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: Costs - contempt proceedings - each side to bear its own costs of proceedings

LEGISLATION CITED: Industrial Relations Act 1996

CF v State of New South Wales [2003] NSWSC 620 Crewdson v Director General, NSW Department of Ageing Disability and Home Care/Department of Community Services [2006] NSWIRComm 185 Crewdson v New South Wales Department of Community Services and Ors (No 16) [2006] NSWIRComm 273 CASES CITED: Crewdson v Director General, NSW Department of Ageing Disability and Home Care - Department of Community Services (No 2) [2006] NSWIRComm 336 Oshlack v Richmond River Council (1998) 193 CLR 72 Pascale Bourot v New South Wales Department of Public Works and Anor [2004] NSWIRComm 72 Scott v Secretary Department of Social Security [2000] FCA 1450

APPLICANT: Mr G Crewdson (in person)

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

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 Judgment was given in this matter on 16 November 2006. The proceedings were set aside, the Full Bench having concluded that the Court had no jurisdiction to entertain the application brought by Mr Crewdson. (See Crewdson v Director General, NSW Department of Ageing Disability and Home Care - Department of Community Services (No 2) [2006] NSWIRComm 336.) An earlier motion brought by the respondents, seeking that the proceedings be set aside or struck out was refused on 8 June 2006. (See Crewdson v Director General, NSW Department of Ageing Disability and Home Care/Department of Community Services [2006] NSWIRComm 185.) 2 This judgment deals with the question of costs. 3 The orders sought by the respondents were:

a. The Applicant pay the First to Third Respondent's costs of the Motion filed 17 August 2006 as agreed or assessed.

b. The Applicant pay to the First to Third Respondents costs of the proceedings not payable pursuant to order (a), save as to the costs of the Motion filed by the First to Third Respondents on 10 March 2006. 4 The respondents' case was that costs should follow the event, in accordance with the 'usual costs order' - Oshlack v Richmond River Council (1998) 193 CLR 72 at 96. There had been no misconduct by the respondents of the kind there discussed, which could warrant any departure from the usual order. While it was conceded that the respondents' motion was brought at a later time than was desirable, it was argued that the point successfully raised was not the subject of previously decided cases and went to the heart of the Court's jurisdiction to hear the application made. Ms Rizzo's evidence that the point was raised as soon as it was apprehended, was not successfully challenged in cross examination. 5 Mr Crewdson's financial circumstances did not bear on the question of costs. (See Scott v Secretary Department of Social Security [2000] FCA 1450; CF v State of New South Wales [2003] NSWSC 620; Pascale Bourot v New South Wales Department of Public Works and Anor [2004] NSWIRComm 72 and Crewdson v New South Wales Department of Community Services and Ors (No 16) [2006] NSWIRComm 273.) 6 Mr Crewdson opposed the costs order sought, arguing that there had been misconduct on the respondents' part, both in the litigation and in the circumstances leading up to the litigation, which was asserted to be 'of a serious and criminal nature'. 7 Mr Crewdson argued that the allegations sought to be raised as to those matters in these proceedings had not been the subject of any judicial consideration, because of the various legal defences invoked by the respondents. It followed that it could not be claimed that there had been no misconduct, because that question had not yet been determined. It was also submitted that the submissions which had been advanced for the respondents were misleading, given the history as to how the allegations of contempt sought to be raised in these proceedings, had been earlier dealt with by the Court in other proceedings. 8 As to the conduct of the litigation, it was submitted that Ms Rizzo of the Crown Solicitor's Office had sworn a false affidavit and had committed perjury in the proceedings, obstructing justice, while acting under the direction and control of Mr Ian Knight, the Crown Solicitor and involving Mr Prince, the respondents' counsel. It was argued that while referred to in the judgment, the case advanced at the hearing that Ms Rizzo's evidence was unsatisfactory and should not be accepted as a matter of credit, had not been resolved by the judgment given in November. 9 The correctness of the November judgment was challenged in various ways. It was also complained that other members of the Court and the Commission had failed to refer serious allegations of contempt sought to be raised in these proceedings, to relevant authorities, or to themselves deal with the contempts in question. 10 It was further claimed that there had been perjury by Ms Rizzo which this Bench had failed to deal with. Mr Crewdson sought an explanation as to how this perjury would be addressed by the Court, in a context where judicial review proceedings had been commenced by Mr Crewdson in the Supreme Court, in relation to proceedings before another Full Bench of the Court. Those proceedings were listed before the Court of Appeal on 28 March. 11 The respondents later advised that they did not propose to make any reply to the submissions Mr Crewdson advanced. Consideration 12 The usual order is that costs should follow the event. The circumstances in which there would be a departure from that approach were discussed in Oshlack at 97-8:

The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, Devlin J formulated the relevant principle as follows:

"No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."

"Misconduct" in this context means misconduct relating to the litigation King & Co v Gillard & Co [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 812, or the circumstances leading up to the litigation Bostock v Ramsey Urban District Council [1900] 2 QB 616. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation (1998) 193 CLR 72 at 98 Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842; Bostock [1900] 2 QB 616 at 622, 625, 627; unnecessarily protracts the proceedings Forbes v Samuel [1913] 3 KB 706; succeeds on a point not argued before a lower court Armstrong v Boulton [1990] VR 215 at 223; prosecutes the matter solely for the purpose of increasing the costs recoverable Hobbs v Marlowe [1978] AC 16; or obtains relief which the unsuccessful party had already offered in settlement of the dispute Jenkins v Hope [1896] 1 Ch 278. 13 Mr Crewdson argued that such a departure is warranted, on three broad grounds. Firstly, having regard to the earlier proceedings which gave rise to the allegations of contempt raised in these proceedings; secondly, the way in which the respondents conducted themselves in these proceedings, including the time and circumstances in which their successful motion was raised and the nature of the evidence it was alleged Ms Rizzo gave about those matters; and thirdly, given the nature of the jurisdictional point successfully taken, which had the result that earlier suggestions made to Mr Crewdson that he should himself initiate contempt proceedings by way of separate motion, had no foundation in the legislation, as it was construed in our November judgment. 14 As was noted in the November judgment, Mr Crewdson has sought to agitate serious allegations of contempt in these and earlier proceedings. He complains that the Court and the Commission have not themselves earlier taken steps available to them to deal with those matters. Having therefore himself taken the step of initiating these separate contempt proceedings, as had been suggested, the respondents belatedly raised a novel and unjust jurisdictional point, with the result that his serious allegations have still not been considered by the Court. 15 Mr Crewdson further complains that the evidence given by Ms Rizzo in these proceedings, in order to explain the respondents' delay in raising the question of whether Mr Crewdson had standing to commence these proceedings, was so unsatisfactory in a number of respects, that the Court should conclude that misconduct of the kind discussed in Oshlack had occurred. 16 Mr Crewdson made further serious allegations and complaints in his submissions, about a range of matters, including the consequences of the way in which contempt has been dealt with in the Industrial Relations Act 1996. It is not for us to deal with those matters in these proceedings. The question of who should be given standing to commence proceedings for contempt, for example, is a matter for the legislature to determine. That the legislature has departed from the common law and implemented a different scheme in relation to contempt under the Industrial Relations Act, than that which it implemented in respect of proceedings before the Supreme Court, was a matter for it. 17 What must here be determined, at this stage of these proceedings, is what costs order should be made. 18 As noted in our June judgment at [2], the allegations of contempt which Mr Crewdson sought to pursue in these proceedings related to various conduct in two other proceedings 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.' 19 Consistently with the High Court's approach in Oshlack, in considering whether a costs order should be made in favour of the respondents, some attention must be paid to the circumstances which preceded these proceedings being commenced. There were various earlier occasions upon which Mr Crewdson sought to have his allegations of contempt dealt with in other proceedings before the Court and the Commission. What occurred in those proceedings, where Mr Crewdson failed to have his allegations dealt with, led to the initiation of these proceedings. That history is particularly relevant in this case, given the respondents' conduct of these proceedings, after they were initiated. 20 That earlier history was in part dealt with in our June judgment at [37] to [39], explaining how it was that the proceedings came to be commenced by Mr Crewdson. In that judgment, we rejected the respondents' claim that Mr Crewdson was seeking to agitate matters already dealt with by another Full Bench of the Court. At [39] we concluded: 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. 21 That and other conclusions reached on the matters raised, led to the dismissal of the respondents' first motion. 22 There were various difficulties with the respondents' conduct of the proceedings dealt with in our June judgment. The respondents' motion had not been filed within the time fixed by the Rules, but was dealt with by the Full Bench, in order to do justice between the parties. The motion was dismissed, it being concluded that only one of the difficulties raised involved an issue which was arguably jurisdictional. It was concluded that the complaints made ought not to be dealt with at the stage the proceedings had reached, given that threshold arguments had to 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'.' (at [36]) 23 The respondents also advanced an argument in relation to scandalous material, which it was argued should be removed from the file. The Full Bench had dealt with some of that material at the hearing (at [7] -[10]). As to other material relied upon by the respondents, it was concluded at [43] to [45]: 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.

24 Mr Crewdson later complained that the respondents did not identify or raise with him, or otherwise deal with, any further such material. 25 As we noted in our November judgment, Mr Crewdson again complained of the respondents' failure to file their second motion within the time contemplated by the Rules. Again, we concluded, as a matter of justice, that the respondents should nevertheless, be heard (at [13]-[15]). 26 In considering the question of costs, however, the earlier difficulties in these proceedings, dealt with in the June judgment, when considered together with the explanation of the way in which various further jurisdictional questions later came to be raised by the respondents in their second motion, were such that we are satisfied that the interests of justice require that there be a departure from the usual order as to costs in this case. The respondents' conduct of these proceedings is not such that justice can permit the costs order sought being made in their favour. 27 In the circumstances, a proper exercise of the Court's discretion as to costs must result in the costs order sought by the respondents being refused. We are satisfied that the proper result in this case, is that each side should bear its own costs of the proceedings. 28 We finally note that we do not accept the submissions advanced by Mr Crewdson in relation to Ms Rizzo's evidence. Mr Crewdson complains that his cross examination of Ms Rizzo in November 2006 was confined. The rulings given at the hearing were designed to ensure that the cross examination was confined to matters relevant to the issues which fell to be decided, at the point the proceedings had then reached, namely the Court's jurisdiction to entertain Mr Crewdson's application. We did not permit a wider investigation of other matters. Given the view we have reached, we do not propose to take any further steps in relation to the allegations of perjury advanced. Order

29 For the reasons given, the costs order sought by the respondents is refused.

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