Crewdson v. Industrial Relations Commission of NSW & Ors. [2007] NSWCA 178

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Handley AJA at 49

CATCHWORDS: EMPLOYMENT LAW - JUDICIAL REVIEW - Claim of bad faith by judges of Industrial Relations Commission of NSW - Claim not made out.

LEGISLATION CITED: Industrial Relations Act 1996 s.129

Briginshaw v. Briginshaw (1938) 60 CLR 336 Burrows v. Commissioner of Police [2001] NSWIRComm 333 CASES CITED: Crewdson v. Central Sydney AHS [2002] NSWCA 345 Makita (Australia) Pty. Limited v. Sprowles [2001] NSWCA 305, 52 NSWLR 705 Paric v. John Holland (Constructions) Pty. Limited (1985) 59 ALJR 844

Gerard Crewdson - claimant Industrial Relations Commission of NSW - 1st opponent PARTIES: Administrative Decisions Tribunal of NSW - 2nd opponent Director-General NSW Department of Ageing Disability & Home Care - 3rd opponent HealthQuest - 4th opponent

Claimant appeared in person COUNSEL: Mr. S. Prince for 3rd and 4th opponents Submitting appearance by 1st and 2nd opponents

SOLICITORS: I.V. Knight, Crown Solicitor, for 3rd & 4th opponents

LOWER COURT JURISDICTION: Industrial Relations Commission of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40514/06

MASON P HODGSON JA HANDLEY AJA

Wednesday 25 July 2007 CREWDSON V. INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES & ORS. Judgment 1 MASON P: I agree with Hodgson JA. 2 HODGSON JA: By his Amended Summons filed 13 April 2007, the claimant seeks the following orders: 1. An order pursuant ss 48 and 69 of the Supreme Court Act 1970 to quash the decision of the first Opponent in Crewdson v Dept of Community Services & Ors (No 14) (2006) NSW IRComm 94 handed down on 24 March 2006

2. An order pursuant ss 48 and 69 of the Supreme Court Act 1970 to quash the decision of the first Opponent in Crewdson v Dept of Community Services & Ors (No 11) (2005) NSW IRComm 308 handed down on 26 Aug 2005

3. An order pursuant ss 48 and 69 of the Supreme Court Act 1970 to quash the decisions of the Second Opponent in Crewdson v Director General DOCS & Ors EOD Matters 58 & 67 of 1998 on (a) 21 Sept 1998 (b) 6 Nov 1998

4. A declaration pursuant sec 75 of the NSW Supreme Court that officers of the Third Opponent were not bound by an opinion of Fourth Opponent to place the Claimant on Leave without Pay on 20 Feb 1998

5. A declaration pursuant sec 75 of the NSW Supreme Court Act that the Third Opponent's failure to observe the rules of procedural fairness when making initial decisions to direct the Claimant to HealthQuest on 11 Sept 1997 vitiated all subsequent process and action by the Third and Fourth Opponents 3 The first opponent is the Industrial Relations Commission of New South Wales (the IRC); the second opponent is the NSW Administrative Decisions Tribunal (the ADT); the third opponent is the Director General NSW Department of Ageing Disability and Home Care; and the fourth opponent is HealthQuest. 4 These proceedings arise out of events occurring in 1997 and 1998, concerning the claimant's employment with the NSW Department of Community Services (DOCS) as a Residential Care Assistant. I will summarise these events very briefly. 5 In June 1997, a resident in the home where the claimant worked was injured while being handled by another staff member. The claimant raised concerns about this with the House Manager, Ms. Gillett. Shortly afterwards, another staff member commenced verbal attacks on the claimant. In July 1997, the claimant submitted a formal complaint about this to Ms. Gillett. 6 In September 1997, Ms. Gillett spoke to her immediate superior, Ms. Pitchford concerning the claimant, and prepared a memorandum to Ms. Pitchford dated 15 September 1997 expressing concerns that the claimant was suffering a serious mental illness. On 13 October 1997, Ms. Pitchford gave the claimant a written direction to attend HealthQuest. 7 On 29 October 1997, the claimant attended HealthQuest, and found he was being interviewed by a psychiatrist, Dr. Roberts. He objected to some of Dr. Roberts' questions, and the interview terminated. 8 Dr. Roberts formed the belief that the claimant "may well have been suffering from significant mental illness", and felt it was inappropriate that he return to work, and she recommended that he take leave and consult a private psychiatrist. Dr. Roberts consulted with Dr. Jagger, Deputy Director of HealthQuest, who issued an interim advice to the HR Manager Northern Sydney of DOCS to the effect that the claimant was unfit for work and "in need of further psychiatric assessment and consideration of treatment", and that he should be placed on sick leave and not resume work until he provided a report from his consulting psychiatrist. 9 On 30 October 1997, Ms. Gillett advised the claimant that he had been declared unfit for three months and was to be placed on sick leave. 10 On 26 November 1997, the claimant gained access to his personnel file and discovered documents alleging serious mental illness; and he subsequently sought to appeal from HealthQuest's decision. In December 1997, he lodged a complaint with the Anti-Discrimination Board. 11 On 20 February 1998, officers of DOCS placed the claimant on what was recorded as "leave with pay". However, the claimant's paid sick leave was exhausted at about this time, and from then the claimant was in effect on leave without pay. 12 On 12 March 1998, DOCS wrote to the Anti-Discrimination Board claiming that its actions were supported by cl.17 of the Public Sector Management (General) Regulation 1996 (the Regulation). 13 On 21 September 1998, the claimant applied to the Equal Opportunity Tribunal, seeking an interim order that DOCS place him back on full pay whilst the matters before the Tribunal were under enquiry. The Tribunal declined to make that order, and adjourned the proceedings for 21 days, continuing as follows: In the interim period Mr. Crewdson will, as he has indicated to the Tribunal, obtain a certificate or report from an appropriately qualified medical practitioner to the effect that he is fit for work and hence would be able to benefit from an order of the type that he has sought in this interim application. 14 On 6 October 1998, a deed was entered into between the claimant, the State of New South Wales and Central Sydney Area Health Service under which the State was to pay the claimant the total of $25,354.86 and provide him with a certificate of service, and the claimant was to agree to the dismissal of his complaint before the Equal Opportunities Tribunal. Clause 5 of this deed was in the following terms: 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. 15 The money referred to in the deed was paid to the claimant, and on 6 November 1998 the Equal Opportunity Tribunal dismissed his complaint. 16 In 2001, the claimant commenced proceedings in the IRC. The orders he sought were the following declarations: 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 (sic) 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 17 On 26 August 2005, Boland J dismissed the claimant's application. In his reasons for judgment, Boland J found that there had been flaws in the process by which the claimant was referred to HealthQuest and put on leave. Boland J said that the finding was open that he had not been accorded procedural fairness; that the direction that he attend HealthQuest was not authorised by cl.17 of the Regulation, because it was not given by the Department Head or a person with delegated authority; and that the declaration that he be placed on sick leave was not authorised by cl.84 of the Regulation, for similar reasons. 18 However, Boland J accepted Dr. Roberts' evidence that, at the time she saw him, the claimant may well have been suffering from significant mental illness and that it was inappropriate that he return to work. Boland J said this: 77. … Whilst cl 17 exists for the protection of a staff member so that they are not subjected to unfair and improper treatment, there was a reasonable basis for concern about the state of Mr Crewdson's mental health and despite the flaws in the procedure that brought the applicant to HealthQuest, once a valid medical opinion was expressed the first respondent was in no position to question the validity of that opinion. 78 That is to say, faced with the advice of the Deputy Director of HealthQuest, Dr Jagger, that Mr Crewdson was unfit for work "and in need of further psychiatric assessment and consideration of treatment" it was not reasonably open to the first respondent to ignore that advice and allow Mr Crewdson to return to work. 79 I find that the opinion expressed by Dr Roberts and supported by Dr Jagger as to the applicant's unfitness for work was a valid opinion. Further, that the first respondent's direction to the applicant to proceed on leave in accordance with the recommendation of Dr Jagger and that he not resume work until he had provided a report requested from his consulting psychiatrist to HealthQuest, was a valid act. 19 Boland J then considered whether the present claim was precluded by the deed. He held that cl.5, if valid, would preclude the proceedings before him. He rejected the claimant's contentions that the deed was invalid for unconscionability or illegality. 20 On 16 September 2005, the claimant lodged an application for leave to appeal. 21 On 11 November 2005, the Full Bench of the IRC dealt with questions as to how the appeal was to be dealt with, saying the following among other things: 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. …

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. 22 On 20 December 2005, the claimant filed a written application requiring the judges who had given that decision to step aside on the ground of repeated dishonesty. 23 The matter came before those judges on 16 February 2006. In its judgment delivered on 24 March 2006, the Full Bench said this: 19 In addition, the Full Bench declined the respondent's application for the question of leave to be heard separately to the merits of the appeal. Instead, the Full Bench listed Mr Crewdson's application for hearing on two days, 16 February 2006 and 10 April 2006, so that the Court could hear Mr Crewdson on leave and the merits of the appeal and then decide on the appropriate course. For the reasons we shall discuss shortly, it will not be necessary to hear the respondents on the merits of the appeal and accordingly, the hearing date of 10 April 2006 is vacated. …

22 At the outset, the parties agreed on the following sequence of submissions and determinations: 1. Mr Crewdson's application that the Full Bench disqualify itself; 2. Mr Crewdson's application for an adjournment of the appeal; 3. The respondents' Notice of Motion seeking orders dismissing the proceedings for want of prosecution; and 4. The application for leave to appeal and appeal. (Each of the sequential steps after the first depended on the result of the earlier step). 23 Mr Crewdson's application that the Full Bench disqualify itself on the basis of actual or apprehended bias was unanimously rejected as being factually without foundation and legally untenable: Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50 (the decision records the detailed reasoning of the Full Bench, which we shall not duplicate here). While the Full Bench was delivering its decision on his application, Mr Crewdson left the courtroom in apparent protest. The remainder of the proceedings took place in his absence. 24 As mentioned above, Mr Crewdson had advised the Court and the respondents that he would seek an adjournment of the application for leave to appeal and appeal on the basis that the contempt proceedings were directed to the fabric of the proceedings at first instance and, for that reason, must be heard prior to the appeal. However, by the time the Court came to this application, following the agreed sequence, Mr Crewdson had left. Accordingly, the application lapsed. 24 The Full Bench judgment then continued. It dismissed the Notice of Motion for dismissal for want of prosecution. Then, on the basis of written material from the complainant, it reviewed Boland J's decision. The judgment then concluded: 41 In conclusion, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed.

STATUTORY FRAMEWORK 25 Limitations are placed on this Court in relation to proceedings in the Industrial Relations Commission by s.179 of the Industrial Relations Act 1996, which is as follows: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law. (7) In this section: decision includes any award or order. 26 As regards the Administrative Decisions Tribunal, there is provision for appeals to the Supreme Court; but in this case, what is sought is an order quashing decisions of 21 September 1998 and 6 November 1998.

CLAIMANT'S CONTENTIONS 27 The claimant's challenge to the decision of Boland J is essentially on the basis of bad faith. I will summarise his contentions briefly. 28 The claimant submitted that Boland J showed dishonesty and bad faith in misrepresenting medical evidence, in reaching conclusions where there was no probative evidence in support of them, in disregarding the claimant's own uncontested evidence, and in attempting to downplay compelling evidence that false claims of mental illness were used as reprisal for the complainant's whistle-blowing. Further evidence of bad faith was shown by Boland J's disregard of the circumstance that there had been an unreported assault against a disabled woman, and other substantial complaints of client mistreatment. 29 The claimant submitted that the HealthQuest process was a nullity, and accordingly should be declared to be a nullity and set aside; and that everything consequential on it was also a nullity. Boland J's failure to do this, and his finding in substance that the claimant was not entitled to natural justice and that whistle-blowers could be penalised with impunity was further evidence of bad faith. Bad faith was further shown by Boland J's finding that the unauthorised placing of the claimant on sick leave was a valid act, this being contrary to his own decision in Burrows v. Commissioner of Police [2001] NSWIRComm 333. 30 The claimant submitted that the Crown Solicitor had acted fraudulently in relying on cl.17 of the Regulation as a defence under s.54 of the Anti-Discrimination Act Act, and had also attempted to pervert the course of justice. These actions invalidated the decisions of the Administrative Decisions Tribunal. They also contributed to the invalidity of the deed of 6 October 1998. This deed was also in breach of the Protected Disclosures Act 1994. It was obtained by fraud and was unconscionable and illegal. Boland J did not properly consider and determine these claims, and his finding to the contrary could not possibly be bona fide. 31 As regards the Full Bench decision, the claimant submitted that its dishonesty was shown by its misrepresentation contained in par.19 of its judgment as to the nature of the hearing, and the denial of procedural fairness in not hearing his appeal on the date it was set down, namely 10 April 2006. 32 Pursuant to leave given at the conclusion of the oral argument, the claimant subsequently provided further written submissions. These submissions contended that Handley AJA (along with two other judges) had acted dishonestly in dealing with an earlier case brought by the claimant in the Court of Appeal (Crewdson v. Central Sydney AHS [2002] NSWCA 345); and that accordingly Handley AJA should not be involved in the determination of this case. The submission was based on the contention that, because Boland J subsequently determined that the direction given by Ms. Pitchford was not authorised by cl.17 of the Regulation, statements in the earlier Court of Appeal case that the report had been sought pursuant to cl.17 must have been knowingly fraudulent; and this submission was made despite the fact that the issue as to whether Ms. Pitchford was authorised to give the direction was not an issue in that case. This allegation of the claimant is plainly baseless; and baseless allegations of this kind should not be permitted to influence the constitution of the Court. In other respects, the further submissions elaborated on submissions previously made.

PRINCIPLES 33 Before reviewing the claimant's contentions, it is appropriate to note three broad matters of principle which affect them. 34 First, in the proceedings in respect of which his complaints are made, the claimant was the moving party; and as a very general principle, a moving party in proceedings bears the onus of making out every element required to justify the grant of relief. If a claim is in substance for compensation because a claimant has been prevented from earning income, the claimant generally needs to show not only that there was a wrongful or unauthorised act that impeded the earning of income, but also that, were it not for that act, he or she would have been able to perform the tasks required to earn the income. If a claim is in substance for reinstatement to an income-earning position, again the claimant generally needs to show not only a wrongful or unauthorised removal from that position, but also the ability to perform the tasks of that position. In some cases, this onus would be readily discharged; but where, as in the claimant's case, the task involves the care of disabled persons, there is psychiatric evidence raising a substantial question about the claimant's mental health, and the claimant has taken no steps to enable this question to be satisfactorily resolved, it would be a reasonable view that the claimant's onus of proof has not been discharged, and indeed that it would be irresponsible to order reinstatement before the question had been resolved. (The reasonable course for the claimant to have taken would have been, not to assume that those who disagreed with him were acting in bad faith, but to seek to resolve the question of his fitness either by co-operating with HealthQuest or seeking his own medical advice.) 35 Second, consistently with this, there is no legal principle that says that everything that happens in consequence of an action that is legally void is itself legally void. If in a particular case, the law prescribes that for act B to be valid, a preceding act A must be valid, then if act A is void, act B will also be void. But if the law does not prescribe that kind of link, the voidness of one act will not automatically make consequential acts void. The law does not say that, if an unauthorised direction is given and complied with, then nothing that follows from that compliance can be valid or have legal effect. The cases relied on by the claimant in order to suggest the contrary have been taken by him entirely out of context. 36 Third, the claimant is alleging actual dishonesty and bad faith against four judges. In considering whether such a grave allegation is made out, the correct approach is that stated by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-2: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

DECISION 37 The claimant makes two allegations of dishonesty in respect of medical evidence: first, that Boland J said that Dr. Roberts' opinion was based on her observations of the claimant, whereas she herself said she felt it was inappropriate to send him back to work "because of the incidences described in his employer's report", so that her evidence was in fact inadmissible on the basis of Makita (Australia) Pty. Limited v. Sprowles [2001] NSWCA 305, 52 NSWLR 705; and second, that having admitted Dr. Jagger's advice, over objection and without cross-examination, on the basis that it was not evidence that the claimant was unfit for work, Boland J treated it as such evidence. 38 On the first matter, despite the brief passage quoted, it was well open to Boland J to find that Dr. Roberts' evidence as a whole conveyed that her views, that the claimant "may well have been suffering from significant mental illness", that it was inappropriate that he return to work, and that he should consult a psychiatrist, were substantially based on her own observations of him, so that her evidence was accordingly admissible: see Makita at [38], Paric v. John Holland (Constructions) Pty. Limited (1985) 59 ALJR 844. 39 On the second matter, I do not understand Boland J to have used Dr. Jagger's evidence as evidence that the claimant in fact had a mental illness. He used it, as he was plainly entitled to do, as material that DOCS could reasonably take into account, and that supported a reasonable view that there was a serious question about the claimant's mental health that needed to be resolved. There is nothing in par.[62] of the judgment to suggest otherwise, and the finding in par.[79] that Dr. Roberts' opinion, supported by Dr. Jagger, was a valid opinion, does not amount to a finding that the claimant had a mental illness, but was merely a finding that Dr. Roberts' opinion was one which DOCS could reasonably give weight to. 40 Other suggestions by the claimant of dishonesty in relation to evidence have no possible basis in fact or in law. In particular, while the Director General's Counsel did admit that a resident suffered a significant injury and that the claimant's concern about this was legitimate, he did not admit that this injury resulted from an assault; and the issues before Boland J did not require that he investigate complaints of client mismanagement, and come to a view as to whether they should be referred to an appropriate authority. Also, in circumstances where there was no medical evidence supporting the claimant's ability to perform his tasks, it was well open to Boland J to take the view that the claimant's own evidence did not establish this. 41 The contention that because the direction to attend HealthQuest was unauthorised, everything consequential was a nullity, has no basis in fact or in law. There is accordingly no basis for declaration 5 sought in the summons. As for declaration 4, it does not go to any issue: to obtain any relief at law, the claimant would need to show both that placing him on long leave was unauthorised, and that he was able to perform his tasks. The deed also bars the claimant from obtaining these declarations. 42 The submission that Boland J showed bad faith in condoning the denial of natural justice, the penalising of a whistle-blower and the unauthorised placing of him on sick leave, has no substance. The effect of Boland J's judgment was that, to the extent that any such matters were shown, they did not entitle the claimant to any remedy, both because the claimant did not resolve the question as to his mental health, and because none of these matters were sufficient to invalidate the deed. 43 The claimant's submission that the Crown Solicitor acted fraudulently and attempted to pervert the course of justice in relying on cl.17 of the Regulation must also be considered having regard to the Briginshaw test. I see no reasonable ground for holding that, at the time cl.17 was relied on, the Crown Solicitor did not consider that this reliance had an arguable basis. Accordingly, no basis is made out for order 3. 44 In my opinion, Boland J did address the arguments put by the claimant for invalidating the deed, and I see no grounds for thinking he did so other than bona fide. 45 For those reasons, in my opinion the matters alleged against Boland J, considered separately and considered cumulatively, fall far short of raising even a reasonable suspicion of bad faith, much less proof of it to the standard required by Briginshaw. For those reasons, the claim for order 1 fails. 46 As regards the Full Bench, it was made clear to the claimant from the paragraphs quoted from its decision of 11 November 2005 that, if the Full Bench declined the application for leave to appeal as a result of the hearing on 16 February 2006, then the date of 10 April 2006 fixed for the hearing of the appeal would be vacated. The appeal could proceed only by leave, so if leave was not granted as a result of the hearing of 16 February 2006, that was the end of the matter. The claimant attended on 16 February 2006, then chose to absent himself. There is no basis for any complaint of procedural unfairness in the Full Bench putting an end to the matter by refusing leave to appeal. The second order it made, dismissing the appeal, was a superfluity. 47 The summary in par.[19] of the judgment of 24 March 2006 of what was ordered on 11 November 2005 could have been better expressed; but it gives no basis for an allegation of bad faith or dishonesty, and could not have misled the claimant, because it occurred after the events of 16 February 2006.

CONCLUSION 48 For those reasons, the summons should be dismissed with costs. 49 HANDLEY AJA: I agree with Hodgson JA. **********

19/09/2007 - "Administrative Appeals Tribunal" corrected to "Administrative Decisions Tribunal" - Paragraph(s) par.26

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