Crewdson v Department of Community Services & Anor

SECOND RESPONDENT - SECOND APPLICANT ON NOTICE OF MOTION Central Sydney Area Health Service FILE NUMBER: IRC 3140 of 2001 CORAM: Boland J CATCHWORDS : Practice and Procedure - Declaratory orders - Notice of Motion - Power of NSW Industrial Relations Commission to make declaratory orders - Public sector employment - Deed of release as a bar to proceedings - Anshun Estoppel - Abuse of process - Admissions - Judgment on admissions - Notice of Motion dismissed - Directions - Costs Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Community Services (Complaints Appeals and Monitoring) Act 1993 Contracts Review Act 1980 LEGISLATION CITED : Freedom of Information Act 1989 Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Protected Disclosures Act 1994 Public Sector Management Act 1988 Public Sector Management (General) Regulation 1996 "A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 revised 14/02/02 Crewdson v Central Sydney Area Health Service [2000] NSWADT 184 Crewdson v New South Wales Health Department Medical Appeals Panel (EOD) [2001] NSWADTAP 11 Crewdson v Niland & Ors [2001] NSWADT 87 Crewdson v Niland & Ors (EOD) [2000] NSWADTAP 5 Crewdson v President, Anti-Discrimination Tribunal of New South Wales [2000] NSWADT 60 David Jones Ltd v Cukeric (1997) 78 IR 430 Davies v Amalgamated TV Services (1998) 81 IR 362 Ford v SAS Trustee Corporation (2000) 98 IR 444 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Gerard Crewdson v State of New South Wales [2001] NSWIRComm 216 Glass Workers' Redundancy (State) Award Re [1998] NSWIRComm 297 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 CASES CITED : Ibeneweka v Egbuna [1964] 1 WLR 219 Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch (1998) 89 IR 391 Ling v Commonwealth (1996) 68 FCR 180, (1996) 139 ALR 159 Nagle v Tilburg (1993) 51 IR 8 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 National Mutual Life Association of Australasia Limited v Grosvenor Hill (Queensland) (Formerly Hillier, Parker (Queensland) Pty Limited) (2000) 183 ALR 700, [2001] FCA 237 (13 March 2001) Orbit Travel Services Pty Limited v The Australian Federation of Travel Agents Limited [2000] NSWSC 127 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Public Service Association of New South Wales v Public Service Board of New South Wales (1985) 12 IR 98 Public Employment Industrial Relations Authority v Public Service Association of New South Wales (Re Scorzelli & Ors) (1993) 49 IR 169 Rahme v Commonwealth Bank of Australia (unreported, NSW Court of Appeal, 20 December 1991) Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551, (2000) 99 IR 69 Rogers v The Queen (1994) 181 CLR 251 RR v Department of Army (1980) 482 F Supp 770 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Stuart v Sanderson (2000) 100 FCR 150, (2000) 175 ALR 681 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 HEARING DATES: 03/18/2002; 03/19/2002 DATE OF JUDGMENT: 05/31/2002

APPLICANT: Mr G Crewdson in person

LEGAL REPRESENTATIVES: RESPONDENT: Mr A Moses of counsel Solicitor: Mr G Demetriou Crown Solicitor's Office

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 31 May, 2002

Matter No IRC 3140 of 2001 GERARD CREWDSON v DEPARTMENT OF COMMUNITY SERVICES & ANOR Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996)

1 On 14 June 2001 the State of New South Wales (Department of Community Services) ("the first respondent" or "DOCS") and the State of New South Wales (Central Sydney Area Health Service) ("the second respondent") moved the Court by way of notice of motion for:

1. An order that the Applicant's Application for Declaration filed in these proceedings be dismissed. 2. In addition or in the alternative, an order that the Applicant's Application for Declaration filed in these proceedings be struck out insofar as it relates to any claim for declaratory orders or relief against the Second Respondent. 3. Costs. 4. Such further or other orders as the Commission deems fit.

2 The application referred to in the respondents' notice of motion was filed on 8 May 2001 by Gerard Michael Crewdson ("the applicant"). The application sought declaratory relief under s 154 of the Industrial Relations Act 1996. The declarations sought were in the following terms:

a) That the applicant is and at all times since 9 Sept 1990 has been employed by the first respondent - the NSW Department of Community Services and its predecessors. b) That all decisions taken on and after 11 Sept 1997 by officers of the first respondent to refer the applicant for a fitness to continue assessment by the Government Medical Officer (GMO) are void, invalid and of no effect. c) That all decisions taken by the GMO and or officers/consultants employed by the second respondent-Central Sydney Area Health Service on or after 10 October 1997 with regard to the applicant's fitness for work are void, invalid and of no effect. d) That all decisions taken by officers of the first respondent on and after 29 October 1997 suspending the applicant from his duties and placing him on Sick Leave and then Leave without Pay are void, invalid and of no effect. e) That terms and conditions of a DEED signed between the applicant and the first and second respondents 6-30 Oct 1998 requiring the applicant to resign his employment from the first respondent are void, invalid and of no effect. f) That all terms and conditions of the said DEED signed 6-30 Oct 1998 purporting to pay remuneration to the applicant or any benefit less than the minimum benefits guaranteed under relevant industrial instruments and industrial legislation are void, invalid and of no effect. g) That the applicant be entitled to be paid all emoluments pertaining to his position as a full time residential care assistant employed with the first respondent together with interest thereon and to retain all leave and other entitlements together with interest thereon. h) That with respect to any moneys otherwise earned by the applicant since 29 October 1997 that allowance be made in that sum. i) Such other orders as the honourable Commission in Court (sic) deems appropriate.

3 This matter was the subject of an earlier interlocutory judgment on 13 September 2001 (Gerard Crewdson v State of New South Wales [2001] NSWIRComm 216). The applicant's application initially came before the Court on 17 May 2001. At that time the Court was informed that the applicant was involved in proceedings before the Administrative Decisions Tribunal, Equal Opportunity Division ("ADT"). Mr A Moses of counsel for the respondents submitted that the Commission in Court Session should not proceed to deal with the applicant's application for declaratory relief until the matter had been dealt with to finality by the ADT because both claims relied on the same facts. Mr Moses foreshadowed a notice of motion by the respondents to strike out the applicant's application on the grounds of abuse of process and Anshun estoppel.

4 The Court decided to adjourn the hearing of the application until the decision in the ADT proceedings had been handed down. That occurred on 4 March 2002: see Gerard Crewdson v Niland & Ors (EOD) [2000] NSWADTAP 5.

5 The respondents' notice of motion was subsequently heard on 18 and 19 March 2002. At the same time the Court heard an application by the applicant for an order under r 155 of the Industrial Relations Commission Rules 1996. The applicant contended in a notice of motion filed on 10 December 2001 that the respondents had made admissions that entitled the applicant to orders 1(a) to 1 (h) in his application for declaratory relief. The applicant contended that the admissions made by the respondents established that: (a) the applicant's employment was governed by the Public Sector Management Act (PSM Act) and Regulation (b) the applicant has not resigned from his employment with the first respondent either in fact or in law (c) the respondents have falsely represented that the applicant resigned of his own accord on 2 Oct 1998 and this false representation has vitiated the DEED signed by the applicant 6 Oct 1998 (d) the applicant was a satisfactory employee and there were no grounds that would allow the first respondent to encourage require or seek the termination of the applicant's employment (e) the applicant was not paid any remuneration or entitlements under the DEED signed 6 Oct 1998 (f) actions taken by officers of the first respondent from September 1997 onwards leading up to and including the applicant being directed on 13 Oct 1997 to attend an assessment at HealthQuest were unauthorised under the PSM Act and Regulation (g) actions taken by the respondents on or after 29 October 1997 removing the applicant from his duties, accessing his leave entitlements and then suspending him without pay were unauthorised under the PSM Act and Regulations. BACKGROUND

6 This matter has a quite extraordinary background, not least for the amount of litigation that has been involved, especially in the Administrative Decisions Tribunal. I propose to address the background in some detail.

7 Mr Crewdson was originally trained as an architect in New Zealand, and attained a Bachelor of Architecture in 1981 from the Victoria University in Wellington. He commenced full time employment with the first respondent on 7 September 1990 as a "Residential Care Assistant" in what was then called the Macquarie Developmental Disability Services at Fitzpatrick Street, Eastwood. His primary duties involved the care and support of clients of the first respondent with developmental disabilities. The applicant was employed under the provisions of the Public Sector Management Act 1988.

8 In June 1997 an incident occurred where a client was injured. The client was totally blind, had cerebral palsy, suffered from epilepsy and had an intellectual disability. Mr Crewdson said that no investigation was conducted into the incident and that he expressed his concern about the incident to Ms Julia Gillett, the House Manager and made known to her his view that the injury to the client was the fault of another staff member, Mr Damian Lutvey, who failed to care for the client in the proper manner.

9 The applicant said that following his complaint he was subjected to "increasingly violent verbal attacks and harassment" by a colleague of Ms Gillett's, namely Brian Combie-Brown and that Ms Gillett permitted this to occur. In July 1997 the applicant submitted a formal complaint about Mr Combie-Brown's conduct to Ms Gillett. The complaint referred to Mr Combie-Brown's behaviour towards the applicant as well as Mr Combie-Brown's poor attitude towards clients. The applicant deposed that Ms Gillett refused to resolve his complaint and instead, "began herself to subject me to hostile personal attack."

10 In September 1997 Mr Crewdson complained to Ms Gillett about the "domineering conduct" of Mr Lutvey only to be told by Ms Gillett that he should seek a transfer to another Group Home. In October 1997, whilst Ms Gillett was on annual leave, Mr Crewdson had another confrontation with Mr Lutvey who had been appointed Acting House Manager in Ms Gillett's absence. The applicant took exception to Mr Lutvey referring to the clients as "brain damaged". The applicant lodged a formal complaint about Mr Lutvey's conduct. The applicant said that a day or so later he was subjected to a further personal attack by Mr Lutvey and that Mr Lutvey informed him that he was to receive a visit from Ms Jackie Pitchford, Assistant Community Manager. This occurred on 13 October 1997 when Ms Pitchford handed to the applicant a letter setting out eight concerns about his "work and attitude". The letter also directed the applicant to attend an appointment with HealthQuest on 29 October 1997 "[I]n order to assist you to manage your work practices, particularly those which cause you stress". Mr Crewdson said he was "surprised and shocked" by the contents of Ms Pitchford's letter.

11 On 29 October 1997 the applicant attended the HealthQuest appointment and discovered he was to see a psychiatrist, Dr Roberts. Dr Roberts interviewed the applicant. On 30 October 1997 Mr Crewdson was advised by Ms Gillett that HealthQuest had declared him unfit for work for three months and that he had been removed from his duties. 12 Between 1 and 18 November 1997 the applicant went home to New Zealand on annual leave that had been arranged prior to him being declared unfit for work. Whilst in New Zealand, Mr Crewdson received three letters. The first letter dated 29 October 1997 was signed by a Dr Jagger for the Government Medical Officer, Dr H Gapper, and was an "Interim Advice" to the Manager, Human Resources, Department of Community Services, North Sydney Area Office. The letter indicated that because Mr Crewdson was late for his appointment (because he had been given the wrong address) and was in an "agitated and distressed state" a "clear and full psychological assessment" had not been possible. The letter confirmed that Mr Crewdson was considered to be currently unfit for work and in need of further psychiatric assessment and consideration of treatment. He has been told that he should seek referral to a psychiatrist via his own doctor. He should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest. This will take about three months as he needs to be seen more than once to explore his mental health fully. 13 A second letter from HealthQuest requested that the applicant forward a third letter to a doctor in order to obtain a report. The third letter (signed by Dr Roberts for Dr Gapper) requested an unnamed doctor (presumably one of Mr Crewdson's choice) to: Forward a medical report about Gerard Crewdson. At my consultation he was very agitated & hostile. However, he refused to give any details, but the MSE is strongly suggestive of a psychotic illness. Could you please assess in this regard together with any possible … (last three words unintelligible). 14 On 20 November 1997, upon his return to Sydney, Mr Crewdson wrote to the Northern Sydney office of the first respondent seeking clarification of his employment status. He received no reply. On 26 November 1997 he was given access to his personnel file and discovered a series of documents recording the HealthQuest referral. Mr Crewdson alleged that included in the file was a 15-page memorandum written by Ms Gillett on 15 September 1997 which, the applicant alleged, contained malicious allegations against him. The memorandum was not put into evidence.

15 On 1 December 1997, the applicant's brother, Mr Tony Crewdson, sent facsimile messages to Mr Ken Burke, Area Manager, Northern Sydney for the first respondent and to Dr Gapper, indicating his intention to appeal against the HealthQuest referral. He received no reply or acknowledgement.

16 The applicant gave evidence that from about 8 December 1997 onwards, he began submitting information to the Community Services Commission about the unfair treatment of disabled residents by management and staff at the Eastwood Home where he worked, during the period May to October 1997. From 30 December 1997 onwards, the applicant submitted complaints to the New South Wales Anti-Discrimination Board alleging that actions taken by the first respondent referring him to HealthQuest constituted unlawful discrimination under the Anti-Discrimination Act 1977.

17 On 9 February 1998 the applicant submitted a letter to the Director-General of the first respondent outlining the complaint documents he had lodged since 22 January 1998 and stated that the documents should be regarded as disclosures for the purpose of the Protected Disclosures Act 1994. 18 On or about 20 February 1998 the first respondent placed the applicant on leave without pay, as the applicant had exhausted his accumulated sick leave.

19 On 16 April 1998 Dr Gapper forwarded the applicant's HealthQuest file to Dr D Baker, a general practitioner. Dr Baker showed the file to the applicant. The file contained Dr Robert's report of 29 October 1997 and a handwritten record of a telephone call received by HealthQuest on 10 October 1997 from Nathalie Bratt, Human Resources Manager at the Northern Sydney office of the first respondent. The note referred to Mr Crewdson and stated, inter alia, "delusional behaviour causing concern. A couple of managers with mental health training thinks he has a mental health problem."

20 The applicant gave evidence that in April 1998 he expanded his complaint of unlawful discrimination against the first respondent to include a complaint of unlawful victimisation under s 50 of the Anti-Discrimination Act. He also lodged complaints of `presumed' disability discrimination against the Health and Research Employees' Association and the New South Wales Department of Health Medical Appeals Panel.

Discrimination complaint against Medical Appeals Panel

21 On 7 May 1998 the President of the Anti-Discrimination Board referred the complaints of disability discrimination and victimisation against DOCS to the Equal Opportunity Tribunal on the ground that he did not believe that the complaints could be conciliated. The Tribunal subsequently dismissed the applicant's complaint of discrimination on the grounds of a presumed psychiatric disability against the Medical Appeals Panel. The applicant appealed. However, in a decision on 4 May 2001 in Crewdson v New South Wales Health Department Medical Appeals Panel (EOD) [2001] NSWADTAP 11, the Appeal Panel held that the "Tribunal were correct in concluding that the Department of Health and the Medical Appeals Panel lacked the capacity to be sued."

22 On 15 May 1998 Mr Crewdson's complaints against HealthQuest were also referred to the Equal Opportunity Tribunal on the ground that they could not be conciliated. These matters were case number 58/98 Crewdson v Director General, Department of Community Services and case number 67/98 Crewdson v Central Sydney Area Health Service.

23 On 25 June 1998 the applicant attended a mediation session involving the first respondent and HealthQuest (represented by the second respondent) at the Equal Opportunity Tribunal. Negotiations took place between the parties to resolve the issues between them but these negotiations were unsuccessful. The respondents had proposed terms of settlement involving 31 weeks' pay and an appropriately worded deed of release. The applicant later rejected this offer.

24 The applicant said that by the beginning of September 1998 he was in very difficult financial circumstances and under great emotional stress. On 2 September the applicant wrote to the Director-General of the first respondent asking to be placed on special purpose leave on full pay while his complaints were being investigated. The Director-General refused to exercise her discretion in the applicant's favour. On 9 September the applicant wrote a letter addressed to each of the families of the residents at the Eastwood Home explaining what had happened to him since October 1997. On 15 September the applicant rang Mr R Salpeter of the Crown Solicitor's Office concerning a settlement offer that the applicant said was to be couriered to him. Mr Salpeter raised the issue of the letter sent by the applicant to the parents of the residents. Mr Salpeter said words to the effect that "The Department Management got hold of this letter and are very angry."

25 On 16 September the Crown Solicitor's Office wrote to the applicant and in the letter referred to the applicant's letter to parents. The Crown Solicitor's letter stated: Mr Salpeter explained that the Department of Community Services ("DOCS") had been prepared to enter into negotiations with you regarding possible settlement of the matter between you and DOCS. However the publishing of this material caused DOCS to reconsider its position. In particular it was concerned that any Deed of Release you would sign you would not adhere to or abide by. Mr Salpeter stated that for DOCS to re-establish negotiations leading to a possible settlement with you it had to be assured of your commitment to abide by any Deed of Release you sign. You indicated to Mr Salpeter that you would be prepared to abide by any Deed of Release which you signed. It is implicit in this that any Deed of Release you sign you would have to be satisfied with. Please confirm in writing your commitment to abide by any Deed of Release you do sign in relation to the above-captioned matters. I await your response at your earliest convenience. 26 On 17 September 1998 Mr Tony Crewdson, on behalf of the applicant, attended a meeting with Mr Salpeter and Ms Teresa Anderson, counsel for the respondents. Following the meeting, Mr Tony Crewdson told the applicant that because of the letter the applicant had written to the parents, the respondents demanded that before the respondents were prepared to enter into a settlement with the applicant, he was to sign a public apology retracting the complaints he had made. If the applicant was prepared to agree to these conditions the respondents would agree to pay $25,000 in non-wage damages and would give the applicant a statement of satisfactory service. The applicant's brother also informed him that any settlement offer would be withdrawn if the applicant were to ask for the respondents' "points of defence" in relation to the proceedings before the Equal Opportunity Tribunal or if the applicant were to proceed with an application before the Tribunal on 21 September for an interim order reinstating him.

27 The applicant, nevertheless, proceeded with his application for an interim order. The Tribunal ordered the applicant to obtain a certificate from a psychiatrist that he was fit to resume work and the application for an interim order was adjourned to 12 October, although it was not finalised as it was overtaken by other events. The applicant said he felt "crushed" by the Tribunal's orders.

28 Following the Tribunal hearing, a further meeting took place between Mr Salpeter, Ms Anderson and Mr Tony Crewdson regarding terms of settlement. In relation to acceptance of the offer put by the respondents on 17 September the applicant said: I had no other choice open to me now because of the financial situation brought about by the respondent's actions. I felt intimidated, powerless and exhausted. I understood that I was being punished for writing the letter to parents 9 September 1998 (sic). Having no other choice I submitted and said yes. My brother then rang Mr Salpeter at the Crown Solicitor's Office with the news. 29 On 29 September 1998 the applicant "lost" his apartment because of "financial destitution" and consequently flew home to New Zealand. On 6 October the applicant received a copy of the proposed deed of release from the Crown Solicitor's Office together with an Annexure A, which was a statement of service and an Annexure B titled "Joint Public Statement".

30 The deed, which was eventually duly signed and witnessed, was in the following terms: THIS DEED is made the day of 1998

BETWEEN: GERARD MICHAEL CREWDSON of 76/5 The Esplanade, Elizabeth Bay in the State of New South Wales ("Mr Crewdson")

AND: THE STATE OF NEW SOUTH WALES c/o The State Crown Solicitor, 60-70 Elizabeth Street, Sydney in the State of New South Wales ("The State of new South Wales")

AND: CENTRAL SYDNEY AREA HEALTH SERVICE c/o The State Crown Solicitor, 60-70 Elizabeth Street, Sydney in the State of New South Wales ("the Service")

A. Mr Crewdson was employed by The State of New South Wales as a residential care assistant in the Department of Community Services ("the employment").

B. A health assessment of Mr Crewdson was undertaken by the Service at the request of the Department of Community Services ("the health assessment").

C. Mr Crewdson lodged complaints with the Anti-Discrimination Board alleging that The State of New South Wales and the Service had subjected him to discrimination and victimisation within the meaning of the Anti-Discrimination Act 1977 ("the Act").

D. The complaints that Mr Crewdson lodged with the Anti-Discrimination Board were referred to the Equal Opportunity Tribunal ("the Tribunal").

E. The State of New South Wales and the Service denied that they had subjected Mr Crewdson to discrimination and/or victimisation within the meaning of the Act and intended to oppose his claims for relief in the proceedings before the Tribunal. F. Without admission of liability, the parties have agreed to accept the terms and conditions hereinafter appearing in full and final discharge of their respective obligations and in settlement of all matters in issue between them.

1. The State of New South Wales undertakes to pay to Mr Crewdson the sum of $22,000 in settlement of all of the proceedings before the Tribunal and the gross monetary value less tax of the recreation leave and extended leave due to him as at 2 October 1998, being a net payment of $3,354.86, and to provide him with a certificate of service in the terms set out in Annexure A to this DEED within 14 days from the date on which this DEED is signed, sealed and delivered by Mr Crewdson. 2. Mr Crewdson undertakes to publicly acknowledge that The State of New South Wales and the Service did not subject him to discrimination and/or victimisation within the meaning of the Act by means of the issue of a joint public statement by the parties to this DEED in the terms set out in Annexure B to this DEED. 3. Mr Crewdson undertakes to agree that the Tribunal should dismiss his complaints. 4. Mr Crewdson undertakes to submit his written resignation from the employment with effect from the close of business on 2 October 1998. 5. Mr Crewdson releases The State of New South Wales and the Service and their agents, officers and servants and each of them from all actions, suits, causes of action, claims, demands, claims for costs or expenses whatsoever which Mr Crewdson now has or may at any time hereafter have against them or any of them arising from or in any way related to the employment and/or the health assessment. 6. This DEED and its annexures constitute the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. 7. This DEED shall bind the parties hereto and any executor, administrator, transferee, assignee, liquidator or trustee in bankruptcy appointed in respect of any party to this DEED. 8. This DEED may be pleaded in bar by any party hereto to any actions, suits, or proceedings commenced, continued or taken by any other party hereto or on their behalf in connection with any of the matters referred to in this DEED. 9. This DEED shall be governed by and construed in accordance with the law of New South Wales and the parties agree to submit to the jurisdiction of the Courts of that State. 10. Each party shall pay and bear their own costs and expenses in connection with this DEED. 11. The parties shall promptly do and perform such further acts and execute and deliver all further instruments required by law or reasonably requested by any other party to establish, maintain and protect the respective rights and remedies of the parties and to carry out and effect the intent and purpose of this DEED. 12. With the exception of this issue of a joint public statement in the terms set out in Annexure B to this DEED each of the parties to this DEED agree that they shall not disclose, or in any way authorise the disclosure of, the terms of this DEED or any matter relating to or arising out of the terms of this DEED or the circumstances surrounding the entering into of this DEED to any other person, except as they may be required to do so by law.

SIGNED SEALED AND DELIVERED ) By the said GERARD MICHAEL ) CREWSDON in the presence of )

SIGNED SEALED AND DELIVERED ) by CARMEL NILAND on behalf of ) THE STATE OF NEW SOUTH WALES ) in the presence of: )

SIGNED SEALED AND DELIVERED ) by HELIA GAPPER on behalf of ) CENTRAL SYDNEY AREA HEALTH ) SERVICE in the presence of: ) …………………………………

…………………………………… 31 Annexure A was in the following terms: TO WHOM IT MAY CONCERN STATEMENT OF SERVICE

This is to certify that Gerard Michael Crewdson was employed from 7 September 1990 to 2 October 1998 in the capacity of Residential Care Assistant/Worker. Mr Crewdson was a satisfactory employee who resigned of his own accord. 32 Annexure B, the Joint Public Statement, was in the following terms: JOINT PUBLIC STATEMENT Mr Gerard Michael Crewdson resigned from his employment as a residential care assistant in the Department of Community Services on 2 October 1998.

Prior to his resignation, Mr Crewdson alleged that the Department of Community Services and the Central Sydney Area Health Service had subjected him to discrimination and/or victimisation within meaning of the Anti-Discrimination Act 1977.

As a result of discussions between the parties, Mr Crewdson now acknowledges that neither the Department of Community Services nor the Central Sydney Area Health Service subjected him to discrimination and/or victimisation within the meaning of the Anti-Discrimination Act 1977.

The Department of Community Services acknowledges that Mr Crewdson was a satisfactory employee.

33 Mr Crewdson said he signed the deed on 6 October 1998, as well as Annexures A and B, knowing that Annexure A was "false and misleading" because he had not resigned on 2 October 1998, and knowing Annexure B was also "false and misleading" because he had not resigned on 2 October 1998 and that he had not in fact acknowledged that "neither the Department of Community Services nor the Central Sydney Area Health Service subjected him to discrimination and/or victimisation within the meaning of the Anti-Discrimination Act 1977." 34 It is to be noted that Mr Crewdson was not legally represented in the settlement discussions and he signed the deed without legal advice.

35 On 6 November 1998 the two cases referred to in par [22] hereof were listed before the Equal Opportunity Division of the Administrative Decisions Tribunal, which by that stage had assumed the jurisdiction previously exercised by the Equal Opportunity Tribunal (the Equal Opportunity Tribunal had ceased to exist on 6 October 1998 by virtue of the Administrative Decisions Tribunal Act 1997). Mr Crewdson did not appear before the Tribunal and on that date Ms Rogers, a solicitor from the State Crown Solicitor's Office, appeared for the respondents. Ms Rogers informed the Tribunal that she had been asked by Mr Crewdson's brother to mention the matter on his behalf. Ms Rogers read to the Tribunal the Joint Public Statement, which was Annexure B to the deed. Murrell J referred to the Joint Public Statement as "an apology".

36 An extract from the relevant transcript reads as follows: MS ROGERS: I have a letter hear (sic) from the respondent's brother who is in New Zealand who requested that I mention the matter on their behalf on 1 November. We were told on 3 November that the mention date had been moved to the 6th. I am not sure whether you require to see that letter for your file but I do have a copy here. HER HONOUR: Yes, I think we should have a copy of that letter. You received an apology, is that correct it? (sic) a MRS ROGERS: Yes, there is a public statement that Mr Crewdson agrees should be read onto the record. HER HONOUR: Hand up a copy and then would you like to read it onto the record. (Document handed up) MS ROGERS: "Mr Gerrard (sic) Michael Crewdson resigned from his employment as a residential care assistant in the Department of Community Services on 2 October 1998. Prior to his resignation Mr Crewdson alleged that the Department of Community Services and the Central Sydney Area Health Service had subjected him to discrimination and/or victimisation within the meaning of the Anti-Discrimination Act 1977. As a result of discussions between the parties, Mr Crewdson now acknowledges that neither the Department of Community Services nor the Central Sydney Area Health Service subjected him to discrimination and/or victimisation within the meaning of the Anti-Discrimination Act 1977. The Department of Community Services acknowledges that Mr Crewdson was a satisfactory employee." HER HONOUR: Thank you, Ms Rogers. A copy of that statement will be initialled by me and placed with the papers. The complaint is dismissed.

37 Mr Crewdson said in his evidence that "I felt deeply humiliated to read Judge Murrell's interpretation of the Joint Public Statement as my apology." Complaints of victimisation against Niland, Gapper, Salpeter and Anderson

38 On 21 January 1999 Mr Crewdson lodged with the President of the Anti-Discrimination Board complaints of victimisation under s 50 of the Anti-Discrimination Act against Ms Carmel Niland (the Director-General of the first respondent), Dr Helia Gapper (Government Medical Officer), Mr Raoul Salpeter and Ms Teresa Anderson. In his letter of complaint to the President Mr Crewdson stated: Respondents:

(1) Carmel Niland Director General DOCS (2) Helia Gapper Director HealthQuest (3) Raoul Salpeter Senior Solicitor Crown Solicitors Office (4) Therese (sic) Anderson Barrister employed by the above.

Date alleged Unlawful Action enacted: 6/11/98 Particulars of Unlawful Action:

1. Section 50(1)(a) states: "It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: - brought proceedings against the discriminator or any other person under this Act".

2. On 6/11/98 Complaints of Unlawful Discrimination and Victimisation that I had made against my Employer DOCS and HealthQuest were dismissed in the Equal Opportunity Tribunal not by a full and open hearing into those Complaints but by means of a Joint Public Statement I had been forced to sign in which I acknowledged that no Unlawful Discrimination or Victimisation had taken place. Judge Murrell referred to this Statement as my " apology".

3. Section 50 of the Act states "any detriment in any circumstances" 4. I assert that any circumstances could conceivably include the circumstance of well-resourced Respondents taking advantage of a vulnerable Complainant to force the dismissal of a Complaint within the EOT prior to a full public hearing of the evidence and on terms that are unfair, unjust or unreasonable for the complainant. 5. I alleged that my respondents (sic) took deliberate advantage of my financial vulnerability to press upon me an unfair and unjust Public Statement of Apology as a pre-condition of my being granted financial relief. 6. I allege that this Joint Statement was also set as a condition for my being granted a Statement of Satisfactory Service. 7. I allege that my resignation from DOCS was also set as a condition of my being granted financial relief and a Statement of Satisfactory Service. 8. I allege therefore that by their action of setting such conditions and by the pressure they exerted to guarantee my compliance, the Respondents subjected me to detriments that would be in breach of s 50 of the AD Act.

9. I allege also that I was subjected to a detriment in that I was forced to sign a Statement that I knew to be untrue and that I knew would be read out in the Tribunal.

10. I allege that I was subjected to these detriments as a direct result of my having brought proceedings under the AD Act against the Respondents. 11. I allege that by discrediting me as a Complainant, this Statement also sought to prevent me from taking further action of any sort under the NSW AD Act connected with my employment with the NSW Public Service. 12. I allege therefore that the Joint Public Statement drafted by the Respondents represents Unlawful Victimisation within the meaning of s 50 of the AD Act. 13. I allege that the Provisions of the Deed of Release that gave rise to this Joint Public Statement also represent Unlawful victimisation within the meaning of the AD Act 1977. 39 On 12 August 1999 the President wrote to the applicant and informed him that he had declined the complaints of victimisation against Ms Niland, Dr Gapper, Mr Salpeter and Ms Anderson pursuant to section 90(1) the Act. On 9 September 1999 Mr Crewdson sought a review of the President's decision in the ADT pursuant to s 90(3) of the Anti-Discrimination Act. In a decision handed down on 16 May 2000, the ADT, in Crewdson v President, Anti-Discrimination Tribunal of New South Wales [2000] NSWADT 60, set aside the decision of the President to decline to entertain the complaint of victimisation lodged by the applicant on 21 January 1999 and remitted the matter to the President for reconsideration in accordance with the ADT's reasons for decision. The President investigated the matter and determined that it was not a matter suitable for conciliation. He, therefore, referred the matter back to the ADT pursuant to s 94 (1) (a) of the Anti-Discrimination Act so that a hearing could take place.

40 The matter came before the ADT on 1 and 23 May 2001. The ADT also had before it the application of the applicant for an interim order that he be reinstated in employment with the first respondent. This was the application that had previously been adjourned by the Equal Opportunity Tribunal to be heard on 12 October 1998 but which did not proceed on that date. The respondents lodged applications under s 111(1) of the Anti-Discrimination Act to have the applications dismissed. Over the applicant's objection, the ADT decided to deal firstly with the applications under s 111(1) of the Anti-Discrimination Act. At the commencement of the hearing on 1 May 2001 the applicant sought an adjournment on the grounds of lack of financial resources and his personal circumstances, including the absence of any legal representation and the difficulty he faced by the joint hearing of his interim order application and the s 111(1) application by the respondents. That application was refused. Without going into the details of how, the applicant sought again to achieve an adjournment but was unsuccessful. He then sought the disqualification of the Tribunal on the grounds of actual bias but the Tribunal declined to disqualify itself and directed the applicant to proceed with his case. The applicant then informed the Tribunal that he was seeking to withdraw his complaint. The applicant's complaint under s 50 of the Anti-Discrimination Act was ultimately dismissed by the Tribunal under s 111(1) for want of prosecution: see decision of 29 June 2001 in Crewdson v Niland & Ors [2001] NSWADT 87. In giving reasons for its dismissal of the complaint the Tribunal said: 33 From his demeanour and the evidence that he has put before the Tribunal, the complainant is quite clearly absolutely convinced of the validity of his complaint. He is so persuaded to this view that any finding which differs from the path he seeks to take he regards as demonstrating some form of bias against him, or some mistake in law. He takes any such finding very personally, and the process clearly causes him stress. This situation is unlikely to change no matter when the process takes place.

34 The complainant has clearly also spent much time researching the legal issues surrounding his complaint, and has made himself well aware of legal procedure. He is therefore more well informed than most unrepresented litigants appearing in this jurisdiction.

35 Despite this, when the complainant indicated to the Tribunal that he did not want to proceed, the Tribunal made strenuous efforts to both explain how the process would be conducted if it were continued, and to ensure that the complainant was aware of the consequences of the position he sought to take. It also took two adjournments, in part to give the complainant the opportunity to consider his position.

36 The Tribunal was also mindful of the impact of the complainant's behaviour, and the position he was taking, on the respondents. The complainant's continued questioning of the Tribunal's rulings were extending the duration of the hearing quite markedly. When the complainant indicated that he did not wish to proceed, if the Tribunal had just adjourned the hearing to another day the respondents would have incurred further unnecessary costs.

37 Further, whilst this Tribunal was not given the opportunity to make a decision on the merits of the complaint, it did bear in mind the comments made by a differently constituted Tribunal on 16 May 2000 from which the history of this decision was quoted earlier. That Tribunal said-

"51 As the foregoing analysis illustrates all of the reasons advanced by the President in support of his decision to decline Mr Crewdson's complaint are, at the very least, open to challenge. Interestingly, the President failed to identify what I consider to be the weakest part of Mr Crewdson's complaint. Mr Crewdson will have great difficulty, I believe, in establishing that any of the four named respondents subjected him to anything. To "subject" is relevantly defined in the Macquarie Dictionary to mean "to cause to undergo or experience something". In its context in section 50 of the Act the word must mean that a person is forced, required or perhaps coerced to experience something which is a detriment. The objective facts appear to be that the respondents offered to settle the litigation and that Mr Crewdson accepted the offer. There is no suggestion that the respondents required, forced or coerced Mr Crewdson to settle his litigation. The choice to settle was made by Mr Crewdson and he exercised that choice when he signed the deed. It would seem that the respondents cannot be held liable, under section 50, for the operation of whatever internal factors caused Mr Crewdson to accept the offer of settlement.

52 Mr Crewdson has argued that it was a case of "well-resourced Respondents taking advantage of a vulnerable Complainant". If he can prove this, which I doubt, for he has advanced no evidence of any improper behaviour by any of the respondents during the settlement negotiations, it may be possible for Mr Crewdson to argue elsewhere that the deed should be set aside, but I fail to see how it can be said that the respondents subjected him to anything, even if a court were to find that deed which records the settlement is unconscionable. Nevertheless this weakness in Mr Crewdson's case does not lead to the conclusion that his complaint fails to disclose a contravention of the Act. It may lead the President to the conclusion that the complaint is "misconceived" or "lacking in substance" and Mr Crewdson may then elect, bearing in mind the President's assessment of the strength of his case, whether to take the risk of litigating his complaint before the Tribunal." 38 The Tribunal was not minded to simply allow the complainant to withdraw his complaint. Given the history of the matter, and the complainant's unpreparedness to provide a direct answer to a direct question, the Tribunal was loath to rely on an oral withdrawal. It did not raise the possibility of a written withdrawal as it was conscious of previous allegations of duress made by the complainant, and of the comments that the complainant had already made about the Tribunal. It also took into account the strenuous submissions of all respondents in opposition to this course of action.

39 For all of these reasons the Tribunal formed the view that bringing the matter to finality via a dismissal for want of prosecution was its only option.

40 The Tribunal is of the view that it has the capacity to dismiss on this basis pursuant to the part of s 111 (1) (a) which allows dismissal, at any stage of an inquiry, if satisfied that "for any other reason the complaint should not be entertained". Whilst the normal rules of statutory interpretation provide that an inclusive list of reasons ought to be read narrowly to only include the specific reasons in that list, this section appears to have been drafted more broadly to allow for "any other reason" and want of prosecution would certainly fall into that category. The Tribunal is not aware, in this or similar jurisdictions, of a precedent for this action, but is of the view that the section is broad enough to allow for it.

41 The applicant appealed the decision in Crewdson v Niland & Ors [2001] NSWADT 87. The decision of the Appeal Panel (Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5) was handed down on 4 March 2002. The Appeal Panel dismissed the appeal. In its decision the Appeal Panel noted: 3 It is of particular importance for the purposes of this appeal to note that there was no substantive hearing of the Appellant's complaint of victimisation on 1 and 23 May 2001. The Appellant's application before the Tribunal was for interim orders relating to his re-employment by the Department of Community Services. As noted above, the Appellant effectively did not pursue that application, but rather sought an adjournment which was opposed by the Respondents. The Respondents in turn had lodged an application for dismissal of the Appellant's complaint (under s 111(1) of the AD Act), as was their right, and pressed the Tribunal to hear that application. A reading of the decision shows that, following submissions from all parties, the Tribunal was persuaded to hear the s 111(1) application, over the Appellant's objection. Accordingly, the only jurisdiction vested in this Panel is to establish whether the Tribunal erred at law in refusing the Appellant's adjournment applications or in dismissing the complaint for want of prosecution. 42 At par [15] of its decision the Appeal Panel made the following observations: 15 This rather protracted history demonstrates a number of things. The Appellant has been actively engaged in litigation in this jurisdiction, and more recently in other jurisdictions, for some three years, during which time he has researched, prepared and presented many comprehensive written submissions on both the relevant law and the facts surrounding his claims, without the assistance of legal personnel (as far as the Tribunal is aware). The various complaints he has made arise out of his loss of employment in 1998. He has not obtained alternative employment. He has informed the Tribunal on several occasions (and the Tribunal accepts) that he is homeless and financially impecunious. It is apparent that these proceedings have become the focus of all of his considerable energies and that he remains convinced of the justice of his cause. The Tribunal does not and could not doubt that the Appellant is under great stress. He is nonetheless capable of adequately arguing his case. His circumstances, on his own admission, are not likely to change, such that the stress which he suffers will abate in the near future. On the contrary, a very real and significant cause of the stress which the Appellant claims as an obstacle to the finalisation of the proceedings, is the proceedings themselves.

43 As to the Tribunal's decision at first instance to refuse to grant the applicant's adjournment application, the Appeal Panel could not find any error of the kind that would warrant setting it aside. As to the dismissal of the complaint under s 111(1) of the Anti-Discrimination Act the Appeal Panel was satisfied that the Tribunal's exercise of power was appropriate in the particular circumstances of the case. The appeal was dismissed.

44 At some time in 2000 the applicant made an application from a refusal of an agency to amend its records pursuant to s 43 of the Freedom of Information Act 1989 relating to the personal affairs of the applicant. The applicant had sought to have the words "currently unfit for work and" removed or obliterated from the medical opinion in his "HealthQuest" file and by adding various notations to that file explaining the deletion.

45 In Crewdson v Central Sydney Area Health Service [2000] NSWADT 184, a decision handed down on 12 December 2000, Judicial Member Robinson ordered that "The words "currently unfit for work and" should be removed or obliterated from the original and from any copy of the Interim Report dated 29 October 1997 held or contained in the respondent's records". 46 The Central Sydney Area Health Service appealed the decision of Judicial Member Robinson: Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 revised 14/02/02. In its decision of 28 December 2001, the Appeal Panel upheld the appeal. The grounds of appeal were as follows:

1. The Tribunal erred in law in taking irrelevant considerations into account in determining whether the impugned passage was 'incomplete, incorrect, out of date or misleading' within the meaning of s 44(a) of the FOI Act. 2. The Tribunal erred in law in failing to take into account relevant considerations in determining whether the impugned passage was 'incomplete, incorrect, out of date or misleading' within the meaning of s 44(a) of the FOI Act. 3. The Tribunal erred in law in its interpretation and application of s 44(a) of the FOI Act 4. The Tribunal erred in law in misapplying the test in RR v Department of Army (1980) 482 F Supp 770 ; and 5. In the alternative that the Appeal Panel does find that the impugned passage was 'incomplete, incorrect, out of date or misleading' within the meaning of s 44(a) of the FOI Act, then the Tribunal erred in law in the method of amendment to the record that it ordered. 47 The Appeal Panel held that the first four grounds of appeal had been made out. It is to be noted that the appeal was based on a number of alleged errors of law in the reasons for decision. The CSAHS did not seek leave for the appeal to extend to the merits of the decision.

48 With the decision of the Appeal Panel in Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5, the way was cleared for the respondents to press their notice of motion seeking to have the applicant's application for declarations dismissed and/or struck out insofar as it relates to any claim for declaratory orders or relief against the second respondent.

49 The grounds upon which the respondents rely in support of their notice of motion are:

1. The applicant is barred from commencing or continuing these proceedings pursuant to a deed of release executed by the applicant on 6 October 1998. 2) The application is an abuse of process. 3) The orders sought by the applicant are not declarations of existing rights and so are outside the compass of s 154 of the Industrial Relations Act. 4) The Commission does not have jurisdiction to make the declarations sought against the second respondent because the second respondent at all relevant times was not the employer of the applicant.

50 Mr Moses tendered a bundle of documents into evidence. These consisted of: 1) Documents relating to complaints filed by the applicant in the Equal Opportunity Tribunal (Complaint Nos 58 and 67 of 1998). 2) Deed of Release signed by the applicant on 6 October 1998. 3) Documents relating to a complaint in the Administrative Decisions Tribunal against Raoul Salpeter, Helia Gapper, Carmel Niland and Teresa Anderson. 4) Transcript of hearing before Administrative Decisions Tribunal (EOD) on 1May 2001 in Matter No 1051 of 2001. 5) Interlocutory appeal by applicant in the Administrative Decisions Tribunal Appeal Panel heard on 22 May 2001. 6) Transcript of proceedings before Administrative Decisions Tribunal Appeal Panel on 22 May 2001. 7) Transcript of hearing before Administrative Decisions Tribunal (EOD) on 23May 2001 in Matter No 1051 of 2001. 8) Notice of appeal filed by applicant in the Administrative Decisions Tribunal on 15 June 2001, listed for hearing on 17 August 2001. 9) Application for relief under s 213 of the Industrial Relations Act filed by the applicant on 23 April 2001. 10) Letter from Anti-Discrimination Board dated 22 November 2000 to Department of Community Services concerning complaints of victimisation and disability discrimination by the applicant.

51 Mr Moses also tendered a copy of the decision of the Administrative Decisions Tribunal Appeal Panel in Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 given on 4 March 2002 and a copy of an authority for the applicant's brother to act as his advocate in respect of all employment related matters.

52 Mr Moses made oral submissions in support of the notice of motion on 18 and 19 March 2002. The applicant was unable to conclude his submissions and so arrangements were made for the Court to receive written submissions from the applicant and a written address in reply from the respondent. The applicant's written submissions were received on 1 May 2002. The respondents' submissions in reply were due 7 days after the applicant's had been served on them.

53 The respondents' submissions were not received by 8 May and the respondents made no application for an extension of time. Having not received any submission, the Crown Solicitor's Office was contacted by my Associate on 15 May 2002 and consequently, the Crown Solicitor sought an extension of a further week, which was granted. The week elapsed but there was no communication from the Crown Solicitor's Office. Contact was made with counsel for the respondents and a further extension was granted but again there was a failure to comply with the time for filing the address in reply. Accordingly, on 27 May 2002 the respondents were called upon to show cause why the notice of motion should not be dismissed pursuant to r 146 of the Industrial Relations Commission Rules. Ms E Brus of counsel appeared for the respondent. Ms Brus expressed the respondents' profound apologies to the Court and explained that one of the primary reasons for the delay was a family tragedy affecting Mr Moses. I accept that it would have been a very difficult period for counsel but it leaves unexplained why the Crown Solicitor's Office did not fulfil its obligation to the Court in the first place to advise it of any delay and to make application for any necessary extension of time to file and serve the address in reply. This was especially important given that in the event that the respondents' notice of motion were to be dismissed, the applicant's application is listed for hearing on 15-19 July 2002. It would have been obvious that the Court needed sufficient time to consider the parties' submissions, issue a judgment and, if necessary, issue directions in relation to proceedings due to commence on 15 July 2002.

54 I have decided that, in the circumstances, it is in everyone's interest that I proceed to deal with the notice of motion in the conventional way and to provide full reasons for my decision. I therefore, do not propose to dismiss the notice of motion under r 146.

55 The applicant represented himself during the proceedings, which seems to have been the case from the very beginning of this unfortunate saga. Although an unrepresented litigant, the applicant was very well equipped as far as his knowledge of the law and procedure is concerned. Nevertheless, Mr Moses conducted himself as though the applicant was an unrepresented litigant and there is no basis whatsoever for considering that the applicant was in any way disadvantaged because he was not represented. 56 The applicant provided written submissions of 49 closely typed pages. These were filed on 1 May 2002. In addition to his oral evidence the applicant put into evidence the following: · Statement of the applicant before the Administrative Decisions Tribunal in Appeal Panel File No 019022 and 019028, filed on 17 September 2001. · Notice filed with the President of the Administrative Decisions Tribunal by the applicant seeking an indefinite adjournment of all current proceedings before the Tribunal dated 14 May 2001. · Affidavit in support of notice of motion in Matter No IRC 3140 of 2001 filed by the applicant on 17 July 2001. · Notice to Admit Facts in Matter No IRC 3140 of 2001 filed by the applicant on 6 August 2001 and Notice Disputing Facts filed by the respondents on 27 September 2001. · Notice to Admit Facts in Matter No IRC 3140 of 2001 filed by the applicant on 2 November 2001 and Notice Disputing Facts filed by the respondents on 16 November 2001. · Bundle of documents relating to payments made to the applicant by the first respondent, extracts from Delegation Manual and Financial Procedures Manual of Department of Community Services. · Notice to Produce filed by the applicant on 11 December 2001. · Extract from Health Care Complaints Commission Annual Report 1999/2000. · Letter from Mr Gifford of ICAC to the applicant dated 20 August 1998 regarding complaints by the applicant against HealthQuest. · Extract from report of Wood Royal Commission. · Letter from Mr K Gabb, Practice Manager for the Crown Solicitor dated 10 November 1999 regarding the applicant's complaint against Mr Salpeter and Ms Anderson. · Affidavit in support of notice of motion filed by the applicant on 10 December 2001. · Document produced by Premier's Department - Memorandum No. 2001-11. · Letter from Health Care Complaints Commission to the applicant dated 18 September 1999 concerning the applicant's complaints against Health Quest. 57 The applicant's line of argument and submissions were very difficult to follow. Nevertheless, I consider that the main elements of the applicant's case may be summarised as follows: 1) The respondents pressed two grounds in support of their notice of motion, namely: (i) that the deed of release signed between the parties in 1998 acted as a complete bar to the proceedings, and; (ii) there existed an Anshun estoppel that also acted as a bar to proceedings before the Commission in Court Session. 2) The objections raised by the respondents in their notice of motion should be stood over to the substantive hearing: Nagle v Tilburg (1983) 51 IR 5; Davies v Amalgamated TV Services (1998) 81 IR 362; Reich v Client Server Professionals of Australia Pty Ltd (2000) 90 IR 69. 3) As to the deed being a bar to the proceedings, that cannot be so for the following reasons: a. The applicant agreed to and signed the deed under duress. The respondent is, therefore, estopped from relying upon the release; b. The operative release provisions of the deed should be restrained to matters in dispute that the deed recites. The recitals in the deed refer only to the complaints lodged with the Anti-Discrimination Board and the reference of those complaints to the Equal Opportunity Tribunal, which were Matters EOT 58 and 67 of 1998. The release provisions of the deed provide for the payment of a sum to the applicant in settlement of all the proceedings before the Equal Opportunity Tribunal, that is matters 58 and 67 of 1998. The release provisions do not extend to any other proceedings, including proceedings for declaratory orders under s 154 of the Industrial Relations Act. The respondents have the burden of proof. The respondents have not adduced any evidence to show that bargaining away the applicant's right to seek relief under s 154 of the Industrial Relations Act was in contemplation of the parties when negotiating and executing the deed. c. Provision 1 of the deed states "The State of New South Wales undertakes to pay to Mr Crewdson the sum of $22,000 in settlement of all of the proceedings before the Tribunal and the gross monetary value less tax of the recreation leave and extended leave due to him as at 2 October 1998, being a net payment of $3,354.86 …" The applicant had sought as part of the terms of settlement, $25,000 as non-wage damages for unlawful conduct under the Anti-Discrimination Act . Therefore, $25,000 of the money paid to the applicant under provision 1 of the deed is for non-wage damages, it being "in settlement of all of the proceedings before the [Equal Opportunity] Tribunal". Consequently, the applicant has not been paid remuneration and entitlements owing to him since his unlawful removal from duty on or after 29 October 1997. Provision 1 of the deed is void for non-compliance with s 121 of the Industrial Relations Act to the extent that it purports to pay the applicant remuneration. 4) As to the Anshun principle, it does not apply because: a. The issues in Matter Nos 58 and 67 of 1998 before the Equal Opportunity Tribunal concerned complaints under ss 49, 50 and 52 of the Anti-Discrimination Act. The issue before the Administrative Decisions Tribunal in Matter No 011015 of 2001 ( Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5) concerned a complaint under s 50 of the Anti-Discrimination Act. The issue before the Commission in Court Session is an application for declaratory relief on the grounds that the respondents made a series of decisions and took certain actions in relation to the applicant's employment that were invalid under the Public Sector Management Act. The Equal Opportunity Tribunal and the Administrative Decisions Tribunal had no jurisdiction to hear and determine an application for declaratory relief on grounds relating to the validity of decisions taken by public servants under the Public Sector Management Act . b. There was no judicial determination of the complaints in Matter Nos 58 and 67 of 1998. The complaints were dismissed on an improper basis, namely on the basis that the Tribunal believed the deed of release had been validly made when in fact it had been made under duress. c. The complaints in Matter No 011015 of 2001 were dismissed for want of prosecution. No determination was made of the merits of the applicant's complaints. The dismissal of an action for want of prosecution is not a bar to the commencement of fresh proceedings based on the same cause of action. 5) As to the applicant's application for an order for judgment on admissions, the applicant submitted that:

a. The respondents have made the following admissions: i. The applicant did not submit a written resignation from his employment on or prior or after 2 October 1998. ii. The payment of monies under the deed signed in October 1998 was from the first respondent's legal payout account and did not constitute an authorised payment of any remuneration to the applicant. iii. The applicant was a satisfactory employee throughout the whole of the relevant period and there was no conduct or service issue that warranted the termination of his employment. iv. None of the decisions of officers of the first respondent directing the applicant to attend HealthQuest, suspending him from duty placing him on sick leave and then suspending him without pay were authorised by written delegations from the Director-General of the first respondent pursuant to s 12 of the Public Sector Management Act. v. Neither Dr Jagger nor Dr Roberts at HealthQuest were authorised by delegation from the Government Medical Officer to conduct assessments under cl 17 of the Public Sector Management (General) Regulation 1996. vi. Dr Gapper had not been legally appointed under the Public Sector Management (General) Regulation to conduct assessments or perform functions as the Government Medical Officer. vii. All decisions made by officers of the first respondent and HealthQuest referring the applicant to HealthQuest and removing him from duty were based on highly adverse claims that the applicant was given no opportunity to hear or answer. b. Even if it is not accepted that the above admissions were made by the respondents, the orders sought in the application for declaratory relief should, nevertheless, be granted for the following reasons: i. The evidence is that the applicant had not resigned from his employment with the first respondent and was therefore entitled to order 1(a) in his application for declaratory orders. ii. Section 37 of the Public Sector Management Act requires an officer to resign in writing and a resignation may only be accepted by the Department Head if it is in writing and signed and delivered to the Department Head or that person's delegate. The applicant signed the deed on 6 October 1998. The deed required him to backdate his resignation to 2 October 1998 (something the applicant has never done). The requirement in the deed to backdate a resignation was inconsistent with the provisions of s 37 of the Public Sector Management Act. Ms Niland, as Department Head of the first respondent and a signatory to the deed, did not have authority to agree to a procedure that was at variance with s 37 of the Public Sector Management Act. The deed is, therefore, void. The applicant is entitled to order 1(e) in his application for declaratory orders. iii. The evidence is that applicant has not been paid all of the remuneration to which he is entitled since being unlawfully removed from duty on or about 29 October 1997. The applicant is entitled to orders 1(f), (g) and (h) in his application for declaratory orders. iv. The decisions and actions of the two DOCS officers (Ms Pitchford and Ms Bratt) arranging an appointment and directing the applicant to attend at HealthQuest were not made by delegation of authority in writing from the Director-General of DOCS as required by s 12 of the Public Sector Management Act . The applicant was denied procedural fairness/natural justice. The applicant is entitled to order 1(b) in his application for declaratory orders. v. The person purporting to be the Government Medical Officer at the relevant time (Dr Helia Gapper) was never appointed as such in accordance with the provisions of the Public Sector Management (General) Regulation. Even if it could be said Dr Gapper was validly appointed there was no written delegation of authority from Dr Gapper to Dr Helen Jagger or Dr Roberts for either of those two medical practitioners to exercise functions under the Regulation. The applicant was denied procedural fairness/natural justice. The applicant is entitled to order 1(c) in his application for declaratory orders. vi. There was no valid direction given to the applicant on or after 29 October 1997 directing the applicant to cease or not resume duty and no valid decision placing him on sick leave for three months. There was no valid decision subsequently taken to pay to the applicant his accrued annual leave and no valid decision suspending him without pay. The applicant was denied procedural fairness/natural justice. The applicant is entitled to order 1(d) in his application for declaratory orders. 6) The applicant made a number of additional submissions regarding the deed. These were as follows: a. Matter Nos 58 and 67 of 1998 (before the Equal Opportunity Tribunal) were not dismissed on the basis of the deed of release but rather on the basis that the applicant had apologised to the respondents and retracted his complaints. In stating in their notice of motion filed on 14 June 2001 that dismissal had occurred on the basis of a deed of release, the respondents had misled the Court. b. The applicant had not agreed to have Annexure B to the deed read to the Tribunal. The Tribunal was, therefore, misled into believing that there was an agreement on the applicant's part to have Annexure B read to the Tribunal. c. Annexure B is factually incorrect and misleading in representing that: the applicant had resigned from his employment on 2 October 1998, and; the applicant had retracted allegations as a result of discussions with the respondents prior to his purported resignation. Annexure B is also misleading because it implies that the respondents had presented to the applicant material that persuaded him that his complaints were unmeritorious. d. The respondents have acted inconsistently. On the one hand they have argued that the applicant was of sound mind when he signed the deed but on the other hand have sought to defend their actions in referring the applicant to HealthQuest and suspending him without pay because he was mentally incapacitated. e. Because Annexure B was incorrect and misleading, indeed, fraudulent, it tainted the deed and rendered it illegal and void ab initio . The applicant, however, did not enter the deed freely as he was under duress. In this respect, it was improper and unconscionable for the respondents to have taken advantage of the applicant's desperate financial situation and emotional stress. 7) The applicant submitted that from 22 June 1997, by virtue of him raising complaints about the treatment of clients in his Group Home, the provisions of s 117 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 ("CAM Act") applied. It was submitted that employees of the first respondent had breached the provisions of s 117 of that Act by taking or threatening to take detrimental action against the applicant. 8) The applicant claimed that the decision by the first respondent to suspend him without pay and the decision to require him to resign were taken substantially in reprisal for making protected disclosures (his complaints about mistreatment of clients) within the meaning of the Protected Disclosures Act 1994 ("PD Act"). Further, because of the operation of s 21(1) of the PD Act the claims and demands imposed by the Provisions 5 and 12 of the deed requiring the applicant to withdraw from or cease to make protected disclosures are without legal effect. Further, in imposing a requirement on the applicant to resign, Provision 4 of the deed imposes a liability on the applicant as a result of making protected disclosures and is, therefore, invalid under s 21 of the PD Act. Further, under s 24 of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act"), the applicant has a substantive right of appeal against the decision of the first respondent to direct the applicant to resign on the ground that the decision was made substantially in reprisal for making a protected disclosure. Further, by operation of s 405 of the Industrial Relations Act any order by the Commission in Court Session inconsistent with this right of appeal has no effect. In other words, if the Court were to make the orders sought by the respondents, such orders would have no effect in respect of the applicant's right of appeal under the GREAT Act. 9) The applicant seeks orders and directions under r 84 of the Industrial Relations Commission Rules requiring the respondents to reveal further information relating to their decisions and actions in respect of him. 10) The applicant seeks to have resolved the issue of the amount of remuneration owed to him from 29 October 1997. 11) The applicant wishes to press for the production of documents in respect of which the respondents claim privilege.

58 The respondents have submitted that the Commission in Court Session may not grant declarations on matters that are outside the Commission's "general jurisdiction" and further that "the Applicant has not identified any cause of action against either respondent in respect of which the Commission is invested with jurisdiction." The respondents submitted that "It follows the Commission cannot grant the declaratory relief sought against either respondent."

59 Section 154 of the Industrial Relations Act provides that: 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. 60 In Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at pp 126-127 a Full Bench of the Commission in Court Session dealt with the Commission's declaratory jurisdiction: The declaratory jurisdiction arises "in relation to a matter" in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s.154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings. In this case a controversy exists between the parties as to whether, after the depot was re-located, company removalists were entitled to the benefits of the award rather than those provided by the Enterprise Agreement. The Commission has jurisdiction in relation to that matter. Such jurisdiction may be invoked under various provisions of the 1996 Act, see for example ss. 364, 365 and Division 2 of Sch.4 and s.380. It follows that the Commission in Court Session is empowered to grant declaratory relief of the nature of that sought in these proceedings. 61 In Ford v SAS Trustee Corporation (2000) 98 IR 444 at 450-451 Hungerford J also dealt with the Commission's declaratory jurisdiction: 9 Given the general power of the Court to make a binding declaration of right under s 154 of the Industrial Relations Act , subject to it being in relation to a matter in which there is jurisdiction and as to which I will return, the present approach adopted in terms of principle to the grant of a declaration was stated in the following way by Gibbs J, as he then was, in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438: It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." I will so approach the present matter.

62 In "A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194 Hungerford J again considered the Commission's jurisdiction to make declaratory orders: 8 The respondents initially took the position that the Court did not have jurisdiction to make the declaration sought. However, at the hearing they conceded that indeed jurisdiction did exist. I think the concession was properly made: see Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at pp 126-127; Re Glass Workers' Redundancy (State) Award [1998] NSWIRComm 297; and Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch (1998) 89 IR 391. In Ford v SAS Trustee Corporation (2000) 98 IR 444, I had occasion to make a declaration as to a person's rights under the Police Regulation (Superannuation) Act 1906 in relation to his entitlement to certain leave and, as to the existence of jurisdiction, observed (at p 476): The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it.

9 In the present case, the Commission has power to make an order under s 9 of the Child Protection (Prohibited Employment) Act declaring that that Act is not to apply to a particular person who is a prohibited person; central to that determination is the status as such of the person concerned. The declaration sought here from the Court, in my view, relevantly relates to a matter within the Commission's jurisdiction, namely, the matter of the making of an order under s 9 in relation to the applicant as a person alleged to be a prohibited person. It follows, I am satisfied, that the Court has power to make the declaration sought under s 154 of the Industrial Relations Act as to whether the applicant is a prohibited person.

63 In this case a real controversy exists between the parties in respect of: (i) the applicant's employment status. Is he in employment with the first respondent or not? (ii) the applicant's treatment by the first and second respondents whilst he was unquestionably in employment with the first respondent in referring him to the Government Medical Officer for assessment, in declaring him unfit for work and, in suspending him without pay and whether the respondent's actions and decisions in this respect were authorised and therefore consistent with the relevant, prevailing legislation; (iii) the deed of release signed by the applicant on 6 October 1998 and whether that deed, which is directly relevant to the applicant's employment, was properly and validly made; and (iv) the applicant's entitlement to salary and other benefits under his contract of employment and if he is so entitled that he be granted such benefits.

64 It is evident from the terms of s 154 of the Act that it is not necessary that a claim for a declaratory relief be based on a cause of action. The applicant has not identified a cause of action but I consider, nevertheless, the Court has jurisdiction in relation to the matter. Such jurisdiction may be invoked under various provisions of the Act including Pts 1 and 2 of Ch 3 (industrial disputes), Pt 6 - Unfair Dismissals of Ch 2 or Div 2 of Pt 9 of Ch 2 (unfair contracts), ss 210, 213 (victimisation) and Pt 2 of Ch 7 (recovery of remuneration).

65 The first of the declaratory orders sought by the applicant, order 1(a), seeks a declaration as to the applicant's continuing employment with the first respondent. The respondents have submitted that notwithstanding the applicant's undertaking in the deed to resign, the applicant now seeks to rely on his own breach of the deed, and in particular cll 4 and 11, in order to maintain that his resignation was not effected according to s 37 of the Public Sector Management Act and is, therefore, invalid. The respondents contend this is untenable. Whether or not it is untenable might be a relevant matter to consider in relation to the merits of the claim for declaratory relief but it is not a basis to contend the Commission does not have jurisdiction to make order 1(a). It seems to me that if I were to exercise the Commission's declaratory jurisdiction in respect of order 1(a) it would have some determinative effect upon the dispute between the parties as to the applicant's employment status and in that respect may relate to a matter within the Commission's jurisdiction, that is, either the provisions dealing with industrial disputes or the unfair dismissal or unfair contracts provisions of the Act.

66 Orders 1(b), (c) and (d) go to the applicant's treatment by the respondents during his employment with the first respondent. The respondents contend that in respect of these orders the applicant has mounted a challenge to the validity of decisions of officers of the respondents or consultants engaged by the respondents. It was submitted that questions of administrative review, including questions as to the validity of decision-making within the respondents' organisations, are not matters that fall within the jurisdiction of the Commission. As Hungerford J said in Ford: A declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it.

67 The declarations sought in orders 1(b), (c) and (d) in my view, may relevantly relate to a matter within the Commission's jurisdiction, namely, the matter of the making of orders under s 89 or s 213 or under s 106(1) of the Act. It may be entirely relevant, for example, in considering whether a contract or arrangement is unfair to consider whether decisions taken to suspend an employee or to declare the employee unfit for work were validly made. Further, nothing has been put to me that the making of orders 1(b), (c) or (d) would be inconsistent with any other statute, including the Public Sector Management Act or Public Sector Management (General) Regulation and thereby deprive the Commission of jurisdiction. In this respect, it is to be noted that s 95 of the Public Sector Management Act provides that nothing in that Act affects certain specified legislation, including the Industrial Relations Act 1996 and s 102(4) provides that the Regulations are not able to alter or vary any duty required to be performed under any other Act. Further, as the applicant contended, the Commission has well established jurisdiction to deal with matters relating to employment rights and entitlements under the Public Sector Management Act including by way of declaratory relief: see for example Public Service Association of New South Wales v Public Service Board of New South Wales (1985) 12 IR 99; Public Employment Industrial Relations Authority v Public Service Association of New South Wales (Re Scorzelli & Ors) (1993) 49 IR 169.

68 The declaration sought in order 1(e) is to the effect that the deed of release signed by the applicant on 6 October 1998 is void, invalid and of no effect. The respondents do not appear to contend specifically that the Commission has no jurisdiction to make order 1(e). Instead, it was contended that the deed is clear in its terms and no question of construction arises suitable for declaratory orders.

69 It is clear from David Jones Ltd v Cukeric (1997) 78 IR 430 that the Commission in Court Session cannot be deprived of its jurisdiction by the making of a deed of release. In this respect, the Full Bench (Hill, Hungerford and Schmidt JJ) in Cukeric said at 455: The release was raised by the Company as part of its defence to the claim advanced by Mr Cukeric, in relation to his arrangement with the Company. That arrangement was on its face one within the Court's jurisdiction under s275. The release was part of an agreement reached between the parties as to the terms on which their relationship would come to an end. Such an agreement cannot deprive the Court of its jurisdiction under s275 of the Act. (See Chrysler Jeep Automotive Distributors Australia Pty Limited -v- Canberra Star Motors Pty Limited and Ors (Full Bench, unreported, 19 November 1997) at p17.) Nevertheless, a release may well provide a good defence to an application under the unfair contracts provisions of the statute. Given the public interest in parties being held to the settlements reached in respect of litigation, the Court will not lightly ignore the terms of a release. However, in some circumstances, the Court will refuse to act in accordance with the terms of a release. Where the response of an applicant against whom a release is raised, is to submit that the respondent is estopped from relying upon the release because it was obtained by fraud or duress or misrepresentation, a serious question is raised which the Court must consider and determine. Such an argument requires consideration of the relevant rules of law. (See Qantas Airways Ltd -v- Gubbons (sic) and Others (1992) 28 NSWLR 26.)

70 The declaration sought in order 1(e) may relevantly relate to a matter within the Commission's jurisdiction, for example, the matter of the making of an order under s 106(1).

71 The declaration sought in order 1(f) was to the effect that the terms of the deed purporting to pay remuneration to the applicant less than that to which he was entitled under the relevant industrial instrument and industrial legislation are void, invalid and of no effect. The respondents submitted that "to the extent that Item 1(f) may be alleging that the amounts paid purport to conform with the relevant industrial instruments but do not do so, the declaration sought appears pointless in the absence of a consequential order for the payment of money." The matter of consequential relief is an issue that the applicant will have to consider: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, but it would be premature to dismiss the applicant's application on the basis that it was not clear what might be the form of consequential relief.

72 The declaration sought in order 1(g) was to the effect that the applicant "be entitled to be paid all emoluments pertaining to his position as a full time residential care assistant employed with the first respondent together with interest thereon and to retain all leave and other entitlements together with interest thereon." The respondents contended that order 1(g) seeks an order for the payment of money, not a declaration of rights. Whilst the wording of the order may be inelegant it seems to me that what the applicant seeks is a declaration of right as to his entitlements under his contract of employment and/or any relevant industrial instrument or statute for the whole of his period of employment, which he contends has been uninterrupted since 1990 when he first commenced employment with the first respondent. I consider I have jurisdiction to make a declaration to that effect because it may relevantly relate to a matter within the Commission's jurisdiction, for example, the matter of the making of an order under Pt 2 of Ch 7 of the Act (recovery of remuneration).

73 Order 1(h) states "That with respect to any moneys otherwise earned by the applicant since 29 October 1997 that allowance be made in that sum." Order 1(h) does not appear to me to be an order seeking a declaration of right. I do not consider it is an order open to me to make under s 154 of the Act.

74 In their notice of motion the respondents referred to other proceedings before the Commission under s 213 of the Act and contended that the relief sought in those proceedings was inconsistent with the relief sought in the proceedings before me. I note that the respondents did not elaborate on these contentions. In any event, I understand the proceedings under s 213 are stayed pending the outcome of these proceedings.

75 Section 90 of the Industrial Relations Act provides: 90. Effect of availability of other remedies The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.

76 There is no claim by the applicant for relief under s 89 of the Industrial Relations Act and therefore s 90 has no application.

77 Section 169 of the Industrial Relations Act provides: 169. Anti-discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977 . (2) An issue that is the subject of proceedings before the Administrative Decisions Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 may not be the subject of proceedings before the Commission without the leave of the Commission. (3) The Commission may admit in proceedings before it evidence given before, or findings made by, the Tribunal in relation to a matter arising under the Anti-Discrimination Act 1977 . This subsection does not prevent the admission of any other evidence in the proceedings that contradicts any such evidence or finding. (4) An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation: (a) may be made by a party to the instrument, and (b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission. (5) This section does not apply to criminal proceedings before the Commission in Court Session. 78 I note, in particular the provisions of s 169(2) of the Act. In so far as I am aware, there are no relevant proceedings before the Administrative Decisions Tribunal. In any event, even if there were it will be seen from the discussion in this judgment relating to estoppel that there is no common issue in proceedings before the Administrative Decisions Tribunal and proceedings before this Court. Abuse of process

79 It appears that under this head of argument the respondents, in their submission in reply, were contending three bases upon which the applicant's application ought be dismissed: 1) Issue estoppel. 2) Abuse of process. 3) Anshun estoppel. 80 In their submissions in chief, however, the respondents focused almost exclusively on Anshun estoppel as the basis for dismissing the application. The first time issue estoppel was raised as a separate basis upon which it was contended I should dismiss the application was in the respondents' address in reply. The applicant has not had the opportunity to address on this point. I am, therefore, not prepared to countenance the contention that issue estoppel is a basis upon which to dismiss the applicant's application but even if I were, I consider that it is not a basis upon which I should dismiss the application.

81 As to abuse of process, I do not consider that the applicant's application is vexatious or oppressive against the respondents for the reason I have expressed below in the context of the application of the Anshun principle.

82 As to Anshun estoppel, the respondents have submitted that: The issues in question in the application filed in these proceedings are so clearly part of the subject matter of the initial litigation between the parties in matters 58 and 67 of 1998 before the Equal Opportunity Tribunal of NSW and so clearly could have been raised in matters 58 and 67 of 1998 (including any attempt to set aside the Deed of Release and accordingly, continue with the complaints) that it would be an abuse of process to allow these new proceedings: see for example Port of Melbourne Authority v Anshun (1981) 147 CLR 589.

83 Anshun estoppel prevents the relitigation of an issue where this would be an abuse of process. The principle arises out of the High Court's judgment in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589.

84 In Port of Melbourne Authority v Anshun Pty Limited, the owner and the hirer of a crane were both successfully sued for damages by an injured worker. The owner then sought to bring an action against the hirer, claiming that it had agreed to indemnify it against any actions. The owner had not raised the indemnity as an issue in the first trial. The trial judge ordered that the owner could not bring the action claiming the indemnity against the hirer, as this issue should have been raised in the original action. The decision to stay the action was upheld by the High Court. 85 The propositions for which Anshun is authority are contained in the majority judgment of Gibbs CJ, Mason and Aickin JJ.

86 The majority made it clear that this was not a case of res judicata, as the indemnity cause of action had not been litigated in the first action. For similar reasons, it was not a case of issue estoppel (at 597-598).

87 The majority held that the critical issue was whether the case was within the "extended principle" expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 319: where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. 88 The majority considered that, in applying the extended principle, the proper approach was that (at 602-603; emphasis added): In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it . Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. 89 The majority stated at 603-604 that: The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction. 90 The majority applied the principles set out above in concluding that the stay was properly granted (at 604): The matter now sought to be raised by the Authority was a defence to Anshun 's claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun . The third party procedures were introduced to enable this to be done. If successful, the indemnity case would have obviated an inquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgment. 91 The Full Federal Court considered the operation of Anshun in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287. The Court (at 297) approved and adopted the statement of principle set out by Priestley JA (with Meagher and Hope JA agreeing) in Rahme v Commonwealth Bank of Australia (unreported, NSW Court of Appeal, 20 December 1991): In Rahme v Commonwealth Bank of Australia (20 December 1991, not reported) the New South Wales Court of Appeal had to consider the application of Anshun in a case that was the converse of the present. The appellants, Mr and Mrs Rahme, had previously brought an action in this Court claiming damages in relation to arrangements for a foreign currency loan. They relied on an assortment of causes of action including negligent advice, breach of a contractual duty of care, contravention of the Trade Practices Act 1974, fraud and breach of fiduciary duty. The action failed. They then instituted a second action, in the Supreme Court of New South Wales, in which they claimed relief under the Contracts Review Act 1980 (NSW). The bank pleaded the Anshun principle. This plea was determined, favourably to the bank, as a preliminary point. In dismissing the appeal, Priestley JA, with whom Meagher JA and Hope A-JA agreed, analysed Anshun to be authority for the following propositions: "1, that Wigram VC's extended principle as stated in Henderson is accepted as good law by the High Court; 2, that that principle applies, inter alia, to category (3) cases, that is to a proceeding in which a party is asserting a cause of action which could have been raised, but was not, in a previous proceeding in which the same party was asserting a different cause of action based on substantially the same facts against the same party as the second proceeding is being brought; and 3, that the extended principle of Henderson will be applied to the second proceeding when it was unreasonable for the party asserting the cause of action in that second proceeding to refrain from raising it in the earlier proceeding against the same opponent party." Priestley JA said that the relevant question was: "whether the claim sought to be raised in the Supreme Court under the Contracts Review Act (a) could have been raised in the Federal Court proceedings and (b) raised matters so clearly part of the subject matter of the Federal Court proceedings that it was unreasonable on the part of the appellants not to have raised that claim in those proceedings." He said that question (b) should not be answered by reference to any verbal formula. He accepted a submission that the Court should ask itself "was it unreasonable of the appellants to have refrained from raising the claims now made in the proceedings before the Federal Court?" Answering this question in the affirmative, it followed that the appeal failed. It seems to us that the approach taken in Rahme should be followed in this Court. It is not inconsistent with anything stated in Anshun ; indeed it is consonant with the High Court's placing emphasis on looking at the substance of the issue sought to be raised in the later case, rather than on its form. Whether the claim sought to be raised in the Supreme Court under the Contracts Review Act (a) could have been raised in the Federal Court proceedings and (b) raised matters so clearly part of the subject matter of the Federal Court proceedings that it was unreasonable on the part of the appellants not to have raised that claim in those proceedings. 92 Madgwick J in Stuart v Sanderson (2000) 175 ALR 681 sets out a comprehensive analysis and discussion of the Anshun case. (See especially at 686-689). At 686 his Honour said: The [ Anshun ] principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes ( Bryant at 298, and Trawl Industries v Effem Foods (1992) 36 FCR 406 at 423 per Gummow J). It is also founded upon the need to avoid 'conflicting' judgments ( Anshun at 603 - 604), to ensure finality of litigation ( Anshun at 609, per Brennan, and Bryant at 299), to prevent parties from gaining an advantage in the use of the Court's time (Handley at 938) and, in the more global expression of Murphy J "to preserve the orderly administration of justice" ( Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes. 93 There are a number of suggestions in the authorities and secondary sources that the Anshun principle, at least to the extent that it adopts the "extended principle" in Henderson, should be applied with caution. In Cross on Evidence, 6th Australian Edition Heydon J notes that the principle in Henderson has been applied in Australia "with great caution" ([5170], p 181). In Rogers v The Queen (1994) 181 CLR 275, Deane and Gaudron JJ suggested (at 275) that the "extended principle" in Henderson, if it was a principle at all, was to be "treated with caution". See also Ling v Commonwealth (1996) 68 FCR 180 at 182; 139 ALR 159. Mr Moses, quite fairly and properly, referred the Court to the judgment of Master Malpass in Orbit Travel Services Pty Limited v The Australian Federation of Travel Agents Limited [2000] NSWSC 127 where it was said: 10 During the course of argument, I expressed my reservations as to the appropriateness of the procedures for summary relief where the defence was founded on Anshun . Whilst it will undoubtedly depend on the issues agitated by the parties, it seems to me that Anshun considerations may rarely lead to summary dismissal. Apart from the unclear state of the law, an Anshun defence may throw up a number of questions (including the question of "unreasonableness") which may not be appropriate for determination on a summary basis. The court may also have to form a view as to the result of a potential exercise of discretion. As these matters were not the subject of argument, I put them aside.

11 There is much uncertainty that surrounds Anshun . In Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 at p 355, it was said that the scope of Anshun remains a matter of some debate. More recently it has been said that one thing that is clear about Anshun is that there is much that is unclear (71 ALJ 934 at 942). In Macquarie Bank Limited v National Mutual Life Assurance of Australia Limited and Others (1996) 40 NSWLR 543 at p 558 Clarke JA (with whom Priestley JA agreed) observed that the appropriate order is a stay of proceedings and that the court retains a discretion not to grant a stay if special circumstances exist. The Privy Council in Yah Tung Investment Co Ltd v Dao Heng Bank Ltd (1975) AC 581 at p 590 appears to take the approach that "special circumstances" and "unreasonableness" were separate issues. A contrary view was taken by the Federal Court ( Ling v Commonwealth of Australia (1996) 139 ALR 159).

12 In this case, it is unnecessary to embark upon a detailed analysis of the various arguments agitated during submissions. There are questions pertaining to the issue of whether or not the claims in these proceedings should have been raised in the Equity proceedings. In the circumstances of this case, it is unnecessary to pursue these matters, because it seems to me that there are real questions as to whether or not it would have been unreasonable for them not to do so.

13 Questions such as "unreasonableness" involve a determination by the court made in the context of all the relevant circumstances . In my view, such a question is generally better left for determination at a trial. In a case such as the present one, where the evidence is relatively sparse, it falls short of demonstrating "unreasonableness".

94 The operation of the "special circumstances" exception to the Anshun principle was considered in detail by Madgwick J in Sanderson (at 687-690). His Honour concluded that the application of Anshun was discretionary, and that this discretion was to be exercised by considering whether it did not apply because of special circumstances. His Honour, therefore, stated the Anshun principle as requiring that: (at 689, par 31) where a party has behaved unreasonably in not raising a matter in the earlier proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances. 95 His Honour stated that: (at 689, par 32) There appear logically to be two broad considerations that might be relevant to the determination of whether special circumstances exist. First, circumstances may in some way account for the unreasonable conduct involved in not having pressed the matter in the earlier proceeding, so as to excuse it... Second, circumstances may mean that application of the Anshun rule would work such a degree of hardship or of injustice on a party as to justify the displacement of the prima facie rule. 96 The nature of the special circumstances exception was also discussed in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, especially at 298-299.

97 In Ling v Commonwealth, Wilcox J observed at 182: The principle applied by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 is designed to minimise the burden of litigation. It enables courts to ensure that parties put their whole case forward at one time, thereby eliminating duplication of effort and expense and reducing the opportunity for a party to harass a weaker opponent with repeated suits. However, these benefits come at a price. The result of a court applying the principle is to shut out a claim or defence that a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation. As the Judicial Committee of the Privy Council pointed out in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590, this is a serious step, a power not to be exercised except after a scrupulous examination of all of the circumstances". If the Anshun principle is too readily applied, there is a possibility of serious injustices.

98 It was also stated by Wilcox J in Ling v Commonwealth, at 184: The fundamental issue in the application of the Anshun principle is whether it was reasonable for the party bringing the second action to have failed to raise its subject in the first action. In Anshun at 602, Gibbs CJ, Mason and Aitkin JJ stated the relevant principle in these words: "... there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it." Although their Honours were dealing with failure to raise a defence, the concept of reasonableness has been applied to failure to raise a claim: see Priestley JA in Rahme v Commonwealth Bank of Australia (New South Wales Court of Appeal, 20 December 1991, not reported) which is discussed in Bryant at 297.

In considering reasonableness, as it seems to me, consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. They also include any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier. 99 Complaint Nos 58 and 67 of 1998 in the Equal Opportunity Tribunal were laid by the applicant against the Department of Community Services and various employees of DOCS as well as the successive Directors-General of DOCS (Ms Bauer and Ms Niland), various employees of HealthQuest and the Chairman of CSAHS. The complaints appeared to be made under Part 4A - Discrimination on the Ground of Disability and Part 5 - Other Unlawful Acts of the Anti-Discrimination Act. The relevant sections of the Anti-Discrimination Act appeared to have been ss 49A - 49D and ss 50 and 52. Section 50 provides that victimisation is an unlawful act. Section 52 provides that it is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of the Anti-Discrimination Act.

100 The allegations supporting the claim related, broadly speaking, to the applicant's treatment by other DOCS employees, his referral to HealthQuest, his treatment by doctors at HealthQuest and the failure of DOCS and relevant persons to investigate complaints by the applicant.

101 It is to be noted that the Equal Opportunity Tribunal and its successor, the Administrative Decisions Tribunal (Equal Opportunity Division), have no power to order declaratory relief under the Anti-Discrimination Act other than in accordance with s 113(1)(b)(iv). Section 113 of the Anti-Discrimination Act provides: 113. Order or other decision of the Tribunal

(1) After holding an inquiry, the Tribunal may: (a) dismiss the complaint the subject of that inquiry, or (b) find the complaint substantiated and do any one or more of the following: (i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or (v) decline to take any further action in the matter. (2) The power of the Tribunal to award damages to a complainant shall, in the case of a complaint lodged by a representative body, be taken to be a power to award damages to the person or persons on behalf of whom the complaint is lodged and not to include a power to award damages to the representative body.

(3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

(4) If 2 or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, the Tribunal must not make an order or orders for damages under this section that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act.

102 The applicant's application before this Court seeks declaratory relief in relation to his employment. That is, orders to the effect that he is still employed by the first respondent, that decisions taken as to his fitness for work are void and of no effect because of inconsistency with the requirements of the Public Sector Management Act and Public Sector Management (General) Regulation, that the deed of release is void and of no effect, that the applicant has not been paid his employment entitlements and that such entitlements remain owing to him. 103 Whilst it is the case that many of the facts underpinning the claims under the Anti-Discrimination Act and the application for declaratory relief are the same, it could not be said that: (a) the applicant could have raised his claims for declaratory relief in relation to his employment before the Equal Opportunity Tribunal; and, (b) that was it unreasonable of the applicant to have refrained from raising the claims now made in this Court before the Equal Opportunity Tribunal.

104 Amongst other considerations, the Anshun principle is founded upon the need to avoid 'conflicting' judgments (Anshun at 603 - 604) and to ensure finality of litigation (Anshun at 609, per Brennan, and Bryant at 299). It seems to me that the applicant could have pursued his discrimination claims to finality and still have been entitled to make his application for declaratory relief in this Court and there would have been no danger of conflicting judgments. Furthermore, at the time the applicant made his claims in Matter Nos 58 and 67 of 1998, there was no suggestion his employment had been terminated and so his status of employment and the issues raised in the application before me as to monies owing, were not in issue.

105 It may be contended, for example, in relation to orders 1(b), (c) and (d) in the application before me that in Matter Nos 58 and 67 of 1998 the applicant, in seeking relief under the Anti-Discrimination Act, alleged that he was victimised by virtue of the conduct of officers and consultants of the first respondent and doctors at HealthQuest and that the applicant is now relying on the same critical facts to support a claim for relief in the form of declaratory orders. However, my view of it is that in the Equal Opportunity Tribunal the applicant was alleging that the conduct of which he complained was in fact and in law victimisation whilst in the proceedings before me it is alleged that the decisions taken by the officers, consultants and doctors are void, invalid and of no effect because they are inconsistent with the Public Sector Management Act and Public Sector Management (General) Regulation.

106 As for the applicant's application for an order declaring the deed void or of no effect, the deed was not in existence at the time the applicant made his claims in Matter Nos 58 and 67 of 1998 and there was no claim in relation to it.

107 Even if it could be said that the applicant behaved unreasonably in not raising his later claims as claims in the proceedings before the Equal Opportunity Tribunal, there are special circumstances, in my opinion that forestall the application of Anshun. Firstly, the alleged facts underpinning the claims in Matter Nos 58 and 67 of 1998 were not subject to any consideration by the Tribunal. Secondly, Murrell J dismissed the claims, not on the basis claimed by the respondents in their notice of motion (that is, on the basis that a deed of release had been signed between the parties which had settled the complaints), but rather on the basis of a statement which was Annexure B to the deed having been read out to the Tribunal and regarded by the Tribunal as an "apology".

108 The applicant submitted that in signing the deed and Annexure B he did not consent, and did not authorise his brother to consent, to Annexure B being read out to the Tribunal in isolation from the deed. Nor did the applicant agree that Annexure B constituted an apology on his part. To the extent the Tribunal was not informed that the statement read to it on 6 November 1998 was an annexure to a deed of release not shown to the Tribunal and was not to be regarded as any form of public apology, it could be said that the Tribunal was misled. Further, the statement read to the Tribunal stated that the applicant had resigned on 2 October 1998. The applicant denies he has resigned and I have seen no evidence of such an occurrence. The applicant claims that there are other aspects of the statement read to the Tribunal on 6 November 1998 that are misleading, including the proposition that the applicant acknowledged that the respondents had not subjected him to victimisation and/or discrimination as a result of discussions between the parties. Moreover, the applicant submitted that the deed and Annexure B were signed under duress and without legal advice.

109 It seems to me that the presentation to the Tribunal on 6 November 1998 leading to the Tribunal dismissing the complaints was less than satisfactory. I am also concerned that the circumstances leading to the applicant signing the deed and Annexure B may make it unsafe to rely on the validity of those documents. Consequently, I consider that to apply the Anshun rule and dismiss the applicant's application in these proceedings would work an injustice on the applicant to a degree as to justify the displacement of the prima facie rule.

110 The respondents also rely on proceedings in Matter No 011015 of 2001 before the Administrative Decisions Tribunal as the basis for the application of Anshun. This was a complaint by the applicant under s 50 of the Anti-Discrimination Act that was ultimately dismissed for want of prosecution.

111 To the extent that the respondents rely on the dismissal of Matter No 011015 of 2001 for want of prosecution, such a dismissal is not a bar to the commencement of fresh proceedings: see National Mutual Life Association of Australasia Limited v Grosvenor Hill (Queensland) (Formerly Hillier, Parker (Queensland) Pty Limited) [2001] FCA 237 (13 March 2001) at par [8].

112 The application by the respondents to dismiss the applicant's application for declaratory relief on the basis of Anshun is refused.

113 The respondents have submitted the deed of release signed by the applicant on 6 October 1998 is a complete bar to the proceedings. The applicant says it is not because: (i) the release provisions of the deed do not extend to preventing the applicant pursuing orders under s 154 of the Industrial Relations Act in relation to his employment; (ii) the deed was made in circumstances where the unlawful actions and decisions of the respondents forced the applicant to agree to the deed under duress; (iii) the deed is illegal and void ab initio because it is based on a fraudulent arrangement; and, (iv) the deed is inconsistent with the provisions of the Protected Disclosures Act.

114 There is sufficient material available for me to seriously question whether the deed of release was validly made. The material of which I speak, and which I have earlier summarised, suggests the following: 1) At the time the applicant signed the deed he was under severe financial and emotional stress. 2) There is a serious question to be determined by the Court as to whether the respondents or their employees or agents acted unlawfully and unconscionably in obtaining the release from the applicant. 3) There is a serious question to be determined by the Court as to whether, in obtaining the release, the respondents, their employees or agents, acted consistently with statutory provisions governing such arrangements and whether the deed is consistent with statutory provisions governing the employment of the applicant. 115 In Virtue v New South Wales Department of Education and Training (1999) 92 IR 428, Wright J, President summarised the principles relating to the determination of an objection to jurisdiction at the interlocutory stage. Principle 6) was as follows: 6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. 116 I am not satisfied that I have the necessary material to reach a clear and final decision on the question of whether the deed was validly made. Indeed, it seems to me that, prima facie, it was not. Accordingly, I do not propose to summarily dismiss the applicant's application on the ground that the deed is a bar to the proceedings.

117 It was submitted by the respondents that the Commission does not have jurisdiction to make the declarations sought against the second respondent because the second respondent at all relevant times was not the employer of the applicant. Presumably, in putting this submission, the second respondent is seeking an order under r 82(g) of the Industrial Relations Commission Rules 1996 although it has not been done by way of notice of motion.

118 It may be that certain of the orders sought by the applicant (orders 1(a), (b), (g) and (h)) are not appropriate orders to be made against the second respondent. However, orders 1(c), (d), (e) and (f) relate to circumstances where the second respondent had a direct involvement. For example, the deed of release was signed by the Government Medical Officer, (Dr Gapper). The Commission in Court Session may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract (s 106(1)). "Contract" means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument (s 105). The deed of release may readily fall within the definition of contract: see David Jones Ltd v Cukeric and the second respondent may be a person against whom an order may be made under s 106: see Brown v Rezitis (1970) 127 CLR 157. I do not propose to dismiss the applicant's application in respect of the second respondent.

119 Rule 155 of the Industrial Relations Commission Rules provides that: 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.

155 (2) The Commission may exercise its powers under subrule (1) notwithstanding that other questions in the proceedings have not been determined.

120 Somewhat ironically, given that they have pressed for summary dismissal of the applicant's application, the respondents have submitted that the Court should not enter summary judgment on the question of admissions.

121 The applicant claims that on the basis of admissions made by the respondents, he is entitled to orders to the following effect: 1) That the applicant's employment was governed by the Public Sector Management Act and Public Sector Management (General) Regulation and certain industrial instruments . 2) That the applicant has not, at any time, submitted a written resignation resigning from his employment with the first respondent. 3) That the payment of monies under the deed of release signed by the applicant on 6 October 1998 did not constitute an authorised payment of remuneration owing to the applicant in accordance with the terms and conditions applying to his employment at the time. Further, that as the applicant is still in employment with the first respondent, that the applicant is owed all of his accrued benefits and entitlements from the date they were last paid or provided, up to the present date. 4) That the applicant was a satisfactory employee throughout the whole of his period of employment with the first respondent and that there was no issue relating to his conduct or service that would justify termination of his employment. 5) That the decisions by officers of the first respondent directing the applicant to attend at HealthQuest, suspending the applicant from duty, placing him on sick leave and suspending him from duty without pay, were not authorised by written delegations from the Director-General of the first respondent pursuant to s 12 of the Public Sector Management Act . 6) That neither Dr Jagger nor Dr Roberts of HealthQuest were authorised by delegation from the Government Medical officer to conduct assessments under cl 17 of the Public Sector Management (General) Regulation. 7) That Dr Gapper had not been appointed under the Public Sector Management (General) Regulation to conduct assessments or perform functions as the Government Medical Officer. 8) That in being removed from his duties, the applicant was not accorded procedural fairness. 122 I propose to deal with each of these contentions in turn. As to the first, that is, the applicability of the Public Sector Management Act, Public Sector Management (General) Regulation and certain industrial instruments to the applicant's employment, it seems apparent that the respondents have admitted this. These admissions are contained in the Respondents' notices disputing facts or the authenticity of documents filed on 27 September 2001 in response to the applicant's notices to admit facts. The relevant facts admitted are as follows: That on 7 September 1990 the applicant commenced employment with the NSW Department of Community Services. The applicant was employed at all relevant times in a full time permanent position as a Residential care Assistant. The applicant's place of work was at all relevant times 28 Fitzpatrick Street Eastwood Group Home. The applicant's primary duties involved the care and support of persons with intellectual and physical disabilities. The applicant's employment was at all times governed by the NSW Public Sector Management Act and (General) Regulation. The applicant's employment was also governed from 1994 onwards by the NSW Community Services Residential Care Staff and Others Enterprise Agreement 1994. The applicant's employment was also governed from 28 October 1997 by the Crown Employees (Conditions of Service) Award 1997.

123 The second contention was that the applicant has not, at any time, submitted a written resignation resigning from his employment with the first respondent. The following admissions have been made by the respondents: The applicant signed a deed on 6 October 1998 in Wellington New Zealand. The deed had been faxed to the applicant from the Crown Solicitor's Office on 6 October 1998. The applicant had not submitted any written resignation from his employment dated 2 October 1998. Neither the Director-General of DOCS nor any of her delegates had received on or prior to 2 October 1998 a written letter of resignation from the applicant. 124 It is clear that the respondents admit that the applicant did not submit a written resignation dated 2 October 1998. The respondents have not admitted that the applicant has not resigned from his employment. However, in an affidavit filed by the applicant on 10 December 2001 in support of a notice of motion seeking various orders and which was admitted into evidence in these proceedings without objection from the respondents, the applicant stated: I also state that at no time have I received notice from the Department of Community Services to state that a letter of resignation submitted by me had been accepted. I also state that at no time have I received any notice informing me that I have been dismissed from my employment or made redundant or that my employment has otherwise been terminated by action of my employer.

125 The third contention was that the payment of monies under the deed of release signed by the applicant on 6 October 1998 did not constitute an authorised payment of remuneration owing to the employee in accordance with the terms and conditions applying to his employment at the time. Further, that as the applicant is still in employment with the first respondent that the applicant is owed all of his accrued benefits and entitlements from the date they were last paid or provided, up to the present date.

126 The applicant referred to admissions made by the respondent in its notice of 27 September 2001 that on 15 October 1999 Ms A Smy, the payroll supervisor at the Blacktown office of DOCS, filled out an Employment Separation Certificate in respect of the applicant. On the Certificate Ms Smy gave as the reason for termination "see Deed of Settlement" and indicated that the final net payment to the applicant was "NIL". The Certificate also showed that in answer to the question "Did you pay or will you pay the person any unused leave entitlements on termination?" Ms Smy said "No". On 20 September 1999 Ms Smy wrote to the Australian Taxation Office ("ATO") indicating that an error had occurred in filling out the applicant's group certificate; the period covered should have been 1 July 1998 to 2 October 1998, not 1 July 1998 to 2 November 1998 as previously advised. The letter also indicated that the applicant's gross earnings for the period were $306. The applicant submitted that the figure of $306 submitted to the ATO was inconsistent with the figure of $3,354.86 referred to in the deed of release as having been paid to the applicant as a net payment for recreation leave and extended leave due to the applicant as at 2 October 1998.

127 The applicant submitted that, as it is an offence for anyone to fill out false and misleading information on an Employment Separation Form and an offence to mislead the ATO, having regard to the records completed by Ms Smy there has never been any payment of remuneration or any payment of monies on termination under the deed of release signed by the applicant on 6 October 1998. The applicant also submitted that: 1) The figure of $25,354.86 referred to in the deed of release was paid into the applicant's bank account on 6 November 1998 under the category "Legal Payout". Such a categorisation supported the applicant's contention that this amount represented non-wage damages and not remuneration, which would need to have been paid from a different account operated by DOCS. 2) Payment of remuneration to an employee must be in accordance with the provisions of the Industrial Relations Act , in particular, ss 117, 121 and 123 and cl 6 of the Industrial Relations (General) Regulation 1996. The applicant referred to his uncontradicted evidence in the proceedings that at no time had he ever received a notification of any termination of employment payment giving full and proper details of that payment including the amount of tax paid and at no time did he seek or apply for or authorise a payment of $3354.86 in respect of leave entitlements. Section 121 of the Industrial Relations Act provides that: (1) Payment of remuneration to an employee contrary to this Part is not to be considered payment or part payment of the remuneration except to the extent (if any) permitted by the Commission. (2) A provision of a contract that provides for payment of remuneration to the employee that is contrary to this Part is void. 128 The applicant's fourth contention was that he was a satisfactory employee throughout the whole of his period of employment with the first respondent and that there was no issue relating to his conduct or service that would justify termination of his employment.

129 The respondents have admitted that: In the statement read out to Murrell J in the Administrative Decisions Tribunal on 6 November 1998, DOCS acknowledged that the applicant had been a satisfactory employee. The applicant had been a satisfactory employee. On 15 October 1999 A Smy, payroll supervisor, Blacktown DOCS, filled out an Employment Separation Certificate in relation to the applicant. Ms Smy did not indicate any work performance problem or unsuitability for employment as a cause of the applicant's purported termination of employment on 2 October 1998. The reason given by DOCS on the Employment Separation Certificate for terminating the applicant's employment was "see deed of settlement". The deed records that the applicant was a satisfactory employee. 130 The applicant submitted that, as he was a satisfactory employee for the period 7 September 1990 to 2 October 1998, this was sufficient to show that there was no valid ground under cl 17 of the Public Sector Management (General) Regulation to direct him to submit to a medical assessment on 13 October 1997, even if a valid delegation had been in operation and the rules of natural justice had been observed. Similarly, it was submitted the fact that the applicant was a satisfactory employee at the relevant time means there was no valid ground for DOCS to suspend him from duty or place him on sick leave, even if there had been a valid delegation to make the order and the rules of natural justice had been observed. Further, the fact that the applicant was a satisfactory employee at the relevant time meant that there was no valid ground to suspend the applicant without pay on 18-20 February 1998, even if the procedural requirements of the Public Sector Management (General) Regulation had otherwise been observed.

131 I turn to the applicant's fifth, sixth and seventh contentions. As to the decisions by officers of the first respondent directing the applicant to attend at HealthQuest, the applicant contended these were not authorised by written delegations from the Director-General of the first respondent pursuant to s 12 of the Public Sector Management Act.

132 The respondents have admitted that Jackie Pitchford and John Ryan, Assistant Community Managers at Ryde, informed Nathalie Bratt, Human Resources Officer, Northern Sydney Area DOCS, that they wished to arrange an appointment at HealthQuest for the applicant to be assessed. This is confirmed by other evidence filed in the proceedings that the request by Pitchford and Ryan was made on 11 September 1997. On 10 October 1997 it appears that Ms Bratt contacted HealthQuest by telephone seeking to arrange an appointment for a "fitness to continue" assessment. The respondents admit (except for the date) that on 13 October 1997 the applicant was handed a letter by Ms Pitchford directing the applicant to attend an appointment at HealthQuest on 29 October.

133 The applicant submitted that the power to direct a public servant employed under the Public Sector Management Act to submit to medical assessment of the fitness for work is governed by cl 17(2) of the Public Sector Management (General) Regulation and is a power conferred on the Department Head. Further, that only the Department Head can delegate the power to another officer in the Department: see s 12 of the Public Sector Management Act, but such delegation must be in writing or evidenced in writing: see s 49 of the Interpretation Act 1987.

134 The decisions and actions of Ms Pitchford and Ms Bratt in arranging and directing the applicant to attend a medical assessment at HealthQuest were not taken under the delegated authority of the Department Head, namely, Ms Helen Bauer. The applicant claims that this is informally admitted by the respondents in their failure to produce evidence of the necessary delegations in response to the applicant's notice to produce filed on 11 December 2001 and Mr Moses' confirmation in proceedings on 14 December 2001 that there were no documents to produce in response to the applicant's notice in respect of: Any written order to the applicant on or about 29 October 1997 from authorised delegate directing the applicant to cease duties pursuant (sic) clause 17(4)(b) of the Public Sector Management (General) Regulation 1996. Any written delegation from Director General DOCS to Nathalie Bratt HR Manager Northern Sydney DOCS and or Jackie Pitchford ACM Ryde DDS (sic) authorising Ms Bratt and or Ms Pitchford to direct the applicant to HealthQuest pursuant (sic) clause 17 of the PSM (General) Regulation on or about 13 October 1997. Any written sub-delegation authorising J Pitchford to direct the applicant to HealthQuest on or about 13 Oct 1997.

135 The applicant submitted, therefore, that the direction to attend for an assessment at HealthQuest was null and void.

136 In relation to other decisions and actions by the respondents to remove the applicant from duty and place him on sick leave, to access the applicant's recreation leave entitlement and to suspend him without pay, the applicant has referred to what he contends are informal admissions by the respondents relating to these decisions and actions and has in each case argued that the actions and decisions were unauthorised under various provisions of the Public Sector Management (General) Regulation and, therefore, were void and of no effect.

137 As to the declaration by Dr Jagger on 10 October 1997 that the applicant was unfit for work and that he should be psychiatrically assessed, the respondents admitted that: Dr Roberts spoke with Dr Jagger, Deputy Director after the interview (with the applicant) had ended and Dr Jagger then contacted Jackie Pitchford ACM Ryde advising that he be placed on sick leave for 3 months. Dr Jagger also wrote a letter to the HR Manager Northern Sydney advising the same and stating that the applicant was currently unfit for work.

138 The applicant submitted that the statutory power enabling the Government Medical Officer ("GMO") to advise the appropriate Department Head about the assessment of a public servant's fitness for work is governed by cll 17(2) and 17(4) of the Public Sector Management (General) Regulation. It was submitted that the person purporting to be the GMO at the relevant time (Dr Helia Gapper) was never appointed to exercise the functions under the Regulation, including under cl 17. Moreover, even if Dr Gapper had been validly appointed there was no written delegation of authority from Dr Gapper to Dr Helen Jagger or Dr Roberts for either of those two persons to exercise functions under the Regulation.

139 The applicant contended that the responses by the respondents to a notice to produce the relevant delegations of authority fail to show that Dr Gapper was validly appointed. The applicant claimed that neither Dr Gapper nor Dr Jagger nor Dr Roberts had any legal authority or power under cl 17 of the Public Sector Management (General) Regulation to conduct assessments of his fitness for work or to advise the Department Head under cll 17(2) and 17(4) of the Regulation. Accordingly, the applicant contended, the decisions and actions taken to declare him unfit for work and to place him on three months sick leave were void and of no effect.

140 The applicant's eighth contention was that in being removed from his duties, the applicant was not accorded procedural fairness. The applicant claimed that the following decisions are invalid due to denial of procedural fairness or denial of natural justice: Decision made on or before 11 September 1997 by Ms Pitchford to arrange an appointment for the applicant at HealthQuest. Decision by Ms Bratt made on 10 October 1997 to contact HealthQuest and arrange an appointment for a "fitness to continue" assessment. Decision by Dr Jagger made on 10 October 1997 that the applicant should be psychiatrically assessed. Decision made on 29 October 1997 by Dr Jagger and Dr Roberts to advise the first respondent that the applicant was unfit for work and should be placed on three months sick leave. Decision on or about 29 October 1997 by Ms Pitchford to implement the recommendations of Dr Jagger and Dr Roberts.

141 The evidence relied upon by the applicant to support his contention regarding denial of procedural evidence is an affidavit in support of his notice of motion for declaratory relief filed on 17 July 2001 together with supporting documentary material. The applicant contended this evidence was not challenged in any meaningful way by the respondents and that, accordingly, the facts contained in this evidence should be taken as having been informally admitted by the respondents. The applicant also submitted the same facts had been admitted or not challenged by the second respondent in the Administrative Decisions Tribunal in Crewdson v Central Sydney Area Health Service [2000] NSWADT 184 and although that decision had been subsequently overturned on appeal, it was not on the basis of a challenge to the findings of fact by the Tribunal at first instance in relation to procedural unfairness.

142 The applicant claimed that procedural unfairness arises out of the fact that despite the obligation on the respondents to have done so, they did not first inform him of the decisions and actions that they proposed to take, which might be adverse to his rights and interests. The applicant claimed that he was entitled to have all decisions affected by a denial of procedural fairness declared null and void.

143 The respondents have not addressed the applicant's claim for judgment on admissions in any serious way, although it seems to me they have had every opportunity to do so in the face of very comprehensive submissions by the applicant. Nevertheless, I do not think justice would be served by the Court entering summary judgment in the applicant's favour on this question of admissions. I am not satisfied that I have the necessary material to reach a clear and final decision on the question of admissions at this stage of the proceedings.

144 The applicant I consider, is entitled to have a judgment on admissions prior to the proceedings scheduled for 15 to 19 July 2002. Accordingly, I propose to direct the respondents to provide written submissions and to allow the applicant to reply to those submissions prior to the commencement of the next scheduled proceedings. I will endeavour to hand down judgment on admissions prior to 15 July 2002.

145 I understand that the applicant has certain outstanding matters in respect of which he seeks directions. For example, the respondents have claimed privilege in respect of certain documents and the applicant wishes to press for production of those documents. There may be other outstanding matters that will need to be addressed prior to the hearing of the applicant's claim for declaratory relief on 15 July 2002. I propose to set this matter (IRC No 3140 of 2001) down for directions on 12 June 2002 at 4.15 pm for the purpose of making any directions in relation to the hearing to commence on 15 July 2002.

1. The notice of motion by the respondents filed in these proceedings on 14 June 2001 is dismissed. 2) The respondents shall file and serve written submissions on the question of the applicant's application for an order pursuant to r 155 of the Industrial Relations Commission Rules 1996 for a judgment on admissions by 4.00 pm on Friday 7 June 2002. The applicant shall file and serve a written reply by 4.00 pm on Friday 14 June 2002. 3) This matter is set down for directions at 4. 15 pm, Wednesday 12 June 2002. 4) The respondents shall pay the applicant's costs of the notice of motion as agreed, or failing agreement, as assessed.

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