Cretney v State of New South Wales [2005] NSWIRComm 216 | Case summary

1 This interlocutory judgment deals with an application brought by the respondent, State of New South Wales (Department of Education and Training), to "set aside" an amended summons for relief filed by the applicant, Patricia Cretney, on 15 April 2005. The proceedings were originally constituted by a summons filed on 24 December 2003, in which the applicant sought certain relief against the respondent under s 106 of the Industrial Relations Act 1996 ("the Act"). 2 The respondent submitted that the amendment to the proceedings made by the amended summons was such that it constituted, in effect, a fresh and different claim from that originally made. As the amended summons was filed more than 12 months after the contract of employment between the applicant and the respondent which was sought to be impugned in the proceedings had terminated, the proceedings were barred by the time limitation contained within s 108B of the Act. 3 It was common ground between the parties that the notice of motion would succeed only if the amended summons constituted a new or fresh application under s 106, as referred to by a Full Bench of this Court in Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234 at [55] to [56]. 4 In order to resolve this matter, it is necessary to compare the contents of the summons as originally filed with the amended summons. In considering the amended summons, I shall take into account a further amendment foreshadowed by Ms Howell of counsel, who appeared for the applicant to resist the strike-out motion, which contemplated the inclusion of an additional paragraph in Part B of the summons. 5 There can be no doubt that both the original summons and the amended summons are directed to the contract of employment between the applicant and the respondent, and that both summonses seek a finding that the contract was relevantly unfair. 6 Whilst the orders sought in both documents seeking variation of the contract differ in wording, I am satisfied that there is sufficient similarity with respect to at least some of the orders sought so as to avoid any finding that the proceedings, as constituted by both documents, constitute different claims. 7 In essence, the complaint made by the applicant relates to the procedures adopted by the respondent in conducting a review of incidents which occurred at a school at which the applicant was employed, and the content of a report issued in June 2000, including the dissemination of information contained within the report. Consequential orders sought by the applicant in the proceedings as constituted by the original summons and the amended summons are framed in a slightly different manner, but nevertheless extend to orders seeking that the report be rescinded (in the case of the earlier summons) and withdrawn (in the case of the amended summons). An order is also sought that notification be given to the recipients of the report accordingly. Both forms of summons seek orders for monetary compensation. 8 Part B of each document contains a summary of matters of fact and law, as is required by the Rules of this Court. There are different emphases contained within each of the documents, but in essence the complaints made are similar in nature. They go to the process adopted in investigating certain matters and in the creation of the report, as well as the impact of the adverse finding made against the applicant contained in the report. The material contained within the amended summons is much briefer in content and does not traverse a lot of the earlier history leading up to the circumstances which gave rise to the creation of the report. However, I am satisfied that the substance of the matters of fact and law traversed in both the summons and the amended summons are sufficiently similar to preclude any finding being made that, in essence, the amended summons has created a new and different case which would attract the application of s 108B. 9 The applicant asserted that the amended summons was filed pursuant to an invitation which issued from Mr Peter Johnson, Senior Legal Officer of the New South Wales Department of Education and Training, in a letter to the applicant's solicitors dated 4 March 2005. Indeed, that letter contains an invitation to amend the summons so as to confine the proceedings in a manner therein described. The amended summons was framed in a manner which sought to reflect the invitation offered in that letter. 10 For these reasons I am of the opinion that the attack mounted by the respondent must fail. 11 The respondent submitted also that the proceedings should be dismissed because, in essence, they constituted a claim for damages for defamation and that this Court should not permit such a claim to be brought under s 106 of the Act. In so contending, Ms Nomchong, counsel for the respondent, relied on Rule 82(1)(h) of the Industrial Relations Commission Rules 1996, which permit the Court to "decline in its discretion to exercise jurisdiction in the proceedings". 12 In my opinion, the exercise of the discretion of the Court to refrain from permitting the applicant to pursue the proceedings as constituted against the respondent under s 106 of the Act should be undertaken by analogy with a consideration as to whether the proceedings should be struck out for want of jurisdiction. That is, such consideration should only be given at the appropriate time in the proceedings and in circumstances where there can be little or no doubt that the exercise of such a discretion is warranted. I refer by way of analogy to the approach taken by the Full Bench decision in Nagle v Tilberg (1993) 51 IR 8. 13 On its face, the further amended summons for relief seeks the making of orders, consequent upon a finding of unfairness, directed to processes in connection with an investigation of complaints made by the respondent against the applicant with respect to her conduct at work. Therefore, there can be no certainty on a prima facie basis that jurisdiction and power to deal with the matter under s 106 is not attracted. Whether and to what extent any order for the payment of monetary compensation might be made consequent upon any ultimate finding of unfairness and any orders made to vary or avoid the contract or employment will be a matter for determination by the Court at the appropriate time. The mere fact that the applicant's claim is restricted to "pain, suffering, anxiety, loss of enjoyment of life, damage to reputation and cost of medical treatment and medication" is not necessarily fatal to the applicant's claim, even allowing for comments made by a Full Bench of this Court in King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 at paragraphs [102] to [105] concerning claims for compensation referrable to medical conditions. Logically, it is possible that a court might vary the applicant's contract of employment with the respondent consequent upon any finding of unfairness and not make any monetary order. Nevertheless, such a result might be seen to be one favourable to the applicant. 14 The proceedings have reached a stage where the applicant has filed an initial affidavit on 22 December 2003 in support of the summons by which the proceedings were then constituted. The proceedings have now been amended and are to be further amended in a manner to which I have already referred. The respondent has not, at this stage, filed any affidavit material and it is possible that the applicant will file further material in support of her claim. In my opinion, an appropriate stage has not been reached in the proceedings in which to determine whether or not this Court should exercise its discretion under s 106. 15 For the above reasons, the notice of motion brought by the respondent is dismissed. There is no reason why costs should not follow the event. Accordingly, the respondent is to pay the applicant's costs of the motion in an amount assessed in default of agreement.

Cretney v State of New South Wales

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