Bourot v New South Wales Department of Public Works and Services & Anor

AGENT REPRESENTING THE APPLICANT Mr Gerard Crewdson

LEGAL REPRESENTATIVES: RESPONDENT Mr S Benson of counsel CROWN SOLICITOR'S OFFICE Mr G De Courcey

INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 22 August 2002 Matter No IRC 5810 of 2000 PASCALE BOUROT v NEW SOUTH WALES DEPARTMENT OF PUBLIC WORKS AND SERVICES and CENTRAL SYDNEY AREA HEALTH SERVICE (No 2) Application under s154 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON ADMISSIONS AND COSTS ([2002] NSWIRComm 201)

1 This interlocutory judgment concerns a notice of motion filed by the applicant on 3 June 2002 seeking essentially an order for judgment on admissions and an order setting aside a notice to produce served by the respondent on the applicant on 15 February 2002.

2 After hearing submissions during the course of proceedings on 24 July 2002 I dismissed the application brought by the applicant to set aside the notice to produce, giving reasons which have been separately published. I have reserved the question of costs because during the course of submissions Mr Gerard Crewdson who appears as agent for the applicant relied on the provisions of the Protected Disclosures Act and on s 405 of the Industrial Relations Act 1996.

3 The Protected Disclosures Act 1994 applies to certain disclosures made by a public official as defined to an investigating authority, the principal officer of a public authority or investigating officer or an officer who constitutes a public authority or to another officer of a public authority or investigating authority to which the public official belongs in accordance with an internal procedure established for the reporting of allegations of corrupt conduct, maladministration etc. or to a member of Parliament or to a journalist, provided that certain provisions of the Act are complied with. Prima facie the subject matter of these proceedings is not concerned in any way with the provisions of the Protected Disclosures Act 1994. It may well be that some of the applicant's difficulties arose out of certain complaints made by her, as alleged by Mr Crewdson and as referred to in the substantive application and ancillary documentation filed on behalf of the applicant in these proceedings. However, there is nothing in the Protected Disclosures Act 1994 which seems to me to impact upon the right of a court to make a costs order in these proceedings. No question arises of the disclosure of any protected disclosure or a breach of any of the other protections conferred by the Act under Part 3. There is no question of inconsistency as referred to in s 5 of that Act. I should add that Mr Crewdson did not rely on any particular provision of that Act. His purported reliance on this legislation to support a resistance to the making of a costs order is, in my opinion, misconceived.

4 Mr Crewdson relied also on the principles of s 405 of the Industrial Relations Act 1996 ("the Act") which is in the following terms:

(1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with: (a) a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 or the Police Service Act 1990, or (b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. (2) The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1). (3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals).

5 That provision does not in my opinion have any relevance to the question of costs in these interlocutory proceedings. Mr Crewdson admitted that the GREAT Act contained appeal provisions available through the Industrial Relations Commission of New South Wales. Mr Crewdson did not point to any particular provision and, in any event, I do not understand how this section could impact in any way upon the exercise of jurisdiction of this Court in these proceedings towards costs.

6 The general rule is that costs follow the event. The applicant must pay the respondents' costs in and about that part of the notice of motion dealing with the application to set aside the notice to produce which has been dismissed. Such costs are to be quantified as assessed in default of agreement.

7 It is now necessary to deal with that part of the notice of motion which sought judgment on admissions. Application was made pursuant to rule 155 which is in the following terms:

155 (1) Where admissions are made by a party, the Commission may, on the application of any other party, give any judgment or make any order to which the applicant is entitled on the admissions. (2) The Commission may exercise its powers under subrule (1) notwithstanding that other questions in the proceedings have not been determined.

8 Before dealing with the application I should refer to the substantive proceedings. They seek declaratory relief under s 154 of the Act. Section 154 is in the following terms: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

9 The declarations sought as contained in the amended application for declaration filed on 31 January 2001 are as follows: 1. Declarations (a) That Pascale Bourot is and at all times since 1987 has been employed by the NSW Department of Public Works and Services and its predecessors. (b) That the decision to refer Pascale Bourot for a Fitness to Continue Examination by the GMO on/or about 25 June 1998 by officers of the Department of Public Works and Services is void, invalid and of no effect. (c) That the purported retirement of Pascale Bourot on or about 2 September 1998 by the GMO and/or officers of the NSW Department of Public Works and Services is void, invalid and of no effect. (d) That Pascale Bourot be entitled to be paid all emoluments pertaining to her position as a State Mail Service Officer (Teams) Level 1 (Mail Sorter) together with interest thereon and to retain all leave and other entitlements and interest thereon.

10 The factual background to the substantive proceedings is set out in affidavit evidence which has not yet been formally admitted into evidence in the proceedings but which was referred to by both Mr Crewdson and Mr Benson of counsel who appeared for the respondents for the purpose of these interlocutory proceedings. In general terms the applicant was appointed to the Public Service in 1987. Her appointment was regulated initially by the Public Service Act which was replaced by the Public Service Management Act 1988. Provisions of that Act and a general regulation made under it applied to her employment. As a result of a change of name, the applicant came to be employed by the Department of Public Works and Services in the State Mail Service. The provisions of her employment were regulated by an enterprise agreement and an industrial award. The applicant made complaint in May 1998 to the personnel officer at the State Mail Service about sexual harassment. Because of the way in which the complaint was dealt with she suffered what Mr Crewdson described as "a stress breakdown" and took a short period of sick leave. She also sought flexible leave which was refused without reason and suffered a further stress breakdown necessitating her in taking sick leave. On her return to work the applicant met with the industrial relations manager, the sorting manager, her supervisor and a representative of the Public Service Association of New South Wales and expressed concerns that she was the subject of discrimination and unreasonable denial of flexible leave. She was told that the situation "would change". The applicant alleges that without reference to her a decision was taken by officers of the Department of Public Works and Services to refer her to HealthQuest for an examination. The applicant understood that she was required to attend the examination. A statement was made at the time by a member of the Department that the applicant had taken "excessive sick leave", which statement was some considerable time later retracted. The applicant said that she attended a medical examination with HealthQuest where she was subjected to an intimate physical examination without being informed as to the reasons why and its true nature. She also said that she was required to fill out a questionnaire which, it appears, was later used to provide some form of psychological assessment. Medical practitioners retained by HealthQuest issued a report dated 2 September 1998 entitled "Retirement Certificate" certifying that the applicant suffered from chronic adjustment disorder and other conditions and that they were of the opinion that she was in consequence unable to discharge the duties of her office and that her disability would in all likelihood prove permanent. The Department treated this certificate as authorising the termination of the applicant's employment on medical grounds and on 24 December 1998 an acting director of the Department recommended that the applicant be retired under s 36 of the Public Sector Management Act. This was endorsed by the relevant Minister and the Governor signed a Minute to this effect at a meeting of the Executive Council held on 13 January 1999.

11 The applicant alleges that she was denied natural justice and procedural fairness in and about the manner in which she was treated within her employment and in and about the various steps taken in connection with and leading up to the termination of her employment. The applicant alleges, for example, that the Department was in breach of the relevant industrial instrument which applied to the circumstances of her employment, that the Department had no power to require the applicant to attend a medical examination other than by following the strict procedures contained within s 36 of the Public Sector Management Act (which procedures were not followed) that a psychologist who issued a report concerning the applicant's condition had not examined her, that the applicant should have been given notice of all of the steps being taken by the Department, and given an opportunity to respond and to have some input to the various processes. The respondents made a number of admissions as to factual matters, which prompted the notice of motion seeking summary judgment. However the respondents raised a number of points of contention in opposition to the applicant's claim for declaratory relief. These included the fact that the applicant had an entitlement to a full administrative medical review of the decision to retire her which she declined to exercise, the applicant was entitled to maintain a claim under the unfair dismissal provisions of the Industrial Relations Act 1996 which she chose not to do, the fact that the applicant did not in the proceedings dispute that she was suffering from chronic adjustment disorder with mixed anxiety and depression with marked psychosomatic manifestations, that as a consequence she was unable to discharge the duties of her office and that her disability would in all likelihood prove permanent, all of which may be considered by this Court in determining whether discretion should be exercised under s154. The respondents also deny the allegations that the department acted in a way which denied the applicant natural justice or procedural fairness in all the circumstances and denied also the approach to construction of the statutory matrix against which the proceedings were brought. That is, notwithstanding all of the admissions made either formally or informally, the respondents allege that there are factual matters which will require determination for the purpose of ascertaining whether this Court should exercise its discretion under s 154 of the Act and there are distinct questions of law to be considered in any event.

12 It is against this background that it is necessary to consider the application for summary judgment on admissions.

13 There can be no doubt that the relief sought is discretionary. See, for example, the recent judgment of Boland J in this Court in Crewdson v New South Wales Department of Community Services & Anor (No 3) [2002] NSWIRComm 139 and the authorities cited by his Honour therein. See also the discussion in the New South Wales Court of Appeal in Termijtelen v Van Arkel (1974) 1 NSWLR 525 and especially Hope JA at 529 and following and Bowen CJ in Eq at 532 and following.

14 It is clear also that the discretion will be exercisable only where "the issues were severable and did not present any difficulty to the Court" (per Bowen CJ in Eq inTermijtelen at 532, relying on Porrett v White (1885) 31 ChD 52.

15 The circumstances pertaining to these proceedings are completely different from those considered by the English Court of Appeal in Lancashire Welders Ltd v Harland & Wolff, Ltd (1950) 2 All ER 1096. In those proceedings the defendants by their pleading admitted that they owed a certain amount of money to the plaintiffs, being part of moneys claimed in the proceedings. In those circumstances the Court held that it was just to allow the plaintiffs to recover the amount of money which was unconditionally admitted to be owing notwithstanding the outcome of the proceedings.

16 After considering the provisions of rule 155 and the relevant authorities Boland J in Crewdson said: "17 It seems to me that there are four guiding principles relating to judgment on admissions pursuant to r 155 of the Commission's Rules:

1. The admission may be formal or informal, express or implied but in any event it must be strong and unambiguous. 2) The giving of a judgment on admissions is a discretionary exercise to be carried out having regard to all the circumstances. 3) The applicant must show a clear and unanswerable case. 4) Judgment is not given on admissions where a serious question of fact or law requires consideration."

17 The substantive application brought by the applicant under s 154 of the Act is one in which the making of declaratory orders is sought. The power to issue such orders is discretionary. This requires that all of the circumstances pertaining to the proceedings be considered. The exercise of discretion will require the Court to take into account those factual matters and matters of law which are raised for consideration by the parties to the proceedings. The respondents assert that even if the applicant is entitled to rely on all of the admissions allegedly made there are nevertheless other factual matters to be taken into account and there are substantive questions of law to be considered. I have referred briefly to some of these matters earlier when discussing the general background to these interlocutory proceedings.

18 In these circumstances it cannot be said that the applicant has shown a clear and unanswerable case on the state of the admissions relied upon by her. In any event there are serious questions of fact and law which will ultimately require consideration.

19 For these reasons I conclude that the application for summary judgment is misconceived and should be refused. There is an additional reason for so concluding. In order to carry out the exercise that was required by reason of the application for summary judgment and in order to assess the submissions made by Mr Crewdson on behalf of the applicant it would be necessary for the Court to examine all of the evidentiary material filed in the proceedings to date. I agree with the observations of Boland J in Crewdson that "I do not consider that the Court should be required to engage in a detailed forensic search of the evidence and the law for the purpose of determining whether a party is entitled to a judgment on admissions."

20 For these reasons that part of the notice of motion which seeks judgment on admissions is dismissed.

21 The respondents sought an order for costs. Mr Crewdson made the same submissions with respect to the costs order as he made in connection with the notice to produce, to which I have previously referred. There is, in my opinion, no good reason why costs should not follow the event. Accordingly the respondents should have a costs order in their favour.

22 I make the following orders: 1. The notice of motion in that it seeks orders in paras A(1) and (3) is dismissed. 2. The applicant is to pay the respondents' costs of those parts of the notice of motion to be assessed in default of agreement. _______________________

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