McGuirk v University of NSW - [2009] NSWSC 1058 - NSWSC 2009 case summary — Zoe

NSWNSWSC

McGuirk v University of NSW

[2009] NSWSC 1058

Supreme Court of NSW|2009-11-06|Before: James J

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Source facts

Court

Supreme Court of NSW

Decision date

2009-11-06

Before

James J

Source

Original judgment source is linked above.

Judgment (138 paragraphs)

[1]

Background facts 25 Mr McGuirk's evidence, as I have already indicated, was voluminous and, even after allowing for its frequent repetitiveness, dealt with a multitude of subjects. I do not propose to attempt to deal with all of the matters referred to in Mr McGuirk's evidence. However, it is necessary to advert to a fairly large number of matters for a proper understanding of the statements of charge in the University's notices of motion and of the submissions made by the parties, and particularly Mr McGuirk, on the various notices of motion. 26 Mr McGuirk was formerly employed by the University as the Acting Director of the Master of Business and Technology post-graduate program at the University. Mr McGuirk ceased to be employed by the University in circumstances which are contentious, Mr McGuirk contending that his employment was wrongly terminated. Mr McGuirk physically left the University at about the end of February 2002 and his employment by the University formally ended on 31 March 2002. 27 Mr McGuirk asserts that while he was still employed by the University and in the years since his employment was terminated, he has campaigned to expose what he believes to have been instances of corruption and mismanagement within the University and to expose how the University has treated "whistle-blowers", that is he himself and other persons who have exposed corruption or mismanagement within the University and who, Mr McGuirk asserts, have been victimised by the University in contravention of the Protected Disclosures Act 1994. 28 Mr McGuirk referred in his evidence to a number of "scandals" at the University and a number of whistle-blowers, including:-

The first Educational Testing Centre scandal. A Ms Margaret Love had made reports of maladministration and corruption in the Educational Testing Centre at the University.
The Professor Hall affair in which a number of allegations of misconduct were made against a professor at the University, Professor Bruce Hall, the whistle-blowers being Dr He and Dr Chen.
The second Educational Testing Centre scandal in which the whistle-blower was Mr Peter Curtin. 29 In 2003 Mr McGuirk successfully used the Freedom of Information Act to obtain a copy of a report made by an external consultant of an investigation of allegations which Mr McGuirk had made while he was still employed by the University. 30 Since then Mr McGuirk has often used the Freedom of Information Act in an endeavour to obtain access to documents held by agencies and especially the University. In cases where there has been a determination by an agency to refuse access to a document, Mr McGuirk has often applied to the Administrative Decisions Tribunal for a review of the determination refusing access. 31 Exhibit J at the hearing before me listed the published decisions of the Administrative Decisions Tribunal to which Mr McGuirk had been a party, as at 23 July 2009. There were 70 decisions in the list. I accept that many of these decisions were not substantive decisions on applications for access made by Mr McGuirk but concerned ancillary matters such as applications for advance deposits, whether complying with Mr McGuirk's applications would involve substantial and unreasonable diversion of an agency's resources and applications for costs orders. 32 I will now summarise briefly some of the other proceedings in which Mr McGuirk has been a party.

[3]

Independent Commission Against Corruption ("ICAC") v McGuirk 36 I have already briefly referred to the ICAC proceedings. These proceedings are of particular importance because they came before Simpson J. 37 On 10 December 2004 Mr McGuirk wrote a letter to ICAC marked for the personal attention of the newly appointed Commissioner Mr Jerrold Cripps. In the letter Mr McGuirk complained of serious and systemic corruption, mismanagement and a failure of governance at the University, extending over a period of eight years, and requested Mr Cripps to give high priority to a comprehensive investigation of his allegations. Mr McGuirk said that the evidence he had in support of his allegations comprised several thousand pages of documentary evidence, together with video and audio evidence. 38 Mr McGuirk in his evidence before me said that he had not previously complained to ICAC, because he knew that the Commissioner before Mr Cripps (Mrs Irene Moss) was a close friend of the University's then Vice-Chancellor Professor Niland. 39 On 1 February 2005 a deputy ICAC Commissioner Mr John Pritchard sent an email to Mr McGuirk in which he said that ICAC did not intend to investigate Mr McGuirk's allegations. However, Mr Pritchard added that, as with all complaints of corrupt conduct, the matter would be referred to the Operations Review Committee. 40 On 26 May 2005 Ms Linda Madgwick, an assessment officer of ICAC, wrote a letter to Mr McGuirk in which she referred to the email of 1 February 2005 and to further material which had been provided by Mr McGuirk and informed Mr McGuirk that a report had been sent by ICAC to the Operations Review Committee and the Committee had accepted a recommendation by ICAC that Mr McGuirk's allegations not be investigated. 41 Mr McGuirk made an application to ICAC under the Freedom of Information Act for access to the report to the Operations Review Committee made by Ms Madgwick. Access was refused and Mr McGuirk made an application to the Administrative Decisions Tribunal for a review of the determination to refuse access. 42 Mr McGuirk was successful in the Tribunal, both at first instance and before an appeal panel. However, ICAC appealed from the decision of the appeal panel on the grounds that ICAC was exempted from the operation of the Act by virtue of s 9 and Sch 2 to the Act. 43 The appeal came on for hearing before Simpson J on 19 February 2007. Mr McGuirk was late in arriving at the court, because, he said, he had been "kidnapped" by police that morning and had been held for some time before he was released. Simpson J proceeded to hear the appeal and reserved her judgment. 44 On 2 March 2007 Simpson J delivered a reserved judgment in which she allowed the appeal and set aside the decision of the appeal panel of the Tribunal. Her Honour indicated that she was disposed to make an order that Mr McGuirk pay ICAC's costs of the proceedings. Mr McGuirk opposed the making of such an order and himself sought an order that ICAC pay his costs. The question of costs was stood over. 45 On 26 March 2007 Mr McGuirk made the affidavit, a copy of which occupies the first 177 pages of exhibit MM1. Mr McGuirk made the affidavit for the purpose of opposing ICAC's application for costs and supporting his application for costs. 46 Within the 177 pages of the affidavit there are four references to Ms Judy Brookman of the University's media office or unit. In each place the words "Contact Details: Judy Brookman" and her position as media manager or as being in the University's media or communications unit or office and particulars of her telephone numbers appear at the end of a media release by the University in which a statement or announcement by the University's Vice-Chancellor or the University's Chancellor is summarised or quoted. 47 The outstanding question of the costs of the ICAC proceedings came before Simpson J on 15 November 2007. Mr McGuirk was again late in arriving at court and did not arrive until Simpson J was part of the way through delivering an ex tempore judgment in favour of ICAC. 48 After Mr McGuirk had arrived at the court he was permitted by Simpson J to make submissions on costs. He handed up a document containing 25 pages of written submissions and made oral submissions to her Honour. He did not read his affidavit of 26 March 2007. 49 Simpson J delivered an ex tempore judgment in which she concluded that she should make an order that Mr McGuirk pay ICAC's costs of the proceedings. Her Honour gave consideration to a submission made by Mr McGuirk that there are occasions when a party who was acting in the public interest, as Mr McGuirk claimed to have been doing in the ICAC proceeding, will not, even if the party was unsuccessful, be ordered to pay the costs of proceedings. However, her Honour concluded:- "It is the usual practice that a successful litigant will be awarded costs but I accept that there are occasions when departure will be made from that usual practice and that is, for example, when it is in the interests of justice to do so. However, nothing has been demonstrated in the present case which persuades me that it is remotely in the interests of justice that I depart from usual practice. The matter was fully litigated. The defendant was unsuccessful. The plaintiff is entitled to an award of costs and I so order." 50 Mr McGuirk submitted before me that the issue in the ICAC proceedings had been whether the Administrative Decisions Tribunal had erred and Simpson J should not have made a costs order against him.

[8]

The principal proceedings 64 The principal proceedings in which the present motions were brought were commenced by Mr McGuirk in March 2008. The statement of claim was extremely long and contained many causes of action. 65 The University filed a notice of motion seeking to strike out the statement of claim on the grounds that the statement of claim did not comply with the rules as to pleadings and particulars in Pts 14 and 15 of the Uniform Civil Procedure Rules and made claims which were not justiciable in the Supreme Court or claims which Mr McGuirk had no standing to make. 66 On 25 July 2008 consent orders were made requiring Mr McGuirk to file an amended statement of claim by 26 September 2008. Mr McGuirk applied for and was granted extensions of time in which to file an amended statement of claim. 67 On 30 January 2009 Mr McGuirk served a document described as "Statement of claim (first amended statement of claim)". In a covering letter Mr McGuirk said that the document was not complete, in that the pleading of a cause of action based on the Fair Trading Act was not complete. 68 The University opposed the granting of leave to Mr McGuirk to file the first amended statement of claim, on the grounds that it itself was still seriously defective. 69 An application by Mr McGuirk for leave to file the first amended statement of claim, which was opposed by the University, was heard by Johnson J, who reserved his judgment and who, I understand, has not yet given judgment. 70 The allegations made by Mr McGuirk in the first amended statement of claim include allegations that his contract of employment with the University was not "a project of limited duration" within the terms of the University of New South Wales (general staff) Enterprise Agreement 2000 and that the conduct of the University in early 2002 amounted to a repudiation of Mr McGuirk's contract with the University. The first amended statement of claim contains causes of action for breach of contract, breach of the Trade Practices Act, breach of the Fair Trading Act, fraudulent conduct, breaches of the Protected Disclosures Act, deceit, negligence, misfeasance in public office and conspiracy. 71 The relief claimed by Mr McGuirk in the first amended statement of claim includes a claim for damages and claims for declarations that a number of documents sent by Mr McGuirk in 2001 to officers or to a committee or to the Council of the University were protected disclosures within the Protected Disclosures Act. Mr McGuirk asserted before me that, if these declarations were made, the making of the declarations would demonstrate that the criminal proceedings he had brought under the Protected Disclosures Act had been properly brought by him. 72 Mr McGuirk complained before me about the lack of progress in the principal proceedings, including that, notwithstanding that about a year and a half has elapsed since the original statement of claim was filed and served, no defence has yet been filed. The University has, of course, taken the position that because of what it says are deficiencies in the statement of claim it has not been required to file any defence. 73 During the hearing of the applications before me I stated, and I remain of the opinion, that it is no part of my function in hearing the present motions, to form any view about the sufficiency as a pleading of the original statement of claim or the first amended statement of claim.

[9]

The hearing before Simpson J and Simpson J's judgment and order 74 The application by the University pursuant to which Simpson J made her orders of 8 April 2009 was filed by the University on 6 March 2009. The application sought inter alia an order that Mr McGuirk be restrained from sending, without the prior leave of the court, any written communication concerning the proceedings to any officer or employee of the University, to counsel retained to act for the University or, subject to certain exceptions, to the solicitor on the record for the University or any partner or employee of that solicitor. The application also sought other orders to which it is unnecessary to refer. 75 The application by the University was supported by an affidavit by Ms Bennett made 9 March 2009 (exhibit 13 before me), to which were annexed copies of a large number of communications to and from Mr McGuirk, including many communications by Mr McGuirk which, it was contended, were inappropriate communications by Mr McGuirk to the University or to Sparke Helmore or were direct communications by Mr McGuirk with the University or counsel, after requests had been made to Mr McGuirk to communicate only with the solicitor on the record for the University (Ms Bennett) and not to communicate directly with the University or counsel. The application was also supported by a further affidavit by Ms Bennett of 23 March 2009, which brought up to date her earlier affidavit. 76 On 23 March 2009 the application came on for hearing before Simpson J, who happened again to be the common law duty judge. 77 Mr McGuirk was again late in arriving in the courtroom. Senior counsel for the University reported to Simpson J that Mr McGuirk had made a successful application earlier that morning to a Court of Appeal judge (Basten JA) to vacate the hearing of an application for leave to appeal in another matter, which had been fixed for hearing the following day (24 March). 78 After Mr McGuirk arrived in the courtroom, Ms Bennett's affidavits were read by counsel for the University. Simpson J overruled an objection to the first affidavit that it was "of a highly selective nature". Counsel for the University began taking Simpson J to some of the written communications annexed to Ms Bennett's affidavits. 79 Mr McGuirk said that "I think this matter would be better heard by another judge". Mr McGuirk also said "I'm not in a fit emotional state to be here at this moment" and foreshadowed an application for an adjournment. The luncheon adjournment then intervened. 80 Immediately after the luncheon adjournment her Honour said:- "Before we go any further, there is a matter I think I should draw to the attention of the parties. As far as I can see, it shouldn't make any difference, but I will hear what anybody has to say about it. I have a good friend who is employed by the University of New South Wales in the media area and this person is not on the table of recipients (of communications from Mr McGuirk) but I thought I should hear if the parties had anything to say about it." 81 Mr McGuirk then asked "Is that Judy Brookman?" Her Honour said "I'm not going to answer that question". Mr McGuirk then said that Ms Brookman was in several ways involved in the proceedings. 82 Counsel for the University said that Ms Brookman's name was not a name he was familiar with. Mr McGuirk began referring to the prosecution he had brought under the Protected Disclosures Act. Her Honour asked "What has this got to do with whether Ms Brookman is involved in these proceedings before me?" Mr McGuirk replied that a journalist who was covering the prosecution proceedings had spoken to Ms Brookman and Ms Brookman had issued a press release about the prosecution proceedings. Her Honour said, "that was simply a media response". 83 Her Honour then said:- "I don't feel any actual embarrassment but there is the perception issue. I suppose the difficulty I have is that I don't know enough about the wider issues. The issues on the present notice of motion don't seem to involve her at all." 84 Mr McGuirk made a number of applications, including an application to stay the University's application on the basis that it was an abuse of process, an application to stay the University's application on the basis of an offer he had made to the University that he would desist, subject to certain exceptions, from all communications, provided that the University also desisted from communicating with him, an application to adjourn the University's application on medical grounds and an application that Simpson J disqualify herself from hearing the University's application. 85 Counsel for the University opposed all of these applications. As far as the application to adjourn the University's application on medical grounds was concerned, counsel for the University pointed out that Mr McGuirk had addressed Basten JA in the Court of Appeal for the best part of an hour that morning and had already shown himself capable of putting "articulate" submissions before Simpson J. 86 Simpson J decided to grant an adjournment of two days to 25 March 2009. 87 On 25 March 2009 the hearing resumed. Mr McGuirk applied to Simpson J to disqualify herself on the grounds of apprehended or actual bias. In support of this application Mr McGuirk referred to Simpson J's refusal on 5 April 2007 to grant an injunction against the police. Mr McGuirk said that Simpson J had been aware on 5 April 2007 that Mr McGuirk had on the morning of 19 February 2007 been detained by the police. 88 Mr McGuirk also said that Simpson J had stated that she was a "close" friend of Judy Brookman (Simpson J had actually said that Ms Brookman was a "good" friend) and that Ms Brookman, as a media officer and as being "the front person" for the University, had represented, contrary to the fact, that all was well at the University of New South Wales. 89 In support of his application that Simpson J disqualify herself, Mr McGuirk also referred to parts of Simpson J's judgment of 15 November 2007, in which she had ordered that Mr McGuirk pay ICAC's costs of the ICAC proceedings. 90 Simpson J decided that she should not disqualify herself. Her Honour delivered a judgment but there was no transcript of this judgment in the evidence before me. I infer that Simpson J, in accordance with what she said when she disclosed her friendship with Ms Brookman, saw no reason to disqualify herself. 91 Counsel for the University then proceeded to go through more of the communications annexed to Ms Bennett's affidavit. Mr McGuirk interjected frequently in this part of the proceedings. 92 Mr McGuirk had told Simpson J that he wished to cross-examine Ms Bennett and that his cross-examination would take 3 hours. However, her Honour decided that she should exercise her powers under s 62 of the Civil Procedure Act and limit the time for cross-examination. Ms Bennett was cross-examined by Mr McGuirk in a cross-examination which occupies pages 13-27 of the transcript of the hearing on 25 March 2009. 93 Mr McGuirk tendered the affidavit of 177 pages of 26 March 2007 which he had made in the ICAC proceedings but the tender of the affidavit was rejected. 94 Her Honour refused an application by Mr McGuirk for an adjournment to enable him to put on further evidence which he said would go to "provocation" of himself by Sparke Helmore, on the grounds that any further evidence Mr McGuirk might adduce would be of no relevance to the issues her Honour had to decide. 95 Counsel for the University then addressed and, following counsel for the University, Mr McGuirk addressed. At p 38 of the transcript her Honour asked Mr McGuirk to say anything that was relevant to whether her Honour should make the orders sought by the University. At p 40 of the transcript her Honour informed Mr McGuirk that his time to make his submissions had expired. Counsel for the University made brief submissions in reply. Her Honour then reserved her judgment. 96 Simpson J delivered her reserved judgment on 7 April 2009. (McGuirk v The University of New South Wales [2009] NSWSC 253). 97 In par 10 of her judgment her Honour said:- "From the time of commencement of the pleadings Mr McGuirk has communicated, by a variety of means, with Ms Bennett, with a junior solicitor employed by Sparke Helmore (Ms Rhiannon Eagles), and with the managing partner of Sparke Helmore (Mr John Davis), with senior and junior counsel retained in this matter (Messrs Bell and Izzo), with a junior counsel who holds a brief for the University in another matter (Mr Singleton), and with two counsel who do not hold briefs either for Mr McGuirk or for the University, and with the Chancellor of the University (Mr Gonski), the Vice-Chancellor (Professor Hilmer), and the University solicitor (Ms Kirby) and assistant solicitor (Ms Fleming). In many cases the correspondence is copied to other recipients. Mr McGuirk utilises e-mail, facsimile, text messaging, and letters sent by post. The bulk of his communication appears to be made by e-mail." 98 In par 11 of her judgment her Honour said:- "The correspondence is voluminous, and increasingly concerning. Some of it is bizarre, some offensive, some threatening. In some instances it may well, and in others almost certainly does, amount to criminal conduct." 99 In par 13-53 of her judgment Simpson J summarised more than 20 communications which had been sent by Mr McGuirk. 100 In par 54 of her judgment Simpson J said:- "On these facts, I have not the slightest doubt that restraint upon the barrage of communication ought, provided the court has jurisdiction, to be imposed upon Mr McGuirk. Sparke Helmore have repeatedly requested Mr McGuirk to desist from communicating with any of the individuals other than the solicitor on the record. Their repeated requests have had no effect ." 101 In the following paragraphs of her judgment Simpson J considered, and rejected, various possible sources of power to make a restraining order against Mr McGuirk. 102 In par 84 of her judgment her Honour set out the terms of s 61(2)(c) of the Civil Procedure Act, namely:- "61(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: … (c) It may give such other directions with respect to the conduct of proceedings as it considers appropriate." 103 In par 88-91 of her judgment her Honour said:- "88. I return to the affidavit and oral evidence given by Ms Bennett.

[14]

I have come to the conclusion … that, in these unusual circumstances, s 61(2)(c) is sufficiently wide to enable an order of the kind sought by the University. I note that s 61(2) is framed in terms of "directions" given "by order". The orders to be made should incorporate that terminology." 106 In par 99 of her judgment her Honour said that she proposed to make orders in accordance with the amended notice of motion and in par 100 she directed the University to prepare short minutes of orders. 107 When Simpson J delivered her reserved judgment on 7 April 2009 Mr McGuirk was not present. On 8 April 2009 her Honour made orders in accordance with the short minutes of orders brought in by the University, including order 3, the terms of which I set out early in this judgment. The orders were made by her Honour in chambers, Mr McGuirk not being present. 108 Mr McGuirk applied for leave to appeal against Simpson J's decision and the appeal proceedings have been set down for hearing on 11 March 2010. Grounds of appeal on which Mr McGuirk wishes to rely include that he was denied procedural fairness by not being given a proper opportunity to adduce evidence, by not being given an adjournment in order to obtain evidence, by not being granted an adjournment on medical grounds, by not being given a proper opportunity to cross-examine Ms Bennett and by Simpson J declining to disqualify herself and by Simpson J making a finding of criminal conduct against him in her judgment; that her Honour erred in not applying Div 1 of Pt 6 of the Civil Procedure Act; that her Honour erred in holding that she had power under s 61 of the Civil Procedure Act to make the order she did; and that her Honour erred in making certain findings of fact. 109 As I am a judge at the same level in the judicial hierarchy as Simpson J and a fortiori as there is an appeal to the Court of Appeal against her Honour's decision, I should not enter into any consideration of the correctness of her Honour's conduct and decision. I will, however, later in this judgment have to consider the charge of scandalising the court, including the matters relied on by Mr McGuirk in answer to that charge.

[17]

An order staying any further hearing an/or other determination in respect of the notice of motion filed by Sparke Helmore Lawyers in the court on 1 July 2009 until the determination by the Court of Appeal of the summons for leave to appeal and/or the substantive appeal by the plaintiff against the decision of Simpson J in Gerard Michael McGuirk v University of New South Wales [2009] NSWSC 253 and the orders made by Simpson J pursuant to that decision on 8 April 2009, matters which are before the Court of Appeal under file number CA 40209 of 2009. 112 This paragraph in Mr McGuirk's notice of motion refers only to the University's notice of motion filed on 1 July 2009 but it was accepted at the hearing before me that the relief claimed in par 11 extended to the University's amended notice of motion of 4 July and the notice of motion of 7 July. The relief claimed would not apply to that part of the amended notice of motion of 4 July which relates to the charge of having scandalised the court. 113 At an early stage on the first day of the hearing before me I raised the question whether I should hear contempt proceedings for disobedience to a court order, when an appeal or at least an application for leave to appeal had been brought against the order and had not been determined. I was persuaded by counsel for the University that I should continue with the hearing of the motions. 114 I raised the question again on the third day of the hearing, when I heard oral argument and also considered written submissions prepared by counsel for the University. 115 Counsel for the University submitted that Simpson J's orders of 8 April 2009, including order 3, were orders by a judge of a superior court and as such were valid and binding, unless and until they were set aside, and should be obeyed, unless and until they were set aside, and that any disobedience to such orders would be (at least prima facie) contempt of court, even if it were subsequently to happen that the orders were set aside. 116 Counsel for the University cited Cameron v Cole (1943-1944) 68 CLR 571 at 590, where Rich J said:- "It is settled by the highest authority that the decision of a superior court even if in excess of jurisdiction is at worst voidable and is valid unless and until it is set aside (Baron Martin advising the House of Lords in Scott v Bennett (1871) LR 5HL 234 at 245, Revell v Blake (1873) LR 8CP 533 at 544)."

[18]

See also Latham CJ at 585, McTiernan J at 598 and Williams J at 607. 117 Counsel for the University also referred to cases in which Rich J's statement in Cameron v Cole has been quoted or referred to, including Re Macks: Ex parte Saint (2000) 204 CLR 158 at 177 [20] per Gaudron J; Hillig v Darkinjung Pty Ltd [2008] NSWCA 75 at [33] per McColl JA, the other members of the court concurring; Mathews v Australian Securities and Investments Commission (2000) 170 ALR 149 (Federal Court of Australia Full Court) at [20] per curiam. 118 Mr McGuirk accepted that there is a general principle as stated in Cameron v Cole. However, he submitted that there is an exception to the general principle, if the order of the superior court has been made by a corrupt judge, that is a judge who acted corruptly in making the order, and he submitted that I should find, on the evidence adduced by him, that Simpson J had acted corruptly in making her orders of 8 April 2009. He also submitted that there is an exception to the general principle, if the proceedings in which the order was made were an abuse of process. 119 Mr McGuirk did not cite any relevant authority in support of his submissions. Indeed, he asserted that his submissions raised novel questions, which were worthy of being adjudicated on by an appellate court. 120 It was not clear to me, and remains unclear to me, whether there are any exceptions to the general principle of the kinds submitted by Mr McGuirk. 121 As to the factual basis of Mr McGuirk's submissions, I was reluctant to embark on an inquiry into whether Simpson J, a judge of equal status to myself, had acted corruptly in making the orders of 8 April 2009 and into whether the proceedings in which her Honour had made her orders were an abuse or process, especially when appeal proceedings had been brought against her Honour's orders. On the other hand, I could not simply assume that Simpson J had acted corruptly or that the proceedings in which her Honour had made her orders were an abuse of process. 122 In these circumstances I decided not to grant a stay and to proceed with the hearing of the University's notices of motion. Subsequently, it became clear that in determining the University's proceedings for contempt of court for having scandalised the court I would have to determine at least whether there was any evidence on which it could be found that Simpson J had acted corruptly in making her orders and I came to the conclusion that there was no such evidence. Whether the proceedings in which Simpson J made her orders were an abuse of process is a matter to be determined only by the Court of Appeal.

[19]

Further and/or in the alternative, an order staying any further hearing and/or other determination in respect of the notice of motion until the court is provided with unequivocal evidence in the form of a resolution passed by the Council of the University of New South Wales (or similar), that the notice of motion filed by Sparke Helmore Lawyers on 1 July 2009 on the instructions of Ms Kirby, was properly authorised by, and is consistent with, the policies of the University of New South Wales. 123 As in the case of par 11 of the notice of motion, this claim for relief was treated as extending to the amended notice of motion of 4 July and the notice of motion of 7 July. 124 As the claim for relief in par 12 involved a challenge to the retainer of Sparke Helmore, a question arose whether the challenge to the retainer should have been litigated as a separate question prior to any hearing of the other claims for relief in Mr McGuirk's notice of motion and any hearing of the University's notices of motion. Reference was made in the course of argument to the decisions of the Court of Appeal in Hillig v Darkinjung Pty Ltd (No.2) [2008] NSWCA 147 and Doulaveras v Daher (2009) 253 ALR 627 especially per Campbell JA at pars [133]-[139]. 125 In Doulaveras v Daher Campbell JA held that, in general, a challenge to a solicitor's retainer should be determined on a motion to have the proceedings stayed, before any final hearing of the proceedings. However, his Honour held that it is not the law that a challenge to a retainer must always be litigated in the course of a substantive motion challenging the retainer which is argued prior to the final hearing, particularly where the validity of the retainer depends on, or is otherwise intertwined with, other complex issues in the proceedings. In the present case the validity of the retainer is intertwined with other issues in the proceedings and, of course, the hearing before me was a hearing of motions in the proceedings and not a final hearing of the substantive proceedings. 126 Mr McGuirk's position on whether he was pressing the claim in par 12 of his notice of motion varied from time to time. 127 In par 94 of his written submissions of 13 August 2009 Mr McGuirk said:- "It is readily conceded that a resolution of the University Council, while desirable, given the seriousness of the matters before the court, is not strictly necessary to confer the relevant authority on Sparke Helmore Lawyers." 128 This concession was repeated by Mr McGuirk in oral submissions at the hearing. 129 However, later in the hearing Mr McGuirk withdrew his concession and submitted that a resolution of the Council of the University was required to authorise or ratify the University's notices of motion. He said that he had decided that he should withdraw his earlier concession, after further study of the law of agency and of the equitable obligations of solicitors acting for universities. He also said that there had been a meeting of the Council of the University on 24 August 2009 but the opportunity had not been taken at that meeting to consider and pass a resolution authorising or ratifying the University's notices of motion. 130 In support of his submission that a resolution by the Council of the University authorising or ratifying the bringing of the notices of motion was necessary, Mr McGuirk referred to provisions of the University of New South Wales Act 1989 (which repealed the University of New South Wales Act 1968). 131 Under Pt 2 of the Act the University is established (s 4), the University is incorporated (s 5) and the objects and functions of the University are stated (s 6). 132 Part 3 of the Act deals in part with the Council of the University. Section 8 in Pt 3 provides that there is to be a Council of the University, that the Council is the governing authority of the University and that it has the functions conferred or imposed on it by the Act. 133 Part 4 of the Act is headed "Functions of Council". Section 15 in Pt 4 confers a large number of functions on the Council. Section 15(1A) provides:- "(1A) The Council: (a) acts for and on behalf of the University in the exercise of the University's functions, and (b) has the control and management of the affairs and concerns of the University, and (c) may act in all matters concerning the University in such manner as appears to the Council to be best calculated to promote the object and interests of the University." 134 However, s 16 of the Act provides:- "The Council may, in relation to any matter or class of matters, or in relation to any activity or function of the University, by resolution, delegate all or any of its functions (except this power of delegation) to any member or committee of the Council or to any authority or officer of the University or to any other person or body prescribed by the by-laws." 135 The power of the Council to delegate its functions has been exercised. Exhibit B at the hearing was a document headed "the Council of the University of New South Wales Delegations of Authority 2009". 136 It is not unusual for the governing body of a university to delegate many of its functions. In Ex parte Forster; re University of Sydney (1963) 63 SR 723 the Full Court of the Supreme Court said at 733:- "Without the most ample facility for delegation the affairs of a university could not be carried on at all. It is a matter of common knowledge, and illustrated by the by-laws which are in evidence in the present case, that the affairs of a university are for the most part carried on, under authority delegated from its governing body, by its officers, both executive and academic, and by a multitude of subordinate bodies - faculties, boards, committees or by whatever other name called." 137 The document exhibit B is divided into sections. Section 8.2 is headed "Legal and Statutory Affairs" and 8.2.4 provides that for the function of "appoint external lawyers under terms of engagement" the delegates of the Council are the Chancellor, the Deputy-Chancellor, the Vice-Chancellor, the University Solicitor and the Deputy University Solicitor. 138 The University Solicitor at all relevant times has been Mrs Carol Kirby. Ms Bennett, as the solicitor on the record for the University in the proceedings, gave oral evidence at the hearing before me that she had received instructions from Mrs Kirby to file the notice of motion for the contempt hearing. 139 Mr McGuirk submitted that Mrs Kirby could not authorise the bringing of the contempt proceedings, because her conduct in instructing Sparke Helmore to file the notices of motion was an abuse of process. I will reject this submission when I consider par 10 of Mr McGuirk's notice of motion. 140 Mr McGuirk made a submission based on a document which had been admitted as exhibit E at the hearing. Exhibit E is a document headed "Financial Delegates". Exhibit E lists the names of officers or employees of the University and alongside each name there is stated the "delegation amount" in dollars. 141 When he tendered the document Mr McGuirk said that he had printed out the document from the University's website the previous night. The document tendered and admitted is clearly incomplete. However, I consider that I should proceed on the basis that the amount of money alongside the name of each person is the amount of money to the expenditure of which the person is authorised to commit the University. The amount opposite Mrs Kirby's name is $50,000. 142 Ms Bennett was asked in cross-examination by Mr McGuirk how much money the University had already spent on external lawyers "in these proceedings". Ms Bennett replied that she could not give an accurate answer but that it was not less than $100,000. 143 On the basis of Mrs Kirby's delegation amount of $50,000 and Ms Bennett's evidence about the costs of "these proceedings" so far Mr McGuirk made a submission that, as soon as the costs of the proceedings had exceeded $50,000, Mrs Kirby's authorisation of the proceedings ceased and the proceedings became unauthorised. 144 I do not consider that this submission should be accepted. It may be, if the entries in exhibit E have the meaning I have attached to them, that the University could, if it wished, decline to pay any costs of Sparke Helmore in excess of $50,000. However, the authority from Mrs Kirby to conduct the proceedings would remain. 145 If the submission made by Mr McGuirk did have any force, reliance could be placed by the University on evidence given by Ms Bennett that the proceedings had been authorised by Mr Neil Morris, who inter alia was the Director of Human Resources at the University. In cross-examination of Ms Bennett Mr McGuirk asked Ms Bennett "Did you ask Mrs Kirby from whom she received those instructions (to file the notice of motion for the contempt proceedings)?" and Ms Bennett replied, "I'm aware that she received those instructions from Mr Neil Morris". Ms Bennett later confirmed that "in relation to the contempt proceedings she (Mrs Kirby) did obtain instructions from Mr Neil Morris". 146 Under s 8.2.5 of the Delegations of Authority the Director of Human Resources has authority to engage external lawyers who have been appointed under s 8.2.4 to conduct specific matters. The Director's delegation amount is $5m. 147 In his final submissions Mr McGuirk said that the Chancellor, the Vice-Chancellor and the Deputy-Chancellor of the University were "fully informed about these proceedings" but complained that they had withheld information about the proceedings from other members of the University Council. 148 I would myself infer that the Chancellor, the Vice-Chancellor and the Deputy-Chancellor have been and are informed about the proceedings. Each of them has received communications about the proceedings from Mr McGuirk. The personal assistants to the Chancellor and the Vice-Chancellor made affidavits in the contempt proceedings on behalf of the University and were required by Mr McGuirk to attend, and did attend, for cross-examination on their affidavits. I would infer that each of the Chancellor and the Vice-Chancellor of the University, having knowledge of the proceedings, approves of the proceedings being continued. 149 Each of the Chancellor and the Vice-Chancellor of the University has power under s 8.2.4 of the Delegations of Authority to appoint external lawyers. The delegation amount of the Vice-Chancellor is shown in exhibit E as being $20m. The sheet which should have contained the delegation amount of the Chancellor is missing from the document tendered by Mr McGuirk. 150 A submission was made by Mr McGuirk that the proceedings were not authorised because, so it was submitted, the proceedings were inconsistent with the fraud and corruption prevention policies of the University, a copy of which became exhibit D. However, even if the proceedings were inconsistent with some policy of the University, this would not mean that the proceedings were unauthorised. 151 I reject the claim for relief made in par 12 of the notice of motion.

[21]

A declaration that the conduct of Ms Carol Kirby, University Solicitor for the University of New South Wales, in instructing Sparke Helmore Lawyers to file the notice of motion in the court, constitutes an abuse of the process of the court. 152 It is convenient to deal with these two paragraphs of Mr McGuirk's notice of motion together. As in the case of other paragraphs in the notice of motion, the claims for relief made in pars 9 and 10 were treated at the hearing as extending to the amended notice of motion of 4 July 2009 and the notice of motion of 7 July 2009. 153 In a letter of 13 July 2009 the University's solicitors requested further particulars of par 9 of Mr McGuirk's notice of motion and particulars were supplied in a fax from Mr McGuirk of 28 July 2009. 154 The particulars supplied were fairly lengthy and I propose to quote or summarise only certain parts of them. 155 In response to a request to identify the abuse of process alleged, Mr McGuirk replied:- "The proceedings for contempt have not been initiated to vindicate the authority of the court and/or to secure the benefit of orders of the court which have been properly made but to obtain a collateral advantage." 156 In response to a request to identify the collateral or improper purpose, if one was alleged, Mr McGuirk replied:- "The purpose include(s) inter alia the further oppression and vexation of me in order to cause further damage to my financial and to my mental well being, with a view to either bankrupting me or pushing me over the edge into insanity - an edge on which I currently dwell - so that I am unable to properly pursue the substantial proceedings in the matter which is before the court under file number SC 20106 of 2008 and so that the University avoids having to file a defence in those proceedings." 157 Mr McGuirk added that the University was attempting to use the proceedings to collect costs orders against Mr McGuirk for use in any mediation (or any settlement negotiations) with him. 158 In response to a request to identify a person or the persons to whom Mr McGuirk imputed the collateral or improper purpose, Mr McGuirk identified the University by its officers, directors or agents. He complained that Sparke Helmore had refused to identify the natural person purporting to authorise the initiation and continuation of the contempt proceedings. He continued:- "I have inferred, based on this information and other information which I have gathered over the past several years through the use of FOI and other means, that Ms Carol Kirby, the University Solicitor, is one of the driving forces behind the campaign to 'destroy me' by way of these contempt proceedings, as she has consistently misled members of the UNSW Council and other officers of the UNSW in respect of the 'complaints' I have against the University -notwithstanding that Ms Kirby does in fact have full knowledge as to the truth of those complaints and the subject conduct by Professors John Niland, John Ingleson, Greg Whittred and Mr Neil Morris.

[24]

159 In his fax of 28 July 2009 and on a number of occasions during the hearing Mr McGuirk referred to the decision of the High Court in Williams v Spautz (1992) 174 CLR 509. He was at pains to seek to distinguish himself from Dr Spautz. He referred to Williams v Spautz in order to seek to characterise the University's conduct as having been similar to that of Dr Spautz. 160 Mr McGuirk expressly accepted that the onus was on him to prove that the proceedings for contempt had been brought for an improper or collateral purpose (see, for example, par 34 of his written submissions of 13 August 2009). 161 Mr McGuirk submitted, and it was common ground at the hearing before me, that the standard of proof was the civil standard of proof but the civil standard of proof as described in Briginshaw v Briginshaw (1938) 60 CLR 336. See now s 140(2) of the Evidence Act. The allegations that the University had the improper purposes alleged are clearly grave allegations for which clear and cogent proof is required: Director General of the Department of Community Services; re Sophie [2008] NSWCA 250 at [47]-[50]. 162 Mr McGuirk accepted that there was no direct evidence of any of the improper purposes alleged by him and that his case against the University was a circumstantial case, that is that I could, and should, infer from evidence of circumstances that the University had the improper purposes alleged. It was submitted by Mr McGuirk that a very large number of circumstances occurring at various times within the last 7 or 8 years or even longer would support the drawing of an inference of improper purposes on the part of the University. In response to a question from me whether evidence of certain events occurring in 2003 threw light on why the University's notices of motion had been brought, Mr McGuirk replied "Yes, absolutely". In response to a question from me whether Mr McGuirk maintained that he was entitled to rely on any aspect of what he said was improper conduct by the University, however long ago it occurred and whatever people were involved, Mr McGuirk replied "Yes, that's right". 163 The evidence of the circumstances relied on by Mr McGuirk is to be found in Mr McGuirk's three affidavits, the 437 pages of exhibit MM1 and the numerous exhibits tendered by Mr McGuirk which I admitted into evidence. It would be impractical to attempt to make any comprehensive summary of this evidence. I have already summarised what appear to me to be important aspects of the evidence in the part of this judgment headed "Background facts". 164 It was submitted by Mr McGuirk that, apart from the circumstances occurring over many years, there had been an immediate trigger for the bringing of the contempt proceedings by the University. Mr Peter Curtin, to whom I have previously referred as a "whistle blower", had brought court proceedings against the University and a number of individual defendants. On 25 June 2009 the proceedings brought by Mr Curtin were settled. 165 Mr McGuirk submitted that, up until the settlement of the Curtin proceedings, the University, and particularly Mrs Kirby, had been "fighting on two fronts", that is defending the proceedings brought by Mr Curtin and defending the proceedings brought by Mr McGuirk, with Mrs Kirby's principal focus being on the Curtin proceedings. 166 Once the proceedings by Mr Curtin had been settled, Mrs Kirby was able to give her full attention to Mr McGuirk's proceedings. A circumstance from which the improper purposes of the University could be inferred was the bringing of the contempt proceedings so soon after the settlement of the Curtin proceedings. 167 Mr McGuirk submitted, with confidence, that the improper purposes of the University had been established by the evidence of the circumstances he relied on. Indeed, he submitted that I would demonstrate actual bias against him, if I declined to draw what he said was the obvious inference from the evidence, that the University had had the improper purposes alleged. 168 However, Mr McGuirk also made a submission based on the principles often compendiously referred to as the rule in Jones v Dunkel (1958-59) 101 CLR 298. He submitted that the evidence adduced by him was at least sufficient to permit an inference to be drawn that the University had had the improper purposes alleged and to cause an evidentiary burden to pass to the University; that it would have been within the power of the University to call witnesses such as the Chancellor, the Vice-Chancellor and Mrs Kirby to give evidence about what had been the University's purposes; that the University had not called such witnesses; that the reason given by the University for not calling such witnesses, that the calling of such witnesses would be likely to prolong the hearing due to lengthy but irrelevant cross-examination by Mr McGuirk, did not amount to a satisfactory explanation; and in these circumstances the inference favourable to Mr McGuirk which was open on the evidence actually given could be more confidently drawn. 169 As to par 10 of the notice of motion it was submitted that Mrs Kirby in instructing Sparke Helmore to bring the contempt proceedings had been acting for an improper purpose of protecting persons who were her friends, that she had been on "a frolic of her own", that she had wrongly concealed information about the proceedings from members of the University Council and that she had acted in dereliction of her obligations as a legal practitioner. It was submitted that the consequences for Mrs Kirby, if her "cover ups" were exposed, would be "devastating".

[25]

Decision 170 As I already stated, Mr McGuirk accepted that the onus was on him to prove that the University's notices of motion for contempt had been brought for an improper or collateral purpose and that the standard of proof, although only the civil standard of proof, was the standard described in Briginshaw v Briginshaw (and s 140(2) of the Evidence Act). 171 Mr McGuirk also accepted that there was no direct evidence of any improper purpose, for example any evidence of an admission of an improper purpose by an officer or employee of the University. 172 In this respect, the present case is different from Williams v Spautz, on which Mr McGuirk sought to rely. In Williams v Spautz the trial judge made a finding that the predominant purpose of Dr Spautz in instituting and maintaining the court proceedings was to exert pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case. As both the Court of Appeal and the High Court noted, there was ample evidence before the trial judge on which the finding could be made and, in particular, a mass of documents from Dr Spautz containing warnings about proposed legal proceedings, demands for reinstatement, discussions of his own purposes and motives and, what the High Court regarded as especially important, "threats" by Dr Spautz (see Williams v Spautz at [516]). 173 In the absence of any direct evidence of an improper purpose on the part of the University, Mr McGuirk's case was necessarily a circumstantial case. The evidence adduced by him does establish a history of disputation and dissension between Mr McGuirk and the University. It would, however, in my opinion, be a great leap to infer from that history of disputation and dissension that the University had any of the purposes alleged by Mr McGuirk. 174 The circumstances referred to by Mr McGuirk did not include other circumstances which, in my opinion, are relevant and significant in determining whether, in bringing the contempt proceedings, the University had any of the improper purposes alleged. These other circumstances include circumstances which led to Simpson J making her orders of 8 April 2009, including the communications made by Mr McGuirk as described by her Honour in pars 10 and 11 of her judgment, a number of which were summarised in pars 13-53 of her Honour's judgment. 175 These other circumstances also include the communications from Mr McGuirk, after Simpson J made her orders, which are listed in sub-pars (a)-(v) of par 2 of the statement of charge in the amended notice of motion of 4 July 2009 or in sub-pars (a)-(g) of par 2 of the statement of charge in the notice of motion of 7 July 2009. I will refer to these communications in more detail when I deal with the University's notices of motion. As this stage, I will simply state that there were a large number of communications, they were often lengthy, they contained much material irrelevant to the proceedings between Mr McGuirk and the University, they were at times incoherent and they were often offensive and sometimes grossly so. 176 The circumstances to which I have just referred would support a finding that the University's purpose in bringing the contempt proceedings was a legitimate purpose of vindicating the authority of the court and securing the benefit of Simpson J's order restraining the sending of such communications by Mr McGuirk. 177 It was submitted on behalf of the University that a conclusion that the University was not actuated by any improper purpose of the kinds alleged by Mr McGuirk was supported by the circumstance that a "warning letter" was sent by it, before any proceedings for contempt of court were initiated. On 4 June 2009 Sparke Helmore wrote a letter to Mr McGuirk, which was delivered to Mr McGuirk's home by courier. In the letter Sparke Helmore set out the terms of order 3 made by Simpson J; asserted that a significant number of communications had been sent by Mr McGuirk after 8 April 2009 in contravention of the order; called upon Mr McGuirk to comply with the order; and reserved the right to bring proceedings against Mr McGuirk for contempt of court. The first notice of motion for contempt was not brought until almost a month afterwards, after further communications had been received from Mr McGuirk. 178 Mr McGuirk asserted to me that the submissions made on behalf of the University that it had been tolerant of Mr McGuirk, that its solicitors had waited, that it had sent a warning letter, and that it had acted only after it had become apparent that Mr McGuirk was continuing to defy Simpson J's order, were "a load of hogwash". Mr McGuirk's justification for this assertion was that the trigger for the commencement of the contempt proceedings had been the settlement of the Curtin proceedings. In my opinion, the assertion by Mr McGuirk that the University brought the contempt proceedings as a result of the settlement of the Curtin proceedings is sheer conjecture and speculation and the circumstances that the University did not immediately bring contempt proceedings and brought its contempt proceedings only after a warning letter had been sent and not complied with, support a conclusion that the University was not actuated by any of the purposes alleged by Mr McGuirk. 179 It is also noteworthy that the orders sought by the University and made by Simpson J, which the University was seeking to enforce by the contempt proceedings, do not prevent Mr McGuirk from continuing to carry on the principal proceedings. There is an express exception in order 3 (iii) which permits Mr McGuirk to send written communications to the University's solicitor, if they are formal letters required to be sent for the purpose of Mr McGuirk conducting the principal proceedings. There is also the qualification to order 3 whereby Mr McGuirk can apply for leave to send a communication. 180 In my opinion, there is no evidence such as would permit any inference to be drawn that the University had any of the purposes alleged by Mr McGuirk. This being so, the rule in Jones v Dunkel has no application. The rule only permits a tribunal of fact to draw with greater confidence an inference unfavourable to the party not calling evidence, which is open on the evidence which has actually been given. The rule cannot be applied so as to fill gaps in the evidence or to convert conjecture or suspicion into an inference. See generally Cross on Evidence Australian edition at par 1215; Manly Council v Byrne [2004] NSWCA 123 at pars 44-55 per Campbell JA. 181 As to Mrs Kirby, I do not consider that there is any evidence supporting any of the allegations made by Mr McGuirk against her. 182 As to the allegation that she is acting on a frolic of her own and concealing information, I find that the continuation of the contempt proceedings is with the knowledge and approval of the Chancellor of the University, the Vice-Chancellor of the University and of Mrs Kirby's superior Mr Neil Morris. The suggestion made by Mr McGuirk that, if Mrs Kirby's "cover ups" were exposed, the consequences for her would be "devastating", seems to me quite fanciful. 183 I dismiss pars 9 and 10 of Mr McGuirk's notice of motion. Even if, contrary to the concession made by Mr McGuirk, the onus was on the University to prove to the criminal standard of proof that the bringing of the contempt proceedings did not involve any abuse of process by the University or Mrs Kirby, I would find that that onus had been discharged.

[26]

Some principles about proceedings for contempt of court 184 Both of the University's notices of motion are proceedings for alleged contempt of court, contempt by disobedience to a court order and contempt by scandalising the court in the first notice of motion and contempt by disobedience to a court order in the second notice of motion. 185 Contempt by disobedience to a court order has often been classified as civil contempt and contempt by scandalising the court has often been classified as criminal contempt. In Witham v Holloway (1995) 183 CLR 525 at 534 per Brennan, Deane, Toohey and Gaudron JJ it was said that the distinction between civil contempt and criminal contempt is difficult to draw and, indeed, illusory and that all proceedings for contempt must realistically be seen as criminal. However, in Hearne v Street (2008) 235 CLR 125 it was held that it is not the case that all proceedings for contempt in New South Wales must be seen as being criminal in nature (Hayne, Heydon and Crennan JJ at 168 [132]), Gleeson CJ at 131(2) and Kirby J at 135-136 [20]-[21]. See also Hearne v Street (2007) 70 NSWLR 231 at 243-244 [59] per Ipp JA. 186 Even though some proceedings for contempt are to be classified as civil proceedings, all charges of contempt must be proven beyond reasonable doubt (Witham v Holloway). 187 Proceedings for contempt are not, procedurally, to be equated with a trial of criminal charge. In Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15 the court said at 89:- "Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event." 188 Procedure for contempt is governed by Pt 55 of the Supreme Court Rules. I am satisfied that in the case of both notices of motion the formal requirements of rules 6, 7, 8 and 9 in Pt 55 have been complied with. 189 In contempt proceedings it is usual to have two hearings, a liability hearing and then, if the alleged contemnor has been found guilty of contempt, a penalty hearing. I will follow this practice and the present judgment is limited to whether Mr McGuirk should be found guilty of contempt. 190 I will refer to other principles relating to proceedings for contempt of court later in this judgment.

[28]

The terms of the order must be clear and unambiguous 194 This requirement that a court order must be clear and ambiguous may involve two questions, namely (1) what is the true construction of the order, (2) was the true construction of the order sufficiently clear to the person bound by the order to warrant enforcement of the order against that person: Athens & anor v Randwick City Council (2005) 64 NSWLR 58 at 69-70 (27) per Hodgson JA. A person bound by an order is expected to try to understand and obey it (Athens at 71 (36)). Hodgson JA continued:- "In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law." 195 Mr McGuirk made general submissions that order 3 made by Simpson J on 8 April 2009 was "opaque" and "unclear" and also some specific submissions. 196 Mr McGuirk submitted that in order 3(i) and in the opening words of order 3(iii) and sub-par (b) of order 3(iii) the word "proceedings" was used and that the "proceedings" before Simpson J were different proceedings from the substantive proceedings or the proceedings before me. He submitted that Simpson J "couldn't bind separate collateralised proceedings". 197 I do not accept these submissions by Mr McGuirk. There is only one proceedings, the proceedings between Mr McGuirk and the University with the court number 20106/08, and any application brought in those proceedings is simply part of those proceedings. 198 Each part of order 3 (apart from (iv)) provided that Mr McGuirk was not to "send" any written communication of the kind described, without obtaining prior leave of the Court. 199 There is no doubt that the written communications relied on by the University in the statements of charge, whether they were by email or facsimile transmission, were addressed to persons within the terms of either order 3(i) or order 3(iii) and were dispatched by Mr McGuirk. 200 However, evidence emerged, particularly in the cross-examination of Mr Campbell of Sparke Helmore and Ms O'Neal the personal assistant to the Vice-Chancellor, that some written communications addressed to persons within the terms of the order might not have actually been received or read by those persons. For example, Ms O'Neal gave evidence that emails from Mr McGuirk which had been received in the inbox of an email address for the Vice-Chancellor had been forwarded by Ms O'Neal to the University's legal department and had not been placed by Ms O'Neal before the Vice-Chancellor and, so far as Ms O'Neal was aware, had not been read by the Vice-Chancellor. 201 On the basis of such evidence Mr McGuirk submitted that a communication which had not been proved to have been personally received and read by an addressee had not been "sent" to that addressee within the terms of Simpson J's order. 202 I do not consider that I should accept this submission. An email which was forwarded by Mr McGuirk to an addressee at the addressee's email address and was received at that email address was clearly "sent" by Mr McGuirk, even though it was not personally received or read by the addressee. 203 A question which arose in the course of the hearing was whether a letter might be a formal letter required to be sent for the purpose of Mr McGuirk conducting the proceedings within sub-par (b) of order 3(iii), when some part of the letter was, at least arguably, for that purpose but other parts of the letter were clearly not for that purpose. I stated that I would interpret order 3(iii)(b) in such a way that it would not apply, if no part of a letter could reasonably possibly be regarded as a formal letter required to be sent for the purpose of Mr McGuirk conducting the proceedings or if, although some part of the letter could reasonably possibly be so regarded, nevertheless the letter was, predominantly, not a formal letter required to be sent for the purpose of Mr McGuirk conducting the proceedings. In the case of most of the letters relied on by the University it is quite clear and would, or should, have been quite clear to Mr McGuirk, whether the letter fell within sub-par (b) of order 3(iii). 204 It was submitted by Mr McGuirk that a letter informing Mr Davis of alleged delinquencies of his partner Ms Bennett or a letter informing Ms Bennett or an officer of the University of alleged delinquencies of Mrs Kirby could fall within sub-par (b) of order 3(iii) but I would reject these submissions and find that it was, or should have been, clear to Mr McGuirk that such letters would not fall within sub-par (b). 205 I am satisfied that the terms of order 3 were clear and unambiguous and would have been clear and unambiguous to Mr McGuirk.

[32]

(5) The court may dispense with service under this rule." 208 Rule 40.7(1) was not complied with in the present case. Neither a sealed copy of Simpson J's judgment nor a sealed copy of her Honour's orders was personally served on Mr McGuirk. Consequently, he was not served with a notice within r 40.7(3). 209 Counsel for the University submitted, and I accept, that r 40.7 is concerned only with the enforcement of a judgment by committal or sequestration and non-compliance with r 40.7 does not prevent the enforcement of a judgment by other means, for example, by imposition of a fine. Nevertheless, in order that a court order be enforceable by any means, it is necessary, as was recognised by the University in the opening words of par 2 in each notice of motion, that the person bound by the order should have been notified or otherwise have become aware of the order. 210 To prove that r 40.7(4)(b) had been complied with and that Mr McGuirk had been notified of the orders made by Simpson J, the University relied on evidence that Mr McGuirk had become aware of the terms of Simpson J's judgment by 8:40 pm on 8 April 2009 and had received a copy of Simpson J's orders on 9 April 2009. 211 At 8:40 pm on 8 April 2009 Mr McGuirk sent an email to Mr Davis (which is communication 2(a) in the statement of charge in the University's amended notice of motion of 4 July 2009) in which he quoted, accurately, pars 90 and 91 of Simpson J's judgment and pointedly used the word "gratuitous" in inverted commas, a word which Simpson J had used, with emphasis, in her judgment. At 8:59 pm on 8 April 2009 Mr McGuirk sent an email to the Chancellor of the University (which is communication 2(b) in the statement of charge in the University's amended notice of motion) in which he referred to Simpson J's judgment, saying that it was "fundamentally flawed". 212 In par 13 of his summons seeking leave to appeal to the Court of Appeal against Simpson J's decision Mr McGuirk said that he had received a copy of the formal orders of the court by ordinary mail on 9 April 2009. 213 As indicated earlier in this judgment, Simpson J did not actually make any orders in her judgment of 7 April 2009. In par 99 of the judgment she said that she proposed to make orders in accordance with the amended notice of motion and in par 100 she directed the University to prepare short minutes of orders. Her Honour made orders in accordance with the short minutes prepared by the University on the following day 8 April 2009. Mr McGuirk was not present when the orders were made by her Honour. 214 In my opinion, although at the time of sending communications 2(a) and 2(b) Mr McGuirk had received notice of the terms of Simpson J's judgment, in which her Honour indicated the orders she proposed making, there is no evidence that Mr McGuirk had received notice of the actual making of the orders and, consequently, I consider that, as to those two communications, r 40.7(4) was not complied with and, quite apart from the rule, Mr McGuirk had not been notified or otherwise become aware of the orders, that is of the actual making of the orders. Consequently, the proceedings for contempt of court fail with respect to communications 2(a) and 2(b) in the statement of charge in the amended notice of motion of 4 July. On the other hand, as to all subsequent communications, I find that r 40.7(4)(b) was satisfied and, quite apart from the rule, Mr McGuirk had been notified or had otherwise become aware of the orders, including that they had actually been made.

[33]

Breach of the order must be proved 215 There was no issue that Mr McGuirk performed the act of sending each of the communications listed in the statements of charge. That Mr McGuirk sent the communications is proved by the University's evidence of the communications being received and of how they were received. Quite apart from this evidence, the contents, the language and the tone of each communication point to Mr McGuirk as having been its author. 216 In the case of some of the communications by email, the copy documents annexed to the University's affidavits are not copies of the original emails from Mr McGuirk but copies of subsequent emails in which the original emails from Mr McGuirk had been copied (for example emails from the University to Sparke Helmore, in which emails from Mr McGuirk to officers of the University had been copied). I am satisfied in each case that the subsequent email accurately copied the original email from Mr McGuirk. 217 Mr McGuirk made a number of other submissions, all of which I consider to be irrelevant or lacking in merit. He submitted that the communications listed in the statements of charge were not all of the communications he had sent to the University or to Sparke Helmore, that there were periods, for example between 8 April and 24 April, when he had not sent any prohibited communications and that at times he had attempted to comply with Simpson J's orders by seeking leave to send a communication. 218 I accept that it is necessary that Mr McGuirk's sending of the communications should have been voluntary, that is done in the exercise of his will. I am satisfied that Mr McGuirk's acts in sending the communications were voluntary. The acts of sending the communications were not prevented from being voluntary, because Mr McGuirk was sometimes intoxicated at the time he sent communications or because, if he had been sober, he might not have sent some of the communications or might have used different language, or because he subsequently regretted having sent some of the communications. 219 I will defer further consideration of whether breach of the order has been proved, until when I deal with the individual communications. In the case of a communication to an officer or employee of the University, I will have to decide whether the communication was a communication "concerning the proceedings". In the case of a communication to Ms Bennett or a partner or employee of Ms Bennett, I will have to decide whether the communication falls within any of the exceptions in order 3(iii) and, particularly, the exception in sub-par (b).

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The University's notice of motion for contempt of court by scandalising the court 224 As already noted by me earlier in this judgment, the University sought an order in its amended notice of motion of 4 July 2009 that Mr McGuirk be dealt with for contempt of court under Pt 55 r 3 of the Supreme Court Rules, for having scandalised the court in the circumstances set out in the amended statement of charge annexed to the amended notice of motion. 225 Paragraphs 3 to 8 and 10 of the statement of charge related to the charge of scandalising the court. In each of paragraphs 3 to 8 of the statement of charge it was alleged that on 28 June 2009 or 29 June 2009, Mr McGuirk sent a communication by facsimile transmission. Copies of each of the faxes were annexed to Ms Bennett's affidavit of 30 June 2009. Most of the copies bear copies of annotations by Mr McGuirk in his own handwriting, stating the time the fax was sent and the number of pages faxed. 226 In par 3 of the statement of charge it was alleged that at about 1:33 am on 29 June 2009 Mr McGuirk sent a fax to Ms Bennett consisting of 9 pages, including copies of faxes he had sent to (a) the New South Wales Ombudsman Mr Bruce Barbour (b) the Independent Commission Against Corruption for the attention of the Commissioner (c) Ms Julie Higgins, Simpson J's associate. 227 In par 4 of the statement of charge it was alleged at about 9:25 am or, it would seem, 9:25 pm on 28 June 2009 Mr McGuirk sent a fax to Ms Higgins consisting of 2 pages. 228 In par 5 of the statement of charge it was alleged that at about 9:58 pm on 28 June 2009 Mr McGuirk sent a fax to the Independent Commission Against Corruption consisting of 3 pages. 229 In par 6 of the statement of charge it was alleged that at about 10:23 pm on 28 June 2009 Mr McGuirk sent a fax to the Ombudsman consisting of 4 pages. 230 In par 7 of the statement of charge it was alleged that at about 10:48 pm on 28 June 2009 Mr McGuirk sent a fax to Ms Linda Burney consisting of 5 pages. Ms Burney is the member for Canterbury in the State Parliament and is Mr McGuirk's local member. 231 In par 8 of the statement of charge it was alleged that at about 1:07 am on 29 June 2009 Mr McGuirk sent a fax to Mr Malcolm Turnbull consisting of 8 pages. 232 In par 10 of the statement of charge it was alleged that by reason of the matters referred to in pars 3 to 8 Mr McGuirk scandalised the court and thereby committed contempt of court. 233 I will now set out the texts of those parts of each fax which are set out in the statement of charge. It is convenient to arrange the faxes in the chronological order in which they were sent. Facsimile transmission to Ms Julie Higgins Simpson J's associate sent at about 9:25 am or pm on 28 June 2009. "… This failure reinforces my suspicions (legitimately held, based on experience and evidence) that Justice Simpson is seeking to hide and/or cover up her conduct as Judge of the Supreme Court of New South Wales. … Put bluntly - Simpson J appears to have been protecting by way of her decision in McGuirk v UNSW [2009] NSWSC 253 her close female friend, Ms Judy Brookman." … Facsimile transmission to the Independent Commission Against Corruption marked for the attention of the then Commissioner Mr Cripps sent at about 9:58 pm on 28 June 2009:- "Conduct of Simpson J of the Supreme Court of New South Wales: Inter alia re file number 20106/08 - McGuirk v University of New South Wales

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Dear Bruce, … I thought you should be aware of the attached communication between myself and Ms Julie Higgins, Associate to Justice Carolyn Chalmers Simpson, and also between myself and Mr Cripps of the Independent Commission Against Corruption. … I had never expected that a Judge of the Supreme Court of New South Wales would be prepared to make him or herself complicit in the corruption of a John Ingleson…" 234 Mr McGuirk attached to the fax to the Independent Commission Against Corruption a copy of the fax he had sent to Ms Higgins. He attached to his fax to the Ombudsman copies of the faxes he had sent to Ms Higgins and the Independent Commission Against Corruption. He attached to his fax to Ms Burney copies of the faxes he had sent to Ms Higgins, the Independent Commission Against Corruption and the Ombudsman. He attached to his fax to Mr Turnbull copies of the faxes he had sent to Ms Higgins, the Independent Commission Against Corruption, the Ombudsman and Ms Burney. He attached to his fax to Ms Bennett copies of all the earlier faxes, including, particularly the faxes he had sent to Ms Higgins, the Independent Commission Against Corruption and the Ombudsman. 235 The statement of charge did not set out, and the University did not rely on, any part of the text of the faxes to Ms Linda Burney, Mr Turnbull or Ms Bennett but did rely on the sending to those persons of copies of the other faxes. 236 The fax referred to in par 8 of the statement of charge which was sent to Mr Turnbull was addressed, not to Mr Turnbull, but to Beerworth and Partners and it was submitted by the University at the hearing, and I find, that it was sent to Mr Turnbull by mistake. However, another fax, which was not referred to in the statement of charge, was sent by Mr McGuirk to Mr Turnbull and I find that this fax was intentionally sent to Mr Turnbull. 237 The fax sent to Ms Bennett was the fax referred to in par 2(q) of the statement of charge in the amended notice of motion of 4 July 2009, for contempt of court for having disobeyed Simpson J's order of 8 April 2009. 238 The parts of the faxes which the University submitted scandalised the court were the parts alleging: 1. In the fax to Ms Higgins, that in her decision of 7 April 2009 Simpson J appeared to have been protecting her close female friend Ms Judy Brookman. 2. In the fax to the Independent Commission Against Corruption, that Simpson J had acted corruptly in regard to the proceedings between Mr McGuirk and the New South Wales Police, the proceedings between the Independent Commission Against Corruption and Mr McGuirk and the current proceedings and that Simpson J had protected her close female friend Ms Judy Brookman. 3. In the fax to the Ombudsman, that Simpson J had made herself complicit in the corruption of John Ingleson (that is corruption by Professor John Ingleson).

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Principles relating to contempt of court by scandalising the court 239 Earlier in this judgment I set out some principles relating to contempt of court generally. I will now set out or refer to some principles for that special kind of contempt of court described as scandalising the court. These principles are summarised in Borrie & Lowe at pp 335-364. They were also discussed by Eames J of the Supreme Court of Victoria in his judgment in R v Hoser and Kotabi Pty Ltd [2001] VSC 443 especially at pars 45-91, 183-185, 190-194, 199-203 and 204-234. 240 An appeal to the Victorian Court of Appeal from Eames J's decision in Hoser was dismissed. Hoser and Kotabi Pty Ltd v The Queen (2003) VSCA 194. A cross-appeal was allowed but only on the ground that it had not been open to Eames J to rely on some evidence on which he had relied. At par 16 of its judgment the Court of Appeal said:- "As with the facts, so his Honour's exposition of the law may be accepted and need not be set out again, especially because the respondent accepted for the purposes of the appeal and cross-appeal his Honour's conclusions, favourable to the appellants, that truth and fair comment are available as "defences" to a charge of contempt…" 241 An application for special leave to appeal was made to the High Court. In refusing special leave Hayne J said "There is no reason to doubt the correctness of the reasons and judgment of the Court of Appeal" (Hoser & anor v The Queen (2005) HCA Trans 357). 242 In their submissions both counsel for the University and Mr McGuirk made frequent references to Eames J's judgment in Hoser. 243 Borrie & Lowe remark at pp 335 that the standard definition of scandalising the court is that which was given by Lord Russell of Killowen CJ in R v Gray [1900] 2 QB 36 at 40 - "any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority is a contempt of court". Judgments in other cases show that there are some qualifications to this absolute statement made in R v Gray. 244 In R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 442 Rich J said that interferences with the course of justice amounting to contempt of court "may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office." 245 In this context, "calculated" does not mean "intended". It means that, when viewed objectively, the relevant conduct is likely or has a tendency to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court (Hoser (Court of Appeal) at [40]). 246 In par 52 of his judgment in Hoser Eames J said:- "The prosecutor is not obliged to prove that the comments actually did undermine the standing of the court or its officers. It is sufficient if the court is satisfied, objectively, that they had the tendency to do so. In determining whether the material has that tendency, it is to be judged by reference to its impact upon the ordinary reader, or a reasonable person." 247 It is not necessary for a prosecutor to prove that the defendant had the intention of lowering the authority of the court or a judge of the court (Borrie & Lowe at 359). In Attorney General (NSW) v Mundey [1972] 2 NSWLR 887 Hope JA sitting as a single judge said at p 911:- "I think that the question whether the defendant's statements constituted contempt must be determined by reference to their inherent tendency to interfere with the administration of justice, and that the defendant's intention, while of some relevance in this regard, is of importance mainly in relation to whether the matter should be dealt with summarily, if any of the statements did constitute contempt, and in relation to the question as to what penalty, if any, should be imposed." 248 At p 350 Borrie & Lowe state:- "Allegations of partiality or impropriety are probably the most common way in which the court has been held to be "scandalised". The courts are particularly sensitive to allegations of partiality, it being a basic function of a judge to make an impartial judgment…" 249 In par 49 of his judgment in Hoser Eames J said:- "In Attorney-General (NSW) v Mundey Hope JA held that it may, and generally will, constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted mala fide, or has failed to act with the impartiality required of the judicial office, but in Ahnee & Ors v Director of Public Prosecutions ([1999] 2 AC 294) Lord Steyn, delivering the judgment of the Judicial Committee of the Privy Council, held that the imputation of improper motives to a judge could not be regarded as always, and absolutely, constituting contempt, and gave as an example of a possible exception an instance where a judge engaged in patently biased conduct in a criminal trial…" 250 In par 56 of his judgment in Hoser Eames J said:- "The courts have long stressed that the jurisdiction to punish in a summary way for contempt by scandalising the court should be exercised "sparingly" and "with great caution". There must be a real risk of the administration of justice being undermined." 251 The authorities cited by Eames J for these propositions were John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370 and Ahnee & Ors v Director of Public Prosecutions. 252 In par 205 of his judgment in Hoser Eames J referred again to John Fairfax v McRae and in particular the statement at p 370 in the report of that case that the jurisdiction to punish for contempt should be exercised "only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case". 253 In par 27 of its judgment in Hoser the Court of Appeal noted that Eames J had taken the requirement that a prosecutor has to establish "a real risk…as a matter of practical reality" that the statements made about a judicial officer had a tendency to undermine the confidence of the public in the administration of justice and to lower the authority of the courts (or of the individual judicial officer) from the joint judgment in John Fairfax v McRae and that John Fairfax v McRae was a case concerning a different kind of contempt of court, namely publication of matter alleged to have a tendency to interfere with pending court proceedings. However, the Court of Appeal observed "that both at first instance and on appeal the parties accepted that the statement from McRae was applicable to the present matter". 254 In Ahnee, the other case referred to by Eames J, which was a case of contempt by scandalising the court, Lord Steyn in delivering the judgment of the Privy Council said at p 306:- "There must be a real risk of undermining public confidence in the administration of justice." 255 A matter relevant to whether the prosecutor has established a real risk as a matter of practical reality that a statement made by the defendant had the tendency to lower the authority of the court or a judge of the court would be the extent of the publication of the statement. 256 Borrie & Lowe say at 338:- "A further qualification, at least according to the New Zealand decision Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 233-4 (NZCA), is that to establish an actionable contempt it must be proved beyond reasonable doubt that there is a real risk as opposed to a remote possibility that public confidence in the administration of justice will be undermined…Assuming the need for a real risk it would seem a minimum requirement that the publication has a wide circulation at any rate in the area where it is claimed that public confidence is impaired. For example, a specialist journal read by a few can hardly be said to be likely to create a real risk of undermining the public confidence in the administration of justice." 257 In the New Zealand case of Solicitor-General v Radio Avon Ltd Richmond P in delivering the judgment of the New Zealand Court of Appeal, after accepting that the appellants should not have been convicted of contempt unless the facts established beyond reasonable doubt that there was a real risk as opposed to a remote possibility that the item which had been broadcast about a particular judge would undermine public confidence in the administration of justice, held that on the facts of that case such a real risk had been established. There was evidence that the item, although short in duration, had been broadcast to a listening audience of about 50,000 people. 258 Counsel for the University referred to the New South Wales decision of Ex parte Attorney General; re Goodwin (1970) 91 WN (NSW) 29. In Goodwin a District Court judge had decided a case adversely to Goodwin. Goodwin wrote a letter to the Attorney General accusing the District Court judge of having made a malicious and unwarranted attack on Goodwin's character and of having been activated by an ulterior motive. Goodwin sent letters to 13 registrars of District Courts in New South Wales repeating his allegations and enclosing copies of his letter to the Attorney- General and requesting that the copies of the letter to the Attorney- General be publicly displayed. 259 It was held by the Court of Appeal that the communications did scandalise the judge. As to the extent of publication the Court of Appeal said at 32:- "The publications were made to a substantial number of District Court registrars and such an area of publication is clearly sufficient to support contempt proceedings." 260 The Court of Appeal referred to re: Wiseman (1969) NZLR 55 (New Zealand Court of Appeal) and R v Collins (1954) VLR 46 (Sholl J), in both of which the scandalising matter was in an affidavit or affidavits in court proceedings. In R v Collins Sholl J held that the handing to a judge's associate by a litigant of an affidavit for the perusal of the judge, even if the affidavit was not read aloud, was a sufficient publication for the purposes of the law of contempt of court. It seems to me that such a publication as occurred in Collins might satisfy a technical requirement for publication but would leave to be determined the question of whether the test in McRae was satisfied. 261 Borrie & Lowe discuss at pp 356-358 whether defences of truth or fair comment are available in a prosecution for scandalising the court. 262 There are obvious difficulties in permitting a defence of truth to be available. Borrie & Lowe say at 357:- "The problem, of course, is that in considering such a defence a judge would have to decide whether the courts were biased, corrupt or whatever." 263 At par 191 of his judgment in Hoser Eames J said:- "There are compelling policy reasons why courts were reluctant to allow a defence of truth. As was discussed by the Australian Law Reform Commission in a research paper in 1986, to allow such a defence risked the court becoming embroiled in an investigation of the merits of the scandalising remarks…" 264 If truth is a defence, then in the present case I will have to enter into a consideration of at least the question whether the allegations made by Mr McGuirk against Simpson J were true. 265 In par 58 of his judgment in Hoser Eames J concluded:- "…Although the law cannot be taken to be settled, it does now seem that both defences (that is truth and fair comment) are available in Australia…" 266 After examining parts of the judgments of the members of the High Court in Nationwide News Pty Limited v Wills (1991-1992) 177 CLR 1, Eames J said at par 82 of his judgment:- "Whilst the statements in Nationwide News v Wills strongly suggest that defences of truth and fair comment now apply, the question can not be taken to be concluded…" 267 I have already quoted part of par 16 of the judgment of the Victorian Court of Appeal in Hoser, where the court said that Eames J's exposition of the law could be accepted and noted that the prosecution had accepted on the appeal that truth and fair comment were available as defences to a charge of contempt by scandalising the court. 268 I consider that I should proceed on the basis that truth is available as a defence to a charge of contempt by scandalising the court. 269 I further consider, as was held by Eames J at par 190 of his judgment in Hoser, that the onus is on the prosecution to prove beyond reasonable doubt that the allegations said to scandalise the court were not true. However, an evidentiary burden would rest on the defendant (Hoser at 194). To raise the defence it would not be sufficient for the defendant merely to allege, for example, that he had been the victim of bias and corruption. Eames J suggested that, even to raise the defence, a defendant would have to point to clear evidence of patent bias. 270 I have already referred to Eames J's conclusion that it would seem that a defence of fair comment is available in Australia to a charge of scandalising the court. Dicta in the judgments of the members of the High Court in Nationwide News v Wills strongly suggest that such a defence is available. 271 In par 66 of his judgment in Hoser Eames J said:- "As emerges from the decided cases, for a statement to constitute fair comment it must be honest criticism based on rational grounds, and be discussion which is fairly conducted. It must not be motivated by malice or by an intention to undermine the standing of the courts within the community. Lord Russell CJ in R v Gray saw no difficulty with criticism which constituted "reasonable argument or expostulation"." 272 In par 178 of his judgment in Hoser Eames J said:- "In Nationwide News v Wills , Mason CJ held that for fair comment to apply the facts forming the basis of the criticism must be accurately stated, and the criticism must be fair and not distorted by malice. Brennan J adopted a similar approach and held that there was an obligation to state the critical facts truly…"

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Decision 284 A preliminary question which arose at the hearing was whether the University had standing or was capable of bringing the charge of contempt of court for scandalising the court. 285 Mr McGuirk did not dispute that a private litigant may bring proceedings for contempt of court. See R v Dunbabin at 445 per Rich J; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460 per Kirby P. However, Mr McGuirk submitted that there was no source of power for the University to bring proceedings for contempt of court for scandalising the court or, alternatively, if there was a source of power, the bringing of the present proceedings was not a proper exercise of that power. 286 In my opinion, there were clearly sources of power for the University to bring proceedings for contempt of court for scandalising the court, especially having regard to the sending to Ms Bennett, the solicitor on the record for the University in proceedings between the University and Mr McGuirk, of copies of all of the faxes on which the charge of contempt of court was based. See, for example, s 6(3)(c) of the University of New South Wales Act. 287 I am also of the opinion that there is no basis for holding that the bringing of the contempt proceedings was an improper exercise of the power. 288 Mr McGuirk referred a number of time during the hearing to the decision of the Western Australian Court of Criminal Appeal in Willers v The Queen (31 August 1995). He submitted that the judgments in Willers contained statements of general principle about the proper and improper exercise of statutory powers. 289 I do not accept this submission. In Willers the Court of Criminal Appeal allowed an appeal against conviction on the ground that the conviction was "uncertain". Apart from whether the conviction was "uncertain", the judgments of the members of the Court of Criminal Appeal were principally concerned with the proper construction of a particular section of the Western Australian Criminal Code (s 83) and the meaning in that section of the expression "to act corruptly". 290 There was no issue at the hearing that Mr McGuirk had sent all of the faxes referred to in the statement of charge. I am satisfied to the requisite standard that the sending of the faxes was voluntary, that is done in the exercise of Mr McGuirk's will. It is not necessary for the University to prove that in sending the faxes Mr McGuirk had the intention of lowering the authority of the court or of Simpson J or of undermining public confidence in the administration of justice. 291 Before considering the faxes individually, it is convenient to consider generally the "defence" of truth. I have already held that I should proceed on the basis that truth is available as a defence to a charge of contempt of court by scandalising the court and that, provided that there is sufficient evidence to raise the issue, the onus is on the prosecution to prove beyond reasonable doubt that the allegations said to scandalise the court were not true. 292 At the hearing I was very conscious of the problems involved in myself entering into a consideration of the truth of allegations made against a judge of equal status to myself, that she had acted corruptly and for an improper purpose. I announced at the hearing that I would limit myself to determining whether there was any evidence on which it could be found that Simpson J had acted corruptly or for an improper purpose, that is any evidence which would raise the issue of truth. 293 Since reserving my judgment and on further consideration particularly of Eames J's judgment in Hoser, I have concluded, Mr McGuirk having submitted that his allegations were true, that I have to determine whether there is any evidence on which it could be found that Simpson J had acted corruptly or with an improper purpose and, if I find that there is such evidence, I do have to determine whether I am satisfied beyond reasonable doubt that the allegations against Simpson J were untrue. Any determination of the second question would not involve consideration of any further evidence. Any evidence relevant to the determination of the second question would also have been relevant to a determination of the first question. 294 I will proceed to consider the allegations in each fax.

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The fax to Simpson J's associate 295 In this fax Mr McGuirk said:- "Put bluntly - Simpson J appears to have been protecting by way of her decision in McGuirk v UNSW [2009] NSWSC 253 her close female friend Ms Judy Brookman." 296 The gist of this allegation is that Simpson J in exercising her judicial functions in making her decision of 7 April 2009 was acting for an improper purpose of protecting a friend. It is not, in my opinion, significant that Mr McGuirk used the words "appears to have been protecting" rather than simply the word "protecting". 297 Such an allegation could clearly have some inherent tendency to lower the authority of Simpson J and impair public confidence in the courts and would amount to a contempt of court by scandalising the court, unless there is some "defence" or unless it could not be found beyond reasonable doubt that there was a real risk as a matter of practical reality that the publication of the allegation would have the tendency to lower the authority of Simpson J and impair public confidence in the court. I will deal first with the defence of "truth". 298 On 23 March 2009 Simpson J disclosed that she had a good friend employed by the University of New South Wales in the media area. This disclosure by her Honour would hardly be consistent with her Honour having had the improper purpose of protecting her friend. Mr McGuirk submitted that Simpson J had made the disclosure, because she was concerned, "that it might be found out", Mr McGuirk claiming for himself that he is a very good researcher. I find this explanation of Simpson J's disclosure implausible. 299 When Mr McGuirk asked "is that (friend) Judy Brookman?", her Honour said "I'm not going to answer that question". Mr McGuirk submitted that it was significant that Simpson J had declined to answer his question. However, I consider the likely explanation is simply that her Honour declined to submit to interrogation by a litigant. 300 Mr McGuirk asserted in his oral evidence and submissions at the hearing that on 23 March, while he was "98 per cent sure", he was not completely sure that the friend Simpson J had referred to was Judy Brookman. However, the subsequent exchanges between the parties and Simpson J on 23 March, including the references to Ms Brookman by name, made it completely clear that her Honour was disclosing that her friend in the media area to whom she had referred was Ms Brookman. 301 It is clear from Mr McGuirk's affidavit of 10 July 2009 that he was in no doubt on 23 March that Simpson J's friend was Ms Brookman. In par 38 of that affidavit Mr McGuirk said:- "On the first day of the hearing of the matter which led to the decision of Simpson J in Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253 - the matter in respect of which the University alleges contempt - I learnt for the first time that Ms Brookman was a close personal friend of Justice Simpson." 302 In par 39 of the affidavit he added "I was shocked to learn this". In par 51 of his affidavit of 27 July Mr McGuirk confirmed that on 23 March he learnt that Ms Brookman was a "close personal friend" of Simpson J. 303 As part of his "defence" of truth Mr McGuirk submitted that Ms Brookman held a position of importance at the University of New South Wales. 304 In making his submission to Simpson J on 25 March 2009, in support of his application that Simpson J should disqualify herself, Mr McGuirk said that Ms Brookman "has been the media manager at the University of New South Wales since probably 1998, which coincides pretty much with the outbreak of corruption at the University of New South Wales". Mr McGuirk said that "Ms Brookman has been effectively the front person for the University and has represented to the world, despite clear knowledge to the contrary, that all is well (at the University)". 305 In pars 36 and 37 of his affidavit of 10 July Mr McGuirk said:- "36. The person who was the 'public face' of the UNSW during this time - and who remains in this position to this date - is a certain Ms Judy Brookman, UNSW Director of Communications. 37. It must be inferred that Ms Brookman worked closely with both Professor Ingleson and with the University Solicitor, Ms Carol Kirby, during this time in preparing public communications in regard to the ongoing scandals at the UNSW. To the extent that any of those communications were inadequate or misleading, Ms Brookman had much to lose in the professional, if not also the personal sense, from the facts becoming known." 306 In submissions at the hearing Mr McGuirk asserted that Ms Brookman was "the front person" of the University and the "keeper of the door". He asserted that, if he succeeded in the principal proceedings against the University or even if the principal proceedings simply went to trial, "Ms Brookman's job is basically at an end". 307 I accept that Ms Brookman has been the leading member of the University of New South Wales' media unit for a number of years and as such has dealt for a number of years with organs of the media on behalf of the University. However, I do not accept that her role in the affairs of the University has been anywhere near as important as Mr McGuirk asserted. 308 There is some evidence about Ms Brookman's role at the University in the four documents in Mr McGuirk's 177-page affidavit of 26 March 2007 in which Ms Brookman is mentioned. 309 The first document is a media release dated 16 April 2002 of a statement by the then Vice-Chancellor of the University (Professor Niland) regarding the allegations against Professor Hall. The whole of the statement is in quotation marks, that is in direct speech by Professor Niland. At the end of the media release there is a line reading, - "Contact Details - Judy Brookman, UNSW Media Manager" with particulars of Ms Brookman's telephone numbers. 310 The next document is a media release dated 12 June 2002 of an announcement by the Vice-Chancellor of the University of the appointment of a committee (the Brennan Committee) to inquire into the allegations of misconduct by Professor Hall. The announcement includes the names of the members of the committee and a brief statement of the terms of reference of the committee. At the end of the media release there is a single line reading "Contact Details: Judy Brookman, Media Manager" with particulars of Ms Brookman's telephone numbers. 311 The next document is a media release dated 23 December 2003 of the then Vice-Chancellor, Professor Hume's, decision in relation to the allegations of misconduct against Professor Hall. In the media release there was a lengthy statement of the "background" and then a statement of the findings by the Vice-Chancellor. Most of the findings are in quotation marks, reporting in direct speech what Professor Hume said. At the end of the media release there is a single line reading "Contact Details: Judy Brookman, UNSW media unit" with particulars of how to communicate with Ms Brookman. 312 The final document is a media release of 8 April 2004 of a statement by the Chancellor of the University that the Vice-Chancellor had given notice of his intention to resign and that at a meeting of the Council of the University the resignation had been accepted and an Acting Vice-Chancellor had been appointed. At the end of the media release there is a reference to "Contact Details: Judy Brookman, UNSW Office of Communications" with particulars of Ms Brookman's telephone numbers and email address. 313 In my opinion, it could not be inferred that Ms Brookman played any part in the events the subject of the media releases or that she played any part in determining the substance of the media releases to which I have referred. Her role was simply that of a media officer. 314 I consider it fanciful to suppose that there would be serious consequences for Ms Brookman, including the loss of her job, if the principal proceedings by Mr McGuirk came to trial or that it appeared to Simpson J when making her decision that there would be serious consequences for Ms Brookman or that there was a need for her to protect Ms Brookman. 315 Not only do I consider that Ms Brookman's position at the University was much less important than was asserted by Mr McGuirk, Ms Brookman did not play any part in the events leading up to Simpson J's judgment of 7 April 2009. She was not the recipient of any of the communications from Mr McGuirk, evidence of which was placed before Simpson J. Her name was unfamiliar to senior counsel appearing for the University on 25 March, who had clearly mastered his brief. 316 Simpson J's friendship with Ms Brookman did not require her to disqualify herself from hearing the University's application. 317 Earlier in this judgment I summarised parts of Simpson J's judgment of 7 April 2009, including parts in which she summarised the evidence before her of the nature and volume of the communications from Mr McGuirk. Her Honour's conclusion that, provided she had the power, she should make an order restraining "the barrage of communication" from Mr McGuirk is a conclusion readily explicable on grounds other than imputing an improper purpose to her Honour of seeking to protect a friend who was a media officer at the University. 318 Her Honour's finding that some of the communications from Mr McGuirk might, or almost certainly would, amount to criminal conduct was open to her Honour. In a number of subsequent communications Mr McGuirk himself referred to Ms Bennett becoming tearful while being cross-examined by him. 319 I conclude that there is no evidence on which it could be found that the allegation in the fax to Simpson J's associate was true. If, contrary to this conclusion, there is some evidence sufficient to raise the issue, I would be satisfied beyond reasonable doubt that the allegation is not true. 320 No defence of fair comment is available to Mr McGuirk. The conditions for a defence of fair comment, as stated by Eames J in par 66 of his judgment in Hoser, are not satisfied. In particular, there was no attempt by Mr McGuirk to state in the fax the facts forming the basis of his criticism. 321 I will defer until later the question of whether there was a real risk as a matter of practical reality that the publication of the allegation would have a tendency to lower the authority of Simpson J and impair public confidence in the court.

[134]

The fax to ICAC 322 In this fax Mr McGuirk alleged that Simpson J had acted corruptly in regard to the proceedings by Mr McGuirk for an injunction against the police, the proceedings between Mr McGuirk and ICAC and the current proceedings by Mr McGuirk against the University and that she had protected her close female friend Ms Judy Brookman. 323 These allegations could clearly have some inherent tendency to lower the authority of Simpson J and impair public confidence in the court and would amount to a contempt of court, unless there is some "defence" or unless it could not be found beyond reasonable doubt that there was a real risk as a matter of practical reality that the publication of the allegations would have a tendency to lower the authority of Simpson J and impair public confidence in the court. I will deal first with the "defence" of truth. 324 I have already held that there is no evidence or reasonable possibility that in giving her decision of 7 April 2009 Simpson J was acting for the improper purpose of protecting Ms Brookman. Nor do I consider that there is any evidence or any reasonable possibility that in declining to disqualify herself or declining to give Mr McGuirk a further adjournment, or in taking any of the other steps her Honour did on 23 March or 25 March, her Honour was acting for the improper purpose of protecting Ms Brookman. 325 Towards the end of the hearing Mr McGuirk expressly disavowed making any submission that Simpson J had exercised her judicial functions for the purpose of protecting Ms Brookman in either the proceedings against the police or the ICAC proceedings. He said:- "I'm not saying that when she (Simpson J) decided against me in the police matter she was protecting Ms Brookman. I'm not saying when she decided against me in the ICAC matter she was protecting Ms Brookman…" 326 This concession by Mr McGuirk was properly made. The proceedings by Mr McGuirk against the police had nothing whatever to do with the University or Ms Brookman. 327 The substantive proceedings between Mr McGuirk and ICAC turned, as Mr McGuirk himself acknowledged, on a question of statutory construction and the Court of Appeal dismissed an appeal from Simpson J's decision. As to the costs application, it is highly improbable that the 177 page affidavit of 26 March 2007, with its few, scattered references to Ms Brookman, was ever read by Simpson J. In her judgment on the costs application Simpson J gave reasons for making a costs order against Mr McGuirk, that Mr McGuirk had been unsuccessful in the litigation and that there was no reason to depart from the usual practice that costs follow the event. An appeal against her Honour's costs order was dismissed. 328 There remain the allegations that Simpson J had acted corruptly in the police proceedings, the ICAC proceedings and the proceedings before Simpson J in the current proceedings. 329 In his fax to ICAC Mr McGuirk said that Simpson J had "inter alia" protected Ms Brookman and he underlined the words "inter alia". However, in his evidence and submissions Mr McGuirk did not make any assertion as to how Simpson J's conduct had been corrupt, other than the assertion that she had acted to protect Ms Brookman. Indeed, in his evidence he expressly connected the conduct of Simpson J in the three proceedings which he alleged had been corrupt, with her friendship with Ms Brookman. 330 I have already referred to par 38 of Mr McGuirk's affidavit of 10 July 2009 in which he said that on 23 March 2009 he had learnt for the first time that Ms Brookman was a close personal friend of Simpson J. 331 In par 39 of his affidavit Mr McGuirk said:- "I was shocked to learn this. It was as though someone had given me an electric shock. Many things which up to that time I had found incredible - in the sense that my mind strove not to accept them, despite the facts - all of sudden made sense." 332 In par 40 his affidavit Mr McGuirk said that he had previously appeared before Simpson J on three occasions, on 19 February 2007 (the substantive ICAC proceedings), on 5 April 2007 (the police matter) and on 15 November 2007 (the ICAC costs proceedings). Mr McGuirk proceeded in pars 41-48 of the affidavit to discuss the substantive ICAC proceedings, in pars 49-65 the police matter and in pars 66-72 the ICAC costs proceedings. 333 In pars 73-75 of his affidavit Mr McGuirk said:- "73. At no time during the hearing of the substantive matter, nor during the hearing of the application made by the ICAC for its costs did Justice Simpson disclose her close personal friendship with Ms Judy Brookman. 74. Had Justice Simpson done so, I would have made an immediate application that she recuse herself from hearing the application made by the ICAC for costs. 75. I am of the understanding that the failure by Justice Simpson to declare her conflict of interest, and to continue to hear and to determine a matter in respect of which the interests of a close personal friend of hers were either and/or could be directly and/or indirectly affected is not only a breach of her judicial oath but also corrupt in the terms of the Independent Commission Against Corruption Act 1988." 334 In par 53 of his affidavit of 27 July Mr McGuirk said that he believed that the decision of Simpson J to order him to pay the costs of the ICAC proceedings was motivated by her desire to protect Ms Brookman. 335 I am satisfied that there is no evidence on which it could be found that Simpson J exercised her judicial functions in the police matter or the ICAC matter for the purpose of protecting Ms Brookman. I have already found that there is no evidence on which it could be found that Simpson J exercised her functions in the current proceedings for the purpose of protecting Ms Brookman. Accordingly, there is no evidence on which it could be found that the allegations that Simpson J acted corruptly in these three proceedings were true. Alternatively, I would be satisfied beyond reasonable doubt that the allegations that Simpson J acted corruptly in these three proceedings were untrue. 336 There is no defence of fair comment available in relation to the fax to ICAC. I will defer the question of whether there was a real risk as a matter of practical reality of an interference with the course of justice.

[136]

Real risk as a matter of practical reality 338 I have deferred until now the question of whether there was a real risk as a matter of practical reality that the faxes referred to in the statement of charge had a tendency to lower the reputation of Simpson J and impair public confidence in the court. Relevant to this question is the extent of the publication of the faxes. 339 In almost all of the cases there has been a much wider circulation of the scandalising allegations than occurred in the present case. In R v Gray the allegations were published in a newspaper circulating in Birmingham. In Dunbabin the allegations were published in a leading article in a Sydney newspaper. In Goodwin the letter containing the scandalising allegations had been sent to 13 District Court registrars throughout the State. In Attorney-General v Mundey the scandalising allegations were made in an interview by three television channels. In Solicitor-General v Radio Avon Limited the item had been broadcast on radio to a listening audience of about 50,000. In Ahnee the article containing the scandalised allegations had been published in a widely circulating afternoon paper. 340 In Hoser Eames J at par 218 of his judgment accepted that "publication (in that case) was not of the order of a newspaper or major organ of communication". However, the scandalising remarks were in a published book which had been sold at major booksellers and had been distributed all around the world (judgment of Eames J at par 225). 341 In the present case, the faxes were sent only to the judge's own associate, the Independent Commission Against Corruption, the Ombudsman, the solicitor for the opposing party in the proceedings and to two members of parliament. 342 The Independent Commission Against Corruption is a body and the Ombudsman is a person one of whose principal functions is to receive allegations of corrupt or improper conduct. In my opinion, the court should be slow to find that a complaint that a judge has been corrupt sent to either the Independent Commission Against Corruption or the Ombudsman is a contempt of court, however groundless the complaint is. 343 All of the Independent Commission Against Corruption, the Ombudsman and Ms Bennett had had long experience of Mr McGuirk and of receiving allegations of misconduct from him and I consider that this can be taken into account in determining whether there was a real risk that the communications sent to them would have had a tendency to lower the authority of Simpson J. 344 The conclusion I have reached is that I am not satisfied beyond reasonable doubt that the faxes relied on in the statement of charge, although scandalising and untrue, would carry a real risk as a matter of practical reality of having a tendency to lower the authority of Simpson J or impair public confidence in the court. Consequently, I dismiss the charge of contempt by scandalising the court.

Parties

Applicant/Plaintiff:

McGuirk

Respondent/Defendant:

University of NSW

Cases Cited (22)

CITATION : McGuirk v University of NSW [2009] NSWSC 1058

Athens & anor v Randwick City Council (2005) 64 NSWLR 58 Attorney General (NSW) v Mundey [1972] 2 NSWLR 887 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff & ors [2008] NSWCA 243 Briginshaw v Briginshaw (1938) 60 CLR 336 Cameron v Cole (1943-1944) 68 CLR 571 Director General of the Department of Community Services; re Sophie [2008] NSWCA 250 Doulaveras v Daher (2009) 253 ALR 627 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Ex parte Attorney General; re Goodwin (1970) 91 WN (NSW) 29 Ex parte Forster; re University of Sydney (1963) 63 SR 723 Gerard Michael McGuirk v University of New South Wales [2009] NSWSC 253 Hearne v Street (2007) 70 NSWLR 231 Hearne v Street (2008) 235 CLR 125 Hillig v Darkinjung Pty Ltd [2008] NSWCA 75 Hillig v Darkinjung Pty Ltd (No.2) [2008] NSWCA 147 Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15 CASES CITED : Hoser & anor v The Queen (2005) HCA Trans 357 Hoser and Kotabi Pty Ltd v The Queen (2003) VSCA 194 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 Jones v Dunkel (1958-59) 101 CLR 298 Manly Council v Byrne [2004] NSWCA 123 Mathews v Australian Securities and Investments Commission (2000) 170 ALR 149 Nationwide News Pty Limited v Wills (1991-1992) 177 CLR 1 R v Collins (1954) VLR 46 R v Dunbabin; ex parte Williams (1935) 53 CLR 434 R v Gray [1900] 2 QB 36 R v Hoser and Kotabi Pty Ltd [2001] VSC 443 Re Macks: Ex parte Saint (2000) 204 CLR 158 re: Wiseman (1969) NZLR 55 Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 University of New South Wales v McGuirk [2006] NSWSC 1362 Willers v The Queen (31 August 1995) Williams v Spautz (1992) 174 CLR 509 Witham v Holloway (1995) 183 CLR 525

without the prior leave of the Court." 5 In par 2 of the amended statement of charge the University charged that, after Mr McGuirk was notified or otherwise became aware of the order and without prior leave of the court, Mr McGuirk sent on dates between 8 April 2009 and 2 July 2009 the communications listed in sub-pars (a) to (v) of par 2 to various persons, including Ms Susan Bennett the solicitor on the record for the University, Mr John Davis a partner of Ms Bennett in the firm Sparke Helmore, Mr David Gonski the Chancellor of the University, Ms Gabrielle Upton the Deputy-Chancellor of the University, Professor F Hilmer the Vice-Chancellor of the University and Ms Judy Brookman an employee of the University. The great majority of the communications listed were charged to have been sent to Ms Bennett. 6 Paragraphs 3 to 8 and 10 of the amended statement of charge annexed to the amended notice of motion relate to the charge of having scandalised the court. Paragraphs 3 to 8 contain extracts from communications charged to have been sent by Mr McGuirk. I will set out these extracts when later in this judgment I consider the charge of having scandalised the court. 7 The second notice of motion by the University is a notice of motion dated 7 July 2009. The principal order sought in this notice of motion is an order under Pt 55 r 3 of the Supreme Court Rules that Mr McGuirk be dealt with for contempt of court for having disobeyed the same order (order 3) made by Simpson J on 8 April 2009. 8 In par 1 of the statement of charge annexed to this notice of motion the terms of order 3 made by Simpson J on 8 April 2009 were repeated. In par 2 of the statement of charge it was charged that, after Mr McGuirk was notified or otherwise became aware of the order and without prior leave of the court, Mr McGuirk sent the communications listed in sub-pars (a) to (g) of par 2, which were communications additional to the communications referred to in the statement of charge annexed to the first notice of motion. One of these communications was dated 1 July 2009 and was apparently omitted from the statement of charge in the first notice of motion through an oversight. The other communications were all dated 5 July 2009. The communications were sent, respectively, to Ms Bennett, Mr Davis, the Chancellor of the University, the Vice-Chancellor of the University and certain employees of the University. 9 On an earlier occasion before another judge of this Court (McCallum J) Mr McGuirk pleaded not guilty to all of the charges of contempt. 10 On 6 July 2009 Mr McGuirk filed in court a notice of motion by him against the University. Mr McGuirk accepted before me that McCallum J made a ruling on 6 July 2009 that only certain paragraphs of Mr McGuirk's notice of motion should be heard and determined, before the University's two notices of motion were heard and determined. These paragraphs of Mr McGuirk's notice of motion were pars 9, 10, 11, 12 and 15, which were in the following terms:- "9. A declaration that the filing in the court on 1 July 2009 by Sparke Helmore Lawyers - purportedly on behalf of the University of New South Wales - of the notice of motion dated 1 July 2009 ("the notice of motion"), constitutes an abuse of the process of the court. 10. A declaration that the conduct of Ms Carol Kirby, University Solicitor for the University of New South Wales, in instructing Sparke Helmore Lawyers to file the notice of motion in the court, constitutes an abuse of the process of the court. 11. An order staying any further hearing and/or other determination in respect of the notice of motion filed by Sparke Helmore Lawyers in the court on 1 July 2009 until the determination by the Court of Appeal of the summons for leave to appeal and/or the substantive appeal by the plaintiff against the decision of Simpson J in Gerard Michael McGuirk v University of New South Wales [2009] NSWSC 253 and the orders made by Simpson J pursuant to that decision on 8 April 2009, matters which are before the Court of Appeal under file number CA 40209 of 2009. 12. Further and/or in the alternative, an order staying any further hearing and/or other determination in respect of the notice of motion until the court is provided with unequivocal evidence in the form of a resolution passed by the Council of the University of New South Wales (or similar), that the notice of motion filed by Sparke Helmore Lawyers on 1 July 2009 on the instructions of Ms Kirby, was properly authorised by, and is consistent with, the policies of the University of New South Wales. …………… 15. To the extent that any of the orders and/or declarations sought above are not able to be made by a judge of the Supreme Court of New South Wales sitting alone, that these proceedings - to the extent that they relate to the orders and/or declarations sought above, be removed into the Court of Appeal." 11 The notice of motion dated 1 July 2009 referred to in Mr McGuirk's notice of motion was the original notice of motion by the University which became the amended notice of motion of 4 July 2009. 12 The hearing of the parts of Mr McGuirk's notice of motion and of the University's two notices of motion lasted 13 days. For the first 3 days of the hearing the University was represented by senior counsel and junior counsel and then, for the remainder of the hearing, by junior counsel. 13 Mr McGuirk appeared for himself, without legal representation. He is an experienced litigant and has often appeared for himself in court. He has almost completed a diploma of law course. At one stage of the hearing he informed me that he is was then a party, not only to the present proceedings, but also to proceedings against the New South Wales Police (or the State of New South Wales), appeals to the Court of Appeal and proceedings in the Administrative Decisions Tribunal under the Freedom of Information Act. Later in this judgment I will discuss a number of other proceedings in which Mr McGuirk has been a party. 14 In support of its notices of motion the University filed a number of affidavits. These affidavits included 5 affidavits by Ms Bennett, an affidavit by the Information Officer of Sparke Helmore, affidavits by the personal assistant to Mr Gonski, an affidavit by the personal assistant to Professor Hilmer and affidavits of service of the University's notices of motion and the affidavits in support. 15 The affidavits by Ms Bennett contained a considerable amount of background information and proved the receipt by her of the communications charged to have been sent by Mr McGuirk to her, which were referred to in the statements of charge. The affidavits of the Information Officer and of the two personal assistants proved the receipt of the communications charged to have been sent by Mr McGuirk to Mr Davis, the Chancellor of the University and the Vice-Chancellor of the University. Some of the affidavits on behalf of the University were voluminous but this was largely due to the number and length of the communications from Mr McGuirk, copies of which were annexed to the affidavits. 16 Mr McGuirk filed three affidavits in support of his notice of motion, made 10 July 2009, 20 July 2009 and 27 July 2009. 17 An exhibit to the affidavit of 27 July 2009 marked "MM1" was 437 pages long. Mr McGuirk asserted that it contained evidence collected by him over a period of eight years, if not longer. 18 Exhibit MM1 consisted almost entirely of the full text of affidavits made by Mr McGuirk in previous proceedings. Pages 1-169, or rather pages 1 to 177, of exhibit MM1 constituted a copy of an affidavit made by Mr McGuirk on 26 March 2007 in proceedings between Mr McGuirk and the Independent Commission Against Corruption. 19 Pages 178-309 of exhibit MM1 were a copy of an affidavit made by Mr McGuirk on 22 June 2007 in proceedings between Mr McGuirk and the Ombudsman. Pages 310-321 of exhibit MM1 and pages 322-417 of exhibit MM1 were copies of further affidavits made by Mr McGuirk in the Ombudsman proceedings on 2 July 2007 and 13 July 2007. 20 The three affidavits made by Mr McGuirk in these proceedings and exhibit MM1 were, to a high degree, prolix, repetitive and argumentative. Mr McGuirk made a submission that counsel for the University had not objected to the admissibility of his affidavits or had not pressed any objection. Counsel for the University in fact handed up to me a long list of objections to parts of Mr McGuirk's first affidavit of 10 July 2009. However, counsel for the University suggested that, rather than spending a considerable amount of time considering the objections, it would be more expeditious simply to receive all of Mr McGuirk's evidence. I acceded to this suggestion and announced that I would receive all of Mr McGuirk's evidence but that would not prevent the University subsequently submitting that some part or parts of the evidence were irrelevant, inadmissible opinion or should be excluded under Pt 3.11 of the Evidence Act. In fact, many parts of Mr McGuirk's affidavits are irrelevant and/or contain inadmissible conclusions and opinions. 21 Apart from his affidavits, Mr McGuirk tendered a large number of documents. Many, but not all, of these documents I admitted into evidence, although in many cases the admissibility of the documents admitted was dubious.

[2001] VSC 443

(2005) 64 NSWLR 58

(1938) 60 CLR 336

(2009) 253 ALR 627

(1986) 5 NSWLR 445

(2007) 70 NSWLR 231

(2008) 235 CLR 125

(1987) 164 CLR 15

(1955) 93 CLR 351

(2000) 170 ALR 149

(1935) 53 CLR 434

(2000) 204 CLR 158