Crewdson v New South Wales Department of Community Service & Anor

APPLICANT Mr G Crewdson in person

LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel Solicitor: Mr P Rankin Crown Solicitors Office

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 24 May 2004

Matter No IRC 3140 of 2001 GERARD CREWDSON v NSW DEPARTMENT OF COMMUNITY SERVICES & ANOR Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT (NO.9) [2004] NSW IRComm 125

1 Gerard Michael Crewdson has made application by way of notice of motion for an order against the Directors General of the Department of Community Services and Department of Ageing, Disability and Home Care and against the Central Sydney Area Health Service for "a mandatory injunction" requiring the respondents to restore Mr Crewdson "to his employment and paid duties pending a final determination." The form of the order sought was "Reinstatement to position on full pay effective as of 22/4/04" with reinstatement backdated to either "13/12/02, 31/5/02, 20/2/98 or 29/10/97". Additionally, Mr Crewdson sought the following "consent or ex tempore interim orders": (1) Director General DADHC [Department of Ageing, Disability and Home Care] to perform duties to applicant under clause 12 of SES [Senior Executive Service] code of conduct with regard to his disclosures of maladministration and corrupt conduct under the Protected Disclosures Act 1994 by ensuring proper investigation of disclosures and protection of applicant from further detrimental action. (2) Removal of Crown Solicitor from any further involvement in proceedings as legal representative of Respondents.

2 Notice of Mr Crewdson's intention to pursue these last two orders was not given until 22 April 2004 when the hearing in relation to his application for an injunction had been listed. I informed Mr Crewdson that I did not intend to deal with his application for these two orders. Not only is the Court's power to make such orders clouded with considerable doubt but also the respondents were not given proper notice as to the application being made. If Mr Crewdson wishes to pursue his application in respect of these two orders he is put on notice that the Court's jurisdiction to do so will be the threshold issue and any submissions on that question will need to be in writing. It is a matter for the applicant to advise the Court if he wishes to press the application.

3 Mr Crewdson had been employed by the Department of Community Services ("DOCS") from 7 September 1990 to 2 October 1998 as a residential care assistant. Mr Crewdson claimed that his employment was not in fact or in law terminated, although he has not performed work for DOCS and has not received any payments in respect of employment from DOCS since 2 October 1998. The question of Mr Crewdson's employment status is a central issue in other proceedings before me (see, for example, Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121), which are ongoing. A complete history of the proceedings involving Mr Crewdson and various applications he has made in pursuit of relief under the Industrial Relations Act 1996 is contained in Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6.

4 Mr Crewdson's present application for interim injunctive relief arises because, he submitted, after three years of proceedings in the Commission in Court Session he is finding it extremely difficult to continue to pursue his final relief in circumstances where he is unemployed, relying on social welfare and surviving on the generosity of friends and his savings. Mr Crewdson has made application in other proceedings under s 248 of the Act for an order that the Public Service Association of New South Wales ("PSA") be required to represent him in the substantive proceedings where he is seeking declaratory relief. Mr Crewdson claims he has been a member of the PSA since August 1998 but that organisation has failed to provide him with any advice or any effective assistance since mid 2000 and has, over the last two years, refused to respond to his requests for assistance. The application relating to the PSA, I understand, will not be heard before July 2004.

5 It may immediately be observed that the Central Sydney Area Service, whilst a respondent to the proceedings, at no time employed Mr Crewdson and even if it were appropriate to grant the interim relief sought by Mr Crewdson it would not be made against that respondent.

6 In any event, I do not propose to make the order sought by Mr Crewdson. Before going to the reasons for not doing so, I should deal with a matter that arose in the course of proceedings.

7 On 20 April 2004, that is two days before the scheduled hearing, the Directors General of DOCS and DADHC were each served with notices to produce. Mr Crewdson submitted that the information sought in the notices was necessary to enable him to make out his case. Ms E Brus of counsel for the respondents indicated that it was her clients' view that much of the material sought was of no relevance to the orders being sought by the applicant, or indeed, to the substantive proceedings and it was the respondents' intention to file a notice of motion to have all or part of the notices to produce set aside.

8 In light of the late service of the notices to produce and the respondents' stated intention to challenge production, I did not call upon the respondents to produce the material sought by the applicant. No doubt it is the applicant's position that the material he seeks in his notices to produce remain relevant to the substantive proceedings and if that be correct it is a matter now for the respondents, if they so choose, to file the necessary notice of motion seeking to set aside the notices to produce and the Court will deal with that motion in due course. Any notice of motion challenging the notices to produce should be filed within seven days of the date of this judgment.

9 In the absence of the material sought in his notices to produce the applicant complained that he did not have sufficient opportunity to make out his case for an injunction. Whilst Mr Crewdson is an unrepresented litigant he is very familiar with the Court's practice and procedure and commonsense would inform him that seeking material by way of a notice to produce on barely two days' notice to the respondents, given the nature of the material sought, was unreasonable.

10 Moreover, in proceedings on 12 March 2004 I indicated to Mr Crewdson that he needed to consider the Commission's power to grant the injunction that he sought. In the proceedings on 22 April 2004 I again indicated to Mr Crewdson that I regarded the jurisdictional issue as a threshold matter that he should address and he was given every opportunity to do so. It seemed to me, given the background to Mr Crewdson's current application and the nature of the application itself that he faced a significant hurdle in convincing the Commission that it could exercise its power in his favour regardless of whether there was any new evidentiary material that the Court had not encountered in earlier proceedings. It is worth noting those earlier proceedings: Firstly, Mr Crewdson's substantive application remains part heard, not because of any undue delay created by the Court but because rather than choosing to participate in the substantive proceedings so that they might be concluded in a timely way, Mr Crewdson sought to pursue his relief by an application for a judgment on admissions and two applications for summary judgment, all of which were refused. An appeal by Mr Crewdson against my decision in Crewdson v New South Wales Department of Community Services & Anor (No. 7) [2003] NSWIRComm 190, where I dismissed his latest application for summary judgment, was unsuccessful: See Crewdson v New South Wales Department of Community Services and Anor [2003] NSWIRComm 417.

11 Mr Crewdson did tender a five-page affidavit with attachments in which he deposed to certain matters. I have read the affidavit, which to a significant extent is a submission and restatement of evidence received in the earlier proceedings to which I have referred. It may be that some of the material is relevant to the substantive proceedings and, subject to any objections, Mr Crewdson is entitled to rely upon it in the substantive proceedings. However, I am not satisfied that the affidavit bears relevantly on the application for an injunction. Evidence, if there is to be any at all in proceedings for interim relief, should be directed to what peculiar reasons exist as to why it is the Court should reinstate the applicant in his employment pending the outcome of the substantive proceedings in which the relief sought is also reinstatement. If it is said that the evidence in support of interim relief is the same as that supporting final relief, which appears to be the case here, the appropriate remedy would seem to be summary judgment and not an injunction. Summary judgment has already been refused - twice and once on appeal.

12 As to the question of jurisdiction, I have taken a broader view of the Court's powers to grant injunctive relief than that taken by some other members of the Commission in Court Session and consider that as a superior court of record the Court has implied power to grant interlocutory relief incidental and necessary to the exercise of the jurisdiction or powers conferred on the Court by the Industrial Relations Act 1996: See Collison v Hewston (2001) 103 IR 403 especially at [39]. However, I do not consider the Court's power extends to the granting of interlocutory relief to the extent it leaves no work to be done by the substantive relief. I do not consider it would be incidental and necessary to the exercise of jurisdiction under s 154 of the Act to reinstate Mr Crewdson in his employment as a measure of interim relief in circumstances where the final relief sought is a declaration of right to the effect that he has been in the employ of DOCS since 1990 and remains so to this day.

13 In his application for declaratory relief, which is the subject of the substantive proceedings, Mr Crewdson is seeking, inter alia, a declaration that he " 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" and that he is "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". In other words, the applicant is contending in the substantive proceedings for a declaration that his employment with DOCS remained unbroken since September 1990 when he first commenced employment and that the deed of release he signed in October 1998, which on its face suggests that the applicant resigned his employment, was "void invalid and of no effect". In these proceedings for interim relief Mr Crewdson is seeking "Reinstatement to position on full pay" from one of a selection of dates.

14 As I noted earlier, Mr Crewdson has not been paid in respect of any period of employment with DOCS since 1998 and DOCS relies on the deed of release to say that the applicant has not been in employment with the Department since the date on the deed. A decision to grant the applicant the interim relief he seeks would be to reinstate him on full pay from a date I presume I am to select, according to my discretion, from the list of dates nominated in the application.

15 It seems to me that such an order would, to a significant extent, supplant or make redundant the final relief being sought by the applicant and, indeed, goes further because the application for final relief only seeks a binding declaration of right whereas the application for an injunction, if granted, would deliver the essence of the consequential relief not claimed in the substantive proceedings.

16 In Gibson v Western Sydney Area Health Service [2000] NSWIRComm 13, the applicant had been appointed a visiting medical officer of the respondent. Twenty years later he was advised that after the introduction of a new appointments procedure his application for reappointment to his position within a particular hospital had been unsuccessful. He commenced proceedings under s 106 of the Act and sought interlocutory relief restraining the respondent from terminating his appointment pending the final determination of the proceedings.

17 At [26] Peterson J found that: The relief sought in terms of the interlocutory order is, in a practical and immediate sense, of no different import and effect to the final relief sought; the latter would have the service contract preserved pending appeal, the former pending the hearing and determination of the case intended to lead to that result. The grant of the interlocutory order could have the effect, depending on the date of hearing of the appeal, that there would be no other work left to be done by the substantive proceedings. Where a summons proceeds on that restricted basis it is not seeking to invoke a specific or recognised jurisdiction, with a supplementary resort to interim relief to protect the main proceedings; its substance appears to me to be as much interlocutory as final relief and, accordingly, I consider it falls short of the reach of the Court's jurisdiction.

18 In Noeline Hawkins v Sydney Fish Market Pty Ltd [2000] NSWIRComm 209 the applicant filed a summons seeking relief under s 106 of the Act on 18 October 2000 seeking, inter alia, an order varying the agreement or arrangement by which she operated a mobile coffee cart at the Sydney Fish Markets by extending it to 30 April 2005. The applicant also filed a notice of motion seeking injunctive relief and, in particular, an order that: [T]he Respondent, its officers, employees and agents be restrained from the removal of the Applicant from the licenced (sic) space occupied by her pursuant to the Licence Agreement entered into by the Applicant and the Respondent on or about the 1st May 2000 pending the final determination of these proceedings or until further Order".

19 At [19] Marks J expressed the following view: 19 In my opinion the orders for interlocutory relief sought by the applicant in these proceedings are not designed to prevent the processes of this Court being used to bring about any injustice nor are they designed to protect the integrity of the processes of this Court. They are directed more to the substantive relief which is sought by the applicant in terms of the substantive proceedings brought under s 106.

20 Both Gibson and Hawkins involved applications under s 106 of the Act. That is not the case here because what is sought is declaratory relief under s 154 of the Act. Moreover, both Peterson and Marks JJ would appear to take a more restricted view of the Court's power to grant interim relief than I. Nevertheless, the point that may legitimately be derived from these two cases is that what the applicants were seeking by way of interim relief duplicated to a greater or lesser extent the final relief sought and that was beyond power. As Peterson J observed in Gibson, if the interim relief were to be granted, "there would be no other work left to be done by the substantive proceedings". Even taking a more generous view of the Court's power to grant interlocutory relief I do not consider it would be within power to grant interim relief the effect being to make the essential terms of any final relief redundant.

21 If I were to grant the interim relief sought by the applicant in these proceedings it could well have the effect of embarrassing the final result if I were to find the applicant had not made out his case for final relief. Such an outcome would not be in the interests of either party or in the interests of justice.

22 Mr Crewdson referred to Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (1998) 195 CLR 1 where the High Court held at [33] (references omitted): A Court whose jurisdiction is invoked in a conspiracy case has power to grant an injunction to prevent the completion or effecting of the conspiracy … Where the damage caused by tortious conduct is ongoing and is "extreme, or at all events very serious", a mandatory injunction may issue compelling the wrongdoer to prevent the occurrence of further damage.

23 Mr Crewdson has not established to my satisfaction that this is a "conspiracy case", even on a prima facie basis, and I do not consider I will be in a position to make a judgment about whether or not a conspiracy existed until I have heard all of the evidence in the substantive proceedings.

24 Mr Crewdson referred to the judgment of Schmidt J in Hill v Director General of the Department of Education and Training (1998) 85 IR 201. In that case the applicants sought an order that "The Respondent not dismiss the Applicant until the hearing and determination of matter number 5858 of 1998 (application for relief from unfair dismissal) and the resolution of the industrial dispute notified in matter number 5849 of 1998." The orders were sought on two alternative bases, pursuant to s 89(7) or ss 136 and 137 of the Act.

25 Schmidt J considered that there was power to make the orders sought under both s 89(7) and ss 136 and 137. In deciding to make an order that the respondent was not to dismiss Mr Hill, Her Honour referred to the unusual circumstances of the case at 210-211: In summary, on the material it appears that Mr Hill has never been suspended from his teaching duties by the Department. He suffered an injury to his back at work in February 1998. As a result he has been absent from work on workers compensation since that time. An application that Mr Hill be medically retired from the teaching service as the result of that injury is being processed. He is due to be examined by the relevant doctor in early December. The parties have made an arrangement that even if Mr Hill is dismissed, that examination will proceed, so that in the event that he is successful either in these proceedings or before the Court of Appeal, the question of his medical retirement can then be progressed. If Mr Hill is successful in his appeal to the Court of Appeal, it is common ground that the dismissal or any threat thereof will be void and the basis for these proceedings will disappear. The prospect that a decision will be given in those proceedings before these proceedings are determined is however remote. If Mr Hill is dismissed, he will be placed by the Department on a list of those not to be employed which is circulated to principals of departmental schools throughout the State. It is most unlikely given his medical condition, that he would be seeking such employment prior to the determination of these applications. I have very carefully weighed the competing cases on the merits and I have concluded, on balance, that the orders sought by the applicants should be granted in this case, on strict terms. I do not lightly exercise the discretion to interfere with the decision to dismiss, particularly as I am acutely conscious of the serious nature of the allegations which have been found proven in a process challenged unsuccessfully in the Supreme Court. I have concluded however that it is appropriate to make interlocutory orders in this case, as the result of an unusual combination of factors. Mr Hill has been employed by the Department since 1979. The events in question, involving alleged indecent assault of a student, arose in March and April 1993. The Department did not move to investigate those matters until September 1997, adopting a procedure to make a determination between two people's accounts of events which has been challenged, albeit unsuccessfully to date. Mr Hill taught in the meantime and continued to do so while the investigation proceeded, until injured at work in February 1998. The prescribed officer concluded only in May 1998 that the charges were proven. Mr Hill has challenged the threatened dismissal. If it is given effect all of the usual consequences of dismissal will flow. What in my view takes this matter out of the ordinary is that Mr Hill's name will then almost inevitably be placed on the `Not to be Employed List', which will be circulated to the Principals of all schools in the State and perhaps to other potential employers as well. This list is a feature of the employment of teachers by the Department, established no doubt for very sound reasons, but not known in employment generally. Even this matter may not have swayed me, however, except that there is no prospect in the circumstances of this case that Mr Hill will be seeking to return to teaching prior to the hearing in April, because of his injury. It seems to me that there are serious issues to be tried in this case. While ultimately the upshot of the substantive hearing may be that the decision to dismiss Mr Hill will be found to have been based on sound reasons with which the Commission will not interfere, having Mr Hill's name placed upon the list in the meantime, is a consequence of dismissal which I accept will weigh very heavily upon him, perhaps unnecessarily so, if he is successful in his application and there is no real prospect of him teaching in the meantime. I take the view however, that in balancing the competing considerations and seeking to do justice between the parties in this case, I should not overlook the fact that a consequence of the order will be that, but for Mr Hill's absence from work due to injury, the Department would be obliged to continue him in paid employment after it had determined to dismiss on account of very serious misconduct. The order will therefore be subject to the condition that in the event that Mr Hill recovers his health and is assessed as fit to resume teaching, which seems unlikely at present, that he will not do so, but will seek and will be granted leave until these applications are determined by the Commission. That leave will either be paid leave in respect of which he would be entitled to be payment on termination in any event, or in the absence of such entitlement, leave without pay. In the event that Mr Hill's application is successful, the question of any orders which should be made under s89(3)of the Act may be raised for consideration. Given the unusual circumstances of the case and the expedition of the appeal to the Court of Appeal which is now being pursued by Mr Hill, the parties are given leave to approach the Commission about the order which I make and the hearing of the matter. Reasonable notice should be given of any such approach.

26 The peculiar features associated with Hill are not present in the matter with which I am concerned. True it is that Mr Crewdson claims that unless he is granted the interlocutory relief he seeks he will find it very difficult to continue with his substantive application because of the lack of financial means. But given the considerations earlier referred to that is not a basis upon which I could grant interlocutory relief in this case. Moreover, Mr Crewdson has regularly, over three years, expressed his concern about his capacity to continue with his litigation given his financial circumstances and whilst I remain sympathetic to his predicament he has, nevertheless, managed to do so.

27 If I may say so and in order to avoid further unnecessary delay and the stress that obviously causes to Mr Crewdson, I consider that the best course of action for him is to focus on finalising the substantive proceedings and obtaining an outcome. But, of course, that is a matter for Mr Crewdson.

28 The application for an order for a mandatory injunction against the respondents to restore the applicant to his employment and paid duties pending a final determination of his application for declaratory relief is refused. Costs are reserved.

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