McGuirk v University of NSW

[2009] NSWSC 1351

CITATION:	McGuirk v University of NSW [2009] NSWSC 1351
HEARING DATE(S):	30 November 2009
JUDGMENT DATE :	11 December 2009
JUDGMENT OF:	James J
DECISION:	1. I make an order that Mr McGuirk pay two-thirds of the total costs of the University of the proceedings heard and determined by me. 2. I make an order that the University pay Mr McGuirk’s costs as a litigant in person of the University’s Amended Notice of Motion of 4 July 2009 insofar as it related to the charge of contempt of court by scandalising the Court.
CATCHWORDS:	COSTS — application for findings of contempt of court — contempt by disobedience to court orders — contempt by scandalising the court — whether costs of interlocutory proceedings be payable forthwith
LEGISLATION CITED:	Civil Procedure Act
CASES CITED:	Fiduciary Limited v Morningstar Research Pty Limited [2002] 55 NSWLR 1
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 11 DECEMBER 2009

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

JUDGMENT

1 HIS HONOUR: I delivered a judgment in these proceedings on 6 November 2009. In that judgment I determined parts of a notice of motion by Mr McGuirk and all of the substantive parts (subject to one possible minor qualification) the whole of two notices of motion by the University.

(1) I dismissed pars 9, 10, 11, 12 and 15 of Mr McGuirk’s notice of motion of 6 July 2009, which were the only paragraphs of that notice of motion I was asked to determine.

(2) I found that Mr McGuirk had committed a contempt of court by sending each of 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.

(3) I found that Mr McGuirk had not committed a contempt of court by sending any of the communications referred to in sub-pars (a), (b), (f), (i) and (v) of par 2 of the amended statement of charge annexed to the University’s amended notice of motion of 4 July 2009.

(4) I found that Mr McGuirk had committed a contempt of court by sending each of 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. Although not expressly referred to in par 223 of my earlier judgment and not referred to in par 345 of that judgment, it is clear from the terms of par 223 that I also found that Mr McGuirk had committed a contempt of court by sending the communication referred to in sub-par (g) of par 2 of the statement of charge annexed to the University’s notice of motion of 7 July 2009.

(5) I dismissed the charge of contempt of court by scandalising the court made in the University’s amended notice of motion of 4 July 2009.

2 I did not make any costs order in my judgment of 6 November 2009, deliberately leaving all questions of costs outstanding. On 30 November 2009 I heard submissions from the parties on the subject of costs.

The submissions of the parties as to costs
The University

3 Counsel for the University submitted that I should make orders that Mr McGuirk pay the University’s costs of all three motions. Alternatively, it was submitted that Mr McGuirk should pay at least part of the University’s costs.

4 It was submitted that, if I decided not to make orders that Mr McGuirk pay all of the University’s costs, instead of making orders, as to each notice of motion or part thereof, in accordance with the general rule in Pt 42 r 42.1 of the Uniform Civil Procedure Rules that costs follow the event, I should make an order that Mr McGuirk pay a specific proportion of the University’s total costs of the three motions. An advantage of adopting this procedure would be that it would avoid arguments that would otherwise be likely to occur about the allocation of particular items of work or particular parts of the protracted proceedings before me, to a particular notice of motion or a particular part of a notice of motion.

5 I indicated to counsel for the University that, if I made an order for the payment by Mr McGuirk of a proportion of the University’s total costs, I would be likely to select a proportion such that I could be quite confident that the order was no more onerous to Mr McGuirk than costs orders following the event of the various notices of motion would have been and that, in order to attain that level of confidence, the proportion I selected might be somewhat more favourable to Mr McGuirk than if I made costs orders following the event of the various notices of motion.

6 Counsel for the University submitted that, if I made any costs order in favour of the University, I should make an order that the costs be payable forthwith. Counsel referred to the judgment of Barrett J in Fiduciary Limited v Morningstar Research Pty Limited [2002] 55 NSWLR 1.

Mr McGuirk

7 Mr McGuirk made lengthy submissions about costs, not all of which I will refer to.

8 Mr McGuirk referred to s 98 and s 56 of the Civil Procedure Act and Pt 42 of the Uniform Civil Procedure Rules and to various parts of the commentary on those provisions in Ritchies Uniform Civil Procedure NSW.

9 Mr McGuirk made various submissions about what would be appropriate costs orders for me to make, including:-

1. I should not make any order for costs. Alternatively, I should reserve all questions of costs, so that they could be determined at the conclusion of the principal proceedings.
2. I should make orders that each party pay its or his own costs.
3. I should make an order that the University pay Mr McGuirk’s costs of the part of the Amended Notice of Motion of 4 July 2009 relating to the charge of scandalising the court and I should make this order on an indemnity basis and not on the ordinary basis.
4. I should make an order that Ms Bennett of Sparke Helmore or Mrs Kirby, the University’s solicitor, pay costs.

10 It was submitted that I should not make any costs orders in relation to the Motions, because they were not really discrete or separate from the principal proceedings. The making of any costs orders should be deferred until the conclusion of the principal proceedings and the costs of the motions should then be dealt with in the same way as the general costs of the proceedings.

11 As to Mr McGuirk’s notice of motion, I had determined only parts of it, other parts of the notice of motion remained unresolved and no separate order for costs should be made in relation to the parts of the notice of motion which I had determined.

12 As to the claims by the University that Mr McGuirk had committed contempts of court by disobeying Simpson J’s orders, Mr McGuirk had proposed to the University that the University should select what the University considered to be its five best cases. This proposal had been rejected by the University. Instead, the University had chosen to rely on about thirty communications from Mr McGuirk, thereby increasing the length of the hearing. On some of the communications which the University had chosen to rely on, the University had been unsuccessful. In particular, it was submitted that it should have been obvious to the University that it could not succeed on the communications in sub-pars (a) and (b) of par 2 of the amended statement of charge annexed to the amended notice of motion of 4 July 2009.

13 As to the charge of scandalising the court, it was submitted that the charge of scandalising the court should be regarded as much more serious than the charges of disobeying Simpson J’s orders and this difference should be reflected in the costs orders I made; that Mr McGuirk had succeeded on the charge of scandalising the court; and that the charge of scandalising the court had occupied most of the hearing time and most of my judgment.

14 Mr McGuirk submitted that he had made a number of offers to the University to settle the principal proceedings but these orders had been rejected by the University. Mr McGuirk referred to Ritchie at par (98.10).

15 Mr McGuirk submitted that the University had been guilty of misconduct, for example in deliberately engaging in conduct which it knew would contribute to Mr McGuirk’s ill health, both mental and physical; that such misconduct was a breach of the Civil Procedure Act and the Uniform Civil Procedure Rules and the University’s obligations a model litigant; that the University was disqualified by its own misconduct from obtaining any costs order; and that it was the University’s misconduct towards Mr McGuirk which had induced Mr McGuirk to commit the contraventions of Simpson J’s orders. A submission was made that the University could have simply resolved the issue of authority to bring the University’s notices of motion, thereby saving much hearing time, by having the council of the University pass a resolution authorising or ratifying the bringing of the notices of motion but the University had not taken this course.

16 It was submitted that the hearing before me had been prolonged by the University’s refusal, maintained for a number of days of the hearing, to accept that evidence in each motion should be regarded as evidence in all the motions.

17 Mr McGuirk complained that the University had not filed a defence to his statement of claim in the principal proceedings. The statement of claim had been filed as long ago as March 2008 and the University had taken objections to the statement of claim, rather than permitting the proceedings to progress and be determined on their merits. A judge of this court has been reserved almost six months on an application relating to the sufficiency as a pleading of Mr McGuirk’s statement of claim.

Decision

18 I will first consider some of the submissions made by Mr McGuirk.

19 In my opinion, it is clear that I should make orders now, about the costs of the proceedings heard and determined by me. The proceedings heard and determined by me were discrete parts of the total proceedings. The issues I had to determine were defined by the paragraphs in Mr McGuirk’s notice of motion and by the statements of charge in the two notices of motion by the University. As to Mr McGuirk’s notice of motion, there is no obstacle to my making a costs order about the parts of the notice of motion which were heard and determined by me, even though other parts of the notice of motion remain undetermined. Having been the judge who heard the proceedings and having at present still a fresh recollection of them, I am uniquely well placed to determine what costs orders should be made. It is quite possible that by the time Mr McGuirk’s principal proceedings are concluded, I will no longer be a judge of this court.

20 As to the charges of contempt for disobedience to Simpson J’s orders, the University was under no obligation to limit itself to five communications. The University succeeded in establishing that many more than five communications from Mr McGuirk were contempts of court. I will take into account that the University failed on five of the communications.

21 As to the charge of scandalising the court, I found in favour of the University on all issues, except that I was 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. There would be no basis for awarding indemnity costs against the University.

22 I do not consider that any difference in the seriousness of a charge of scandalising the court and charges of disobeying orders made by a judge of the court, if such a difference exists, should have any costs consequences.

23 I do not accept that most of the hearing before me was devoted to the charge of scandalising the court. For example a very large amount of hearing time was devoted to Mr McGuirk’s own notice of motion, on which he was entirely unsuccessful. That such a large amount of time was devoted to Mr McGuirk’s notice of motion was partly due to Mr McGuirk’s insistence that any evidence about any of the various disputes between himself and the University or of any alleged misconduct by the University within a period of several years was relevant to establishing a circumstantial case he was seeking to put that the University’s notices of motion for contempt had been brought for an improper or collateral purpose and were an abuse of process.

24 Another large part of the hearing was devoted to cross-examination by Mr McGuirk of witnesses for the University. Very little, if any, of this cross-examination had any relevance at all to the charge of scandalising the court.

25 There were many other large parts of the hearing which had little or nothing to do with the charge of scandalising the court.

26 As regards my judgment, I note that about twenty-seven pages of my Judgment of ninety-two pages are devoted to the charge of scandalising the court.

27 I reject all of Mr McGuirk’s submissions based on the alleged misconduct of the University. There was no conduct on the part of the University such as would disqualify it from obtaining orders for costs. I do not accept that the sending by Mr McGuirk of his communications could be regarded as having been induced by conduct on the part of the University. There was no need for the University to arrange for its council to pass a resolution authorising or ratifying the bringing of the notices of motion. I have held that there was authority aliter for the bringing of the notices of motion.

28 I do not consider that I should give any weight to the fact that Mr McGuirk has made a number of offers to settle the principal proceedings. I would be unable to form any opinion about the reasonableness of the terms of Mr McGuirk’s offers to settle, without entering into an investigation of the merits of the many causes of action Mr McGuirk is seeking to rely on. As mentioned earlier, a dispute about the sufficiency of the Statement of Claim as a pleading has not yet been resolved.

29 There is no basis for making any costs order against Ms Bennett or Mrs Kirby. As regards Mrs Kirby, in my principal judgment I held that there was no evidence supporting any of the allegations made by Mr McGuirk against her and I dismissed par 10 of Mr McGuirk’s notice of motion. A complaint made by Mr McGuirk was that Mrs Kirby had not made an affidavit on behalf of the University. That Mrs Kirby did not make an affidavit does not provide any ground for making a costs order against her. A complaint that Mrs Kirby had told a lie to the Chancellor of the University was groundless.

30 I accept that the University initially took the position that evidence in Mr McGuirk’s notice of motion should not be admissible in the University’s notices of motion and vice versa and maintained that position until the fifth day of the hearing, when I made a ruling that evidence in the various notices of motion should be cross-admissible. I also accept that the position initially adopted by the University did, to some extent, increase the length of the hearing. After I had made my ruling, I was obliged to give Mr McGuirk the opportunity, which he exercised, of making further submissions in support of his notice of motion, based on evidence which had been given in the University’s notices of motion. However, the extent to which the length of the hearing was increased because of this factor was much less than the increase in the length of the hearing due to factors for which Mr McGuirk himself was responsible, including his frequent repeated reiteration of many things he had said previously.

31 I will now directly consider what orders for costs I should make.

32 At the beginning of this Judgment I set out the results of the proceedings before me. Under r 42.1 of the Uniform Civil Procedure Rules the general rule is that costs follow the event. Mr McGuirk referred to the commentary in Ritchie at par 42.10, where it is said that the “general acceptance” of the expression “costs follow the event”, that it refers to the practical result of a particular claim, “inhibits a thorough understanding of the expression”. However, it is accepted in the commentary that the “general acceptance” is an adequate approach for most purposes and I see no reason why it should not be regarded as an adequate approach in the present case.

33 If I made orders in accordance with r 42.1, I would make orders that Mr McGuirk pay the University’s costs of pars 9, 10, 11, 12 and 15 of Mr McGuirk’s notice of motion; that Mr McGuirk pay the University’s costs of the University’s amended notice of motion of 4 July 2009, so far as it related to the charges of contempt of court for disobedience to court orders (or at least those charges on which the University succeeded); that Mr McGuirk pay the University’s costs of the University’s notice of motion of 7 July 2009; and that the University pay Mr McGuirk’s costs of the University’s amended notice of motion of 4 July 2009, so far as it related to the charge of contempt of court by scandalising the court.

34 In my opinion, there would be no reason for not making these orders which could be found in any of the various submissions made by Mr McGuirk, except, possibly, for the submissions about the University’s lack of success on some communications charged as being contempts of court by disobedience to court orders.

35 I am satisfied that most parts of the hearing before me can be allocated to a particular notice of motion or in the case of the University’s amended notice of motion of 4 July 2009 to either the disobedience aspect or to the scandalising aspect of that notice of motion. However, I consider that there is force in counsel for the University’s submission that, if I were to make orders in accordance with the general rule in r 42.1, there would be likely to be numerous arguments in the costs assessment process about the allocation, to a particular notice of motion or a part of a particular notice of motion, of particular items of work or particular parts of the hearing before me. Such a danger would be increased by the prolix, unfocused and discursive nature of many of Mr McGuirk’s submissions and by his resourcefulness and determination as a litigant in contesting points.

36 I have, accordingly, decided that I should make an order that Mr McGuirk pay a proportion of the University’s total costs.

37 I consider that I should make that proportion two-thirds. I am satisfied that an order that Mr McGuirk pay two-thirds of the University’s total costs would not be more onerous to Mr McGuirk and would in fact be rather less onerous to him, than if I were to make the orders in accordance with r 42.1 which I have already referred to.

38 I also make an order that the University pay Mr McGuirk’s costs of the amended notice of motion of 4 July 2009, so far as it related to the charge of scandalising the court. As Mr McGuirk is a litigant in person, the amount of costs recoverable will in effect be limited to disbursements. There should not be the same degree of difficulty in allocating costs in the implementation of this order.

39 I do not consider that I should make an order that the costs awarded to the University be payable forthwith.

40 I accept that the present case falls within two of the categories identified by Barrett J in Fiduciary Limited v Morningstar Research Pty Limited, in that:-

1. I determined separately identifiable or discrete parts of the proceedings.

2. There is much to come in the principal proceedings and it is likely to be a fairly long time before the principal proceedings are disposed of.

41 However, it is clear that, even when a case falls within one or more of the categories identified by Barrett J, a court still has a discretion whether to make an order that costs the court has awarded be payable forthwith.

42 In the present case Mr McGuirk’s statement of claim was filed as long ago as March 2008. However, in the period of more than 18 months since the statement of claim was filed very little progress has been made. I accept that Mr McGuirk himself has been anxious for the proceedings to make progress. As the Chief Judge remarked when Mr McGuirk appeared before him some months ago, the lack of progress in the principal proceedings is highly regrettable. In endorsing the Chief Judge’s remark I am not to be taken as making any criticism of either Mr McGuirk or the University.

43 If I were now to make an order that the costs which I order against Mr McGuirk be payable to the University forthwith, the consequence might well be that Mr McGuirk would not be able to continue prosecuting the principal proceedings against the University and, in my opinion, I should give substantial weight to this consideration.

44 I make the following orders:-

1. I make an order that Mr McGuirk pay two-thirds of the total costs of the University of the proceedings heard and determined by me.

2. I make an order that the University pay Mr McGuirk’s costs as a litigant in person of the University’s Amended Notice of Motion of 4 July 2009 insofar as it related to the charge of contempt of court by scandalising the Court.

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