McGuirk, Gerard Michael v Kirby, Carol Anne
[2011] NSWSC 677
•06 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: McGuirk, Gerard Michael v Kirby, Carol Anne [2011] NSWSC 677 Hearing dates: 11 May 2011 Decision date: 06 July 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: 1. The summons filed 29 November 2010 is dismissed.
2. Costs are reserved.
Catchwords: PROCEDURE - civil - summary disposal - dismissal - reasonable cause of action; whether - setting aside - plaintiff's claim for declaratory relief does not involve a legal controversy with any foreseeable consequence Legislation Cited: Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Supreme Court Act 1970
Protected Disclosures Act 1994
Uniform Civil Procedure Rules 2005Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Hawksford v Hawksford [2005] NSWSC 463
McBain ,Re; ex parte Australian Catholic Bishops Conference [2002] HCA 16
Ku-ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335
Painaway Australia Pty Ltd v JAKL Group Pty Ltd [2011] NSWSC 205
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260
Sankey v Whitlam (1978) 142 CLR 1
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
University of NSW v Moorhouse & Angus & Robertson (Publishers) Pty Ltd [1975] HCA 26; (1975) 133 CLR 1Texts Cited: S Goubran, "Conflicts of Duty: The Perennial Lawyers' Tale - A Comparative Study of the Law in England and Australia" [2006] Melbourne University Law Review 4
P W Young, Declaratory Orders, 2nd ed (1984)Category: Principal judgment Parties: Gerard Michael McGuirk - Plaintiff
Carol Anne Kirby - DefendantRepresentation: M Izzo - Defendant
GM McGuirk - Plaintiff in person
File Number(s): 2010/396418
Judgment
HER HONOUR: By notice of motion filed 16 February 2011, the defendant seeks that the proceedings be dismissed pursuant to Part 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR").
The plaintiff is Gerard Michael McGuirk ("Mr McGuirk"). The defendant is Carol Anne Kirby ("Ms Kirby"). Mr McGuirk relied on his affidavits affirmed 11 February 2011 and 10 May 2011.
Background
For the purposes of this application only, I have taken Mr McGuirk's case at its highest and I accept the facts are as follows.
1. From 23 February 1998 to 31 March 2002, the University of New South Wales ("the University") employed Mr McGuirk.
2. Since October 1998, the University employed Ms Kirby as a University solicitor.
3. Mr McGuirk claims that in 2002, the University dismissed him on the basis that he was a whistleblower who had made reports of mismanagement against the University.
4. Mr McGuirk caused five Court Attendance Notices (CANs) to be issued on 24 November 2003, by the Newtown Local Court ("the Local Court proceedings"). The CANs named Mr McGuirk as prosecutor and John Niland, Neil Morris, Roger Layton, John Ingleson and Greg Whittred as defendants ("the recipients of the CANs") [see Ex A]. At that time, the defendants to the CANs were either current or past University employees.
5. Each of the CANs alleged that between December 2002 and March 2003, the relevant defendant took detrimental action against Mr McGuirk under s 20(2) of the Protected Disclosures Act 1994. Each of the CANs provided short particulars of the alleged offence stating "Reprisal [by the defendants against Mr McGuirk] for making protected disclosure(s)... injury, damage or loss - discrimination, disadvantage or adverse treatment in relation to employment - dismissal from of prejudice in, employment" [also see Ex A].
6. The plaintiff alleges Mr Andrew Marlin, who worked for Ms Kirby arranged, under Ms Kirby's direction and it appears, at the request of the defendants to the CANs, to be represented in the Local Court by the New South Wales Crown Solicitor's Office.
7. On 9 February 2005, the Local Court proceedings were listed for hearing before her Honour Magistrate Corbett in the Downing Centre Local Court. At that hearing Mr Arthur Moses of counsel appeared for Mr McGuirk. Mr Paul Roberts SC and Mr Ian Bourke of counsel appeared for the defendants, instructed by the Crown Solicitor's Office.
8. On 11 February 2005, (on the third day of the hearing) Mr Moses informed the Court that Mr McGuirk would be prepared to seek leave to withdraw the charges against each of the five defendants to the CANs in the event that an application for costs was not made and the five defendants indicated that offer was accepted. Her Honour granted leave for Mr McGuirk to withdraw the charges and noted that each charge was accordingly dismissed. An application for costs was not made [see Ex B].
9. On 31 March 2008, Mr McGuirk commenced proceedings against the University in relation to his dismissal in 2002. These proceedings will be referred to in this judgment as the "substantive proceedings".
The relevant law on summary dismissal
Rule 13.4(1) of the UCPR provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.
In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Barwick CJ (who sat as a single judge) stated that a litigant should not be denied access to the appropriate tribunal unless his lack of a cause of action is clearly demonstrated. He said that,
"The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense"."
The summons
The summons filed 29 November 2010 is of short compass. It seeks two declarations and one order. It reads:
"1. A declaration that Mrs Carole Anne Kirby, a solicitor employed by the University of New South Wales, was not authorised by the University of New South Wales to act as a legal representative of Professor John Niland, Professor John Ingleson, Professor Roger Layton, Professor Greg Whittred and Mr Neil Morris, in the proceedings which were commenced by Gerard Michael McGuirk in the Local Court of New South Wales in November 2003 for alleged breaches by the above named persons of s 20(1) of the Protected Disclosures Act 1994.
2. A declaration that the payment by the University of New South Wales of amounts of money totalling approximately $100,000 to the Crown Solicitor and/or to other third party lawyers, including but not limited to Mr Ian Bourke of counsel and Mr Paul Roberts SC of counsel, was not authorised by the University of New South Wales.
3. An order that, unless the University of New South Wales ratifies the payment of the monies referred to above by way of a resolution of the Council of that statutory corporation at its meeting to be held on Monday 13 December 2010 - such ratification only being lawful if made after a proper briefing of the members of the Council as to the relevant facts - Mrs Kirby refund to the University of New South Wales all monies which she purportedly authorised to be paid by the University of New South Wales to third party lawyers in respect of the proceedings referred to in [1] above."
Jurisdiction
Sections 63 and 75 of the Supreme Court Act 1970 read:
"63 Final determination
The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided."
"75 Declaratory relief
No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not."
Mr McGuirk also relies on the inherent power of this Court. Mr McGuirk referred to an article by S Goubran, "Conflicts of Duty: The Perennial Lawyers' Tale - A Comparative Study of the Law in England and Australia" [2006] Melbourne University Law Review 4, which discusses the three situations where a court may restrain a lawyer from acting: misuse of a client's confidential information; breach of a lawyer's duty of loyalty; and by invoking the inherent jurisdiction of the court over its officers. This article discusses the divergence between English and Australian law on these topics. At page 19 the learned author says:
"(b) The Jurisdiction of the Court over its Officers - Administration of Justice
It is clear from a survey of the law in both Australia and England that most cases involving former client conflict are decided on the basis of apprehended disclosure of confidential information. The inherent jurisdiction of the court over its officers is rarely invoked. The rarity of its invocation should not, however, mask its existence and importance. One can imagine circumstances where a client will fail to sustain a claim in relation to the apprehended disclosure of their confidential information but in which it is nevertheless desirable that a lawyer should be restrained from continuing to act. For instance, a lawyer might have a personal interest in the outcome of the proceedings, or might be likely to be called as a witness, and is consequently unable to give the court the independent and uninvolved assistance expected from officers of the court.
The duty to the court arises from the court's concern that it should have the assistance of independent legal representation. The integrity of the adversarial system in England and Australia 'is dependent on lawyers acting with perfect good faith, untainted by divided loyalties of any kind.'
This is central to the preservation of public confidence in the administration of justice."
[footnotes omitted]
The gravamen of Mr McGuirk's concern is that Ms Kirby presented herself as being authorised by the University to act as the five defendants' legal representative in the Local Court proceedings when she was allegedly not expressly authorised to do so. Mr McGuirk submitted that Ms Kirby's alleged representation that she had the University's authority to act was in fact fraudulently obtained (T11: 47) and he suggested that Ms Kirby may have been acting in a personal capacity, or in effect acting as a private solicitor, when she acted for the five defendants in relation to the Local Court proceedings (T 17:1-15).
In oral submissions, Mr McGuirk referred to the proposition that Ms Kirby, a solicitor, can act either as a solicitor in her own private capacity on behalf of client such as the recipients of the CANs or she can act in her capacity as an employed solicitor of the University for the recipients of the CANs but she cannot act in both capacities. In this regard Mr McGuirk referred to a passage from the University's council minutes dated 25 August 2003 [Ex 2] where it states:
"It had been argued that the University should have 'step in rights' in case it wished to settle a matter which an individual member might wish to pursue further. The Act protected members in a substantial measure and if Council wished to revisit the matter, it would need to carefully examine the detail required for a Deed of Indemnity.
UNSW's step in rights, particularly at the point where the interests of the University and the interests of the individual Council member might diverge, would need to be clear. There was also the matter of the extent to which precision could be given in advance to the different areas of coverage which might be required.
...
Mr Caddies [a solicitor employed by the University] reiterated that a detailed analysis of requirements would be needed for a Deed of Indemnity and that he had advice that step in rights were not always acceptable in the corporate world. In his view, a Deed of Indemnity was a reasonable proposition but his main concern was that he was acting for the interests of the University, not the individual member; he was cautious in advantaging the individual against the interests of the corporation ."
[Mr McGuirk's emphasis added]
As I understand it, Mr McGuirk submitted that if Ms Kirby was to act for the individual members; the recipients of the CANs, then a conflict of interest arose between her acting in the interests of the individual members and acting in the interests of the University. Mr McGuirk suggested there was an irresistible inference that when Ms Kirby represented to the Crown Solicitor that she was authorised by the University she was actually moonlighting at the request of Professor Niland (T 24: 32-47).
Counsel for Ms Kirby submitted that a declaration must be directed to the determination of a legal controversy and it should not be granted where the question raised is purely hypothetical, or where the declaration would produce no foreseeable consequences for the parties.
In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582, Mason CJ, Dawson, Toohey and Gaudron JJ (at 581 - 2) stated:
"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties"."
[footnotes omitted]
Several decisions since Ainsworth have interpreted these reasons as being a delineation of judicial power to decide "matters" or questions of justiciable controversy ( Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, at [62], Gaudron and Gummow JJ; Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075 at [21] - [22] Brereton J). As Ainsworth indicates, there are at least four limbs that need to be satisfied under this test when answering the basal question: "is this a 'matter' in the sense required by Ch III of the Constitution?" ( Re McBain at [62] Gaudron and Gummow JJ). A failure to satisfy this question will as a result enliven the Court's discretion to refuse relief.
Summarising this discretionary test, Lockhart J (with whom Spender and Cooper JJ agreed) in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663 at 670 to 671 conveniently wrote that:
"For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:
The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary Act 1903 and Navigation Act 1912 (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.
The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 ; 6 ALR 193 per Gibbs J; or if the court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority New South Wales (1977) 18 ALR 55 ; 52 ALJR 180 per Mason J at 180 and per Aickin J at 189.
The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448.
Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J at CLR 596.
...
These are the rules that should in general be satisfied before the court's discretion is exercised in favour of granting declaratory relief.
This court has undoubted power to grant declaratory relief whether or not any consequential relief is or could be claimed: s 21 of the Federal Court of Australia Act 1976 (Cth), and Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ at CLR 581-2. See also Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 per Barwick CJ at 305; Telstra Corp Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 per Lockhart J at 424-5, and Young on Declaratory Orders, 2nd ed, p 74."
It should also be kept firmly in mind the words of Gibbs J in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 , where his Honour stated (at 530 - 531):
"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."
Even if the question of Ms Kirby's authority were relevant to some future application that might be brought by Mr McGuirk, counsel for Ms Kirby submitted that it is a question that ought to be raised in the context of that application and not in separate proceedings for declaratory relief. I disagree. There are proceedings on foot in this Court where Mr McGuirk is the plaintiff and the University of New South Wales is the defendant. (289246/2008 "the substantive proceedings" - see Ex C). As I understand Mr McGuirk's claim in these proceedings for declaratory relief, he is alleging that Ms Kirby was not authorised by the University to act for the recipient of the CANs. If that premise is correct, Ms Kirby cannot be sued under the umbrella of the defendant University in the substantive proceedings.
An overriding purpose of the declaratory order is to provide some practical value or benefit to the plaintiff (P W Young, Declaratory Orders , 2 nd ed (1984) 60 to 61). This however may be a basis for refusing the relief if the contrary were to occur.
I shall now consider the tests referred to in Ainsworth and Aussie Airlines .
(i) A Real Legal Question
In Painaway Australia Pty Ltd v JAKL Group Pty Ltd [2011] NSWSC 205 at [385], Ward J explained that "declaratory relief is not available for mere future possibilities and it has been said that if the declaratory relief is for the purpose of defining a right or liability in anticipation of future events, then unless those future events are at least likely to occur the relief sought is arguably only in respect of a "purely hypothetical" question." Reference was made to Gibbs J where his Honour emphasised in University of NSW v Moorhouse & Angus & Robertson (Publishers) Pty Ltd [1975] HCA 26; (1975) 133 CLR 1 at 9 to 10 that the determination of a legal controversy was premised on a real rather than theoretical or hypothetical question. In the context of Moorhouse this latter type of question related to a declaratory order that was afforded to Moorhouse that provided that the University had infringed the Moorhouse's copyright. The declaration was held to be in an objectionable form, as there was no evidence supporting infringement of copyright other than allegations that it had been breached. As Gibbs J (at 10) observed, a declaration for a "real" question could only have been made once it was "established either than an actual infringement has occurred or that the defendant intends to take action that will amount to an infringement."
A purely hypothetical question of itself will not prevent the Court exercising its jurisdiction in exceptional circumstances. Such an example can be taken from Ku-ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335 where a declaration was granted providing particular correspondence passing between parties did not amount to a valid contract notwithstanding the absence of any dispute between the parties.
(ii) Foreseeable Consequences
A declaration that offers no foreseeable consequences for the parties to a dispute will not be granted. As Gaudron J said (at 612 [48]) in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 to otherwise allow such a declaration of this kind would be so "divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution." Foreseeable consequence in this sense requires the present matter to be referable to "some immediate right, duty or liability to be established by the determination of the court ... [And the legislature] cannot authorise [the] court to make a declaration of the law divorced from any attempt to administer that law".
(iii) A Real Interest
Another enabling feature of a declaratory order requires that the person seeking declaratory relief has a real interest in raising it ( Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437 ) . This will be based on the individual facts of each case. In Forster the question to be determined was whether the Jododex "held a valid exploration licence" (Gibbs J at 438). Regarding the question as real rather than hypothetical, the Court held, amongst other things, that Jododex possessed a real interest "to establish the validity of the license and thus ensure that the warden would not grant the authorities to enter which the appellant sought" (Gibbs J at 438). In a sense the demonstration of a real interest is related to the traditional standing question, which assumes that a declaration to be made would affect the rights of the parties inter se. The concept of a right is widely interpreted in this context to mean "privileges, powers and immunities" in addition to duties or liabilities ( Sankey v Whitlam (1978) 142 CLR 1 at 23 Gibbs ACJ).
(iv) A Proper Contradictor
A concomitant to the real interest requirement is the existence of a party with a true interest to contest the making of such a declaration ( Ainsworth per Brennan J at CLR 596)
How do these stated principles for the discretionary granting of declaratory relief have particular application to the declarations and order and sought by Mr McGuirk?
Order 1
I will deal with Order 1 first as the making of the declaration sought may have a bearing on Mr McGuirk's ability to obtain Orders 2 and 3.
In relation to the content of Order 1, Mr McGuirk observes that the defendant "has not challenged the 'factual correctness' of the 'right' that the plaintiff seeks to have the Court declare. Mr McGuirk acknowledges that the University of New South Wales was not a party to the proceedings in the Local Court for breaches of the Protected Disclosures Act and the University of New South Wales has not sought to join the proceedings in this Court.
Counsel for Ms Kirby variously submitted that there is no prospect that the Court would make such a declaration. This is based on the proposition that the issue Mr McGuirk agitates of Ms Kirby's "authorisation" is a question far removed from any present or foreseeable legal controversy between the parties. Further, counsel for Ms Kirby submitted that any application now to reopen or appeal against that dismissal would plainly be futile - not least because the proceedings were dismissed at Mr McGuirk's request.
Counsel for Ms Kirby further submitted that in light of the discretionary nature of declaratory relief, there are two bases for the Court to refuse relief that relate to the question of standing, or the "real interest" test and the question of delay. In relation to Orders 2 and 3, counsel for Ms Kirby submitted that Mr McGuirk has neither standing to seek these orders nor any real interest in the nature of the order sought, primarily because the payments impugned in Order 2 are payments by the University to external lawyers and Order 3 seeks repayment of those moneys to the University. It is submitted that six years that have passed since the Local Court proceedings and this delay should be a basis for refusing declaratory relief. Although counsel seeks to intermingle the legal objections under Orders 1, 2 and 3, I shall address them separately.
Mr McGuirk challenges certain submissions made by the defendant in his outline of submissions. Particular issue is taken with Ms Kirby's submissions that Mr McGuirk's first declaration has no prospect of success, that it does not address a present or foreseeable legal controversy, and that the matter of delay should be a basis for refusing relief.
On the question of the foreseeable legal controversy between the parties and the prospects of the declaration being granted by the Court Mr McGuirk submitted that that particular assertion "is not only an assertion unsupported by evidence, it is false." According to Mr McGuirk the question as to whether Ms Kirby was acting as an authorised agent of the University of New South Wales in respect of the protected disclosure proceedings or alternatively, in her private capacity, is a matter at the heart of legal controversies which are currently before both the Common Law Division of this Court and the Court of Appeal." Mr McGuirk footnoted this submission and wrote: "It is open to Ms Kirby to assert that she was acting in some capacity other than the two alternatives set out in this paragraph."
Mr McGuirk submitted that Ms Kirby and her legal representatives readily know the reason for his delay and that was mainly due to the fact that from February 2005 until September 2010 he had been attempting to obtain various documents from the University under the Freedom of Information Act 1989. On 6 February 2005, Mr McGuirk made an application to the University under the Freedom of Information Act for access to documents held by the University. Mr McGuirk says that it was not until September 2010 when he had received all of the documents he says that he was in a position to commence these proceedings. On 29 November 2010, these proceedings were commenced.
Finally, Mr McGuirk submitted that the declaratory orders he seeks "do not call into question the basis on which [the] orders were made" in the Local Court. Rather, Mr McGuirk submitted that the relevant orders to which Ms Kirby referred are orders made by Magistrate Corbett dismissing the CANs. These proceedings, he submitted, do not call into question the basis of such orders.
Insofar as the contention that Ms Kirby was not authorised by the University of New South Wales to act as a legal representative in the Local Court proceedings, Ms Kirby submitted that there is no evidence to support this absence of authorisation and the contention is no more than hypothetical or theoretical.
Mr McGuirk takes a different view on this topic. He submitted that because he has made extensive requests under the Freedom of Information Act 1989 and the Government Information (Public Access) Act 2009 and no retainer has been produced, which means that he has proved a negative. That is, there are no documents in existence that authorise Ms Kirby to act for the University or the recipients of the CANs. According to Mr McGuirk, the absence of such documentation proves his point. While, I accept it is possible that his proposition is correct, the absence of any relevant paperwork does not necessarily mean that Ms Kirby did not have ostensible authority to act in her capacity as University solicitor or that she was not was duly appointed to act by virtue of her employment by the University.
Mr McGuirk referred to Hawksford v Hawksford [2005] NSWSC 463. In Hawksford , Campbell J (at [34]) stated that if a party to litigation seeks to have a claim stayed or dismissed, or an order that the appearances of certain defendants be struck out on the ground that the solicitor purporting to act for a party is not retained, the onus of proving the lack of retainer is on the person who asserts it. The lack of retainer is a negative fact, of which the Court needs to be satisfied before it makes any such order and the party who asserts that fact must prove it.
In Hawksford, the plaintiff by notice of motion, challenged the retainer of the solicitors acting for the second and third defendants prior to the hearing in that matter. The challenge was successful. With reference to foreseeable consequences, it is unclear how a declaration that a solicitor acted beyond her power is referable to some current right, duty or liability of Mr McGuirk.
As in Hawksford , had the matter of Ms Kirby's retainer been raised at the hearing of the Local Court proceedings it may have been arguable that there were some foreseeable consequences that could have eventuated between both parties. But this question is now far removed from any particular controversy.
More importantly does Mr McGuirk have a real interest in the nature of the declaratory order? Although such an order would affect Ms Kirby if made, it is difficult to see how this declaration could affect Mr McGuirk's rights, in a broad sense. In my view, it is clear that Mr McGuirk does not have a real interest in the nature of the declaratory order. There is a proper contradictor that has a real interest to object, that is the University. It has not sought to be joined as a party.
The declaration Mr McGuirk seeks under Order 1 is not directed to a legal controversy with any foreseeable consequence. His proceedings seeking declaratory relief cannot succeed. As previously stated, the declaration might have been relevant to Mr McGuirk's proceedings in the Local Court, but it was not raised there. Considering the hypothetical nature of the declaration it would only be futile to entertain it. Hence, I am of the view that the declaratory relief sought under order 1 should be dismissed.
Orders 2 and 3
Order 2 seeks a declaration that the payment by the University of amounts of money totalling approximately $100,000 to the Crown Solicitor and/or other third party lawyers, including counsel, was not authorised by the University.
Order 3 seeks an order that unless the University resolution ratifies the payment referred to in Order 2, Ms Kirby should refund all the moneys to the University that she purportedly authorised to be paid by the University to third party lawyers in respect of the Local Court proceedings.
Counsel for Ms Kirby submitted that whether or not the University is entitled to the repayment of moneys said to have been paid out without authority in connection with the Local Court proceedings is a matter purely between the University and the recipients of the payments. Counsel submitted that there is no cause of action available to Mr McGuirk which would entitle him to obtain repayment of that money for the benefit of the University.
It was submitted by Ms Kirby that for the same reason, Order 2 should not be made as the declaration sought in that order is not relevant to any possible legal controversy between Mr McGuirk and Ms Kirby. To the extent that there may be some cause of action available to the University in connection with moneys said to have been wrongly paid out, counsel further submitted that Mr McGuirk has no "real interest" in that action and referred to Australian Conservation Foundation Inc v Commonwealth at 530.
Mr McGuirk submitted that this Court supervises its officers so if Order 1 is made out, this Court should invoke in the inherent jurisdiction to order Ms Kirby to repay the University the sum of approximately $100,000. As the article on Conflicts of Duty states, the inherent jurisdiction of the Court over its officers is rarely invoked. This is not a situation where the Court would do so. It is my view that Mr McGuirk's grievance is one that falls into the category referred to by Gibbs J in Australian Conservation Foundation Inc .
The plaintiff's claim for declaratory relief cannot succeed, as it does not involve a legal controversy with any foreseeable consequence.
The summons filed 29 November 2010 is dismissed.
Costs are reserved.
The Court orders:
1. The summons filed 29 November 2010 is dismissed.
2. Costs are reserved.
Decision last updated: 08 July 2011
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