarranted and improper" and a misuse of the forensic process by a solicitor who knew better. Given that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined or closed categories, but may be exercised as and when the administration of justice demands", it is a fine matter of judgment as to whether or not this appellate Court should intervene and overturn the judgment at first instance. In this respect, we note the observations of Gaudron J in Jago in her consideration of the power to grant a permanent stay in civil proceedings at 74-75: Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings.

The power of a court to control its own process and proceedings manifests itself in a variety of ways. It may involve no more than the grant of an adjournment. On the other hand, it is accepted that it may result in the grant of a permanent stay of civil proceedings that are frivolous, vexatious or oppressive. See Metropolitan Bank v. Pooley (1885) 10 App Cas 210; Lawrance v. Norreys (1890) 15 App Cas 210.

The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands. See, for example, Jackson v. Sterling Industries Ltd (1987162 CLR 612, at p 639; Hamilton v. Oades (1989) 63 ALJR 352, at p 358; 85 ALR 1, at p 11.

The terms "frivolous", "vexatious" and "oppressive", when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms "vexatious" and "oppressive" may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are "seriously and unfairly burdensome, prejudicial or damaging" or are "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197 at p 247; Hamilton v. Oades , at p 358; p 11 of ALR

The above general considerations lead me to think that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand. 112 The test we have applied here, however, and the one we consider should be the determinant test in this case, is whether a continuation of proceedings would involve an unacceptable risk of injustice or unfairness: Walton v Gardiner. Further, we note the injunction in Jago at 76 that the power to grant a permanent stay is one that is to be exercised only in exceptional cases or "sparingly and with the utmost caution". 113 We have concluded, after considering the appellant's conduct as a whole and its impact on the respondents, the respondents' solicitors and the respondents' witnesses, that the risk of injustice or unfairness if the proceedings were to continue to trial is not an unacceptable risk. That means this Full Bench should intervene and permit the trial to proceed by setting aside the permanent stay ordered by Marks J. As we have found, we consider Marks J erred in holding Ms "X" would be unable give her evidence freely and without fear of retribution, especially in light of the undertakings proffered by the appellant. As for the respondents themselves, the respondents' solicitors and Ms"Y", there was no proper basis upon which it could be concluded that the appellant's conduct had so adversely affected or inhibited any of them to the point that it constituted an unacceptable risk of injustice or unfairness if the trial were to proceed.

114 We make the following orders and directions: 1 Leave to appeal is granted. 2 The appeal is upheld. 3 The decision and order of Marks J permanently staying the proceedings are set aside. 4 The proceedings are remitted for trial to a Member of the Commission in Court Session as allocated by the President. That Member is to give consideration to the making of appropriate orders or directions in relation to: (a) The proper scope of the case and issues for trial. (b) The proper scope of the evidence. (c) The state of the evidence. (d) The need for the giving of any undertakings as to future conduct of the appellant. (e) Any other appropriate orders or directions relating to the conduct of the trial of the proceedings. 5 The Industrial Registrar is directed to forward a copy of this judgment and the appeal papers to the Legal Services Commissioner of New South Wales. 6 The respondents are to provide any submissions in writing in relation to costs at first instance and the costs of the appeal within 14 days of the date of this judgment. The appellant is to reply in writing within a further seven days. The question of costs will be dealt with on the papers and the parties advised accordingly.

1. Pursuant to Orders made by the Full Bench of the Industrial Relations Commission in Court Session on 8 November 2005 the appeal judgment delivered on 14 October 2005 has been amended.

2. Attention is drawn to the following orders which were also made by the Full Bench on 8 November 2005:

1. .....
2. That pursuant to Section 164A(1)(a) of the Industrial Relations Act 1996 that the publication or broadcast of any report of appeal proceedings in matter no. IRC 7172 of 2004 otherwise than in the manner and form consistent with the Amended Judgment be prohibited.
3. That the Amended Judgment bear a note indicating that the original Judgment has been amended and drawing attention to the non-publication Order in respect of the original Judgment.
4. That the publication or broadcast of the original Judgment published on 14 October 2005 to the extent it differs from the Amended Judgment be prohibited.
5. That until further Order that access to the file of the Industrial Relations Commission of New South Wales in matter no. IRC 7172 of 2004 and IRC 3177 of 2001 be restricted to the extent that before any person be granted access, the parties to the proceedings shall be consulted by the Industrial Registrar to determine whether there is any objection to access.
6. ...................
7. .....................

3. The judgment of the Full Bench dated 8 November 2005 is available on this website as [2005] NSWIRComm 406

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.