Crewdson v Director General, NSW Department of Ageing Disability and Home Care-Department of Community Services

SECOND RESPONDENT: Healthquest/Central Sydney Area Health Services

THIRD RESPONDENT: Ian Knight, NSW Crown Solicitor

CORAM: Schmidt J; Kavanagh J; Staunton J

CATCHWORDS: Contempt - notice of motion - allegations of contempt against various respondents - respondents' motion seeking orders that proceedings be set aside or struck out - proper time for matters raised in respondents' motion - Rule 82 of the Industrial Relations Commission Rules - discretionary relief and abuse of process - scandalous material and Rule 13 of the Industrial Relations Commission Rules - respondents' motion not to be heard at this time other than in relation to scandalous material - costs reserved

LEGISLATION CITED: Industrial Relations Act 1996

Bourot v NSW Dept of Public Works and Services & Anor [2001] NSWIRComm 257 Caltex Petroleum Pty Ltd & Others v Harmer (1999) 92 IR 264 Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) [2005] NSWIRComm 426 General Steel Industries Inc v Commissioner for Railways (NSW) & Others (1964) 112 CLR 125 Hyde v Energy Australia [1999] NSWIRComm 406 (unreported, 8 September 1999) CASES CITED: Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443 Nagle (t/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 R v Dunbabin; ex parte Williams (1935) 53 CLR 434 Taudevin v Egis Consulting Australia Pty Ltd and Anor (2000) 97 IR 165 Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538 Western Sydney Area Health Service v Gibson (2001) 109 IR 359

APPLICANT: Mr Crewdson (in person)

LEGAL REPRESENTATIVES: RESPONDENTS: Mr S Prince of counsel SOLICITORS: IV Knight, Crown Solicitor

• 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH CORAM: Schmidt J Kavanagh J Staunton J

GERARD CREWDSON v DIRECTOR GENERAL, NSW DEPARTMENT OF AGEING DISABILITY AND HOME CARE/DEPARTMENT OF COMMUNITY SERVICES

Application by Gerard Crewdson re contempt in matter no. IRC 3140 of 2001

1 These proceedings were commenced on 23 January 2006 by Mr Gerard Crewdson, who seeks to prosecute various allegations of contempt contained in a notice of motion filed that day. The motion filed appeared to have a number of pages missing, but outlined various charges directed to a variety of respondents. It was supported by an affidavit sworn by Mr Crewdson on 23 January 2006. An amended motion was filed by Mr Crewdson on 28 February 2006. 2 The allegations of contempt raised include various conduct in two other proceedings which Mr Crewdson had initiated before the Industrial Court and the Industrial Relations Commission. The alleged conduct included withholding or destruction of evidence; statements misleading the court and knowingly prejudicing and prolonging proceedings through the tendering of perjured evidence. 3 By notice of motion of 10 March, various respondents, namely the Director General of the New South Wales Department of Community Services; the Department of Aging and Disability and Home Care, Healthquest, Central Sydney Area Health Services and the Crown Solicitor, sought orders pursuant to Rule 82(a) of the Court's Rules, that the Statement of Charge alleging contempt be set aside or struck out, in whole or in part. In the alternative, orders were sought that the Court decline in its discretion to exercise its jurisdiction in the proceedings. In the further alternative, similar orders were sought pursuant to Rules 13 and 121 pursuant to the Court's implied powers as a superior court, and given its ability to control its procedures to prevent abuse of process. 4 While other persons were named as respondents in Mr Crewdson's motion they have not entered an appearance in the proceedings. Whether the motion has been served on those persons is not clear. 5 The respondents' motion advanced complaints about alleged failures to specify evidence; inadequacy of the orders sought; that Rule 237 did not provide a mechanism for initiation of proceedings such as this; that the Statement of Charge did not comply with Rule 233 and that it contained scandalous material that already had been struck out in other proceedings. 6 Mr Crewdson objected to the respondents' motion being heard, arguing that Rule 82 required that such an application be made within 7 days of the service of the originating process. Mr Crewdson submitted that the Rules must be strictly enforced against these respondents, who, it was argued, were bound by the model litigant principle. 7 A programme had been fixed for the parties to file written submissions in relation to Mr Crewdson's application that the respondents' motion not be dealt with. On 25 May, the day on which that application was listed for hearing, Mr Crewdson filed and served a further submission attaching correspondence which he had that day written to the Premier of New South Wales, about the members of this Bench. We accept that courts such as this must be robust in the approach which they adopt to criticism, even where it might arguably be scandalous, which could be dealt with under the Rules. Nevertheless, we took the view that there came a point at which scandalous material could amount to contempt. Submissions about the scandalous nature of earlier submissions made by Mr Crewdson had already been advanced by the respondents. The submissions and correspondence filed on 25 May, in our view, went beyond the scandalous and were contemptuous of the Court, as discussed by Rich J in R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 442-3. We were satisfied that, on their face, they tended to 'detract from the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office'. They did not contain criticism that could properly be regarded as 'fair and not distorted by malice and the basis of the criticism is accurately stated'. (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 38-9). 8 Having in mind Mr Crewdson's position as an unrepresented litigant, we thought it proper to give him an opportunity to withdraw those submissions and correspondence. Accordingly, this opportunity was raised with him at the outset of the hearing on 25 May and Mr Crewdson unreservedly withdrew that material. Mr Prince, of counsel appearing for the respondents, provided to the Court the copy of the documents with which the respondents had been served by Mr Crewdson. All copies of those documents in the Court's possession have been removed from the file and given to the Registrar for safe custody, subject to further order of the Court. 9 Mr Prince also pointed to the continuing nature of the contempt involved in any other publication of Mr Crewdson's submissions and correspondence of 25 May. In dealing with that submission, we noted our acceptance of Mr Crewdson's withdrawal of the material and our expectation, in the light of that withdrawal, that Mr Crewdson would communicate the withdrawal to all persons to whom the submissions and correspondence had been published. 10 Given these developments, we also gave the parties the opportunity to address us on the question of whether this Bench should continue hearing this matter. Both Mr Crewdson and the respondents raised no objection to our continuing to do so. Having adjourned to consider that question, we announced that we had concluded that we should continue and the hearing accordingly proceeded.

The parties cases 11 Mr Crewdson's case was that by way of comparison to his position, the respondents' carelessness and delay in these proceedings, even though of limited duration, was inexcusable, given the resources at their disposal. Mr Crewdson complained that in other proceedings before the Court, he has himself been held to strict adherence to the Rules and here argued that any failure to require strict adherence by these respondents, suggested that the 'Respondent and the Crown Solicitor (i.e. the NSW State Government) are being granted special favours and dispensation by the Commission i.e. a perception of bias'. 12 It was also submitted by Mr Crewdson that the respondents were seeking the drastic step of summary dismissal of the proceedings, without a hearing on grounds which were 'inexcusably wrong' and vexatious, designed to cause delay and undermine justice. If granted by the Court, it would raise a 'clear perception once more that there is one law for the government parties and Crown Solicitor and another for private individuals'. 13 For the respondents it was argued by Mr Prince that Mr Crewdson's submissions were misconceived. The respondents' motion concerned an amended motion filed by Mr Crewdson on 28 February 2006. Rule 79(2), was relied upon. 14 It was argued that the amended motion of 28 February first commenced the proceedings. That motion did not fix a time for hearing and the respondents assumed that the relevant date was when the matter was next listed before Schmidt J for directions on 13 March. In those circumstances, the respondents' motion, filed on 10 March, was within the time fixed by Rule 79(2). Consideration

15 Section 180 of the Industrial Relations Act 1996 provides: (1) A person in contempt of the Commission is guilty of an offence. Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both. (2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court. (3) Proceedings for an offence against this section may be taken only before the Commission in Court Session. 16 Section 153 requires that such proceedings be dealt with by a Full Bench of the Court. Rule 237(1) provides that such proceedings may be commenced by the Registrar, but also provides that:

2. Subrule (1) does not affect such right as any person other than the Registrar may have to commence proceedings for punishment of contempt.

Rule 82 17 The operation of Rule 82 has been considered by the Court on a number of occasions, in authorities not referred to by the respondents in their submissions. It provides: (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order: (a) set aside the originating process, or (b) set aside the service of the originating process on the respondent, or (c) declare that the originating process has not been duly served on the respondent, or (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, or (e) discharge any order extending the validity for service of the originating process, or (f) protect or release property seized, or threatened with seizure, in the proceedings, or (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings, or (h) decline in its discretion to exercise its jurisdiction in the proceedings, or (i) grant such other relief as it thinks appropriate.

(2) Notice of motion under subrule (1): (a) may be filed without entering an appearance, (b) must bear a note "The respondent's address for service is" and state the address, (c) must be filed within the time limited for entering an appearance.

(3) The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction. 18 In Caltex Petroleum Pty Ltd & Ors v Harmer (1999) 92 IR 264 at 269, the Full Court agreed with the observations of Wright J President in Hyde v Energy Australia [1999] NSWIRComm 406 (Unreported, 8 September 1999 at 34), as to the nature of Rule 82:

'... rule 82, considered as a whole, appears to be a rule essentially intended to deal with situations where the respondent contends that the Commission lacks jurisdiction in relation to the proceedings purportedly commenced; where there has been some invalidity or irregularity in relation to the service of the originating process (or leave given in relation to service of such process); or where issues such as that considered by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 539 are raised.'

19 Voth was concerned with a case where proceedings had been initiated in an inappropriate forum. In Taudevin v Egis Consulting Australia Pty Ltd (2000) 97 IR 165, Wright J President was dealing with a motion filed out of time under Rule 82 and in respect of which an application to extend time under Rule 88 was being pressed. A jurisdictional issue was there being sought to be raised, with the President observing at [34] that: 34 Unlike the cases referred to above, these motions represent an appropriate use of r 82. I have already referred to the situation where a motion under r 82 would be appropriate, such as where, in earlier times, a notice of conditional appearance may have been appropriate. The facility and the purpose of the rule is consistent with modern approaches to litigation. That is, to have promptly placed before the Court issues which either require early determination or should be appropriately placed before the Court for early consideration as to when they should be determined. Consequent notice is also provided to an applicant as to an issue which the applicant must take into account in conducting its litigation. The matter is placed in the litigation "equation" at an early stage so that appropriate directions can be given for the timely disposition of the litigation. All these considerations emphasise that it is entirely inappropriate for a respondent to rely on and file a conditional appearance. 20 In Western Sydney Area Health Service v Gibson (2001) 109 IR 359 the Full Court was again dealing with a jurisdictional question raised in proceedings brought under s 106 of the Act. A declaration in relation to the Court's jurisdiction was sought under s 154, but the question had not been raised within the time limits prescribed by Rule 82. At [17] to [22] it was held: 17 We also note his Honour formed the view the jurisdictional issue raised by the appellant was not justiciable under s 154. We consider that that conclusion may well be wrong. In any event, attention to the strictures which may exist in granting relief under s 154 in the determination of jurisdiction would be to unnecessarily fetter the ordinary jurisdiction of the Court in exercising its incidental power under s 106 to determine whether there is or is not jurisdiction to grant the relief sought.

18 The determination of the existence of jurisdiction is an essential duty to be performed by the Court: W orkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92 at 94 - 95 in cases where that is appropriate, albeit the timing of such a determination will vary according to the circumstances of the case: Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447.

19 The proceedings also require the consideration again of the issue of the raising of, or attempts to raise, preliminary jurisdictional points, or points said to be jurisdictional in s 106 proceedings. The way in which such matters should be dealt with was appropriately and authoritatively dealt with in Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10 - 12. We describe the judgment as "appropriately" dealing with the matter as experience had shown that up to that time there were many occasions when so-called jurisdictional issues were inappropriately raised in proceedings under s 106 and the statutory predecessors to that provision, and the judgment provided a timely corrective to that situation.

20 The principles relevant were of course well known and settled prior to the judgment in Nagle v Tilburg . However, they were usefully collected, as we have observed, in an authoritative way in that judgment. Subsequently, Wright J, President considered the relevant principles in Virtue v New South Wales Department of Education and Training at 447 - 448 and said: As is acknowledged by the respondent in its submissions in relation to the motion, the relevant principles in relation to the striking out of a summons filed under s 106 on an interlocutory basis where it is alleged that the Commission lacks jurisdiction are comprehensively set out in the judgment of the Full Industrial Court in Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-12 and in the authorities relied upon in that judgment ( Stevenson v. Barham (1970) 136 CLR 190; Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125). Those principles may be summarised as follows: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted.

(2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits.

(3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated.

(4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one.

(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 the 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. (7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. What was said by his Honour largely involved a restatement of what was said in Nagle v Tilburg , albeit in a form convenient for present purposes.

21 The issue thus posed to Boland J, subject to the grant of the extension of time sought by the appellant and if the extension was necessary, was to be dealt with in accordance with those principles appropriately adjusted to take into account the appellant's reliance on s 154 and, to the extent relevant, rule 82.

22 Although the whole of the principles had to be kept in mind, those numbered (3) and (4) in the extract from Virtue were particularly pertinent. It has also to be observed that the grant of declaratory relief is always in the discretion of the judge hearing the matter although its utility in appropriate cases is well recognised in this jurisdiction and in the general courts. Indeed, there are a number of recent authorities in this jurisdiction which make plain the scope for, and availability of, appropriate relief provided by s 154: for example, Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; Ford v SAS Trustee Corporation (2000) 98 IR 444 at 476; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20] and "A" v Commission for Children and Young People [2001] NSWIRComm 194 at [8] (judgment subject to appeal). 21 In Bourot v NSW Dept of Public Works and Services & Anor[2001] NSWIRComm 257, Marks J was dealing with an application that proceedings brought under s 154 of the Act for declaratory relief be struck out. That motion was also not filed within the time provided by Rule 82. His Honour observed:

17 The respondents' notice of motion was accompanied by an affidavit in support. That affidavit asserted by way of belief that "the respondents would be put to a significant disadvantage if the orders as sought were not granted ….".

18 The affidavit filed in support by the respondents did not make any reference to the reason why the respondents had failed to file the notice of motion within the time limited by the rules.

19 It is not sufficient, in my opinion, for any party to proceedings before this Court to make an application for an extension of any time limitation fixed by the rules without some form of satisfactory explanation. Prima facie the times are fixed by the rules for good cause and must be complied with. Of course, in relevant circumstances, time may be extended, especially where no prejudice attaches by reason of the extension of time. However in the absence of any reason being advanced in support of an application for the extension of time, I see no reason why time should be extended automatically. No reason was advanced by counsel for the respondents during submissions other than that the delay flowed from the sequence of events which had occurred in the course of the litigation, the nature of the proceedings and the voluminous materials requiring inquiry. The amended application for declaration was filed on 31 January 2001, the respondents did not seek particulars from the applicant's agent until letter dated 26 April 2001 and the respondents' notice of motion was not filed until 15 June 2001. This time sequence requires more detailed explanation than was forthcoming.

20 As is clear from the provisions of rule 82(2), they are intended in the circumstances of these proceedings to be given some force and effect. The use of the word "must" in rule 82(2)(c) is to be contrasted with the permissive "may" in rule 82 (2)(a).

21 The principles to be applied in considering the provisions of rule 82 and the proper approach to the exercise of discretion are fully set out in the judgment of Wright J, President of this Court in Taudevin v Egis Consulting Australia Pty Ltd (1999) 97 IR 165. I respectfully adopt the manner in which his Honour has summarised the relevant principles in that judgment, and there is no need to repeat what his Honour has set out. In reaching my decision I have taken into account not only the matters referred to in para 19 of these reasons for judgment but also the fact that if the respondents are not granted an extension of time to file their notice of motion filed on 15 June 2001, this will not preclude them from advancing arguments as to jurisdiction, power and the exercise of discretion during the course of the substantive hearing of the proceedings. There does not appear to be any prejudice attaching to the respondents if their notice if motion is not dealt with. I take into account also the following matters:

1. The proceedings are complex and raise complex issues particularly with respect to the jurisdictional requirement that the declarations of right which are sought must relate to a matter in which the Commission however constituted has jurisdiction. In these circumstances the balance of convenience may well dictate that all of the relevant factual material be filed and be available to the Court when determining arguments going to jurisdiction and, indeed, power. In these circumstances the "appropriate time" at which to consider these matters may well be during the final substantive hearing.

2. The state of the evidence adduced by the applicant may require refinement. I am yet to deal with an application by the respondents to strike out a substantial part of the applicant's affidavit sworn in the proceedings on the basis that it is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. 22 In these proceedings, commenced by motion on 23 January, Mr Crewdson raised serious allegations of contempt against various respondents. Rule 82(2) required that the respondents' motion be filed 'within the time limited for entering an appearance'. While the respondents argued that their motion was filed within the time provided by Rule 79(2), a consideration of the chronology of the matter shows that this submission may not properly be accepted. Rule 79 provides:

(1) A respondent must enter an appearance before filing any document and within 7 days of service of any originating process on that respondent.

(2) Notwithstanding subrule (1), where a matter is commenced by way of notice of motion a respondent must enter an appearance before the date appointed for any hearing or mention and before filing any document, except with leave of the tribunal. 23 The matter was first listed before Schmidt J on 14 February last. As the result of an error made by the Registry in notifying the listing, there was no appearance that day for any party. On 22 February, Mr Crewdson represented himself and Mr Prince appeared for these respondents. At that time, the motion filed on 23 January had not been personally served by Mr Crewdson on all respondents, as Rule 235 Service, requires:

The notice of motion or application, the statement of charge and the affidavits must be served personally on the offender. 24 Further, the motion which had been served irregularly on some respondents, had apparently been incorrectly numbered. Nevertheless, Mr Prince appeared in these proceedings on 22 February and advised that his solicitors had instructions to accept service for these respondents. It was also foreshadowed that a notice of motion seeking to strike out the proceedings would be filed on their behalf. The Rules deal expressly with the matter of appearance in proceedings before the Court. Relevantly, for present purposes, Rules 76 and 77 provide:

Subject to these Rules, a person must not, except by leave of the tribunal, take any step in any proceedings unless, before taking the step, that person has filed originating process or has entered an appearance. 77 Mode of entry

(1) An appearance in any proceedings may be entered by filing a notice of appearance or, with leave, orally in the course of the proceedings.

(2) Where an appearance is entered orally in the course of the proceedings written confirmation shall be promptly filed and served.

(3) Two or more persons entering an appearance by the same solicitor or agent on the same day may do so by a single notice of appearance. 25 It follows that when he appeared on 22 February, Mr Prince entered an appearance for the respondents who instructed him. Written confirmation of that appearance was, however, not provided until the notice of appearance was filed on 15 March. 26 Various directions were given on 22 February, including that Mr Crewdson would serve the motion on the respondents he wished to proceed against and would file an affidavit of service by 28 February and that the respondents would file and serve their foreshadowed motion within a further 7 days - that is by 7 March. The matter was listed for further directions on 13 March. 27 Unsurprisingly, given the state of the motion as originally filed, with pages missing, Mr Crewdson filed and served an amended summons on the respondents on 28 February. The respondents filed their motion on 10 March and served it on Mr Crewdson. No objection to the amended summons was then raised. Rule 149 permitted amendment by consent and Rule 148, with leave. Mr Crewdson sought neither, although on 22 February he had foreshadowed that he wished to raise matters not already dealt with in the summons. Had he sought consent, or leave to amend his summons, it would undoubtedly have been given, or granted. We grant it now. 28 It follows, nevertheless, that the respondents' motion was filed outside the time fixed by Rules 79 and 82. It was also filed outside the time fixed by consent in the directions given on 22 February, which required that the motion be filed and served within 7 days of service of Mr Crewdson's motion. 29 The respondents' argument that they had until 13 March to file their motion has no foundation. There has been no application made, either pursuant to Rule 88, or otherwise, to extend that time. There has been no explanation for the failure to comply with the time limit fixed by the Rules, or the directions. 30 In our view, the present respondents' appearance in the proceedings was entered at the directions hearing on 22 February, not when the confirming notice of appearance was filed on 15 March. The respondents' reliance upon Rule 79 was misplaced. Their motion was not filed in the time provided by Rule 82. 31 Nevertheless, as has oft been observed, it is still necessary that the Court do justice between the parties. The Rules ought never to become instruments of injustice. Having this in mind, it is relevant to consider the question of whether the respondents' motion should be heard at this stage of the proceedings. 32 In this respect, it is relevant to note that the respondents' motion raises various alleged difficulties with the Statement of Charge on which Mr Crewdson relies, only one of which raises issues which are arguably jurisdictional. It is asserted that Mr Crewdson's motion is brought pursuant to Rule 237(2), which is asserted 'not to provide a mechanism for initiating proceedings'. Rule 232 provides:

(1) Where contempt is committed in connection with proceedings in the Commission, an application for punishment for the contempt must be made by notice of motion. (2) Where contempt is committed, but not in connection with proceedings in the Commission, proceedings for punishment of the contempt must be commenced by application.

(3) Proceedings for contempt which have not been commenced in the appropriate manner may nevertheless be continued unless the Commission otherwise orders. 33 Rule 237 provides:

(1) Where it is alleged, or appears to the Commission on its own view, that a person is guilty of contempt of the Commission, the Commission may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.

(2) Subrule (1) does not affect such right as any person other than the Registrar may have to commence proceedings for punishment of contempt. 34 In these proceedings Mr Crewdson does not seek orders that the Registrar be directed to commence proceedings for punishment of contempt. Rather, by notice of motion, he has himself made an application for punishment in respect of contempt which he alleges was committed by various respondents in proceedings which he had instituted before the Commission and the Court. 35 Consistent with the approach of the Full Court in Gibson and that of Marks J in Bourot, we take the view that the respondents' motion should not be heard at this stage of the proceedings. While Mr Prince submitted that those authorities are not relevant to what here arises for consideration, that is a submission which we cannot accept. 36 As was explained in Nagle, by reference to the Court of Appeal's decision in Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443 at 446, the hearing of threshold arguments must be confined to those which 'will knock out the claim' and must be confined to a case 'where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable foundation'. This is not such a case.

Discretionary relief and abuse of process 37 Of further significance to the claim that the matters sought to be agitated in the respondents' motion ought not to be heard at this stage of the proceedings, is what appears in the affidavit sworn in support of the respondents' motion on 10 March, by Marina Rizzo, a solicitor employed by the Crown Solicitor. Reference was there made to the judgment of the Full Bench in Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) [2005] NSWIRComm 426. It was there said that Mr Crewdson's Statement of Charge 'is identical in terms save for the first page and the last 2 pages, and not materially different to the Statement of Charge filed by the applicant in these proceedings on 28 February 2006'. 38 In Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) the Full Court noted that Mr Crewdson had sought to agitate allegations of contempt in the proceedings, which involved an appeal from a decision given at first instance. The Full Court held:

8 The appellant's documentation states that the grounds on which he brings, or purports to bring, the various contempt charges in the appeal proceedings, is that "under common law a litigant has a right to commence prosecution ( sic ) for contempt of court in matters relating to proceedings in which they are a party". However, a limited examination of the "Statement of Change" that the appellant has filed indicates that the contempts alleged are said to have occurred not in the present proceedings but rather: (a) in the proceedings at first instance; or (b) in the proceedings at first instance by reference to proceedings before the Equal Opportunity Tribunal in 1998. 9 The material filed by the appellant under the heading "Particulars" sets out detailed submissions in support of the orders sought in his motion. These submissions contain a number of offensive observations or remarks concerning the trial judge. We do not intend to repeat those matters but observe that they were raised with the appellant in the course of the proceedings today.

10 It will be observed that the appellant has covered a great deal of ground in the material he has filed. However, what he has singularly failed to do has been to file any submissions in accordance with directions made by the Full Bench on 12 October 2005. Also, the material and submissions he has filed have been filed so out of step with the directions made that the respondents, and the purported additional respondents, would be unlikely to be able to deal with them fully today if it had been decided by the Full Bench to do so. Certainly the approach the appellant has adopted has deprived the Full Bench of the assistance it was entitled to in the form of written submissions from the respondents.

11 The resulting unsatisfactory situation is plainly attributable to the approach taken by the appellant. We are of course very mindful that he is an unrepresented litigant and we have had regard to the evidence he gives and statements he makes as to his personal situation which includes reference to the facts that he is a homeless person presently having the use of a garage at Port Kembla, that he has almost no funds and is dependent on the receipt of a Centreline job search allowance of $404 per fortnight. We have great sympathy for his personal plight.

12 What then, in the light of the present unsatisfactory situation as to the application for leave to appeal and the related appeal, should the Full Bench do? We do not see any alternative but to make directions setting down the application for leave and, contingently, for the appeal and, in that regard, to make directions for the proper preparation of those hearings and to attempt to place the proceedings in some kind of proper order. There is a further matter arising from the apparent intention of the appellant to commence contempt proceedings.

13 The proper ordering of the proceedings is not without some substantial difficulty. Our major concerns arise from, first, the attempt to use the appeal proceedings to launch a multiplicity of contempt proceedings in respect of alleged contempts in other proceedings and, second, the making by the appellant of a series of scandalous statements concerning the trial judge in the material he has recently filed. We shall deal with each of those matters in turn and then make directions for the fixing of the hearing dates, filing submissions, appeal books etc. 14 The apparent attempt to bring contempt proceedings in these appeal proceedings should not be permitted. Although this Court, its associated tribunal the Industrial Relations Commission, and our predecessors, have always attempted to avoid an over-strict procedural approach, contempt proceedings, by their very nature, should observe basic procedural requirements and formalities. Similarly, courts should be astute to ensure that such proceedings are not brought in such a way as to embarrass the conduct of other proceedings and that such proceedings should be conducted in a proper and orderly way. We are therefore not prepared to permit this appeal to become proceedings of a different kind. Any contempt proceedings the appellant might wish to commence must be initiated either in the initial proceedings or in separate proceedings which, if brought, will be allocated in the usual way.

39 It is in these proceedings that Mr Crewdson now seeks to agitate the allegations he has been making for some time in relation to contempt. In accordance with the requirements of the Act earlier referred to, that application, made by notice of motion, has been allocated by the President to the Full Bench, as presently constituted, for hearing. It follows that it is entirely inconsistent with the approach of the Full Bench in Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) that the respondents be here seeking to argue that Mr Crewdson's allegations of contempt should not be heard in these proceedings, because of the way they were earlier dealt with in the appeal proceedings being heard by another Full Bench.

Scandalous material and Rule 13 40 In the appeal proceedings, what was relevant is that the Full Bench ordered the removal from the file of 'the material recently filed by the applicant, other than his affidavit and the single page in which he sets out the orders he seeks', because it contains 'scandalous material' (at [22]). This material included a notice of motion raising allegations of contempt, which is in part in similar terms to the motion filed in these proceedings. 41 The respondents submitted that Mr Crewdson's written submissions in these proceedings also contain extraneous and scandalous material, which ought to be struck out as an abuse of the privileges attaching to the conduct of litigation. It is unnecessary to repeat the material referred to. It is sufficient to observe that it is material which has not affected our approach to the matters which we are called on to determine at this stage of the proceedings. 42 We are satisfied, however, that scandalous material should not remain on the file. Indeed, Mr Crewdson, in his oral submissions at the hearing accepted that such material should be removed and invited the respondents to advise him what aspects they alleged were scandalous. For their part, the respondents accepted that not all aspects of Mr Crewdson's motion and submissions were scandalous. Given what appears in the motion and the submissions, that concession was properly made. 43 The proper course, in the above circumstances, is for the respondents to indicate to Mr Crewdson, in writing, what aspects of the motion and Mr Crewdson's supporting submission are asserted to be scandalous, so that Mr Crewdson may consider how properly the motion should be recast and what part of his submissions should be removed. 44 Clearly such material has not assisted our consideration of the issues which we have dealt with and will not assist our consideration of the serious allegations of contempt which Mr Crewdson wishes to pursue in these proceedings. The parties' attention should remain focussed on those allegations. We would urge Mr Crewdson to desist from making scandalous attacks on members of the Court, which are irrelevant to what this Bench is called upon to decide in these proceedings. 45 Accordingly, we direct that the respondents provide Mr Crewdson their advice within 7 days and that Mr Crewdson file and serve his amended motion, within a further 7 days, together with amended submissions, removing scandalous matters.

Other matters 46 The respondents' motion asserted that Mr Crewdson's motion is deficient in various other ways, including that it does not comply with Rule 233, which requires that:

A statement of charge (that is, a statement specifying the contempt of which the offender is alleged to be guilty) must be included or filed with the notice of motion or application. 47 Mr Crewdson has been put on notice that the respondents will rely on the matters raised in their motion, in defending the allegations made in his February motion. If the respondents are correct in the assertions made about the deficiencies of the Statement of Charge, that will no doubt assist them in resisting the case brought by Mr Crewdson. Nevertheless, as the High Court observed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9, albeit in a different context, the jurisdiction to summarily terminate an action is one to be sparingly employed and only in 'a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.' Again, this is not such a case. Orders

48 For the reasons given, Mr Crewdson's application that the respondents' motion not be heard at this time is granted, other than in relation to scandalous material, in respect of which we make the directions earlier set out. Other matters must wait to be agitated at the hearing. Costs are reserved. The parties will be heard in relation to the further programming of the matter for hearing, once the amended motion and submissions have been filed by Mr Crewdson.

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