Crewdson v New South Wales Department of Community Services and Ors

Appeal - application for leave to appeal and appeal from a decision of Boland J - application by respondents following Full Bench decision refusing leave to appeal and dismissing the appeal - application opposed by appellant - costs awarded. CATCHWORDS: Notice of Motion - affidavit of urgency filed by applicant seeking orders inter alia that published decisions to which applicant is a party be removed from the Caselaw website and be replaced by a written statement correcting "misinformation" in the decisions as well as a written public apology to the applicant - principles relating to application for removal of judgments from publication considered - application dismissed.

LEGISLATION CITED: Industrial Relations Act 1996

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Crewdson v New South Wales Department of Community Services (No 11) (2005) 145 IR 376 Crewdson v Director-Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) (2005) 148 IR 194 Day v Smidmore (No 2) (2005) 149 IR 80 CASES CITED: Crewdson v New South Wales Department of Community Services and Ors (No 13) (2006) 152 IR 42 Crewdson v New South Wales Department of Community Services and Ors (No 14) (2006) 152 IR 48 Crewdson v New South Wales Department of Community Services and Ors (No 15) [2006] NSWIRComm 172 Oshlack v Richmond River Council (1998) 193 CLR 72 Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72

APPELLANT Mr G Crewdson in person

LEGAL REPRESENTATIVES: RESPONDENTS Ms E Brus of counsel Solicitor: NSW Crown Solicitor

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

GERARD CREWDSON v NEW SOUTH WALES DEPARTMENT OF COMMUNITY SERVICES AND OTHERS

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

1 In this matter the respondents, the New South Wales Department of Community Services, the Sydney South West Area Health Service and the New South Wales Department of Ageing, Disability and Home Care, make an application for costs following a judgment of the Full Bench dismissing an application for leave to appeal and appeal brought by the appellant, Gerard Crewdson: Crewdson v New South Wales Department of Community Services and Ors (No 14) (2006) 152 IR 48. 2 The application for leave to appeal and appeal was in respect to the decision of Boland J, in which his Honour dismissed an application for declaratory relief under s 154 of the Industrial Relations Act 1996. The application for declaratory relief sought a number of declarations including a declaration that the appellant had been employed by the New South Wales Department of Community Services and its predecessors from 9 September 1990, and a declaration that all decisions made by the Sydney South West Area Health Service concerning the appellant's fitness for work were "void invalid and of no effect". 3 In refusing leave and dismissing the appellant's appeal the Full Bench gave the respondents fourteen days from the date of judgment to consider whether they wished to press for an order for costs. In the event that submissions were filed within the designated time, the appellant was given a further fourteen days to file any submissions in reply. The Full Bench also indicated that the matter of costs would be decided on the papers. 4 Both parties have filed written submissions. The respondents seek their costs on the basis that they have been successful parties to the litigation and none of the traditional exceptions to the usual order as to costs applies so as to otherwise disentitle them to costs. The respondents also contend that there are no special circumstances which would displace the usual order. 5 The appellant in his written submissions opposes the application for costs on the basis that the judgment dismissing the appeal and the earlier interlocutory judgment of the Full Bench in Crewdson v New South Wales Department of Community Services and Ors (No 13) (2006) 152 IR 42 are "blatantly dishonest and fraudulent", and "...accordingly there is no legal basis or authority in those decisions to award costs against me". No further submissions are put forward by the appellant to support his opposition to the grant of costs. 6 In Oshlack v Richmond River Council (1998) 193 CLR 72 at 96, McHugh J observed that the expression, "usual order as to costs", embraces the principle that subject to certain limited exceptions the successful litigant is entitled to his, her or its costs. His Honour in the same passage also commented that the "traditional exceptions" to the usual order as to costs focus on the conduct of the successful party which might otherwise disentitle that party to the favourable exercise of the relevant discretion. In support of this principle his Honour (at 97) placed reliance on the decision of Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873. In that decision the issue was stated by Devlin J in the following way:

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.

McHugh J (at 97, 98) then added by way of clarification of the word "misconduct":

"Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. 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; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.

Apart from anomalous examples in the equity jurisdiction, there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct 7 The application of the principles outlined above to the present circumstances provides a basis for a number of findings which we now make :

(1) there has been no misconduct shown on the part of the respondents either in the lead-up to or in the conduct of the case that should otherwise disentitle them to costs. An examination of the somewhat cursory submissions of the appellant does not suggest otherwise;

(2) the fact that the parties seeking the costs order are Government departments and a Government corporation is not a proper reason for refusing to grant the order: Oshlack v Richmond River Council at [92] to [94];

(3) the usual order as to costs should therefore apply and the appellant should pay the respondents' costs. 8 One further matter which should be mentioned here concerns the appellant's financial circumstances. Various documents which have been filed in the proceedings have indicated that the appellant is currently homeless and has limited financial means. The respondents have contended, in this regard, that the differences in the financial positions of the respective parties is not a matter which is relevant to a consideration by the Court of its discretion to award costs. 9 A similar submission was made in Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72 where the respondent government department applied for costs following the refusal by the Full Bench to grant leave to appeal. The respondent relied in support of its application on Oshlack v Richmond River Council at [96] where it was observed that costs orders were not made to punish unsuccessful parties but to indemnify successful parties and, in the absence of any misconduct on the part of the successful party, that party should be entitled to its costs. 10 We see no reason to depart from these principles, and accordingly exercise our discretion to award costs of the appeal to the respondents as agreed or in the absence of agreement as assessed. 11 There is one further matter unrelated to the issue of costs to which we should direct our attention. That matter concerns Orders 1 and 2 sought by the appellant in the Notice of Motion filed on 28 April 2006 and attached to an affidavit of urgency of the same date. The affidavit of urgency was heard before Backman J on 16 May 2006 and was dismissed: Crewdson v New South Wales Department of Community Services and Ors (No 15) [2006] NSWIRComm 172. 12 During the course of her Honour's reasons Backman J indicated that Order 1 in the Notice of Motion would be decided by the Full Bench if necessary in chambers. Orders 1 and 2 (which are interrelated) in the Notice of Motion sought:

(1) Removal from the NSW IRC internet site [the Caselaw site] of the published decisions Crewdson v DOCS Nos 12 and 13

(2) In substitution for the above decisions a written statement correcting misinformation in [sic] decision and a written public apology to Mr Crewdson for distress and injury caused to him by that misinformation 13 During oral argument before Backman J the appellant indicated that he in fact sought that four judgments published on Caselaw NSW be removed from that site, namely: Crewdson v New South Wales Department of Community Services (No 11) (2005) 145 IR 376; Crewdson v Director-Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) (2005) 148 IR 194; Crewdson v New South Wales Department of Community Services and Ors (No 13) (2006) 152 IR 42; Crewdson v New South Wales Department of Community Services and Ors (No 14) (2006) 152 IR 48. 14 The orders were sought by the appellant on the grounds that, in his words, the judgments contain "serious and substantial misinformation that grossly distorts and falsifies the facts, evidence and legal issues in my case and which also constitutes an unfair and unjust attack on my personal reputation". The appellant has expanded upon these grounds in the Notice of Motion where he alleges that the judgments contain, "...a dense tissue of lies and deliberate misinformation", and constitute a "...serious and wilful public slander on (the appellant's) reputation by the judges involved". A number of other sentiments expressed in similar vein appear throughout the Notice of Motion and in the appellant's affidavit of urgency. 15 A recent decision of the Full Bench analysed the circumstances in which it might be appropriate to remove judgments or parts of judgments from the Caselaw website by utilising s 164A of the Industrial Relations Act: Day v Smidmore (No 2) (2005) 149 IR 80. 16 In that decision the Full Bench ordered the removal from the Caselaw website of a judgment, and its replacement by an amended judgment which deleted certain portions of the original judgment. In doing so, the Full Bench emphasised that it would not ordinarily be desirable to take such action only because a person was embarrassed or distressed by allegations made in proceedings. This was because the paramount consideration was the principle of open justice (at [32]). The Full Bench also observed that the power to remove material from a website (by utilising s 164A of the Industrial Relations Act) was exceptional, and should be exercised sparingly, and only when a person or persons invokes the power of removal at an appropriate stage of the proceedings. 17 The reasons why the Full Bench in Day v Smidmore (No 2) decided to remove the judgment and replace it with an amended version on the website included the following considerations (at [41]):

(i) the allegations made by the appellant in the proceedings would cause certain persons genuine distress and have the potential to harm their careers and the respondents' business;

(ii) three of the victims of the allegations were not parties to the proceedings;

(iii) there was a degree of doubt as to whether the allegations could serve any legitimate forensic purpose;

(iv) the appellant's conduct as an officer of the Court (the appellant was a practising solicitor) was "utterly reprehensible and scandalous behaviour...";

(v) there was no prejudice to the appellant by granting the orders sought by the respondents. 18 In contrast, it is our view that none of the above mentioned considerations, which influenced the Full Bench decision to grant the respondents' application in Day v Smidmore (No 2), has any relevance to the present circumstances. The appellant's assertions as to the contents of the four judgments we find untenable and lacking any foundation in logic or common sense. He has clearly failed to substantiate the allegations on which his application depends. In short we find those assertions plainly baseless as well as being offensive. The Notice of Motion filed on 28 April 2006 is, therefore, dismissed. 19 We make the following orders:

1. The Notice of Motion filed by the appellant on 28 April 2006 is dismissed.

2. The appellant shall pay the cost of this appeal to the New South Wales Department of Community Services, the Sydney South West Area Health Service and the New South Wales Department of Ageing, Disability and Home Care as agreed or, in the alternative, as assessed.

3. These proceedings are concluded.

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