Crewdson v New South Wales Department of Community Services and Anor

APPELLANT Mr G Crewdson in person

RESPONDENTS LEGAL REPRESENTATIVES: Ms E S Brus of counsel with Mr A Searle of counsel SOLICITOR Crown Solicitor (Mr P Rankin)

JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WALTON J ActingPresident HAYLEN, J CURTIS, AJ 12 November 2003

Matter No IRC 3681 of 2003 GERARD CREWDSON v DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES & ANOR

Application by Gerard Crewdson for leave to appeal and appeal against the decision of Justice Boland given on 12 June 2003 in Matter No. IRC 3140 of 2001.

JUDGMENT OF JUSTICE WALTON ACTING PRESIDENT (Ex-tempore) [2003] NSWIRComm 417

1 The appellant, Mr Crewdson, was on 7 September 1990 employed by the first respondent as a residential care assistant. On 13 October 1997, he was directed by his superior, Jackie Pitchford, to submit himself to psychiatric examination. On 29 October 1997, pursuant to that direction, he attended upon a psychiatrist, Dr Caroline Roberts. Dr Roberts had been provided in advance with Mr Crewdson's personnel file which contained prejudicial allegations of which he was then unaware. After the examination Dr Roberts formed and expressed the opinion that the appellant was unfit for work. In consequence he was declared by Dr Jagger, purporting to deputise for the Government Medical Officer, Dr Gapper, unfit for work and stood down from his duties.

2 On 20 February 1998, Mr Crewdson having exhausted his accumulated sick leave was placed on leave without pay. He protested. In April 1998, he complained to the NSW Anti-Discrimination Board. His complaints were on 15 May 1998 referred by the President of the Anti-Discrimination Board to the Equal Opportunity Tribunal for determination.

3 After mediation, and before any determination on the merits, Mr Crewdson, on 6 October 1998, signed a deed pursuant to which, in consideration of payment of $22,000 in settlement of the proceedings before the Tribunal and payment of his statutory entitlements of $3,354.86, he undertook to release the respondent from those proceedings and to resign from his employment with the respondent with effect from 2 October 1998. Proceedings before the Equal Opportunity Tribunal were, in consequence, dismissed.

4 Unsatisfied with this outcome the appellant, on 8 May 2001, lodged his application in this Commission for declarations: (a) That the applicant is, and at all times since 9 September 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 September 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 October 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 October 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 Session deems appropriate. 5 The grounds entitling him to this relief were asserted to be: (1) That because the procedure mandated by cl 17 of the Public Sector Management (General) Regulation 1996 was not followed, his suspension from duty was void ab initio and of no effect. (2) The release by deed executed by him was of no effect because it was obtained by virtue of unconscionable conduct on the part of the respondent.

6 On 6 August and 2 November 2001, the appellant served notices to admit facts on the respondents. On 27 September and 16 November 2001, the respondents filed notices admitting certain facts and disputing others. The applicant contended in a notice of motion filed on 10 December 2001 that the respondents' admissions entitled him to summary judgment. This application was, on 21 June 2003, dismissed on the basis that, despite the content of the admissions, serious questions of fact and law remained to be tried.

The Appellant's Grievance 7 The hearing of the appellant's primary application for relief commenced in December 2002 before Boland J and continued on 30 January 2003. The hearing has not been completed. However, two matters have arisen which have given the applicant cause for concern: (1) The response to a subpoena directed to the Department of Aging, Disability and Home Care, which response he says is incomplete; (2) The emergence of further evidence which he says, in combination with the earlier admissions, should entitle him to summary judgment and termination of the trial.

8 In consequence, on 24 January 2003, he filed a further notice of motion seeking: (1) Appropriate disciplinary orders to be made in relation to the first respondent's failure to lawfully and properly comply with summons for production documents and/or breach of State Records Act 1988.

(2) An order for summary judgment in favour of applicant on part or the whole of his claim.

(3) In the alternative to orders 1 and 2 adjournment of these proceedings to allow for the applicant's stayed application under s 213 of the Industrial Relations Act to be expedited.

(4) Costs. 9 On 12 June 2003 Boland J refused the orders sought on the motion because: (1) As to the first order that the court had no power to make orders relating to breaches of the provisions of the State Records Act and, further, he was satisfied that all documents that could be produced in response to the subpoena were produced; (2) As to the second, even if fresh evidence had emerged, the circumstances did not entitle the applicant to summary judgment and the consequent denial of the opportunity for the respondent to present its case.

The third order was not pressed by the appellant before Boland J.

10 I pause to note at this juncture that the grounds of the appeal focused upon the second of the two matters which I have identified were the basis for determination by his Honour. It is from that refusal by Boland J, concerning the summary judgment, that Mr Crewdson now seeks leave to appeal. In other words, the appeal truly focuses upon the refusal to grant summary relief.

11 In the present case the appellant has, in essence, contended Boland J erred in three respects: 1. His Honour failed to have sufficient regard to new evidence on the second application for summary judgment;

2. In so doing, his Honour failed to properly apply the principles relevant to the determination of an application for summary judgment; and

3. His Honour failed to give sufficient reasons refusing the application for summary judgment.

12 I am not satisfied that his Honour has so erred. It is clear that his Honour had regard to the appellant's new evidence. His Honour clearly considered that there were evidentiary issues which remained outstanding and that it would not be "in the interests of justice" to grant summary judgment. Further, I am not satisfied that there was any inadequacy in his Honour's reasoning. Moreover, having regard to the fact that the appellant had at all times been self-represented, I would note his Honour was mindful of that fact and had sought to extend appropriate assistance to the appellant.

13 The appellate mechanism established by Pt 7 of Ch 4 of the Act enabling an appeal "against a decision of the Commission constituted by a single member" (see s 187), is available only "with leave of the Full Bench", (see s 188(1)). This restriction in the capacity to appeal was one of the reasons behind the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 observing (at 392 - 393) that "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State": see also National Australia Bank Ltd v Cassino [2002] NSWIRComm 241 at [6].

14 This court has, since the commencement of the Industrial Relations Act 1996, continued the approach of its predecessors (see for example Re Social & Community Welfare Services (State) Award & Other Awards (1984) 9 IR 305; Parramatta City Council v Health & Building Surveyors Association (NSW) (1988) 26 IR 398 at 401 - 402; Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91 at 103; Chamber of Manufactures of New South Wales v Australian Chamber of Manufactures, New South Wales Branch (1994) 56 IR 307 at 310 - 311) and the approach adopted by courts of more general jurisdiction, in emphasising that interlocutory appeals of a procedural nature are "generally deprecated and discouraged": see also Caltex Petroleum Pty Limited and Others v Harmer (1999) 92 IR 264 at 265 - 266, National Australia Bank Ltd v Cassino at [6], Victor Lahoud v Joseph Lahoud [2003] NSWIRComm 179 at [23] and the various authorities referred to in Strathfield Group Ltd v Hall [2002] NSWIRComm 373 at [36]. Moreover, as has recently been noted by the Full Bench in National Australia Bank Ltd v Cassino (at [8]), this approach is further emphasised "by the nature of an appeal to the Full Bench": see s 191(3).

15 The "classic statement" of the rationale for such an approach to interlocutory appeals is to be found in the judgment of Sir Frederick Jordan CJ in Re The Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 where his Honour said at 323: ... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

16 It should be noted that this passage from the judgment of the former Chief Justice was adopted in both the majority and the minority judgments in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Incorporated and Another (1981) 148 CLR 171 (at 177 per Gibbs CJ, Aickin, Wilson, Brennan JJ, and at 180 per Murphy J), was referred to with approval in Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at [13] per Gaudron, McHugh and Hayne JJ and per Kirby and Callinan JJ at [49] and has otherwise been referred to with approval on numerous occasions.

17 Having regard to the underlying rationale, the principle may perhaps be seen as the corollary of the principle discussed by the High Court in Gerlach v Clifton Bricks Pty Ltd; namely, that it is, as a general rule, open to a party to challenge an interlocutory order in appeal proceedings brought following final judgment, provided that the interlocutory order "affected the final result": see Gaudron, McHugh and Hayne JJ at [6] - [7]. We note that in the dissenting joint judgment of Kirby and Callinan JJ, having observed that the relevant principle "should not be narrowly confined" as it was supported by "one and a half centuries of judicial practice spanning virtually the entire period since appeal, as a creature of statute, became common to our legal system" together with "many practical considerations" (which I would observe included those referred to by Jordan CJ in Gilbert), their Honours held (at [50]): The Privy Council practice arose in the circumstances of the expenses and delays involved in taking colonial appeals to London. Now, new but in some ways similar considerations reinforce the old rule. Many cases, hotly contested at interlocutory stages, are later settled. Even when pursued to judgment, parties commonly learn the wisdom of selecting their most arguable points to contest. In this way, appellate courts, with congested lists, are spared needless hearings. They are fortified in their resolve to resist unwarranted and premature intervention that, of its nature, would otherwise commonly have to be afforded under great pressure of time.

18 Consistent with the "tight rein" referred to by Jordan CJ in Re the Will of Gilbert and the "particular caution" referred to in the majority reasoning in Phillip Morris, I would reiterate the observations of the Full Bench in Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) (2000) 102 IR 309 at [21], that "leave will rarely be granted if the interlocutory decision is of a procedural nature": see also Integral Energy v Allen [2001] NSWIRComm 193 at [13], Strathfield Group Ltd v Hall at [36] and Lahoud v Lahoud at [23].

19 However, as was intimated in the passage from the judgment of Jordan CJ set out above, a clear distinction must be drawn between an appeal from a decision involving "an exercise of discretion on a point of practice or procedure" and an appeal from a decision involving "an exercise of discretion which determines substantive rights" (or conclusively determines such rights): see also the observations of the Full Bench in Lahoud v Lahoud at [24] where it was held "Where an interlocutory decision affects substantive rights leave may be more readily granted". I should add the observation of the majority in Gerlach v Clifton Bricks that "if it is plain that wrong principle was applied by the judge considering the application, it may well be that leave should be granted": at [13].

20 The judgment at first instance does not have the effect of ultimately denying or otherwise finally affecting some "substantive right" of the appellant. Indeed, Boland J expressly stated his intention "to proceed to hear all of the evidence and submissions of the parties and [to] then give a considered judgment": at [23].

21 I am of the opinion that leave to appeal should be refused for the following reasons: (1) I am not satisfied that his Honour has erred in principle in the determination of the appellant's application below. Further, I would observe that to a not insignificant extent it would appear the appellant seeks to raise matters on appeal that were not squarely raised in the proceedings before Boland J or which were not the subject of determination by his Honour. Whilst I am alive to the fact that the appellant has at all times been unrepresented, I consider, in all the circumstances, it would be inappropriate in this matter to grant leave to have regard to such matters: see Re Real Estate Industry (Clerical and Administrative Employees) (State) Award [2003] NSWIRComm 149 at [39], Sawyer v Cutler-Hammer Pty Ltd [2002] NSWIRComm 233 at [4] and Coulton and Others v Holcombe and Others (1986) 162 CLR 1.

(2) The decision of Boland J was upon an interlocutory matter involving what was in substance a procedural application to re-open an issue that had previously been determined against the appellant. Whilst there may well be no absolute bar to a party repeatedly seeking identical interlocutory relief, such applications are, for obvious reasons, generally discouraged: see Nominal Defendant v Manning (2000) 50 NSWLR 139. (3) I am not satisfied his Honour erred in principle or otherwise such as to warrant intervention on appeal. In the absence of some demonstrative error of principle I see no public interest in the review of the merit or otherwise of orders which do not finally dispose of the claims by an applicant for relief. There is in short nothing to warrant, in my view, the granting of leave to appeal.

22 I would, however, refer Mr Crewdson to the words of Griffith CJ in Nolan v Clifford (1904) 1 CLR 429 at 431 cited by Gaudron, McHugh and Hayne JJ in Gerlach v Clifton Bricks Pty Limited at [5]: On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application there is no need for him to keep raising it.

23 Their Honours in Gerlack held that an appellate court on appeal from a final order may correct any interlocutory order "which affected the final result." Mr Crewdson should await the final result of his trial.

24 In my view, the following orders should be made: 1. The application for leave to appeal refused:

2. The appeal dismissed. JUDGMENT OF JUSTICE HAYLEN (Ex-tempore)

25 I agree in the reasons and the orders proposed by the Acting President.

26 I want to address some very brief remarks to the issue raised in par E(3) of the application for Leave to Appeal and Appeal dealing with the issue of summary judgment which has occupied a good deal of the oral argument today and has featured in the written submissions.

27 The applicant relied upon the provisions of Pt 13 r 3 of the Supreme Court Rules which have been set out. A reading of the cases which are set out in Ritchie's Practice discloses these four points as being relevant in this case: 1. The onus is on the applicant to satisfy the court that there is no real question to be tried. 2. The defendant does not have to affirmatively establish his defence. 3. Summary judgment is not appropriate if there is a triable issue. 4. There is a general discretion to refuse leave by way of summary judgment, for example, where the issues are more appropriate to be dealt with at a final hearing.

28 Justice Boland formed the view that it was appropriate to deal with the issues at a final hearing. In my view he was not in error in reaching that conclusion. For those reasons I support the orders already read out by the Acting President.

JUDGMENT OF ACTING JUSTICE CURTIS (Ex-tempore)

29 I agree. In short, leave to appeal should be refused because this is an appeal from an interlocutory ruling.

30 Justice Boland has not ruled what Jackie Pitchford, or the Department, did in respect of Mr Crewdson's employment was legal or valid. Justice Boland has not ruled that the deed is binding upon Mr Crewdson. Justice Boland has merely ruled that, in discharge of his duty of impartiality, he must hear all the evidence and the arguments of each side before delivering his judgment according to law.

31 The appellant appears, unfortunately, distracted by the apparent failure of his employer to follow the proper procedures from the necessity to grapple with the effect of the deed and the need to establish what the respondent knew, or ought to have known, of his circumstance before he signed it. This is a necessary step before the burden of proof shifts to the respondent.

32 These are questions of fact for the trial judge. Justice Boland has not, to date, determined these issues.

33 I join in the orders proposed by the learned Acting President. [The Court heard the parties on costs]

34 Acting President: The orders of the Court are as follows: 1. Leave to appeal refused. 2. Appeal dismissed. 3. There is no order as to costs in the proceedings. __________________

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