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

Crewdson v Director General, NSW Department of Ageing Disability and Home Care-Department of Community Services - [2006] NSWIRComm 185 - NSWIRComm 1999 case summary — Zoe

[17]

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.

[25]

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.

[48]

(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:

[60]

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.

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