Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services

SECOND RESPONDENT: HealthQuest/Central Sydney Area Health Services

CORAM: Wright J President; Walton J Vice-President; Backman J

Appeal - Application for leave to appeal and appeal from single judge declining declaratory relief - Public Service - Attempt to join contempt proceedings to appeal proceedings - Submissions as to how appeal proceedings to be dealt with - Directions and orders made. CATCHWORDS:

Crewdson v New South Wales Department of Community Services & Ors (No 11) [2005] NSWIRComm 308 CASES CITED:

HEARING DATES: 11/11/2005 EXTEMPORE JUDGMENT DATE: 11/11/2005

APPELLANT: Mr G Crewdson (in person)

LEGAL REPRESENTATIVES: RESPONDENTS: Mr S E J Prince of counsel Solicitor: Mr I V Knight, Crown Solicitor (Ms J Burton)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Wright J, President Walton J, Vice-President Backman J

GERARD CREWDSON v DIRECTOR GENERALS NSW DEPARTMENT OF AGEING DISABILITY AND HOMECARE/DEPARTMENT OF COMMUNITY SERVICES AND ANOTHER

Application by Gerard Crewdson for leave to appeal and appeal from a decision of Justice Boland given on 26 August 2005 and interlocutory decisions made between 8 May 2001 and 26 August 2005 in Matter No 3140 of 2001

JUDGMENT OF THE COURT (Extempore) [2005] NSWIRComm 426

1 On 16 September 2005 the appellant, Gerard Crewdson, filed an application for leave to appeal, and subject to leave being granted, an appeal from the decision of Boland J delivered on 26 August 2005: Crewdson v New South Wales Department of Community Services (No 11) [2005] NSWIRComm 308. The application was also against certain earlier interlocutory decisions made by his Honour in the same proceedings being those numbered IRC 3140 of 2001. 2 For the purpose of giving directions and pursuant to an application for urgency filed by the appellant on 10 October 2005, the proceedings came before the Full Bench on 12 October 2005. On that occasion, after the Full Bench heard from the parties, the proceedings concluded on the basis that the matter would resume again at 9.30 am today for one hour to deal with the preliminary issues identified on 12 October 2005; that is, which of three options should be adopted for the hearing of the appeal. Those options were, first, whether the Commission in Court Session should adopt the procedural course identified by the appellant, that is to split the hearing of the appeal into two parts for, in substance, separate hearings. The second alternative, as suggested by the respondents, was that leave should be dealt with at the outset of the appeal hearing as a preliminary issue; and the third alternative was that the appeal be set down to be dealt with in an overall way with each party having the right to put his or its case in its entirety. 3 The proceedings also concluded on the basis that the appellant was to file his submissions on the procedural issues within two weeks of 12 October 2005 (that is, by 26 October 2005) and the respondents to file their submissions two weeks thereafter (that is, by 9 November 2005). The appellant did however indicate that if he was having difficulty meeting the directions he would advise the Court and indicate how much further time he needed. 4 No submissions or the like were filed by the appellant prior to 8 November 2005, nor was there any communication to the Registry advising that any party had any difficulty meeting the timetable. 5 However, on 8 November 2005 the appellant filed a Notice of Motion seeking to move the Full Bench today for the following orders:

1 Orders to be made either extempore or within 28 days maximum from 11/11/05 granting (a) Leave to Appeal (b) Appeal orders 1-3 as per Notice of Appeal filed 16/9/05 2 Further to (1) directions to be made for the hearing of criminal contempt charges commenced by the Applicant against the First to Fourth Respondents by filing of this notice of motion under IRC r 237(2). 3 In the alternative to Orders 1-3 orders to stay decision of Justice Boland and any further action by the Full Bench in this Appeal pending application for judicial review in the Supreme Court Court of Appeal. 6 In seeking these orders, the appellant seems to have purported to add two further respondents to the proceedings as third and fourth respondents, being respectively a named barrister and the New South Wales Crown Solicitor so that he could bring contempt proceedings against those persons. The appellant does not appear, in terms, to be seeking orders as to contempt in his Notice of Motion; although his intention appears to be to do so. 7 An examination of the contempt charges apparently sought to be brought as revealed by the appellant's material filed in support of his motion showed that he in fact sought to bring contempt charges against a much wider range of people than the two additional respondents. These persons included:

(a) the Director General of Department of Ageing Disability and Home Care (DADHC) and officers under his/her control including two specified officers; (b) in addition to the New South Wales Crown Solicitor, officers under his control; (c) two further named barristers; (d) HealthQuest/Central Sydney Area Health Service including one specific officer thereof. 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 Centrelink 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. 15 Returning then to procedural aspects of the appellant's Notice of Motion, we have not been persuaded that any of the three orders he seeks should be made. There is no practical way in which the first order could be made consistent with giving the respondents a fair hearing. We should also note that an assumption made in framing this order is that the appellant is entitled to bifurcate his proceedings to seek some kind of summary relief. We are not persuaded that this is an appropriate course. 16 To the extent that the appellant seeks expedition of his appeal we will factor that consideration into our directions which we will subsequently make, giving priority to the appeal to the extent that is feasible to do so in terms of the Court's commitments and the need to give an adequate time for preparation by all parties. The first date we will fix is likely, in any event, to be the first date consistent with proper preparation of the appeal. 17 We have earlier dealt with the substance of the second order sought. The order will not be made. 18 The third order sought was explained by the appellant at the hearing today as being advanced in support of the first order in the sense that if the Court did not make the precise order he sought as order (1), he would then proceed to the Court of Appeal and he should have the appeal stayed for that purpose. On analysis, the order lacks any proper bases for it to be made and it is also dismissed. 19 The appellant's Notice of Motion of 8 November 2005 is dismissed as is that part of his Notice of Motion of 11 October 2005 which seeks a bifurcated appeal process. 20 These rulings leave the issue whether the material earlier referred to should remain on the Court file. In respect of that material we note the terms of Rules 13 and 121 of the Industrial Relations Commission Rules which provide: Rule 13 Scandal, etc. 13(1) A tribunal may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.

Rule 121 Scandal, etc. 121 Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, a tribunal may order that: (a) the matter be struck out; or (b) the affidavit be taken off the file. 21 We have no doubt that any documents filed in proceedings which contain scandalous material (in the legal sense) may be, pursuant to Rules 13 and 121, this Court's implied powers as a superior court and its ability to control its own procedures and prevent abuse of its process, the subject of similar orders to those set out in Rule 121. 22 We consider the material recently filed by the appellant, other than his affidavit and the single page in which he sets out the orders he seeks, contains scandalous material and should therefore not be allowed to remain on the Court's file. We accordingly direct the Industrial Registrar to remove the documents from the file and retain them in safe custody subject to further order of the Court. 23 Having heard the parties as to the procedure to be adopted for the hearing of the leave application and the appeal we have decided to initially hear leave but also to set a date to hear the appeal if that is appropriate. 24 In adopting that course we are not rejecting the respondents' submissions that contempt proceedings in respect of the proceedings at first instance, if brought, may well need to be heard prior to the appeal, depending of course on the terms of the contempt process. 25 Liberty to apply will thus need to be granted to deal with that contingency. 26 While the appellant has not made an application in relation to contempt in these appeal proceedings he seems to have raised issues of that character. We do not intend to take any formal steps in respect of such matters. If the appellant wishes to separately formalise such matters, they may be dealt with separately from the appeal proceedings. 27 We now turn to the fixing of hearing dates and the making of associated directions. We fix 16 February 2006 for the hearing of the application for leave to appeal. We also fix 10 April 2006 for the hearing of the substantive appeal. In fixing the April date, we make clear that if, prior to that date, the application for leave to appeal is declined, that date will thereupon be vacated. We also make clear that if a date earlier than 10 April becomes available it will be fixed in lieu of that date. 28 We also make the following directions and orders:

(1) the appellant shall file and serve his submissions in respect of his application for leave to appeal and his appeal by 4 pm on Friday 16 December 2005. He shall also file a chronology in respect of issues raised by the appeal by the same time. (2) the respondents shall file and serve their submissions and chronology in reply by 4 pm on Friday 20 January 2006. (3) Direction (2) is independent of Direction (1). That is, the respondents must file and serve their submissions in accordance with Direction (2) whether or not the appellant complies with Direction (1). (4) The appellant shall file and serve any submissions in reply to those of the respondents by 4 pm on Monday 4 February 2006. (5) We note the undertaking of the respondents to serve upon the appellant by 4 pm Monday 28 November 2005 a compilation of documents for the purpose of the hearing of the application for leave to appeal and that in due course they will file that documentation. (6) There will be liberty to apply to the respondents in respect of the hearing dates set in the event that the appellant commences contempt proceedings in respect of the proceedings at first instance. (7) The respondent may serve documents upon the appellant by adopting a mechanism along the following lines: (a) forwarding an E-mail to the E-mail address of the appellant included in his appeal documentation; (b) nominating in that E-mail a precise location within the Crown Solicitor's Office or at a nearby location from which the material may be collected; (c) service in accordance with the above method shall be deemed to be proper service by the respondent on the appellant for the purpose of these appeal proceedings. 29 The proceedings are therefore adjourned for hearing of the application for leave to appeal in accordance with these directions at 10 am on Thursday 16 February 2006.

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