McGuirk v University of New South Wales - [2010] NSWCA 104 - NSWCA 2010 case summary — Zoe

NSWNSWCA

McGuirk v University of New South Wales

[2010] NSWCA 104

Court of Appeal (NSW)|2010-03-12|Before: Giles JA, Young JA, Simpson J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2010-03-12

Before

Giles JA, Young JA, Simpson J

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

BACKGROUND 71 The material in the appeal books does not include a concise account of the events leading to the proceedings brought by the applicant against the University, in the course of which the primary Judge made the Orders. It appears, however, that the proceedings are part of a long running dispute between the applicant and the University. The applicant has also been involved in a good deal of other litigation some of which is related to his dispute with the University. A convenient summary of the various proceedings in which the applicant has been involved is set out in the Contempt Judgment. It is necessary for present purposes to give only a brief account. 72 The applicant was formerly employed by the University as the Acting Director of the Master of Business and Technology graduate program. He ceased to be employed by the University on 31 March 2002. The circumstances relating to the termination of his employment are contentious. 73 The applicant has campaigned to expose what he claims was endemic corruption and mismanagement within the University. He alleges that this endeavour has led the University to victimise him. The proceedings between the applicant and the University include a private criminal prosecution he initiated in 2003 against five officers of the University (which the applicant subsequently discontinued). They also include a successful challenge by the University to a decision by the Administrative Decisions Tribunal ("ADT") to grant the applicant access to certain documents under the Freedom of Information Act 1989 ("FOI Act"): University of New South Wales v McGuirk [2006] NSWSC 1362. 74 In addition, the applicant became a party in 2006 to proceedings involving the Independent Commission Against Corruption ("ICAC"). In those proceedings, ICAC sought leave to appeal to the Supreme Court against a decision of the ADT given in consequence of a request by the present applicant under the FOI Act for access to certain documents. The ADT held that it had jurisdiction to review the determination by ICAC to refuse access to the documents. The applicant was named as a defendant to ICAC's summons for leave to appeal to the Supreme Court. 75 As it happens, the summons was heard and determined by Simpson J, the primary Judge in the present case: Independent Commission Against Corruption v McGuirk [2007] NSWSC 147 ("ICAC Judgment"). Her Honour granted the application for leave to appeal and allowed ICAC's appeal. The decision turned exclusively on the construction of s 9 of the FOI Act. Simpson J subsequently ordered the applicant to pay ICAC's costs of the appeal. 76 The applicant sought leave to appeal to the Court of Appeal from the ICAC Judgment. The application was dismissed on the ground that Simpson J's reasoning and decision were plainly correct: McGuirk v Independent Commission Against Corruption [2008] NSWCA 302. 77 The applicant commenced the present proceedings against the University (in the course of which the University applied for the Orders) in March 2008. The statement of claim (in which the applicant is described as a "[s]tudent at law") pleads numerous causes of action including contraventions of the Trade Practices Act 1974 (Cth); damages for breach of contract by reason of the University's allegedly wrongful repudiation of his contract of employment; breaches by the University of a duty of care said to be owed to the applicant; contraventions of the Protected Disclosures Act 1994; common law conspiracy; and misfeasance in public office. 78 The University applied for orders striking out or summarily dismissing the statement of claim. There followed a protracted period during which the applicant sought and the University agreed to provide him an opportunity for him to file an amended statement of claim. On 30 January 2009, the applicant served a proposed amended statement of claim on the University's solicitors, Sparke Helmore ("Solicitors"). On 11 February 2009, the Solicitors informed the applicant that if the proposed amended statement of claim was filed, they would move to have it struck out or summarily dismissed. 79 On 18 February 2009, the applicant informed the Solicitors that he intended to serve a series of "Notices to Admit Facts and Authenticity of Documents". On 20 and 27 February 2007 he served two such notices. 80 On 6 March 2009, the University filed the motion pursuant to which the primary Judge subsequently made the Orders. The motion included a claim for orders setting aside the Notices and restraining the applicant, until further order, from serving and additional Notices of the same kind.

[4]

The Hearing Before the Primary Judge 85 The hearing before the primary Judge took place on two hearing days, 23 and 25 March 2009. The University was represented by senior and junior counsel. The applicant represented himself. 86 On the first day, senior counsel appearing for the University, Dr Bell, read both affidavits of Ms Bennett. He then drew the attention of the primary Judge to certain of the emails containing offensive language and what he described as threats to the recipients contained in some of the communications. 87 The applicant informed the primary Judge that he (the applicant) was not in a fit emotional state to be in court and that he was asking her Honour to disqualify herself, although he did not identify any reason at that point. 88 The primary Judge then took the luncheon adjournment. Upon the resumption, her Honour informed the parties that she had a good friend employed by the University in the media area and invited the parties' comments. Dr Bell indicated that the friend was not a person who had received any emails from the applicant and that there was no issue as far as the University was concerned. The applicant asserted that her Honour's friend, as a media officer of the University had "issued a form of press release denying [the University's] liability" in separate proceedings between the applicant and the University. Her Honour observed that: " [t]hat was simply a media response ". 89 In the course of the discussion of these matters, the applicant applied to have the proceedings "stayed" for several weeks on the ground that the University's motion was an abuse of process by reason of certain offers the applicant had made to the University. He also applied to adjourn the proceedings on medical grounds, relying on a medical certificate included in the attachments to Ms Bennett's second affidavit, and on the basis that he had not had an opportunity to prepare properly Dr Bell pointed out in response that the medical examination referred to in the certificate had taken place some time previously and that the applicant had argued at some length a point that very morning before a Judge of the Court of Appeal. 90 The primary Judge indicated that she was minded to grant the applicant a short adjournment to consider the material in Ms Bennett's second affidavit upon his undertaking "not to communicate any further in accordance with the notice of motion". The applicant gave that undertaking and accordingly her Honour adjourned the proceedings until 25 March 2009. 91 When the hearing resumed on 25 March 2009, the applicant handed up a document identifying various declarations and orders he was seeking. These included a declaration that the University and its named legal representatives "have failed to comply with their obligations to act as a model litigant" and an order that Ms Bennett and Dr Bell pay the University's costs of its motion on an indemnity basis. The primary Judge declined to allow the document to be filed on the ground that she was dealing with the duty list involving only short or urgent matters and that the applicant could raise the majority of declarations and orders sought by way of defence to the University's motion. 92 The applicant renewed his application for the primary Judge to disqualify herself from the proceedings. It is not easy to follow from the transcript the grounds relied on by the applicant. However, he appears to have claimed that her Honour was biased, or that there was a reasonable apprehension of bias, by reason of two matters. The first was that her Honour had heard the ICAC proceedings. The second was her Honour's friendship with the media officer employed by the University. 93 The primary Judge rejected the application that she should disqualify herself. The transcript of her Honour's reasons was not included in the appeal books prepared for the leave application. (The appeal book was prepared by the University as the applicant did not comply with orders requiring him to do so.) Inquiries made by the Court indicated that the transcript of her Honour's judgment was not on the court file. However, arrangements were subsequently made to have the reasons transcribed and the transcriptions made available to members of the Court and to the parties. 94 In her ex tempore judgment, the primary Judge noted the grounds on which the applicant had asked her to disqualify herself. Her Honour pointed out that the friend she had identified as an employee of the University was not on the list of persons who had received communications from the applicant. On the question of her involvement in the ICAC proceedings she said the following: "[A]lthough I have dealt with proceedings, to which [the applicant] has been a party on previous occasions, there is no reason associated with those matters as to why I should not proceed to hear the present application". 95 Following rejection of his disqualification application, the applicant commenced cross-examination of Ms Bennett shortly before the luncheon adjournment. When the matter resumed after the adjournment, her Honour said that, as the proceedings were interlocutory, she proposed to exercise her power under s 62 of the CP Act and limit the applicant's time for cross-examination to 30 minutes. Her Honour later extended that period by a further 20 minutes. Many of the applicant's questions put to Ms Bennett were objected to and disallowed. 96 After the cross-examination concluded, the applicant subsequently sought to tender an affidavit of 164 pages made by him some two years earlier. The affidavit, according to the applicant, set out a "history of improper conduct" involving the University. The primary Judge rejected the tender on the ground that its contents could not be relevant to the University's motion. 97 The applicant's next application was for a further adjournment of the proceedings. Her Honour refused the application on the ground that an adjournment would be "unfair and futile". 98 In the course of his submissions to the primary Judge, the applicant acknowledged, in his own words, that "some of my communication is not real flash … and it is not something I am proud of".

[6]

The Primary Judgment 100 The primary Judge found (at [10]) that from the time of the commencement of pleadings the applicant: "has communicated, by a variety of means, with Ms Bennett, with a junior solicitor employed by [the Solicitors] … and with the managing partner of [the Solicitors], with senior and junior counsel retained in this matter …, with a junior counsel who holds a brief for the University in another matter …, and with two counsel who do not hold briefs either for [the applicant] or for the University, and with the Chancellor of the University …, the Vice Chancellor …, and the University solicitor … and assistant solicitor. In many cases the correspondence is copied to other recipients. [The applicant] utilises e-mail, facsimile, text messaging, and letters send by post. The bulk of his communication appears to be made by e-mail". 101 Her Honour described (at [11]) the correspondence as: "voluminous, and increasingly concerning. Some of it is bizarre, some offensive, some threatening. In some instances it may well, and in others almost certainly does, amount to criminal conduct." 102 The primary Judge referred (at [12]) to a "representative sample" of the communications taken over a period of about ten months. Her Honour did not consider it necessary to set out the detail of all these communications or to repeat "the vulgarities" in some of them. However, she observed (at [15]) that: "Although legal practitioners may be expected to be robust in the performance of their duties, these vulgarities are of a kind to which no ordinary person ought to be subjected". 103 Her Honour noted (at [18]) references to Nazi Germany became a recurring theme in the correspondence, and that at least on one occasion the applicant appeared to be drawing an analogy between the perpetrators of the Holocaust and the conduct of the junior solicitor employed by the Solicitors. She also noted that the correspondence repeatedly referred to the applicant's poor state of health. 104 The primary Judge specifically referred (at [32]) to a facsimile of 18 February 2009 in which the applicant referred to a Professor W who was expected to be a witness in the substantive proceedings. The communication stated that Professor W had "much to fear from being called as a witness … as also do Professors [X] and [Y]". 105 The primary Judge found (at [33]) that the filing of the University's motion on 6 March 2009 "provoked an escalation of the offensiveness of the continued communications from [the applicant]". Her Honour gave numerous examples recorded in Ms Bennett's second affidavit. One example was a communication to the Chancellor of the University which, her Honour found (at [51]) contained "unmistakable … threats". 106 The primary Judge (at [54]) had no doubt, upon the facts adduced by the University: "that restraint upon the barrage of communication ought, provided the court has jurisdiction, to be imposed upon [the applicant]. [The Solicitors] have repeatedly requested [the applicant] to desist from communicating with any of the individuals other than the solicitor on the record. Their repeated requests have had no effect." 107 The primary Judge noted (at [55]) that the applicant had clearly acknowledged in his submissions that his conduct "had been, to put it mildly, unacceptable and inappropriate". He had sought to explain this by claiming that he had been under considerable stress for which he blamed the Solicitors in their conduct of the litigation. Her Honour accepted that many of the communications, particularly the more offensive ones, had been made late at night. However, she had some difficulty seeing how this was relevant except possibly to the exercise of her discretion. 108 The primary Judge recorded (at [56]) that the applicant had been prepared to submit to orders of the kind sought, but only if they were mutual. In her Honour's view: "[t]here is not reason to impose restraint upon a party to litigation that has not in any way abused its position or acted in a way that calls for external restraint". 109 The primary Judge then turned to the source of power to make the orders sought by the University. In her Honour's view, it was not open to the University to rely on the inherent jurisdiction of the court to make orders of the kind sought (at [59], [62]). While authorities such as Commonwealth Trading Bank v Inglis [1974] HCA 17; 131 CLR 311, established that the court has inherent jurisdiction to restrain repeated vexatious applications in pending actions, the applicant had not brought any applications, let alone repeated and vexatious applications, in the course of the substantive proceedings. 110 The primary Judge also rejected the University's argument that the court had authority to make the orders by reason of its undoubted power to protect its process from abuse. Her Honour considered (at [68]) that the abuse of process cases have always involved the utilisation of some facility of the court, such as the filing of documents, the initiation of an action or invoking jurisdiction of the court. The concept of "abuse of process" did not extend to conduct associated with, but collateral to the use of the court's facilities or procedures. Nothing the applicant had done invoked the jurisdiction of the court or utilised its facilities, processes or procedures (at [69]-[71]). Accordingly, his conduct did not amount to an abuse of process. 111 Nor did her Honour consider (at 87]) that s 23 of the SC Act conferred power to make the orders sought. Her Honour considered the meaning and extent of s 23 to be "obscure". However, she did not give detailed reasons for her conclusion that the section was unavailable in the present case. 112 The primary Judge also held (at [86]) that the University was not entitled to rely on its supplementary written submissions contending that the Orders were justified as a means of restraining a threatened contempt of court. The submissions had been made for the first time after the conclusion of the hearing and went beyond the terms of the leave that had been granted. In these circumstances, it would be unfair to allow the University to diverge markedly from the course it had taken at the hearing. 113 Nonetheless, the primary Judge considered (at [95]) that s 61 of the CP Act was sufficiently broad in its terms to justify making the orders sought by the University. To support this conclusion, her Honour referred to the paragraph in Ms Bennett's affidavit reproduced at [82] above, in which Ms Bennett expressed her concerns about the correspondence. Her Honour found (at [91]) that the " volley of communications " had caused stress to Ms Bennett. 114 The primary Judge continued (at [92], [94]) as follows: "When cross-examined about the most recent communications, the texts sent to her mobile phone after 8.00pm on a Friday evening, [Ms Bennett] said that she feared [the applicant] might have followed her from the office. ([The applicant] characterised this as an allegation of stalking.) That was, as I perceive it, an indicator of the level of stress to which she had been subjected. I accept that her mobile phone number appeared at the top of an e-mail to [the applicant], and that the probability is that this is where he obtained it. Nevertheless, it is apparent that both the volume and the content of the communications is interfering with the orderly processing of the proceedings initiated by [the applicant]. In hindering the legal practitioners in the execution of their duties in the litigation, [the applicant] is in breach of his obligations stated in s 56(3). As well, I am satisfied that the sheer volume of the communications (given their substantial irrelevance to the proceedings) amounts to harassment of the various recipients, and causes a financial burden to the University. … Further, although a good number of the communications have been sent to individuals other than the legal practitioners, it may be assumed that it is necessary that they all be forwarded to the legal practitioners for assessment of any relevance they may have to the proceedings. And although many of the communications sent directly to the legal practitioners are of no, or peripheral, relevance to the proceedings, it will be necessary for each to be perused against the possibility that there is, buried therein, some item that is of relevance. The cost to the University is unconscionable." 115 The primary Judge concluded (at [95]) that in these unusual circumstances, s 61(2)(c) of the CP Act was sufficiently wide to support the order sought by the University. Notwithstanding what the applicant had said about the circumstances in which he made the communications, there was no discretionary reason not to make the order sought, and (at [97]): "every compelling reason why they ought to be made. The Court's processes ought not to be allowed to be the occasion for extra-curial harassment". 116 Finally, the primary Judge set aside the Notices served by the applicant. They were premature as no defence had been filed, the matters in issue had not been defined and the status of the originating process was uncertain (at [98]).

[18]

Disqualification of Primary Judge 125 The applicant's claim that the primary Judge should have disqualified herself because of her involvement in ICAC v McGuirk cannot be sustained. As her Honour pointed out in the ICAC Judgment (at [7]), the case turned on a very narrow point of construction of s 9 of the FOI Act. The fact that Simpson J decided the question of law against the applicant (a decision upheld by the Court of Appeal) and ordered him to pay costs could not create a reasonable apprehension of bias in the present proceedings. 126 The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind "to the resolution of the question the judge is required to decide": Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 492-493 [11], [12], per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; see also Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342, at 352, per Mason J. The fair-minded lay observer would not consider that the determination by Simpson J of a narrow question of law against the applicant might create a reasonable apprehension that she might be unable to bring an impartial and unprejudiced mind to the quite different issues presented by the University's application: cf Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation [2007] FCA 1544, at [23], per Sackville J. 127 There is also no basis for concluding that Simpson J's friendship with a media officer at the University could create a reasonable apprehension of bias. The officer was not a recipient of the applicant's communications and played no part in the proceedings brought by the University. As the High Court has repeatedly emphasised, there must be a logical connection between the matter complained of and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, at 345 [8], per Gleeson CJ, McHugh, Gummow and Hayne JJ; Smits v Roach [2006] HCA 36; 227 CLR 423, at 443-444 [53]-[54], per Gleeson CJ, Heydon and Crennan JJ; at 444-445 [56], [58], per Gummow and Hayne JJ. There was no such logical connection here.

[23]

New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 October 1903, at 2941 (The Hon B R Wise). The Minister also explained (at 2942) that legislation was necessary because the Chief Justice, Sir Frederick Darley, had advised that the rule-making power of the New South Wales judges was less extensive than that of the judges of the High Court in England. Thus the reforms could not simply be introduced by the judges themselves. 136 Section 5 of the Commercial Causes Act was repealed in 1970 and replaced by s 56(3) of the SC Act. The sub-section was limited to proceedings entered in the commercial list and using the word "questions" instead of "issues". Otherwise, it was in substantially the same terms as s 61(1) of the CP Act. 137 In 1985, the legislation establishing the Commercial Division of the Supreme Court substituted s 76A of the SC Act for s 56(3): Supreme Court (Commercial Division) Amendment Act 1985, Sch 1, items (5), (6) (previously a commercial list operated within the Common Law Division). In 1989, s 76A was amended so that it applied to all civil proceedings in the Supreme Court: Courts Legislation (Procedure) Amendment Act 1989, Sch 8, item (3). Section 61(1) of the CP Act repeats the language used in s 76A of the SC Act, as amended in 1989. 138 With the repeal of the Commercial Causes Act in 1970, the powers previously conferred by s 6 of that Act were dispersed. Some were incorporated in the SC Act itself and some were included in the Supreme Court Rules. For example, s 82(1)(a) of the SC Act authorised the Court in any proceedings to dispense with the rules of evidence for proving any matter not bona fide in dispute, while s 82(1)(b) permitted the court to require a party to make admissions on pain of an adverse order for costs (see now CP Act, s 70(1)(a)-(d)). Other matters, such as the power to dispense with further pleadings or to settle the issues for trial, were included in Part 15 of the Supreme Court Rules (see now UCPR, Pt 14 r 14.2). The Supreme Court Rules were amended in 2000 to include a general power to make directions on a range of matters: Supreme Court Rules, Pt 26, rr 1-3 (see now UCPR, Pt 2, rr 2.1-2.3). 139 The legislative history does not provide precise guidance as to the scope of the power conferred on the court by s 61(1) of the CP Act. It is necessary to take into account the current legislative context which is different from the legislative context in which the predecessors to s 61(1) were placed. But the legislative history does emphasise that the power from the very beginning, has been to make directions for the speedy determination of the issues really in dispute between the parties. It might be thought odd, having regard to the "overriding purpose" expressed in s 56(1) of the CP Act that s 61(1) was not drafted in wider terms, so as to enable the Court to give directions for the just, quick (or speedy) and cheap determination of the proceedings. Perhaps the view was taken that it was sufficient that UCPR, Pt 2 r 2.1 conferred a power expressed in such wide terms. Be that as it may, it must be remembered that s 61(1) of the CP Act, like its predecessors, is not an open-ended power to make any directions the Court considers appropriate. Otherwise the concluding words of s 61(1) would not have any meaning.

[24]

Construction of s 61(1) of the CP Act 140 As Dr Bell submitted, the court is obliged, when exercising the power given to it by s 61(1) of the CP Act, to give effect to the overriding purpose stated by s 56(1) - that is, to facilitate "the just, quick and cheap resolution of the real issues in the proceedings". The court must also take into account the overriding purpose when interpreting s 61(1). So much is provided by s 56(2) of the CP Act. 141 The legislation makes it clear that in determining whether to make an order for the management of the proceedings, including a direction under Part 6, Div 2 of the CP Act (where s 61 is located), the court must seek to act in accordance with the "dictates of justice": s 58(1). In determining what are the dictates of justice in a particular case, the court must have regard, inter alia, to the overriding purpose (s 56(1)) and to the duty of a party to civil proceedings to assist the court to further the overriding purpose (s 56(2)): s 58(2)(a). In making the same determination, the court may have regard, inter alia, to the degree of expedition with which the parties have approached the proceedings, the degree to which they have fulfilled their duties under s 56(3), the degree of injustice that would be suffered by the respective parties as a consequence of any direction and such other matters as the court considers relevant: s 58(2)(b)(ii), (iv), (vi), (vii). 142 The authorities support the contention that s 61 of the CP Act should be given a liberal construction. In Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178, Gaudron J said this (at 205): "It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction , for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse". (Emphasis added.)

[25]

Her Honour's observations were cited with approval in PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; 184 CLR 301, at 313, per Brennan CJ, Gaudron and McHugh JJ. See also Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184, at 201 [41], per Kirby J; at 226 [128], per Callinan J. 143 While s 61 of the CP Act must be given a liberal construction, careful attention must be paid to the limitations inherent in the wording of the section. As I have noted, s 61(1) empowers the court to give such directions as it thinks fit for the speedy determination of the real issues between the parties. It is true that in deciding whether to make a direction under s 61(1), the court must have regard to the matters in ss 56 and 57, including the overriding purpose, and may have regard to the matters specified in s 58(2)(b). But it is still necessary for the court to consider whether particular directions should be given for the speedy determination of the real issues. This language, in my opinion, requires the court to consider whether the directions are necessary or appropriate for the speedy determination of the real issues between the parties. 144 No doubt a finding that the unjustified behaviour of one party has significantly increased the costs of the proceedings or inflicted hardship on the other party makes it easier for the court to conclude that the behaviour is likely to lead to delays and that orders curtailing the behaviour will assist in bringing about the speedy determination of the real issues in dispute. But that does not detract from the proposition that the language of s 61(1) requires the court to consider whether the proposed orders are appropriate for the purpose identified in the sub-section. If no such conclusion is or can be reached, the proposed directions are not authorised by s 61(1). The fact that the court must seek to give effect to the overriding purpose when considering whether to exercise the power conferred by s 61, does not allow the court to read s 61 as authorising any direction it thinks appropriate for the just, cheap resolution of the proceedings. Thus, s 61(1) cannot be read, for example, as authorising a direction that will have no bearing on the speedy determination of the "real" issues, but might be thought to save some costs or avoid unnecessary distress to a party. (This is not to suggest that other powers, notably that conferred by UCPR, Pt 2 r 2.1, cannot be used for these purposes.) 145 The point is illustrated by the observations of Moffit P (with whom Glass JA agreed) in Stanley-Hill v Kool [1982] 1 NSWLR 460, concerning the scope of s 56(3) of the SC Act, a predecessor to s 61(1). Moffit P said (at 461-462): "The effect of the Supreme Court Act , 1970, by the repeal of the Commercial Causes Act , 1903 and the Commercial Causes Rules and the substitution by the Act and rules of like provisions in no way confines the former wide discretion relating to procedures and evidence but rather extends to the court generally to some extent these wide discretions. However s 56 of the present Act and its like equivalent ( Commercial Causes Act , 1903, s 5) means that wide discretions particular to commercial cases are given to and ought to be exercised by the Commercial judge, as indeed they have over the years, so that the court comes with expedition, minimizing expense, to the real matter in issue, setting aside, so far as reasonably proper, procedures and rules of evidence which stand in the way of so doing. The judge is in a particular position of advantage in the exercise of the discretions conferred by s 56(3) when he sits in the directions and other hearings preliminary to the trial. He is in a position to discern from the detail of what passes before him any tactical manoeuvre which seeks to exploit the ordinary procedures or rules of evidence and thereby directly delay or prevent the determination of the real question in dispute or thereby indirectly do so by subjecting the opposing party to the pressures of delay or expense . Accordingly, he is in a superior position to decide by what directions or orders any such manoeuvre can be neutralized and how best the true issue can be fairly determined with expedition". (Emphasis added.)

[27]

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate". Dr Bell did not submit that s 61(2)(c) should be read as a discrete source of power, unaffected by the limitation inherent in s 61, namely that the directions must be for the speedy determination of the real issues in dispute. Nor do I think it can be so read. The words " in particular " indicate that the function of s 61(2)(c) is to identify the kind of orders that can be made in the exercise of the power conferred by s 61(1). 147 If a party to litigation persists in sending to another party or its legal advisers a large volume of communications that are irrelevant to the issues in dispute, a court may well come to the view that directions curtailing the flow of communications or restricting the manner of their distribution are appropriate for the speedy determination of the real issues between the parties. That could be the case, for example, if the sheer volume of communications is likely to divert the recipients from concentrating on the "real issues", thus making the statutory objective of a speedy determination of the real issues more difficult to achieve. 148 A finding that the sender of the communications had breached his or her duty to the court imposed by s 56(3) of the CP Act would make the court more likely to give directions designed to limit the flow of communications (s 58(2)(b)(iv)). Similarly, if the party responsible for the communications had not acted expeditiously in undertaking the steps necessary to bring the proceedings to trial, a court could take that failure into account. If the volume of communications increases the costs incurred by the other party to a point where, for example, they threaten to be disproportionate to the complexity or importance of the case, this, too, must be taken into account in deciding whether to exercise the powers conferred by s 61(1): ss 58(2)(b)(iv), 60. But the precondition to the exercise of the power conferred by s 61(1) of the CP Act is a determination by the Court that the proposed directions will promote the speedy determination of the real issues between the parties, or are otherwise necessary or appropriate for that purpose. 149 The present case involves communications that have been found, in part, to be offensive or threatening. A court might find that the offensive or threatening nature of communications, from one party to another, whether considered in conjunction with or independently of the volume of communications, is likely to be inimical to the statutory objective of achieving a speedy determination of the real issues between the parties. An extreme case could be where threats contained in communications sent by one party to the other party's legal representatives so intimidated the recipients that they feel unable to undertake the tasks required to prepare the case for trial on behalf of their client. A less extreme case could be where threats or false allegations are made, which require the legal representatives to take time to respond, thereby diverting them from preparation of the matter for trial. In either case, a court may well conclude that directions requiring the sender to desist from threats are likely to assist in the speedy determination of the real issues between the parties.

[42]

(iv) Not surprisingly, the applicant, an unrepresented litigant, did not provide significant assistance to her Honour on the question of power, beyond raising the issue. 153 The findings made by the primary Judge emphasise the offensive and threatening nature of the communications and the stress caused to Ms Bennett. There was ample evidence to support these findings. It is certainly difficult to resist the proposition that no one should be subjected to the vulgarities and threats of the kind repeatedly expressed by the applicant. Equally, no legal practitioner or party should be exposed to stress induced by threatening or gratuitously offensive communications. 154 But these conclusions do not establish that whatever orders might appropriately have been made under other heads of power to curtail the applicant's objectionable conduct, the Orders were properly made under s 61(1) of the CP Act. If the University's concern was delay in the conduct of the proceedings occasioned by the communications, some cogent evidence might have been expected demonstrating how the offensive or threatening content of the communications had impeded, directly or indirectly, the expeditious preparation of the case for trial or created a risk that the issues would not be dealt with reasonably expeditiously. Ms Bennett's general expression of concern in her affidavit did not explain the link between the content of the communications and delay in resolving the proceedings. 155 The findings that some of the applicant's communications were vulgar, offensive or threatening were not accompanied by findings that these characteristics had impeded or were likely to impede the expeditious preparation of the case for trial. The closest her Honour came was her finding that the volume and content of the communications interfered with the orderly processing of the proceedings. The import of this finding is not clear. The nature of the interference is not identified and the finding does not distinguish between the number and length of the communications and the nature of the communications. Moreover, the finding does not state whether and, if so, how any such interference caused or was likely to cause any significant delays in preparing the matter for hearing. The procedural history of the litigation suggests that the major impediment to the matter progressing has been the applicant's desire to file a lengthy amended statement of claim and the University's understandable unwillingness to file a defence until its foreshadowed objections to the proposed pleading were dealt with. 156 The primary Judge found that the communications were causing a financial burden to the University. The evidentiary foundation for this finding is also not clear. Dr Bell did not point to any evidence supporting the finding, other than any inference that can be drawn from the volume of communications. Certainly the evidence does not explain why many of the applicant's communications could not have been more or less instantly deleted or discarded as utterly irrelevant to any issue in the proceedings. Nor does the evidence address why, given that the applicant had been told to direct his communications exclusively to the Solicitors (whose office was the University's address for service: UCPR, Pt 4 r 4.5(2)(b)), instructions could not have been given to University officers and others simply to ignore any communications from the applicant purporting to deal with proceedings involving the University. In fact, by a letter dated 18 February 2009, the Solicitors told the applicant that: "The University … (including all members of its staff) is not, and will not be, responsible for forwarding or delivering any communications received from you addressed to individuals who happen to be (or have in the past been) officers or employees of the University". In my view, the finding by her Honour is not supported by the evidence adduced by the University. 157 Her Honour thought that communications forwarded by the applicant to persons other than legal practitioners had to be assessed by the Solicitors for relevance. Again, the evidentiary basis for that finding is not apparent, particularly taking into account the letter sent by the Solicitors on 18 February 2009. 158 For much the same reasons, I do not think that her Honour's reference to the volume of communications self-evidently leads to an inference that the Orders would make the speedy determination of the real issues between the parties more likely or were otherwise appropriate for that purpose. There were many communications from the applicant, but the vast majority were patently irrelevant to the issues in the proceedings and required no response. As I have noted, the University's legal representatives took the perfectly sensible course of telling the applicant that the University would not be responsible for passing on communications that the applicant insisted on sending to individual officers of the University. The University's representatives also took the perfectly sensible course of not replying to irrelevant communications, except to ask the applicant to desist. It is difficult to accept, without more specific evidence, that more than a few moments were required to establish that each irrelevant communication was indeed irrelevant and thus could and should be ignored. 159 In my opinion, despite the volume and offensive nature of the communications sent by the appellant to the University and its legal representatives, the evidence did not support the primary Judge's conclusion that the directions sought by the University could be made under s 61(1) of the CP Act. This is not to say that the University might not have been able to adduce evidence that would have enlivened the power conferred by s 61(1). Nor is it to say that the University could not have invoked other powers to support the directions made by the primary Judge. But in my view the University did not lay a sufficient foundation to support its reliance on s 61(1) of the CP Act.

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UCPR Pt 2 r 2.1 160 As I have recorded, the University placed no reliance on UCPR, Pt 2 r 2.1, either before the primary Judge or in its written or oral submissions to this Court. When r 2.1 was drawn to the attention of the parties, the University filed written submissions contending that, if no other power supported the Orders, r 2.1 was a sufficient source of power. 161 The University submitted that, although there was some overlap between s 61 of the CP Act and UCPR r 2.1, the latter was broader in that it was not confined to making directions for the speedy determination of the real issues between the parties. The University further submitted that it was entitled to rely on appeal on any ground to support the decision appealed from, provided that the new ground raised only a question of law and could be resolved on the basis of evidence adduced at trial: NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273, at 282, per Jordan CJ. This principle, so the University contended, had particular force where the issue on appeal concerns a question of power. It submitted that account should be taken of the analogous administrative law principle that an act purportedly done under one statutory power can be justified under another if that power is available: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318, at 362 [124], per Heydon J (with whom Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ agreed). 162 I agree with the first of the University's submissions. The width of the power conferred by r 2.1 is striking. The court is given power at any time to give such directions and to make such orders for the conduct of any proceedings, whether or inconsistent with the rules of court, for the just, quick and cheap disposal or the proceedings. Rule 2.1 differs from s 61(1) in two important respects: the power is not confined to making directions for the speedy determination of the real issues in the proceedings, but includes a power to make directions or orders as appear convenient for the just, cheap and quick disposal of the proceedings; and

[44]

the power is to give directions or orders " for the conduct of any proceedings ". 163 In my opinion, if a party to proceedings repeatedly sends gratuitously offensive or threatening communications to the other party or its legal representatives, it will not usually be difficult to conclude that it is convenient for the just, cheap and quick disposal of the proceedings to make directions or orders requiring the party to desist from such conduct. In particular, a finding that the party responsible for the communications is in breach of his or her duty under s 56(3) of the CP Act (as the primary Judge found in this case) would support such a conclusion. It will be even easier to reach that conclusion if the communications have caused distress or safety concerns to some of the recipients. In the circumstances I have described, it would generally be open to a court to find that the proceedings cannot be disposed of justly if a party cannot pursue or defend a claim, or its legal representatives cannot discharge their responsibilities to the client or the court, without being subjected to gratuitously offensive or threatening communications. An order or direction requiring the offending party to desist can aptly be described as an order or direction for the "conduct of the proceedings". 164 There are two difficulties confronting the University in its belated attempt to rely on UCPR Pt r 2.1. The first is that the University did not rely on r 2.1 at trial and did not rely on it on the appeal until after the hearing had concluded, when the Court drew the rule to the attention of the parties. No explanation has been provided for this omission, other than the inference that it was an oversight. In these circumstances, the University is not entitled as of right to rely on r 2.1 on the appeal: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, at 645-646, per Mason P. It is true that an appellate court may take the view that it is expedient and in the interests of justice to entertain a point, even if the point was not raised at trial and was not identified on appeal until after the hearing had concluded: Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, at 47, per Carr J (and authorities cited there). Nonetheless, the University's failure to take the point any earlier is an important factor to be taken into account in determining whether this Court should allow the University to rely on it now. Ordinarily, the issues between the parties are determined at the trial: Coulton v Holcombe (1982) 162 CLR 1, at 7, per Gibbs CJ, Wilson, Brennan and Dawson JJ. If anything, that proposition has greater force when a represented party is opposed to an unrepresented party, since the latter will often be at a disadvantage in understanding and addressing the issues raised by the represented party. 165 The second reason is that the University's failure to rely on r 2.1 at trial may have prejudiced the applicant. I appreciate that the applicant in his written submissions in this Court did not assert that he would have acted differently had the University relied on r 2.1 at the trial. Nonetheless, the transcript of the hearing indicates that the applicant made offers to the University to desist from his conduct, which he acknowledged had been inappropriate. While these offers were apparently conditional and while the applicant's behaviour in court and outside does not suggest that he necessarily has the ability or desire to cease his unacceptable conduct, it is possible that identifying a clearer source of power to make the Orders would have led the applicant to agree to modify his behaviour or at least to seek advice as to his position. Bearing in mind that the consequences of a breach by the applicant of the orders made by the primary Judge included the prospect of contempt proceedings (which duly eventuated), I think that this Court should exercise considerable caution before concluding that the applicant under no circumstances would have agreed to discontinue his offensive conduct or would have appreciated the gravity of his actions. 166 The conduct of the applicant in his dealings with the University and its legal representatives is not calculated to attract sympathy. Even so, in my opinion, it would not be in the interests of justice to permit the University at this late stage of the appeal proceedings to change tack once again. As I have noted, it may well be that even if the University had invoked r 2.1, the applicant would not have changed his attitude to desisting from his conduct. But he was never given the opportunity to assess his position in the light of the case the University now seeks to make. Even a litigant whose behaviour is offensive or threatening is entitled to know how the other party puts his or her claims for relief, particularly where the consequences of a breach of any orders made by the Court may be the imposition of contempt sanctions. 167 It should be clearly said, however, that if the applicant persists with the same kind of offensive or threatening conduct in which he has engaged in the past, it may well be open to the University, by reason of any such conduct, to file a further motion seeking appropriate orders pursuant to UCPR, Pt 2 r 2.1.

[45]

Apprehended Contempt 168 As I have noted, the primary Judge declined to permit the University to rely on the power of the Court to grant an injunction to restrain a threatened contempt as a basis for making the Orders. Her Honour took this course because the University did not raise the point until it filed supplementary written submissions after the hearing before the primary Judge had concluded and because she considered it unfair for the University to diverge from the path it had followed at the hearing. By its draft notice of contention, the University sought to support the Orders by reference to the Court's power to grant a quia timet injunction to restrain the commission of an apprehended contempt. 169 The University's written submissions in this Court repeated the submissions that had been made to the primary Judge. The University contended that the barrage of correspondence sent by the applicant could be seen to constitute "improper pressure" on the officers and legal representatives of the University. The submissions invited the Court to infer that the applicant's course of conduct was indicative of his continuing intention to threaten the University and its representatives as a means of inducing the University to desist from the litigation. In these circumstances, so it was argued, it was appropriate to direct the applicant not to continue his pattern of conduct: Bhagat v Global Custodians Ltd [2002] NSWCA 160, at [35]-[38], [51], per Spigelman CJ; Y and Z v W [2007] NSWCA 329; 70 NSWLR 377, at 387 [62], per Ipp JA. 170 The University's written submissions did not address whether her Honour had erred in refusing to permit the University to rely on the jurisdiction to restrain a threatened contempt. When the omission was pointed out, Dr Bell contended that there would have been no unfairness to the applicant had her Honour permitted the University to seek orders restraining the applicant from committing contempt in the future. He pointed out that Ms Bennett, in her affidavit, had identified a number of "inappropriate communications" made by the applicant, including the communication to Professor W (referred to at [104] above). 171 It is, however, one thing for an affidavit to identify what are characterised "inappropriate communications". It is quite another to allege that particular communications amount to a contempt of court and to identify the reasons why that is so. It is different again to contend that one party is likely to persist in a threatening course of conduct designed to constitute improper pressure on the other party or its representatives. 172 Despite being the moving party in the proceedings determined by the primary Judge, the University took no steps prior to or at the hearing to signal that it was relying on threatened contempt as a basis for the Orders. Much less did it identify any of the communications as constituting or potentially constituting a contempt. No explanation was provided to the primary Judge or to this Court for the absence of any reference to these matters until the University filed its supplementary written submissions in the proceedings at first instance. 173 The University has not shown or even sought to show that her Honour did not apply correct legal principles or that the exercise of her discretion as to the conduct of the proceedings miscarried. Had the contempt issue been raised in a timely fashion, the applicant would have been entitled to consider whether he wished to adduce further evidence or to seek legal representation. It would be inappropriate to conclude from his conduct that he would not have taken advantage of any such opportunity. It was clearly open to her Honour to conclude that it was unfair for the University to seek to change its forensic course at such a late stage of the proceedings.

[46]

Inherent Jurisdiction of the Court 174 The University's draft notice of contention sought to uphold the Orders on the ground that the Court had power in its inherent jurisdiction to make the Orders. The University repeated the submissions it had made to the primary Judge, but which her Honour rejected. 175 In those submissions, the University contended that the jurisdiction of the Court includes a power to control the conduct of the parties engaged in proceedings pending in the Court. The power, so it was argued, extends to controlling the processes and proceedings of the Court, including the conduct of litigants. The applicant's conduct directly related to proceedings before the Court, albeit by raising issues quite irrelevant to the issues in the proceedings. The University pointed out that steps taken by or in the proceedings frequently prompted a flurry of correspondence from the applicant, some of it in objectionable terms. 176 It is well-established that the inherent jurisdiction and powers of superior courts exist because they are necessary in the interests of justice: Wentworth v New South Wales Bar Association [1992] HCA 24; 176 CLR 239, at 252, per Deane, Dawson, Toohey and Gaudron JJ. As was said by Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; 166 CLR 486, at 502: "The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice: see Cocker v Tempest [(1841) 7 M & W 502, at 503-504; 15 ER 864, at 865]." 177 In New South Wales, the inherent jurisdiction and power of the Supreme Court overlaps with, although may not be entirely displaced by, the jurisdiction conferred on the Court by s 23 of the SC Act. As has been seen, s 23 confers on the Court: "all jurisdiction which may be necessary for the administration of justice in New South Wales." 178 The authorities emphasise that the inherent power of the Court can be exercised in any circumstances where the requirements of justice demand it and thus cannot be restricted to closed and defined categories of cases: Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335, at 344; Reid v Howard [1995] HCA 40; 184 CLR 1, at 16, per Toohey, Gaudron, McHugh and Gummow JJ, and cases cited there. Part of the inherent jurisdiction (or the jurisdiction conferred by s 23 of the SC Act) is the jurisdiction to punish for contempt of court. This jurisdiction extends to the punishment of conduct calculated to interfere with the due administration of justice, including conduct that seeks to bring improper pressure on a party to litigation; K Mason, "The Inherent Jurisdiction of the Court" (1983) 57 ALJ 449, at 452; Attorney-General v Times Newspapers Ltd [1974] AC 273; Y and Z v W [2007] NSWCA 329; 70 NSWLR 377. 179 There is no reason to doubt that threatening communications by a litigant to the officers or representatives of another litigant are may be such as to bring improper pressure on the other litigant and thus constitute a contempt of court. Nor is there any reason to doubt that the jurisdiction to restrain a threatened contempt can support an order restraining a repetition of threatening conduct of that kind. However, as I have explained, the University did not attempt to invoke this aspect of the inherent jurisdiction until too late in the proceedings. It should not now be permitted to do so. 180 Given the nature and purpose of the inherent jurisdiction of the Court, it is not surprising that it has been exercised in a wide variety of circumstances. Nevertheless, as Reid v Howard (184 CLR, at 16) makes clear, the power of the Court in the exercise of the inherent jurisdiction is not at large. This proposition is illustrated by Commonwealth Trading Bank v Inglis [1974] HCA 17; 131 CLR 311, where it was held that the High Court, although having power to prevent further vexatious applications in pending proceedings, did not have power to order that a party should not institute any fresh proceedings without leave of the Court. The latter required a rule of court or legislation. 181 This Court was not taken to any authority that relied on the inherent jurisdiction of a superior court to restrain voluminous, offensive or threatening communications from one party to another, occurring outside court and not involving the processes of the Court, and which did not constitute contempt or threatened contempt. Mr Mason's article (57 ALJ 449) refers to many examples of the exercise of the inherent jurisdiction, but in none of the authorities he cites did the court make orders or directions restraining or prohibiting conduct of this kind. Similarly, the lengthy catalogue of cases in Ritchie's Uniform Civil Procedure NSW, at [SCA s 23.20], illustrating the scope of the inherent jurisdiction, does not include any such cases. 182 Dr Bell referred to the decision of the Divisional Court in Attorney-General v Ebert [2001] EWHC Admin 695; [2002] 2 All ER 789. In that case, a bankrupt vexatious litigant disrupted court proceedings on many occasions; repeatedly demanded of staff of the Royal Courts of Justice that they refer his applications (of which there were over 150) within 24 hours to a judge; wrote letters to the judge dealing with the applications accusing him of corruption, perjury and other offences; threatened to call the police if a registrar did not hear one of his applications immediately; and purported to make a citizen's arrest of a barrister (who had previously acted against him) outside the Royal Courts of Justice. 183 The Divisional Court granted an injunction restraining the litigant, inter alia, from entering the Royal Courts of Justice without permission and from communicating with anyone at the Court except for the purpose of making certain formal applications. The Court held (at 798 [35]) that: "the court's supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well-established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt … The advent of the [ Civil Procedure Rules ] only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants." [Citation omitted.] 184 The facts of Attorney-General v Ebert were different from the present case. The conduct restrained by court order occurred in court, in the vicinity of the court. It involved direct interference with the administration of justice: see Manolakis v Director of Public Prosecutions (Cth) [2008] SASC 193 (Gray J); Kay v Attorney-General (Vic) [2009] VSC 71 (Smith J). The decision does not demonstrate that the inherent jurisdiction of the court extends to restraining conduct that does not involve abuse of the court's processes themselves or interference with judicial officers or officers of the court: cf Supperstone v Hurst [2009] EHWC 1271; [2009] 1 WLR 2306, where a Deputy High Court Judge declined to make an order restraining a bankrupt from communicating with the trustee in bankruptcy. 185 The juridical basis of the inherent jurisdiction of a superior court is said to be that: "the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute … The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner." I H Jacob " The Inherent Jurisdiction of the Court " (1970) 23 Current Legal Problems 23, at 27-28. 186 This rationale does not support the contention that either the inherent jurisdiction of the court, or the jurisdiction conferred by s 23 of the SC Act, extends to restraining conduct by a litigant, where that conduct does not: involve use of the processes of the court itself;

Parties

Applicant/Plaintiff:

McGuirk

Respondent/Defendant:

University of New South Wales

Legislation Cited (1)

Trade Practices Act 1974(Cth)

Cases Cited (42)

CITATION: McGuirk v University of New South Wales [2010] NSWCA 104

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Attorney-General v Ebert [2001] EWHC Admin 695; [2002] 2 All ER 789 Attorney-General v Times Newspapers Ltd [1974] AC 273 Bhagat v Global Custodians Ltd [2002] NSWCA 160 Cocker v Tempest (1841) 7 M & W 502; 15 ER 864 Commonwealth Trading Bank v Inglis [1974] HCA 17; 131 CLR 311 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 Coulton v Holcombe [1986]HCA 33; (1986) 162 CLR 1 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Hamilton v Oades [1989] HCA 21; 166 CLR 486 Independent Commission Against Corruption v McGuirk [2007] NSWSC 147 Jenolan Caves Resort Pty Ltd v Field [2007] NSWSC 1117 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Kay v Attorney-General (Vic) [2009] VSC 71 Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 Lansdale Pty Ltd (In Liq) v REI Building Society [1993] FCA 121; 41 FCR 421 Manolakis v Director of Public Prosecutions (Cth) [2008] SASC 193 Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; 226 CLR 486 CASES CITED: McGuirk v Independent Commission Against Corruption [2008] NSWCA 302 McGuirk v University of New South Wales [2009] NSWSC 253 McGuirk v University of New South Wales [2009] NSWSC 1058 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; 184 CLR 301 Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Reid v Howard [1995] HCA 40; 184 CLR 1 Smits v Roach [2006] HCA 36; 227 CLR 423 Stanley-Hill v Kool [1982] 1 NSWLR 460 Supperstone v Hurst [2009] EHWC 1271; [2009] 1 WLR 2306 Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation [2007] FCA 1544 Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 University of New South Wales v McGuirk [2006] NSWSC 1362 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Vincent v Peacock [1973] 1 NSWLR 466 Wentworth v New South Wales Bar Association [1992] HCA 24; 176 CLR 239 West v AGC (Advances) Ltd (1986) 5 NSWLR 590 Y and Z v W [2007] NSWCA 329; 70 NSWLR 377

LOWER COURT MEDIUM NEUTRAL CITATION: Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253

(2) In particular, the court may, by order, do any one or more of the following: … (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. 11 As a grant of power to a court, the words of s 61 should be given their full meaning, in a liberal construction, unless there is something in them to indicate to the contrary. The passage from the judgment of Gaudron J in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 to which Sackville AJA refers has frequently been cited or adopted, including recently in the judgment of Gleeson CJ and Gummow, Kirby, Hayne and Crennan JJ in Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [10]. 12 While the language of s 61 has a background of speedy determination of commercial causes, it is now expressly provided by s 56(2) of the Act that it is to be interpreted to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. The importance of this in modern curial dispute resolution is underlined by the duty imposed on the parties by s 56(3) to assist the court to further the overriding purpose, and the obligation to manage proceedings for the purpose of furthering the overriding purpose with the objects of just, efficient, timely and affordable disposal of proceedings as more fully expressed in s 57(1). Section 57(2) provides that the Act is to be construed and applied as best to ensure the attainment of those objects. The statutory context within which s 61 is to be interpreted is vastly different from that at the time its language was earlier used. 13 In the phrase "speedy determination of the real issues between the parties to the proceedings", the subject-matter is determination of the proceedings. Speediness is a goal, but not a limitation on the power to give directions; nor does the reference to the real issues preclude directions in relation to what might be regarded as unreal issues. Read in its current statutory context, the phrase includes directions for determination of the proceedings which do not specifically contribute to speediness; and in accordance with ss 56(2) and 57(2), the determination of the proceedings means should be construed to mean determination justly, quickly and cheaply and so as to attain the objects in s 57(1). The limitation on the power is found in those words and objects. 14 The question then is whether the primary Judge was in error in considering that the power under s 61 was enlivened on the facts before her; that is, whether the directions were for the determination of the real issues in the proceedings justly, quickly and cheaply and with regard to the objects in s 57(1). As will appear, just and cheap were the focus of the primary Judge's conclusion. 15 There is inevitable expense in legal proceedings. Cheap determination is relative. It involves avoidance of unnecessary expense, and a question of degree. Just determination lies not only in a result according to law. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Gummow, Hayne, Crennan, Kiefel and Bell JJ observed at [98] that minimum delay and expense are "seen as essential to the just resolution of proceedings", and at [101] included in the ill-effects of delay the strain upon litigants. So also the just resolution of proceedings can include regard to other consequences of the proceedings to the parties in the resolution of the dispute. (Although the context is quite different, compare procedural injustice in the circumstances in which a contract was made for the purposes of the Contacts Review Act 1980, see West v AGC (Advances) Ltd (1986) 5 NSWLR 590 at 620-621 per McHugh JA). 16 Court proceedings intrude upon personal autonomy, including because plaintiffs may have to come to court to obtain redress and because defendants are brought to court and must engage in the court's processes if they wish to defend. There can be injustice in the determination of proceedings (and the real issues in the proceedings) through a party's exposure to an opposing party's offensive or threatening conduct because the party must come to court as a plaintiff or a defendant. 17 I do not go to the detail of the communications sent by the applicant. Some are found in the primary Judge's reasons, and I have read them all. At one point before us the applicant accepted that he had sent "grossly offensive e-mails", while saying that he did not know what he was doing at the time. 18 The substance of the primary Judge's application of s 61 is in the paragraphs - "92 … Nevertheless, it is apparent that both the volume and the content of the communications is interfering with the orderly processing of the proceedings initiated by Mr McGuirk. In hindering the legal practitioners in the execution of their duties in the litigation, Mr McGuirk is in breach of his obligations stated in s 56(3). As well, I am satisfied that the sheer volume of the communications (given their substantial irrelevance to the proceedings) amounts to harassment of the various recipients, and causes a financial burden to the University.

95 I have come to the conclusion (fortified by the course taken by Bergin J) that, in these unusual circumstances, s 61(2)(c) is sufficiently wide to enable an order of the kind sought by the University. …" 19 The "course taken by Bergin J" was her Honour's decision in Jenolan Caves Resort Pty Ltd v Field; St George Bank Ltd v Field [2007] NSWSC 1117. Her Honour considered that s 61 enabled her to make orders that Mr Field not write threatening and otherwise inappropriate letters to the directors of St George Bank Ltd. 20 On my understanding of the reasons, there were two elements in the primary Judge's application of s 61. First, the communications sent by the applicant to the University's solicitors and counsel and to officers of the University caused unnecessary expense. The expense was described as "unconscionable", which I do not understand to mean more than significant in amount. Secondly, the nature and volume of the communications amounted to harassment of the recipients. This should be understood in the light of the particular finding that the communications had caused stress to Ms Bennett, the solicitor on the record for the University, who had given evidence. Her evidence included that text messages from the applicant caused her to fear that the applicant had followed her from her office, although the finding of harassment was not limited to this evidence. 21 These two elements underlay the references to interference with the orderly processing of the proceedings and hindering the legal practitioners in the execution of their duties. There is, with respect, some infelicity in expression in the "As well … " and "Further … ", when what then appeared was plainly enough in explanation of those references (and in the case of "Further … " was explanatory of the earlier reference to the financial burden caused to the University). 22 The findings as to the nature of the communications and their effect on the recipients were amply open to the primary Judge. Reading the reasons as a whole, her Honour found that the applicant's conduct in sending the volume of communications caused unnecessary expense in the determination of the real issues in the proceedings; and, although not directly so described, that there was injustice in the determination of the real issues in the proceedings because, the University having been brought to court as defendant to the applicant's claims, its officers, solicitors and counsel were then subjected to the barrage of largely irrelevant but offensive and threatening, communications. 23 I respectfully differ from Sackville AJA so far as his Honour considers that the finding of financial burden is not supported by the evidence. Irrelevance to the determination of the proceedings is not known until a communication has been read; it would be foolish to ignore a threatening communication, even if upon consideration it is thought unlikely that the threat is real or will be carried out. Ms Bennett's evidence included that the correspondence took "a substantial amount of time to read and respond to", which can readily be accepted even if the response was a number of requests to desist. In my opinion, it was open to the primary Judge to find that there was significant additional expense; it was not quantified, but that went to the exercise of the discretion, and I see no error in sufficiency for relief in the exercise of the power conferred by s 61. 24 In my opinion, no error has been shown in her Honour's conclusion that s 61 was enlivened, or in her application of it. 25 The applicant's written submissions filed after the hearing included that there were or had been many other proceedings between himself and the University, and that so far as the primary Judge's directions related to the conduct of other proceedings it could not be said that they were a valid exercise of the power under r 2.1. Transposed to s 61, an equivalent submission would be that it could not be said that the directions were for the determination of the real issues in the proceedings in which the University brought its application. 26 The primary Judge addressed this at [93], set out above. In my opinion, her Honour correctly considered that all the communications were sent as having some bearing on the proceedings. As noted by her Honour at [55], the applicant sought to explain his conduct on the ground of stress "for which he largely placed the blame on the shoulders of Sparke Helmore in their conduct of the litigation". I have earlier referred to the themes in his complaints in this Court, which linked his communications with steps taken by the University in the proceedings. It was not necessary that each and every communication be directly referable to the proceedings. It was sufficient that, through the effect of the communications on the University as defendant, the directions were for determination of the real issues in the proceedings justly and cheaply.

CONTEMPT PROCEEDINGS 57 The primary Judge made the Orders on 8 April 2009. On 4 July 2009, the University filed an amended notice of motion seeking an order under Supreme Court Rules 1970, Pt 55 r 3, that the applicant be dealt with for contempt of court. The University claimed that the applicant had disobeyed the Orders by sending communications to various persons associated with it. A second notice of motion filed by the University on 7 July 2009 alleged further breaches of the Orders. 58 In a judgment delivered on 6 November 2009 ("Contempt Judgment"), after a nine day hearing, James J found that the applicant committed a contempt of court by sending communications identified in the notices of motion in breach of the Orders: McGuirk v University of New South Wales [2009] NSWSC 1058. The hearing to determine the appropriate sanctions for the applicant's contempt has not yet taken place. 59 James J noted (at [108]) in the Contempt Judgment that the applicant had applied for leave to appeal against the decision of the primary Judge in the present proceedings and that the application for leave to appeal had been set down for hearing on 11 March 2010. His Honour recorded that the grounds of appeal relied on by the applicant included a claim that the primary Judge erred in holding that she had power under s 61 of the CP Act to make the orders she did. James J also recorded that the applicant had filed a motion in the contempt proceedings seeking an order staying the proceedings until the leave application in the present proceedings had been resolved by this Court. However, James J held (at [109]) that, as he was a Judge at the same level in the judicial hierarchy as the primary Judge and as an application for leave to appeal had been filed against the decision of the primary Judge, it was inappropriate for him to enter into any consideration of the correctness of that decision. Accordingly, he decided not to stay the proceedings and proceeded to determine the contempt proceedings. 60 This Court has not been directly concerned with any challenge to the findings and orders made in the Contempt Judgment. Nonetheless, if the applicant were to succeed on his leave application and on the appeal, the effect would be to set aside the Orders and thus remove the foundation on which James J's findings of contempt were based.

COURSE OF THE APPEAL 61 This Court heard argument on both the application for leave to appeal and on the merits of the foreshadowed appeal. However, much time at the hearing in this Court was taken up with a series of applications by the applicant, each of which was refused. They included applications: for an adjournment; for Giles JA to disqualify himself; to adduce evidence relating to the applicant's medical condition and to alleged harassment of the applicant by the respondent; for me to disqualify myself; that the Court should be reconstituted on the ground that my commission as an acting Judge and Judge of Appeal contravenes Chapter III of the Constitution (notwithstanding the decision of the High Court in Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45); and that the so-called constitutional question be referred to the High Court for determination. 62 Once these various applications were disposed of by the Court, the applicant proceeded with his substantive submissions. He contended that the primary Judge and indeed other judicial officers had denied him procedural fairness. The applicant also asserted that the primary Judge had acted in a manner that demonstrated bias or gave rise to a reasonable apprehension of bias and that her Honour had otherwise acted improperly. 63 The applicant's presentation to the Court was characterised by unsubstantiated allegations or imputations of impropriety against a variety of persons, including the respondent's legal representatives, officers of the respondent, the police, judicial officers and others. These allegations or imputations were often accompanied by extravagant and offensive language, although the tone of the applicant's submissions moderated somewhat as the hearing progressed. 64 As I have noted, the applicant's summary of argument for the application for leave to appeal includes a contention that the Orders were "ultra vires the powers of the court under s 61 of the Civil Procedure Act 2005". Curiously enough, the applicant chose not to develop this contention in his oral submissions despite being given the opportunity to do so. (The applicant informed the Court that he has nearly completed a law course and in his oral submissions demonstrated familiarity with a number of authorities said to be relevant to issues in the proceedings.) The question of whether the Orders were within power and were properly made is obviously critical to the correctness of the findings made by James J in the Contempt Judgment. It also potentially raises some issues of general importance concerning the scope of s 61 of the CP Act. 65 The primary Judge in the present proceedings rejected the University's submission that the Orders could be supported as an exercise of the inherent jurisdiction of the Supreme Court. Her Honour also refused to permit the University to mount an argument that the Orders could be justified as orders designed to restrain a threatened contempt. The University seeks to rely on these arguments by means of a draft notice of contention. 66 Curiously enough, the University did not rely, either before the primary Judge or this Court, on the apparently broad powers of case management conferred by the Uniform Civil Procedure Rules ("UCPR"), Pt 2 r 2.1 (reproduced at [69] below). After completion of the oral argument on the application for leave to appeal, the Court drew UCPR Pt 2 r 2.1 to the attention of the parties and invited submissions on whether it could support the Orders and, if so, whether it was too late for the University to rely on r 2.1 as a source of power. Both parties responded to the invitation.

[2009] VSC 71

[1993] FCA 121

[2008] SASC 193

[1992] HCA 24

(1986) 162 CLR 1

(1997) 47 NSWLR 631

(1985) 59 ALJR 481

(1986) 5 NSWLR 590

(1973) 1 NSWLR 466

(1992) 174 CLR 178

(2006) 226 CLR 486

(2009) 239 CLR 175