McGuirk v University of NSW

LEGISLATION CITED : Crimes (Sentencing Procedure) Act Fines Act

Attorney General for New South Wales v Whiley (1993) 31 NSWLR 314 Australian Securities and Investments Commission v Michalik & others [2004] NSWSC 1259; [2004] 52 ACSR 115 Commissioner for Fair Trading v Garay [2005] NSWSC 647 CASES CITED : Fiduciary Limited v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] 53NSWLR 527 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Ryan v Wright (No 2) [2004] NSWSC 1019

PARTIES : Gerard Michael McGuirk - Plaintiff University of New South Wales - Defendant

COUNSEL : In person - Plaintiff M A Izzo - Defendant

SOLICITORS : In person - Plaintiff Sparke Helmore Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/289246 GERARD MICHAEL McGUIRK v UNIVERSITY OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: In these proceedings I delivered a judgment on 6 November 2009 ("the principal judgment") in which I found that Mr McGuirk had committed contempts of court in disobeying orders made by Simpson J on 8 April 2009 by sending certain communications to officers or employees of the University of New South Wales or to a solicitor acting for the University in these proceedings (or a partner or employee of the solicitor). 2 The terms of the orders made by Simpson J against Mr McGuirk which I held he had disobeyed were set out in par 4 of the principal judgment. The communications the sending of which I held were contempts of court were discussed in par 223 and listed in par 345 of the principal judgment. 3 The principal judgment was confined to a determination of whether I should find Mr McGuirk guilty of having committed contempts of court and did not extend to determining what penalty if any should be imposed on Mr McGuirk for having committed the contempts of court found by me. 4 In the principal judgment I also determined parts of a notice of motion by Mr McGuirk and a part of the amended notice of motion by the University of 4 July 2009 in which the University sought an order that Mr McGuirk be dealt with for contempt of court for having scandalised the court. I dismissed all parts of Mr McGuirk's notice of motion which I determined and I dismissed the University's application that Mr McGuirk be dealt with for contempt of court for having scandalised the court. 5 I did not in my principal judgment make any order for costs. On 30 November 2009 I heard argument as to the costs of the various applications. On 11 December 2009 I delivered a reserved judgment in which I made an order that Mr McGuirk pay two-thirds of the total costs of the University of the proceedings heard and determined by me and an order that the University pay Mr McGuirk's costs as a litigant in person of the University's amended notice of motion of 4 July 2009 insofar as it related to the charge of contempt of court by scandalising the court. I declined to make an order that the costs payable to the University be payable forthwith. 6 I fixed 27 April 2010 as the date for a hearing as to what penalty if any should be imposed on Mr McGuirk for the contempts of court which I had found he had committed. On 9 February 2010, on the application of Mr McGuirk, the date of 27 April 2010 was vacated and a new date 10 May 2010 was set. The penalty hearing proceeded on 10 May 2010. 7 An appeal was brought by Mr McGuirk against Simpson J's orders of 8 April 2009. This appeal has been heard by the Court of Appeal. The Court of Appeal reserved, and has not yet handed down, its decision. I consider that I should proceed with the penalty hearing, notwithstanding that the appeal against Simpson J's orders has not yet been determined, for the same reason that I gave in the principal judgment for proceeding with the liability hearing, that is that the orders made by Simpson J were orders by a judge of a superior court and as such are valid and binding, unless and until they are set aside and should be obeyed, unless and until they are set aside, and that any disobedience to such orders would be (at least prima facie) a contempt of court, even if it were subsequently to happen that the orders are set aside. 8 Mr McGuirk has also brought an appeal against my judgment of 6 November 2009. This appeal has not yet been heard. Indeed, no date has yet been fixed for the hearing of the appeal. However, it is usual practice in criminal proceedings (and proceedings for contempt of court are similar in a number of respects to criminal proceedings) for a judge of first instance to proceed to sentence an offender, even though the judge is on notice that an appeal against the offender's conviction has been brought or is proposed. 9 The evidence in the liability proceedings, which was voluminous, is available to be used in the present penalty proceedings. Further evidence in the penalty proceedings included an affidavit by the solicitor for the University Ms Bennett, to which were annexed copies of numerous communications received from Mr McGuirk between November 2009 and April 2010. The further evidence from Mr McGuirk included:- 1. A letter from Mr McGuirk to Ms Bennett of 19 January 2010.

1. Three very short medical certificates by Dr Ashley Morgan dated 28 May 2007, 23 April 2008 and 17 March 2009, stating that Mr McGuirk was suffering from anxiety and stress.
2. A report about Mr McGuirk by Dr Omar Marwat psychiatrist of 19 May 2008.
3. A report about Mr McGuirk by Dr Bruce Westmore psychiatrist of 20 November 2009.
4. A report about Mr McGuirk by Dr David Bell psychiatrist of 27 January 2010.

Principles for sentencing for contempt of court 10 In Attorney General for New South Wales v Whiley (1993) 31 NSWLR 314 the Court of Appeal said at 320:- "A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular." 11 In NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 Campbell J said at [27], omitting citation of authority:- "When a judge is finding facts for the purpose of a sentence concerning crime, a fact which will be used in a way which is detrimental to the offender must be proved beyond reasonable doubt, while a fact which will used in a way which is advantageous to the offender can be proved on the balance of probabilities…the standard of proof used in deciding factual matters for the purpose of imposing a sentence for contempt of court should be the same as is used in imposing a sentence in criminal matters." 12 In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Kirby P said at 314:- "A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way…" 13 In Australian Securities and Investments Commission v Michalik & others [2004] NSWSC 1259; [2004] 52 ACSR 115 at [29] Palmer J listed as appropriate factors in sentencing for contempt of court:- "i) the seriousness of the contempt proved; ii) whether the contemnor was aware of the consequences to himself of what he proposed to do; iii) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; iv) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest… v) the reason or motive for the contempt; vi) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; vii) whether there has been any expression of genuine contrition by the contemnor; viii) the character and antecedents of the contemnor; ix) what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court; x) what punishment is required to express the Court's denunciation of the contempt." 14 Distinctions are drawn between technical, wilful and contumacious contempts of court. The distinctions were discussed by Kirby P in Maniam (No 2) at pp 314-315. At p 315 his Honour said:- "The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice…" 15 Proceedings for contempt of court in the Supreme Court are still subject to Pt 55 of the Supreme Court Rules. Part 55 r 13 of the Supreme Court Rules provides that where the contemnor is not a corporation the court may punish contempt by committal to a correctional centre or fine or both. It has been held that Pt 55 r 13 is declaratory of the court's power of punishment and does not exhaust it (Maniam (No 2) at 314). 16 It was held in Whiley that the provisions of the Sentencing Act 1989 applied when sentencing a person for contempt of court and, while there have been criticisms of Whiley (see the authorities collected by Gzell J in Ryan v Wright (No 2) [2004] NSWSC 1019 at [20], it has generally been accepted that the Crimes (Sentencing Procedure) Act now applies when sentencing for contempt of court: Principal Registrar of the Supreme Court of New South Wales v Jando [2001] 53NSWLR 527; Commissioner for Fair Trading v Garay [2005] NSWSC 647 (Buddin J). Accordingly, s 3A and s 21A of the Crimes (Sentencing Procedure) Act are applicable in the present case. 17 Of importance in the present case is Uniform Civil Procedure Rule Pt 40 r 40.7, the relevant terms of which were set out in par 207 of the principal judgment. 18 In the present case Mr McGuirk was not personally served with a sealed copy of Simpson J's judgment or of Simpson J's orders and consequently was not served with a notice under r 40.7(3) that he would be liable to imprisonment if he disobeyed the orders requiring him to abstain from sending communications of the kinds prohibited by the orders. 19 In par [52] of his judgment in NCR Campbell J said, in part, with reference to the corresponding rule in the former Supreme Court Rules (Pt 42 r 8(3)):- "…the endorsement required by Pt 42 r 8(3) specifically notifies the recipient that he or she is liable to "imprisonment" - a concept which ordinary people can be expected to understand, in a way that they might not understand the concept of "attachment". Other reasons for requiring, in the ordinary case, compliance with the rule are that : (a) being personally served with a formal document like a court order is better calculated to bring home to the recipient's mind the importance of the document with which he or she is served, by comparison with merely receiving such a document in the mail; (b) to be told of the liability to imprisonment by a document authenticated by the Court seal confers on that message the authority of the Court itself, and is better calculated to bring the seriousness of the message home to the mind of the recipient than would be a warning or threat emanating merely from an opposite party in litigation; and (c) imprisonment would be readily understood by most people to be a possible consequence of committing a serious crime. Even though ordinary members of the community could be expected to understand that breach of a court order made in civil proceedings was wrong and was a serious matter, it cannot be so readily assumed that ordinary members of the community would automatically appreciate that imprisonment was one of the possible consequences of breach of a court order made in civil proceedings." Consideration

20 I am satisfied to the requisite standard that none of the contempts of court committed by Mr McGuirk were merely technical contempts. On the other hand, I am not satisfied beyond reasonable doubt that any of the contempts, although wilful, were contumacious in accordance with the criteria stated by Kirby P in Maniam (No 2). As wilful contempts, I consider Mr McGuirk's offences were serious. 21 There is overlap between s 3A of the Crimes (Sentencing Procedure) Act and some of the factors listed by Palmer J in ASIC v Michalik. There is obviously considerable overlap between the factors listed in s 21A of the Crimes (Sentencing Procedure) Act and other factors listed by Palmer J in ASIC v Michalik, some of which namely (iii), (iv) and (vi) have no application in the present case. It is convenient to consider primarily the factors listed in s 21A. 22 As to the aggravating factors in s 21A(2), the contempts, considered in totality, involved a series of criminal acts but each contempt, considered by itself, involved only a single act. 23 The great majority of the aggravating factors in s 21A(2), by their very nature, would be unlikely to apply to any offence of contempt of court. 24 As to the mitigating factors in s 21A(3):-

a) I am prepared to find that the injury, emotional harm, loss or damage caused by the offences was not substantial, although there was financial cost to the University and Ms Bennett suffered emotional distress.

c) Mr McGuirk submitted, in effect, that he was provoked by the University or its solicitors. Mr McGuirk attributes his psychiatric condition, which he acknowledges he has, to misconduct by the University or its solicitors, including conduct of the solicitors in serving Mr McGuirk with documents and pressing Mr McGuirk to comply with time limits under court orders for the taking of steps in court proceedings. 25 I am not satisfied that the University or its solicitors were guilty of any misconduct or that Mr McGuirk was provoked into sending any of the communications by conduct of the University or its solicitors. 26 None of the psychiatric reports tendered by Mr McGuirk lend any support to there being any causal connection between any conduct by the University or its solicitors and Mr McGuirk's psychiatric condition, save that Mr McGuirk's psychiatric condition is exacerbated by the stresses of litigation. 27 In his report Dr Westmore referred to Mr McGuirk's contacts with the police force (and not the University) and expressed the opinion that "in response to his contact with the police Mr McGuirk experienced an acute exacerbation of his mood disturbance". 28 In a section of his report headed "Opinion" Dr Bell said inter alia:- "(a) Diagnosis: Mr McGuirk has a lifelong maladaptation arising mainly out of a genetic vulnerability complemented, as is usually the case, by an upbringing that did not provide adequate nurturance.

I have explained above why I consider that his sense of justice reaches an extreme, which is unrealistic, rigid and Inflexible …The behaviour is part of the obsessional personality. I agree with them also that the depressive illness in his case does not belong to bipolar affective disorder, but rather is of the neurotic variety known as dysthymia. In terms of cause, the main contribution to his complaints comes from the lifelong mental constitution…

(b) Onset: … Mr McGuirk could be regarded as having injures as a consequence of the various troubles he has encountered with the Police Force and also as a result of the problems he encountered with his employer, the University of New South Wales, his wife and the failed relationships he has had with various partners since then.

... Many of the injuries preceded the episodes of friction with the police. The fundamental cause of each injury can be traced back to his maladaptive behaviour, which includes his excessive use of alcohol and similar drugs, They belong to what I have explained above as inevitable occurrences arising out of his maladjusted constitution, which is mainly responsible for his disabilities.

(c) Treatment: … The various treatments to which he has been subjected have been reasonable and adequate, but alone they have had no hope of effecting a change to his mental constitution, his rigid maladaptive responses or his tendency to develop dysthymia. There is no treatment for that type of problem.

(d) Causal attribution: The complaints stated to me are consistent with the alleged cause in each case provided that it be understood the alleged causes amount to minor provocations of the main cause, which is constitutional and lifelong." 29 (e) There is no evidence before me of any previous criminal conviction of Mr McGuirk. 30 (f) I accept that Mr McGuirk is generally a person of good character. I referred to aspects of his antecedents in the principal judgment. However, the weight which should be given to this factor is diminished by the number and content of the communications which I have held to be contempts of court and the number and content of the communications by him which were described by Simpson J in her judgment of 7 April 2009. 31 (g) I am not satisfied that Mr McGuirk is unlikely to re-offend. 32 (h) I am not satisfied that, relevantly, Mr McGuirk has good prospects of rehabilitation. 33 (i) In an email sent to my associate on 6 November 2009 Mr McGuirk, immediately after becoming aware of my judgment delivered that day, purported to apologise for what I had found to be contempts of court. However, the apology was in grudging terms and, in my view, offered by Mr McGuirk as a matter of expediency. Mr McGuirk said:- "Irrespective of my own personal views (whether as to fact or to law) in view of those findings (that is the findings made by me in the principal judgment) it is incumbent on me that I formally apologise to the Court for such contempts."

The number and content of the communications which Mr McGuirk has continued to send and his demeanour in court on 10 May militate against any finding of genuine remorse on his part. I am not satisfied that Mr McGuirk has provided evidence that he has accepted responsibility for his actions. I do not find that Mr McGuirk has shown remorse. 34 (j) I accept that Mr McGuirk because of his psychiatric condition was not fully aware of the consequences of his actions. 35 A further matter is that some of the communications, including some of the most offensive and obscene, were sent while Mr McGuirk was under the influence of alcohol and prescription drugs. However, I would not regard this as a mitigating factor. Mr McGuirk was aware of the effects of alcohol and drugs on him and, having this knowledge, continued to abuse them. I reject any suggestion that Mr McGuirk's abuse of alcohol and drugs should be blamed on the University or its solicitors. 36 Earlier in this judgment I referred to the fact that Mr McGuirk was not served with a sealed copy of Simpson J's orders bearing a notice that he would be liable to imprisonment if he disobeyed the orders, as is required by r 40.7(3) of the Uniform Civil Procedure Rules, and I also referred to NCR and, in particular, par [52] of Campbell J's judgment. 37 In his written submissions counsel for the University said that because of r 40.7(3) and NCR the University did not suggest in the present case that imprisonment was available as a punishment for Mr McGuirk's contempts of court. 38 In the course of oral argument I informed the parties that I considered, and I remain of the opinion, that this concession by counsel for the University was a concession properly made. In the present case there is the additional factor that Mr McGuirk has been a litigant in person, not having the benefit of advice from a legal representative. 39 A consequence of imprisonment not being available as a penalty is that many of the sentencing options under the Crimes (Sentencing Procedure) Act are not available. As imprisonment is not available, I cannot make any order for full-time imprisonment or an order that a sentence of imprisonment be served by way of periodic detention or an order that the sentence of imprisonment be served by way of home detention. Nor can I make any order suspending the execution of a term of imprisonment. 40 There is insufficient information before me to enable me to make a community service order (see s 86 of the Crimes (Sentencing Procedure) Act) and such information as I do have would suggest that Mr McGuirk is not a suitable person for community service work. 41 In fixing the amount of any fine I would be required by s 6 of the Fines Act to consider information regarding the means of Mr McGuirk. There is very little information before me about Mr McGuirk's means and such information as there is is information emanating from Mr McGuirk suggesting he is without any substantial means. 42 Counsel for the University submitted that I should revisit the costs order made on 11 December 2009 and now make an order that the costs dealt with by that costs order be payable on an indemnity basis and also make an order that those costs be payable forthwith. However, I do not consider that I should now vary the costs order I made on 11 December 2009. 43 It seems to me that the only further sanction I can impose is to make an order that Mr McGuirk pay the University's costs of the penalty proceedings. 44 I consider that I should order that those costs be payable on an indemnity basis. In NCR Campbell J said that the usual order for costs is that the contemnor pay the costs of the other party on an indemnity basis. I see no reason why I should depart from the usual order in the present case. Factors which complicated the making of costs orders in the liability proceedings, such as the number of applications, the University's lack of success in parts of its applications and the position long maintained by the University about the cross-admissibility of evidence on the applications, do not apply to the penalty proceedings. 45 Counsel for the University submitted that I should make an order that the costs of the penalty proceedings be payable forthwith. I note that in my judgment of 11 December 2009 I declined to make an order that the costs then ordered to be paid be payable forthwith, because a consequence might be that Mr McGuirk would not be able to continue prosecuting the principal proceedings against the University and that I should give substantial weight to that consideration. 46 The costs of the penalty proceedings fall within two of the classes identified by Barrett J in Fiduciary Limited v Morningstar Research Pty Ltd (2002) 55 NSWLR 1, to which I referred in par [40] of my judgment of 11 December 2009. 47 It seems to me that on this occasion I should exercise my discretion in favour of making an order that the costs of the penalty proceedings be payable forthwith. For quite serious contempts of court, no sanction has been imposed on Mr McGuirk apart from the order for costs. The costs of the penalty proceedings will be much less than the costs payable under the order of 11 December 2009. The further communications from Mr McGuirk from November 2009 onwards indicate a strong need for personal deterrence. Despite optimistic predictions by Mr McGuirk, it is likely to be a long time before the principal proceedings are disposed of. An amended statement of claim by Mr McGuirk has been filed but this document also is the subject of an application by the University, which has not yet been determined. 48 At the hearing I said that I was minded to grant a stay, for a short period, of any order that costs be payable forthwith, in order to enable an application to be made by Mr McGuirk to the Court of Appeal. However, after hearing submissions by counsel for the University, I said that I would not order a stay, on the understanding that it would take a substantial period, in excess of 14 days, for the University to take the necessary steps for the preparation of an assessment of costs.

Conclusion 49 I confirm the convictions of Mr McGuirk for contempts of court. I order that Mr McGuirk pay the University's costs of the penalty or sentence proceedings, that is the proceedings subsequent to the proceedings covered by my costs order of 11 December 2009. I order that those costs be payable on an indemnity basis. I order that those costs be payable forthwith. **********

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