Crewdson v Department of Ageing Disability & Home Care

SECOND RESPONDENT Director General of NSW Department of Community Services

CORAM: Marks J at 1; Sams DP; Murphy C

CATCHWORDS: Motion for strike out for want of prosecution - Appellant taken no steps in connection with this matter since appeal lodged - appellant self represented - appellant indicated he would not pursue this matter until unrelated matters in others courts are disposed of. HELD: Proceedings dismissed.

LEGISLATION CITED: Public Sector Management Act

Hoser v Hartcher [1999] NSWSC 527 CASES CITED: Piriz v AAPT Limited [2005] NSWIRComm 374 Versace and New South Wales Police Service [2005] NSWIRComm 20

HEARING DATES: 09/02/2007 EXTEMPORE JUDGMENT DATE: 9 February 2007

LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel SOLICITOR: Ms M Rizzo IV Knight, Crown Solicitor

• 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Crewdson v Department of Ageing Disability and Home Care and anor

Application for leave to appeal and appeal against a decision of Commissioner McKenna given on 7 November 2003 in Matter No 2827 of 2001

1 The ex tempore judgment which I am about to deliver is given on behalf of all members of the bench.

2 These are appeal proceedings initiated by the appellant, Gerard Crewdson, from a decision given by Commissioner McKenna on 7 November 2003 arising out of proceedings commenced by the appellant against the respondent, Director General Department of Ageing, Disability and Home Care (the respondent) and Director General of New South Wales Department of Community Services.

3 In her decision of 7 November 2006 Commissioner McKenna dismissed an application brought by the appellant for relief from victimisation. It appears from the application for leave to appeal filed by the appellant on 24 November 2003 that the basis for the application for leave to appeal and appeal involves a question of law, or at least, in part, involves interpretation of a provision of the Public Sector Management Act.

4 There is reference in the appeal document to an allegation that Commissioner McKenna refused to take "Appropriate action to prevent the respondent, the Crown Solicitor and counsel engaging in conduct that prima facie constitutes contempt of court and obstruction of justice."

5 Shortly after the appeal document was filed the appeal proceedings were the subject of directions hearings before members of this Full Bench. It transpired that the appellant wished to pursue contempt proceedings presumably of the kind referred to in the appeal document and on this basis these appeal proceedings were adjourned to allow that to have occurred.

6 The appellant also wished to pursue some proceedings against a trade union, the Public Service Association, arising out of the refusal of that organisation to afford him representation of some kind.

7 The last of the directions hearings occurred on 23 February 2004. Nothing further occurred until the matter came on for further directions on 3 May 2006. On that occasion there was no appearance for the appellant, he having indicated during the course of today's proceedings that he did not receive any notification of a directions hearing that day. On that occasion the respondent complained that no action had been taken by the appellant to prosecute the appeal and undertook to file a Notice of Motion. That Notice of Motion was filed on 11 May 2006 and is the subject of this judgment. It sought the dismissal of the appeal proceedings for want of prosecution.

8 The motion eventually came on for hearing this day. The respondents, represented by counsel, submitted that in effect and as a matter of fact the appellant had done nothing in connection with the prosecution of the appeal since November 2003.

9 During the course of submissions the appellant, who represented himself, referred to the matters of contempt and his desire to pursue proceedings against the PSA. He informed the Commission that the PSA matter was dismissed in June or July 2004. With respect to the contempt proceedings the appellant said that he had instituted proceedings for contempt and that they had been disposed of by a Full Bench of the Industrial Court of New South Wales on 16 November 2006 when the contempt proceedings had been dismissed on a jurisdictional point and without the merits of the contempt allegations made by him having been considered.

10 The appellant indicated that he wished to pursue the contempt matters further by way of application for judicial review presumably before the New South Wales Court of Appeal, and perhaps by way of application to the Minister. He informed the Full Bench that the application for judicial review was due to be heard on 28 March next.

11 When asked whether he would now take steps to pursue these appeal proceedings the appellant said that he would not take any steps until the contempt matters had been disposed of before the Supreme Court of New South Wales. CREWDSON: What I was referring to was the judicial review which isn't at the moment involving the contempt, it involves the decisions of Justice Boland and the Full Bench. That is what I was referring to. MARKS J: It does not refer to the contempt matters? CREWDSON: Yes, but that application might be amended to involve those additional grounds which I was referring to the disposal of that matter because I can't really do other things at the moment until that is disposed of. MARKS J: Thank you Mr Crewdson for explaining that matter.

12 The principles governing the exercise of discretion by this Commission in terms of a consideration as to whether proceedings should be dismissed for want of prosecution have been succinctly summarised by Staff J in the Industrial Court of New South Wales in Piriz v AAPT Limited [2005] NSWIRComm 374. The summary occurs at paragraph 8 of that judgment and in turn refers to a judgment of Simpson J in the Supreme Court of New South Wales in Hoser v Hartcher [1999] NSWSC 527. It is not necessary that we repeat or refer in detail to those principles.

13 There is a further reference to the relevant principles in the judgment of Sams DP in Versace and New South Wales Police Service [2005] NSWIRComm 20, at [11].

14 The situation which pervades these proceedings is that the appellant has determined to pursue other proceedings involving allegations of contempt before another tribunal rather than prosecute these appeal proceedings because of the relevance which he asserts exists between the two matters.

15 Whatever view the appellant has taken with respect to the process which he has adopted it is clear that from May 2006, at least, that the respondents have been concerned about his inactivity in the prosecution of these proceedings. Although the principal proceedings for contempt have now come to an end the appellant persists in pursuing or attempting to pursue matters concerning contempt rather than engage in the prosecution of these proceedings by taking any definitive steps such as the preparation of an Appeal Book and the like. This is an attitude which was reinforced today during the proceedings when, as we have already indicated, the appellant said that he would not take any step in the preparation of these appeal proceedings until those other proceedings had been pursued by him. CREWDSON: It appears to be misleading. I was referring to the fact that I have a huge judicial review application in the Supreme Court which has to be dealt with and it's telling the public that I am going on a wild goose chase over contempt matters. It's a wrong construction of documents and a serious obstruction of justice. I wish the public to be told accurately what is going on.

16 The matters which the appellant has referred to are indicative of his concern to pursue other proceedings in which he is involved and we assume that to that extent he is distracted from and unable to pursue these proceedings because, he says, of his involvement in these other proceedings. The fact remains, however, that these appeal proceedings have been on foot since November 2003 and whatever other circumstances may confront a litigant it is still necessary in the interest of the administration of justice that proceedings be pursued diligently and brought to a conclusion as soon as possible. Although the respondents, on one view, are instrumentalities of the New South Wales Government and one may perhaps make some allowance in terms of the appellant by reason of this, on the other hand it is necessary for the efficient and effective administration of Government that it be entitled to have outstanding proceedings before a tribunal concluded as quickly and cost effectively as possible.

17 We are persuaded that the appellant has not pursued these appeal proceedings with sufficient diligence and the indications are that they will not be so pursued. For these reasons we are of the opinion that in the proper exercise of our discretion the proceedings should be dismissed for want of prosecution and they are dismissed accordingly.

CREWDSON: I am sorry but I made it very clear to you that I was asking until 28 March 2007 which is a matter of weeks.

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