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.