McGUIRK V UNIVERSITY OF NEW SOUTH WALES [2011] NSWCA 179 (27 June 2011)

Last Updated: 5 July 2011

Court of Appeal New South Wales

Case Title:	McGUIRK V UNIVERSITY OF NEW SOUTH WALES
Medium Neutral Citation:	[2011] NSWCA 179
Hearing Date(s):	27 June 2011
Decision Date:	27 June 2011
Jurisdiction:
Before:	Giles JA
Decision:	Dismiss the notice of motion filed on 20 June 2011 so far as it claims the relief sought in paras 1, 2 and 4. Decline to disqualify myself. Replace orders made on 3/2/11 with - (1) Appellant to file and serve by 5 pm on 29/7/11 the red, blue and black appeal books. (2) Appellant to file and serve by 5 pm on 17/8/11 a written outline of submissions. (3) Respondent to file and serve a written outline of submissions by 5 pm on 12/9/11. (4) Appellant to file and serve by 5 pm on 15/9/11 the orange appeal book. Hearing dates of 19 and 20 September remain. Mr McGuirk pay the University's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	Practice and procedure - case management - directions as proceedings not being case managed - setting aside directions given in other proceedings - disqualification
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Interlocutory applications
Parties:	Gerard Michael McGuirk - Applicant University of New South Wales - Respondent
Representation
- Counsel:	Applicant in person J Tyne - Respondent S Chapple - Attorney General of the State of New South Wales (Potential amicus curiae)
- Solicitors:	Applicant in person Sparke Helmore - Respondent Crown Solicitor - Attorney General of the State of New South Wales
File number(s):	CA 2008/290246
Decision Under Appeal
- Court / Tribunal:
- Before:	James J
- Date of Decision:	06 November 2009
- Citation:	McGuirk v University of NSW [2009] NSWSC 1058
- Court File Number(s)	SC 20106/08
Publication Restriction:

Judgment

1. HIS HONOUR : Although it is not the logical order, I propose to give my reasons for declining to disqualify myself from management of the appeals brought by Mr McGuirk from judgments of James J after I have given my reasons for dismissing in part Mr McGuirk's notice of motion filed on 20 June 2011. I do so because the application that I disqualify myself was made after I had heard argument on those parts of the notice of motion and had foreshadowed that I would dismiss the parts of the notice of motion, and my doing so became one of the grounds for the application that I disqualify myself.
2. As I have indicated, I have been case-managing Mr McGuirk's appeals from orders made by James J. On 3 February 2011 I gave directions which included that appeal books should be filed and served by 9 May 2011 and Mr McGuirk's written outline of submissions should be filed and served by 14 June 2011. Neither of those--

APPLICANT: Your Honour, could I make the point that the other parties don't oppose--

HIS HONOUR: You may sit down, Mr McGuirk.

APPLICANT: The other parties don't oppose the application.

HIS HONOUR: You may sit down, Mr McGuirk.

3. On 15 June 2011 the University asked that the matter be re-listed because neither of those things had occurred. Before it was re-listed Mr McGuirk filed a notice of motion dated 20 June 2011.
   
4. The first and second orders sought by Mr McGuirk were as follows -

"1. An order pursuant to which a judge of the Supreme Court of New South Wales who is manifestly independent of the Director General, Department of the Attorney General and Justice, and all other senior officers of that Department (including the Crown Solicitor), and who can objectively be perceived as such, is appointed to case manage all matters which are currently before the Supreme Court of New South Wales to which Gerard Michael McGuirk is a party.

2. In the event that no trial judge of the Supreme Court of New South Wales is able to be perceived objectively as manifestly independent of any influence, whether direct or indirect, of the Director General, Department of Attorney General and Justice, and of other senior officers of that Department (including the Crown Solicitor), that a judge of a superior court of another Australian jurisdiction who can be so perceived be appointed to case manage all matters which are currently before the Supreme Court of New South Wales to which Gerard Michael McGuirk is a party."

5. The fourth order sought was as follows -
   

"4. An order setting aside the directions and/or orders made by Johnson J in respect of the matter which is before the Court under file number SC 289246 on 2 June 2011, Gerard Michael McGuirk v the University of New South Wales."

6. I suggested to Mr McGuirk that, in the case management of the appeals from James J, while it was open to him to apply that I disqualify myself orders 1 and 2 as sought were not a matter for me as that case management judge.
   
7. Mr McGuirk submitted, in my summary, that s 23 of the Supreme Court Act 1970 gave jurisdiction and power to make the orders, and that there was indeed an obligation to make them in order that he receive procedural fairness: meaning thereby that he was not subjected to different judges giving directions in different cases with the consequential, as he submitted, additional burden upon him and upon his mental health and ability to conduct as plaintiff or respondent more than one proceedings.
   
8. It remains the position that my concern is with case management of the appeals from James J. Orders 1 and 2 as sought go far beyond that, and they are not orders which I would make even if I could.
   
9. Order 4 as sought is in a different position. I suggested to Mr McGuirk that the relief he sought was appropriately claimed by applying for leave to appeal from the directions or orders of Johnson J. His response was similar, namely that there was the power and obligation in the Supreme Court and I should exercise the power.
   
10. The exercise of the Court's power is governed by the rules, and the rules provide for appeals and applications for leave to appeal. I do not have power sitting as single judge to set aside the directions or orders made by Johnson J.
    
11. Accordingly, I dismiss the notice of motion filed on 20 June 2011 so far as it claims the relief sought in orders 1, 2 and 4.
    
12. That takes me to the application that I disqualify myself.
    
13. Mr McGuirk submitted that the manner in which I have dealt with the case management, as I understand it referring to prior occasions apart from today, indicates that I do not bring an independent mind to it. He tendered an affidavit, saying that the point of it was, in my summary, that he had suffered a nervous breakdown in 2009 and 2010. I understand him to have meant, although I am not sure that it was expressly stated, that my case management had either contributed to his condition or been without appropriate regard to his condition.
    

APPLICANT: Your Honour, that's incorrect, I did not say that. Your Honour, the point is that I have similar fears that if this is case managed now that I will suffer a further mental breakdown.

HIS HONOUR: Thank you. I will correct that.

APPLICANT: I didn't say that your case management contributed to that breakdown, however, it may contribute to the next one. That's my concerns.

14. HIS HONOUR: Thank you, I'll gladly correct that, Mr McGuirk. I'll withdraw those words.
    
15. And he submitted that he feared that my continuation of case management would cause or contribute to a similar breakdown in the future.
    

APPLICANT: The manner in which your Honour.

HIS HONOUR: That will do, thank you Mr McGuirk.

APPLICANT: The manner in which.

16. HIS HONOUR: He also tendered a letter to Spigelman CJ and the Chief Justice's reply that that does not seem to me to take matters any further.
    
17. Mr McGuirk specifically averted to the fact that he had been at the opening of law term dinner early this year and that he had seen myself at that dinner and had also seen Mr Laurie Glanfield, the Director General of the Department of the Attorney General and Justice, and Spigelman CJ at the dinner.
    

APPLICANT: Your Honour, that was made clear at Spigelman CJ's retirement and also the swearing of the new Chief Justice at which you were present.

18. HIS HONOUR: And he added that he observed that Mr Glanfield was also present on the occasions of the retirement of Spigelman CJ and the swearing in of his successor, the present Chief Justice.
    
19. Nothing in any of these matters could possibly satisfy the test of apprehended bias found in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 33.
    
20. Taking up the foreshadowed part dismissal of his notice of motion, Mr McGuirk said that he considered that I had pre-judged the matters of orders 1, 2 and 4 in the notice of motion, as a further matter which should cause me to disqualify myself. That is not correct. I heard Mr McGuirk, and disposed of those matters in the way in which I considered and consider to have been required according to law. There is no addition to satisfaction of the test for apprehended bias found in Ebner .
    
21. Accordingly, I decline to disqualify myself.
    

[Further submissions on the notice of motion]

22. HIS HONOUR: The third order sought in Mr McGuirk's notice of motion filed on 20 June 2011 is as follows:
    

"3. An order setting aside the directions and/or orders made by Giles JA in respect of the matter which is before the Court under file number CA 2008/289246, Gerard Michael McGuirk v The University of New South Wales, the matter under which this notice of motion is brought, on 3 February 2011."

23. It became apparent that Mr McGuirk did not mean by the phrasing of the order an appellate overturning of the directions and orders which I had made. Rather, he submitted that the existing regime of directions and the hearing dates of 19, 20 September 2011 should be set aside in the sense of varied and vacated.
    
24. The University opposed that course. It wished to retain the hearing dates, and it submitted that there should be variation of the directions requiring the appeal books and Mr McGuirk's written outline of submissions within about two weeks and subsequent directions accordingly.
    
25. The basis for Mr McGuirk's application was essentially twofold. First, he said that he was subject to directions given by Johnson J in other proceedings. When I enquired into the directions I was informed that the directions require that he file and serve his evidence in those proceedings by 25 July 2011. Secondly, and no doubt having in mind compliance with the directions of Johnson J, he said that he could not comply with the directions which I had given or varied directions I might give and that the appeal could not be heard in September without detriment to his health.
    
26. In the course of submissions Mr McGuirk referred to other matters with which he is apparently involved, including where he is it seems conducting matters on behalf of clients of a firm to which he provides assistance. Although I have no details, as I understand it Mr McGuirk is a respondent to proceeding brought by the Attorney General seeking to have him declared a vexatious litigant, and he referred to those proceedings as another toll upon his time and potentially upon his mental health, whereby he could not comply with directions in relation to the appeal to be heard in September.
    
27. There is a history, which I summarised to that time in reasons I gave on 21 July last year. Following that date there was again non-compliance with the directions I had given, but then--
    

APPLICANT: But I was in hospital at the time--

28. HIS HONOUR: Then Mr McGuirk provided evidence of a downturn in his mental health and in the light of that evidence I stood the matter over until ultimately directions were given on 3 February 2011. These were the directions with which there has been non-compliance. On that occasion the hearing date in September was fixed, deliberately well ahead so that there would not be any question of inability to hold to those dates.
    
29. I have no evidence explaining why Mr McGuirk has been unable to comply with the directions, nor do I have--
    

APPLICANT: Your Honour, you do have evidence with all due respect?

HIS HONOUR: Would you please sit down Mr McGuirk?

30. Nor do I have evidence indicating his present mental health or risk to it.
    
31. I do not accept that there should be, as he requested, abandonment of the present hearing dates and listing of the proceedings some time after September in order to assess the present position. I do not accept that he is unable to prepare for the appeal and for the existing hearing dates. I propose to give one last opportunity by variation of the directions, as to which I will hear Mr McGuirk and the University as to appropriate dates. It should be clearly understood that if there is any further noncompliance and it is not properly explained, should there be occasion for that to occur, the appeal may well be struck out for nonprosecution.
    

[Further submissions as to directions]

32. HIS HONOUR: I give the following directions which replace the equivalent directions made on 3 February 2011.

1. The appellant to file and serve by 5pm on 29 July 2011 the red, blue and black appeal books.
2. The appellant to file and serve by 5pm on 17 August 2011 a written outline of submissions.
3. The respondent to file and serve a written outline of submissions by 5pm on 12 September 2011.
4. The appellant to file and serve by 5pm on 15 September 2011 the orange appeal book.
The hearing dates of 19 and 20 September will remain.

[Submissions as to costs]

33. HIS HONOUR: The University has asked for costs. Mr McGuirk has submitted that the costs should be costs in the cause as he submits that in the end he will be vindicated. However, the University's request for re-listing and the application by Mr McGuirk, which was plainly enough produced by that, were caused by default in compliance with directions, and Mr McGuirk's notice of motion has failed save that there has been a variation in the timetable for the appeal. In those circumstances, it seems to me that a proper exercise of the discretion requires that an order be made that Mr McGuirk pay the University's costs, as an order taking effect at the present. I therefore order that Mr McGuirk pay the University's costs.
    

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