McGuirk v University of New South Wales - [2009] NSWSC 1058

No judgment structure available for this case.

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

HEARING DATE(S): 03/08/09-06/08/09, 17/08/09-19/08/09, 14/09/09-28/09/09

JUDGMENT DATE :
6 November 2009

JUDGMENT OF: James J

DECISION: I dismiss pars 9, 10, 11, 12 and 15 of Mr McGuirk’s notice of motion of 6 July 2009. I find that Mr McGuirk committed a contempt of court by sending the communications referred to in sub-pars (c), (d), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t) and (u) of par 2 of the amended statement of charge annexed to the University’s amended notice of motion of 4 July 2009 and the communications referred to in sub-pars (a), (b), (c), (d), (e) and (f) of par 2 of the statement of charge annexed to the University’s notice of motion of 7 July 2009.
I dismiss the charge of contempt of court by scandalising the court made in the University’s amended notice of motion of 4 July 2009.

CATCHWORDS: Contempt of court — disobedience to court order — scandalising the court — order of superior courts — truth as defence to charge of scandalising the court — real risk as matter of practical reality of interfering with course of justice

LEGISLATION CITED: Civil Procedure Act
Enclosed Lands Act
Evidence Act
Fair Trading Act
Freedom of Information Act
Independent Commission Against Corruption Act 1988
Protected Disclosures Act 1994
Trade Practices Act
University of New South Wales Act 1989

CASES CITED: 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
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

TEXTS CITED: Borrie & Lowe Law of Contempt (3rd ed 1996)
Cross on Evidence Australian edition

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

FILE NUMBER(S): SC 20106/08

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

JAMES J

FRIDAY 6 NOVEMBER 2009

20106/08 GERARD MICHAEL McGUIRK v UNIVERSITY OF NEW SOUTH WALES
JUDGMENT

1 HIS HONOUR: In these proceedings brought by the plaintiff Gerard Michael McGuirk against the defendant the University of New South Wales I have to determine two notices of motion brought by the University and part of one notice of motion brought by Mr McGuirk.

2 The first of the two notices of motion by the University is an amended notice of motion of 4 July 2009. The principal orders sought in this notice of motion are 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 an order made by her Honour Justice Simpson of this Court on 8 April 2009 in the circumstances set out in the amended statement of charge annexed to the amended notice of motion and an order under the same rule that Mr McGuirk be dealt with for contempt of court for having scandalised the court in the circumstances set out in the amended statement of charge annexed to the amended notice of motion.

3 Paragraphs 1 and 2 and par 9 of the amended statement of charge annexed to the amended notice of motion of 4 July 2009 relate to the charge that Mr McGuirk committed contempt of court by disobeying an order made by Simpson J on 8 April 2009.

4 In par 1 of the amended statement of charge the University charged that on 8 April 2009 Simpson J made orders pursuant to s 61 of the Civil Procedure Act, including an order identified as order 3 directing the plaintiff:-

(iv) not to serve on the Defendant (whether by its solicitors or otherwise) any Notice to Admit Facts or any Notice to Admit the Authenticity of Documents in relation to the proceedings

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.

Gerard Michael McGuirk v University of New South Wales

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.

22 At the hearing I made a ruling, which was in accordance with what I understood to be a direction made by McCallum J and which was not opposed by either the University or Mr McGuirk, that I should first hear the parts of Mr McGuirk’s notice of motion identified by McCallum J, before any hearing of the University’s notices of motion took place. I made a further ruling, which was not opposed, that I would then hear the University’s notices of motion, without first giving a decision on Mr McGuirk’s notice of motion.

23 On the first day of the hearing and for some time subsequently, counsel for the University opposed the University’s evidence in support of its notices of motion being treated as evidence in Mr McGuirk’s notice of motion. On the first day of the hearing Mr McGuirk pressed for a ruling that the University’s evidence in support of its motions be evidence in Mr McGuirk’s own motion. On the first day of the hearing I decided that I would proceed with the hearing of Mr McGuirk’s motion, without then making any ruling about whether evidence in the University’s motions would be evidence in Mr McGuirk’s motion and vice versa. By the fifth day of the hearing, when the parties were addressing on Mr McGuirk’s motion, I had reached a conclusion, and announced to the parties, that the evidence in Mr McGuirk’s motion would be admissible in the motions brought by the University and the evidence in the University’s motions would be admissible in the motion brought by Mr McGuirk. I said that I would permit Mr McGuirk to make further submissions in support of his motion, based on the evidence given by the University in its motions, and Mr McGuirk did make further submissions.

24 It is correct to say that until the fifth day of the hearing counsel for the University had opposed evidence in Mr McGuirk’s motion and evidence in the University’s motions being cross-admissible. Mr McGuirk made submissions that, by adopting the position it had on the cross-admissibility of evidence on the motions, the University had committed an abuse of process or was estopped from relying on the affidavits it had filed in support of its motions. No real attempt was made by Mr McGuirk to explain how the University’s conduct could have amounted to an abuse of process or how the elements of an estoppel were satisfied and I reject these submissions.

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:-

1. 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.

2. 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.

3. 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.

1. University of New South Wales v McGuirk

33 Mr McGuirk made an application pursuant to the Freedom of Information Act for access to what were described in the evidence before me as the “unredacted” Hall reports. Reports of investigations into the allegations against Professor Hall had been released by the University but subject to the deletion of certain parts of the reports. The University made a determination to refuse Mr McGuirk access to the unredacted Hall reports. Mr McGuirk then made an application to the Administrative Decisions Tribunal for a review of the determination refusing access. Mr McGuirk was successful before the Tribunal and also on an appeal by the University to an appeal panel of the Tribunal.

34 However, the University brought proceedings in the Supreme Court, which were heard by Nicholas J. Nicholas J held ([2006] NSWSC 1362) that the University had been denied procedural fairness in the Administrative Decisions Tribunal and set aside the determination by the appeal panel. Although it was not necessary in order to dispose of the proceedings before him, Nicholas J held that the Administrative Decisions Tribunal had power to grant access to a document, notwithstanding that it was an “exempt” document within Sch 1 to the Freedom of Information Act.

35 No appeal was brought from Nicholas J’s decision. However, in other proceedings between Mr McGuirk and the University which recently came before the Court of Appeal, the University submitted that, contrary to what Nicholas J had decided, the Tribunal has no power to grant access to an exempt document. In a reserved judgment delivered on 7 October 2009, after I had reserved in this matter, the Court of Appeal held that the Tribunal has no power pursuant to s 63(2) of the Administrative Decisions Tribunal Act to grant access to a document which is an exempt document by virtue of cl 10 of Sch 1 to the Freedom of Information Act.

2. 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.

3. Mr McGuirk and the New South Wales Police

51 There was another appearance by Mr McGuirk before Simpson J in the year 2007.

52 Mr McGuirk alleges that between February 2007 and mid-April 2007 he was subjected to a sustained campaign of intimidation and harassment by officers of the Burwood Local Area Command of the police force. Mr McGuirk alleges that his kidnapping on 19 February 2007 was part of that campaign.

53 On 28 March 2007 Mr McGuirk filed a summons in this court seeking an injunction against the New South Wales Police Commissioner. The application for an injunction was listed on 5 April 2007, when the common law duty judge happened to be Simpson J and Mr McGuirk’s application came before her Honour.

54 Mr McGuirk gave evidence before Simpson J and was cross-examined by a barrister appearing for the Commissioner of Police. Simpson J declined to grant an injunction and made an order against Mr McGuirk that he pay the costs of the proceedings.

55 Mr McGuirk gave evidence before me that the campaign of harassment by the police abated in mid-April 2007, when the hearing in the Local Court of criminal charges against Mr McGuirk, to which I will later refer, resumed.

4. Mr McGuirk and the Ombudsman

56 Mr McGuirk made a number of complaints against the University of New South Wales to the New South Wales Ombudsman but the Ombudsman declined to investigate Mr McGuirk’s complaints. However, the Ombudsman did investigate other complaints against the University brought by the Hall whistle-blowers, Mr Peter Curtin and a former member of the Council of the University. This investigation continued for about four years.

57 In about the middle of 2006 Professor John Ingleson, who was the Deputy Vice-Chancellor and Protected Disclosures Co-ordinator and who had been the subject of some of the complaints, began court proceedings seeking to prevent the release of a report by the Ombudsman, on the grounds that he had been denied procedural fairness. According to Mr McGuirk, the Ombudsman agreed to discontinue his investigation.

58 Mr McGuirk brought court proceedings against the Ombudsman seeking a review of the conduct of the Ombudsman. Rothman J of this court, before whom the proceedings came, held that Mr McGuirk had no standing to bring the proceedings and an appeal from Rothman J’s decision was dismissed by the Court of Appeal.

5. Criminal proceedings by Mr McGuirk

59 In late 2003 Mr McGuirk instituted a private criminal prosecution against five defendants, being the Vice-Chancellor of the University, Professor Ingleson, two other professors and Mr Neil Morris, the Executive Director University Services with responsibility for inter alia Human Resources, Media and Communications and Legal and Compliance, for alleged contraventions of s 20 of the Protected Disclosures Act, which provides that a person who takes detrimental action against another person that is substantially in reprisal for the other person making a disclosure which is a protected disclosure under the Act, is guilty of an offence punishable summarily. A prosecution brief of evidence containing more than two and a half thousand pages was served on the defendants.

60 The prosecution came on for hearing in the Local Court on 9 February 2005. Mr McGuirk was represented by counsel.

61 On the second day of the hearing Mr McGuirk was advised by his counsel that, in counsel’s opinion, the strategy of the defendants was to draw out the proceedings and that, if the proceedings continued, Mr McGuirk would face the risk of bankruptcy. Mr McGuirk accepted his counsel’s advice to discontinue the proceedings on the basis of each side paying their own costs and by consent the proceedings were terminated on that basis.

6. Criminal proceedings against Mr McGuirk

62 Criminal proceedings were brought against Mr McGuirk for an alleged contravention of the Enclosed Lands Act and for hindering police. These proceedings had no connection with the University. Mr McGuirk represented himself in these proceedings.

63 The proceedings dragged on for a couple of years. Ultimately, on 6 February 2009 a magistrate stayed the prosecution. The Director of Public Prosecutions considered an appeal against the magistrate’s order staying the prosecution but eventually decided not to appeal.

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.

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:-

(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.

“My client and I are concerned that the above correspondence takes a substantial amount of time to read and respond to, and that this inhibits the just, quick and cheap resolution of the proceedings. Having regard to the fact that Mr McGuirk has persisted in sending correspondence of this nature despite having been asked repeatedly not to do so, I apprehend that, unless restrained, Mr McGuirk is likely to continue sending such communications throughout the course of the proceedings.”

90. I was able to observe Ms Bennett in the limited time she was under cross-examination by Mr McGuirk.

104 In part of par 92 of her judgment her Honour said:-

“Nevertheless, it is apparent that both the volume and the content of the communications is interfering with the orderly processing of the proceedings initiated by Mr McGuirk. In hindering the legal practitioners in the execution of their duties in the litigation, Mr McGuirk is in breach of his obligations stated in s 56(3). As well, I am satisfied that the sheer volume of the communications (given their substantial irrelevance to the proceedings) amounts to harassment of the various recipients, and causes a financial burden to the University.”

105 Her Honour continued:-

“93. Many of the communications carry, at their head, a reference to proceedings 20106 of 2008. Some do not. It is, however, quite apparent that all are sent under the guise of having some bearing on those proceedings.

94. Further, although a good number of the communications have been sent to individuals other than the legal practitioners, it may be assumed that it is necessary that they all be forwarded to the legal practitioners for assessment of any relevance they may have to the proceedings. And although many of the communications sent directly to the legal practitioners are of no, or peripheral, relevance to the proceedings, it will be necessary for each to be perused against the possibility that there is, buried therein, some item that is of relevance. The cost to the University is unconscionable.

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.

Mr McGuirk’s Notice of Motion

110 As previously stated, only pars 9, 10, 11, 12 and 15 of Mr McGuirk’s notice of motion are to be determined by me. It will be convenient to deal with those paragraphs of the notice of motion in a different order from that in which they appear in the notice of motion.

111 No submission was made to me that any of the relief claimed in the notice of motion was not capable of being granted by myself as a single judge of the court and there would not appear to me to be any impediment to a single judge giving any of the relief claimed, if it was otherwise appropriate. It would appear likely that, whatever I decide, an appeal will be brought to the Court of Appeal. If the matter goes to the Court of Appeal, the Court of Appeal may be assisted by my making findings of fact and by myself endeavouring to determine the issues between the parties.

Gerard Michael McGuirk v University of New South Wales

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:-

Scott v Bennett

Revell v Blake

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.

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.

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.

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.

Independent Commission Against Corruption Act

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.

337 The allegation made in this fax that Simpson J had made herself complicit in the corruption of Professor Ingleson could have a tendency to lower the authority of Simpson J and there is no evidence of a defence of truth or fair comment.

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.

Conclusion

345 I dismiss pars 9, 10, 11, 12 and 15 of Mr McGuirk’s notice of motion of 6 July 2009. I find that Mr McGuirk committed a contempt of court by sending the communications referred to in sub-pars (c), (d), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t) and (u) of par 2 of the amended statement of charge annexed to the University’s amended notice of motion of 4 July 2009 and the communications referred to in sub-pars (a), (b), (c), (d), (e) and (f) of par 2 of the statement of charge annexed to the University’s notice of motion of 7 July 2009.

346 I dismiss the charge of contempt of court by scandalising the court made in the University’s amended notice of motion of 4 July 2009.

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Citations

McGuirk v University of New South Wales [2009] NSWSC 1058

Most Recent Citation

R v Brown [2025] VSC 686

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9

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The Registrar of the Supreme Court of Queensland v Wood (No 3) [2024] QSC 116

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Cases Cited

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Statutory Material Cited

9

University of New South Wales v McGuirk [2006] NSWSC 1362

Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253

Hillig v Darkinjung Pty Ltd [2008] NSWCA 75

CITATION:	McGuirk v University of NSW [2009] NSWSC 1058
HEARING DATE(S):	03/08/09-06/08/09, 17/08/09-19/08/09, 14/09/09-28/09/09
JUDGMENT DATE :	6 November 2009
JUDGMENT OF:	James J
DECISION:	I dismiss pars 9, 10, 11, 12 and 15 of Mr McGuirk’s notice of motion of 6 July 2009. I find that Mr McGuirk committed a contempt of court by sending the communications referred to in sub-pars (c), (d), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t) and (u) of par 2 of the amended statement of charge annexed to the University’s amended notice of motion of 4 July 2009 and the communications referred to in sub-pars (a), (b), (c), (d), (e) and (f) of par 2 of the statement of charge annexed to the University’s notice of motion of 7 July 2009. I dismiss the charge of contempt of court by scandalising the court made in the University’s amended notice of motion of 4 July 2009.
CATCHWORDS:	Contempt of court — disobedience to court order — scandalising the court — order of superior courts — truth as defence to charge of scandalising the court — real risk as matter of practical reality of interfering with course of justice
LEGISLATION CITED:	Civil Procedure Act Enclosed Lands Act Evidence Act Fair Trading Act Freedom of Information Act Independent Commission Against Corruption Act 1988 Protected Disclosures Act 1994 Trade Practices Act University of New South Wales Act 1989
CASES CITED:	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 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
TEXTS CITED:	Borrie & Lowe Law of Contempt (3rd ed 1996) Cross on Evidence Australian edition
PARTIES:	Gerard Michael McGuirk - Plaintiff University of New South Wales - Defendant
FILE NUMBER(S):	SC 20106/08
COUNSEL:	In person - Plaintiff M A Izzo - Defendant
SOLICITORS:	In person - Plaintiff Sparke Helmore Solicitors - Defendant