Crewdson v New South Wales Department of Community Services and Ors

(a) There was a flaw in the process of Mr Crewdson's referral to HealthQuest and a finding was open that Mr Crewdson was not accorded procedural fairness. However, the referral was not unconscionable, nor done in bad faith, nor discriminatory and could not be said to be without proper foundation. There were reasonable grounds of concern regarding Mr Crewdson's emotional or mental state and it would not have been reasonable to take no action at all (see [47] and [81] of Crewdson (No. 11) );

(b) Mr Crewdson's supervisor had no authority to direct him to attend a psychiatric assessment. However, Mr Crewdson kept the appointment and knew that Dr Roberts was a psychiatrist before the assessment began. Dr Roberts formed the opinion (primarily on the basis of her observations of Mr Crewdson's behaviour at the time of her assessment and not on the basis of material she was provided with by his supervisors), which Boland J accepted, that Mr Crewdson was unfit for work and in need of further psychiatric assessment. Mr Crewdson did not adduce any expert evidence to contradict Dr Roberts's opinion (see [45], [60], [62], [70] and [71] of Crewdson (No. 11) ) ;

(c) An opinion expressed by a medical practitioner that led to the conclusion by the practitioner that a person was unfit for work could not simply be rendered invalid because the procedure that led to the person's medical assessment was unfair or even "legally flawed". If it were otherwise, the person found to be unfit could immediately return to work with impunity notwithstanding that he or she represented a danger to himself or herself or to other staff or to the public. (see [70] of Crewdson (No. 11) );

(d) The Deed of Release was not limited to proceedings in the Anti-Discrimination Tribunal and was sufficiently broad to bar the commencement of proceedings in the Industrial Relations Commission (see [106] - [110] of Crewdson (No. 11) );

(e) The Deed was neither unconscionable nor void (or voidable) by the respondents' conduct. Mr Crewdson had been offered terms of settlement of a dispute in the form of a deed and was under no obligation to accept the terms of the settlement. The evidence did not support a finding that the respondents required, forced or coerced Mr Crewsdon to settle the dispute on the terms offered. It could not be said that Mr Crewdson, who was assisted by his brother throughout the negotiations, had a mistaken belief about the terms of the deed, and the case was distinguishable from Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (see in particular [111] - [125] of Crewdson (No. 11) ). It is worth extracting [117] in full on the subject of unconscionability: 117 Whilst the applicant contended his impoverished state was caused by the respondents and he was forced to sign the deed because the respondents had made him impoverished, it is difficult to see how the applicant could hope to justify a position whereby: he was paid a substantial amount in settlement of a dispute in circumstances where he had no intention of being bound by the settlement if it did not meet his view of "justice and the underlying facts"; did not advise the respondents that he would not be bound by the deed; kept the money despite regarding the whole deed as illegal; and, contrary to his undertaking in the deed, commenced an action against the respondents in this Court. As senior counsel for the respondent correctly submitted, "he who seeks equity must do equity".

(f) Nor was the Deed illegal by virtue of (i) non-compliance with the Public Sector Management Act ; (ii) non-compliance with s 121 of the Industrial Relations Act ; (iii) fraud under tax legislation; (iv) criminal breaches of the Community Services (Complaints, Review and Monitoring) Act and the Protected Disclosures Act 1994; or (v) fraud and conspiracy to pervert the course of justice arising from the false nature of a public apology by Mr Crewdson read out in proceedings before the Anti-Discrimination Tribunal on 6 November 1998 and false assertions in the Deed. Rather, it was valid and binding on all parties (see [94] and [140] of Crewdson (No. 11) ). Application for Leave to Appeal and Appeal 14 Mr Crewdson commenced these appeal proceedings on 18 September 2005, almost exactly eight years after the incidents giving rise to such expansive litigation. 15 Pursuant to Rule 44 of the Court's rules, each of the parties appearing in the proceedings from which a decision is being appealed against must be joined as respondents to the appeal. However, the respondents named on the present application differ from those in the proceedings at first instance: rather than joining the Crown or the two relevant government departments, Mr Crewsdon has sought, without leave, to join the Directors-General of the two departments. We do not grant leave to do so. Furthermore, Mr Crewsdon has purported to join HealthQuest as a new, fourth, party to the appeal proceedings, again without leave. Although HealthQuest subsequently filed a notice of appearance, no leave has been sought or granted to join HealthQuest to the proceedings. 16 On 8 November 2005 the appellant filed a Notice of Motion seeking to move the Full Bench 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. 17 The Full Bench noted that the appellant purported to have added two further respondents to the proceedings as third and fourth respondents (respectively a named barrister and the New South Wales Crown Solicitor) so that he could bring contempt proceedings against those persons. However, an examination of the contempt charges 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. 18 The Full Bench dismissed Mr Crewsdon's interlocutory application in Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) [2005] NSWIRComm 426, holding, inter alia, that any contempt proceedings the appellant might wish to commence must be brought either in the initial proceedings or in separate proceedings which would be allocated in the usual way. The respondents were granted liberty to apply for an adjournment of the appeal should the applicant bring contempt proceedings in respect of the proceedings at first instance. 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. 20 On 23 January 2006 the applicant filed a Notice of Motion in IRC matter number 477 of 2006 seeking to bring contempt proceedings against the Directors General of the Departments of Ageing, Disability and Home Care and Community Services. We understand that a directions hearing before a Full Bench in that matter will be held shortly. 21 Less than a week before the hearing on 16 February, the respondents filed a Notice of Motion seeking orders that the application for leave to appeal and appeal be dismissed for want of prosecution. That Notice of Motion was listed for 10am on the day of the hearing. Then, at the commencement of the hearing of the appeal, Mr Crewdson made an application for each member of the Full Bench to disqualify himself or herself on the grounds of bias and for the appeal proceedings to be adjourned pending determination of his Notice of Motion in contempt proceedings. 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

(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. 25 The Court next heard the respondents' Notice of Motion for the proceedings to be dismissed for want of prosecution together with the respondents' submissions on leave to appeal. Mr Crewdson's repeated failure to comply with directions, including his failure to file relevant submissions in support of his case which were, at best, cursory, combined with his abandonment of the hearing of his application for leave to appeal, make it difficult to conceive of a more obvious case for dismissal for want of prosecution. We gave serious consideration to doing so. However, despite the respondents' overwhelming case for dismissal, in view of the extraordinary length of these proceedings, and the fact that after almost five years they had reached the threshold of completion, the Court considered that when everything was taken into consideration (including Mr Crewdson's propensity for litigation) it would not be in the public interest to dismiss the appeal without considering the merits of Mr Crewdson's leave application. The Notice of Motion is therefore dismissed. Leave to Appeal 26 In his application for leave to appeal and appeal, Mr Crewdson not only sought to appeal the final decision of Boland J; he also sought leave to appeal each interlocutory decision pursuant to Rule 45. Since Crewdson v New South Wales Department of Community Services & Anor (No.7) [2003] NSWIRComm 190 has already been appealed to the Full Bench and dismissed (see Crewdson v New South Wales Department of Community Services and Anor [2003] NSWIRComm 417) the application can only relate to Crewdson v New South Wales Department of Community Services & Anor [2001] NSWIRComm 216 (13 September 2001, application by respondents to strike out the application); Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121 (known as Crewdson (No. 2); 31 May 2002, application by the respondents that the applicant's Application for Declaration be dismissed); Crewdson v New South Wales Department of Community Services & Anor (No. 3) [2002] NSWIRComm 139 (21 June 2002, application for judgment on formal admissions) Crewdson v New South Wales Department of Community Services & Anor (No. 4) [2002] NSWIRComm 172 (30 July 2002, respondent's application for summons for production to be set aside) Crewdson v New South Wales Department of Community Services & Anor (No.5) [2002] NSWIRComm 203 (19 August 2002, applicant's application for summary judgment on admissions); Crewdson v New South Wales Department of Community Services & Anor (No. 6) [2002] NSWIRComm 306 (20 November 2002, respondents' Notices of Motion seeking to set aside paragraphs of applicant's summonses for production); Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6 (10 February 2004, application by applicant for disqualification on basis of apprehended bias); Crewdson v New South Wales Department of Community Service & Anor (No.9) [2004] NSWIRComm 125 (24 May 2004, Notice of Motion by applicant seeking interim injunction requiring respondents to restore his employment); Crewdson v New South Wales Department of Community Services & Ors (No. 10) [2004] NSWIRComm 262 (10 September 2004, Notice of Motion by respondents opposing access to certain documents). 27 Since Mr Crewdson was successful in Crewdson v New South Wales Department of Community Services & Anor [2001] NSWIRComm 216, Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121 (known as Crewdson (No. 2)) and Crewdson v New South Wales Department of Community Services & Anor (No. 6) [2002] NSWIRComm 306, we have assumed that he did not intend to appeal these interlocutory decisions. 28 In his application for leave to appeal and appeal, Mr Crewdson provided "reasons why leave to appeal should be granted" and "grounds of appeal" in the form of a convoluted dissertation on the wrongs he suffered at the hands of his employer in 1997 and the many failures of the Commission to rectify those wrongs to Mr Crewdson's satisfaction. These were not, of course, submissions filed in support of the appeal in accordance with the Court's directions. Mr Crewdson did file written submissions the day before the hearing. Apart from once again embarking on a number of personal slurs against Boland J, however, they did little to advance the appeal. They may be summarised as follows:

1. Boland J was in error in finding that Dr Roberts reached her conclusions on any basis other than the assertions made by his former employer and that those assertions were entirely false;

2. Leave should be granted because of statements made by the President about the importance of his appeal; and

3. Putting aside further scandalous comments about the President and the Vice-President, that the judgments in unrelated proceedings involving decisions made by HealthQuest were legally null and void (as were the underlying decisions made by HealthQuest). 29 In view of the patently inadequate presentation of Mr Crewdson's application and written submissions, we have been prepared to take the unusual step of reviewing his application in the light of all written material sent by Mr Crewdson to the Court registry. However, we have not gone so far as to construct a case on his behalf; instead, we have sought to ascertain the principal points and deal with them. In dealing with these principal points, we have taken into consideration the respondents' oral and written submissions on leave. 30 Rather than attempt to summarise Mr Crewdson's complaints in his application and written material, many of which dwell on minutiae (sometimes specifically excluded from determination by Boland J, such as whether an offence had been committed under s 47 of the Community Services (Complaints, Review and Monitoring) Act 1993) or raise matters not raised at first instance (such as Mr Crewdson's allegation of "attempted constructive dismissal" in Ground 7 or his submission that the respondents should be found liable for occupational health and safety offences) we intend to provide a concise outline of those points which are relevant to these appellate proceedings (limited as they are by the bases of the decisions appealed against). It should be noted that, in addition to the trouble the Court has been put to as a direct result of Mr Crewdson's repeated failures to comply with directions, the respondents have also suffered: they have had to deal with Mr Crewdson's case almost in anticipation of its final form. 31 Mr Crewdson has advanced a series of statements in respect of only one of the interlocutory decisions appealed against (which we discuss below). In the absence of any submission, or enumerated grounds in support of Mr Crewsdon's application for leave to appeal the other interlocutory decisions of Boland J referred to in [23]-[24], we refuse leave to appeal those decisions. 32 Mr Crewdson's allegation that the interlocutory decision of Boland J in Crewdson v New South Wales Department of Community Service & Anor (No.9) [2004] NSWIRComm 125 was based on "clear dishonesty" towards Mr Crewdson is without foundation. In that decision, Boland J rejected Mr Crewdson's application for "a mandatory injunction" requiring the respondents to restore Mr Crewdson "to his employment and paid duties pending a final determination" on the basis that he did not have the power to grant such an order. Even on the broad interpretation of the Court's powers adopted by Boland J, such an order would have not only supplanted the final relief sought: if granted, it would have delivered consequential relief not claimed in the substantive proceedings. We agree with Boland J that the 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 does not extend to the granting of interlocutory relief which would leave no work to be done by the substantive relief. There is no basis upon which to grant leave to appeal this interlocutory decision of Boland J and the assertions of dishonesty are preposterous. 33 Nor is there any basis upon which to grant leave to appeal the final decision of Boland J arising from his Honour's consideration that, despite the flaws in the process, Mr Crewdson's referral to HealthQuest was not discriminatory. This finding was reasonably open to Boland J, was not the result of any error of law, and did not, in any event, form the basis of his Honour's decision, which hinged upon the validity of the Deed of Release. 34 It is clear that the only medical opinion in evidence as to Mr Crewdson's fitness for work as at October 1997 was that of Dr Roberts. It was open to Boland J to accept that evidence and we can see no error in his Honour's conclusion that procedural flaws cannot invalidate a professional medical opinion that an employee was not fit for work. Similarly, it was reasonably open to Boland J on the evidence to conclude that Dr Robert's opinion was primarily based on her observations of Mr Crewdson during the assessment. It was open to Mr Crewdson to ignore Dr Roberts's recommendation that he obtain a comprehensive psychiatric opinion (from his own doctor) to determine his fitness for work, and instead to commence a battery of litigation against his employer. However, the unfortunate consequences of this choice are referable to Mr Crewdson only - not to any wrongdoing on the part of the respondents - and do not form the proper basis for the grant of declaratory relief sought by Mr Crewdson, let alone the proper basis for the grant of leave to appeal. 35 Nor can we see any error in the concise, detailed reasoning involved in the conclusion of Boland J that the Deed of Release was neither illegal nor void for unconscionability. The findings of facts underpinning the reasoning of Boland J on this subject were reasonably open to his Honour and there is no basis to question them. Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 is the leading High Court case in this area of the law, and Boland J correctly applied it to the facts of this case. There is no basis to accept Mr Crewdson's broad, unparticularised, allegation that Boland J failed to take into consideration all the relevant evidence or to correctly apply case law and legislation in determining that the Deed was not void or voidable for illegality. 36 The Full Bench of this Court has consistently applied Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 when determining leave applications: leave to appeal will not be granted lightly, and some issue of real significance in the interests of justice will need to be identified for such an application to succeed (see Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [4]). In applying Knowles v Anglican Church Property Trust (No 2) to Mr Crewdson's application, the Court has considered many relevant factors, including whether the appeal raises questions which go to the proper administration of justice or alternatively whether there is a paucity of argument on the merits of the appeal. 37 We have examined Mr Crewdson's tracts as they pertain to both leave and the merits of the appeal, mindful of the consideration, assistance and allowances which must be extended to self-represented litigants. There are, in our view, no public interest elements to this application which should attract the grant of leave. Mr Crewdson has presented his application as though it was directly related to the just and fair administration of the public service of New South Wales, and in terms of discrimination against whistleblowers, or in terms of a conspiracy to conceal mistreatment of residents, but in our view the decision at first instance fundamentally turned on upon the operation of the Deed of Release and the factual and legal findings pertaining to it. As we have already noted, the factual findings were reasonably open to Boland J and we cannot see that the decision was based upon any error of law. 38 Nor does the appeal, in truth, raise issues which go to the proper administration of justice (see Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285 at [121]; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37; and WorkCover Authority (NSW) (Inspector Moore) v Blacktown City Council (2003) 124 IR 59). Mr Crewdson has received a fair hearing and careful assessment of his case (including attentive consideration during numerous interlocutory applications). Far from being attended by sufficient doubt, the decision of Boland J at first instance was well-reasoned and we consider that it is not open to serious challenge. Notwithstanding Mr Crewdson's protestations that the proceedings at first instance were "oppressive" to him and that he was "denied natural justice", we are satisfied that the administration of justice has not been impugned. 39 Finally, as we made clear in our synopsis of Mr Crewsdon's grounds of appeal, there is a paucity of argument on the merits of the appeal. 40 Although it is not, strictly speaking, relevant to this application, we wish to deal briefly with one final point raised by Mr Crewdson which appears to have been a matter of some concern to him throughout these proceedings: his misapprehension that Boland J found that he suffered from a "serious psychotic suicidal illness". Neither Boland J - nor the Full Bench for that matter - has made any finding of the sort. The finding of Boland J was of a considerably lower order: an acceptance of Dr Robert's evidence, in the absence of any alternative psychiatric evidence, that in October 1997 she considered that Mr Crewdson was unfit for work and should undergo psychiatric assessment. The very fact that Dr Roberts recommended comprehensive psychiatric assessment - the purpose of which is to diagnose any illness - indicates the absence of any firm opinion as to psychotic illness. Orders 41 In conclusion, we make the following orders:

2. The appeal is dismissed. 42 This is a case where, ordinarily, costs would be awarded to the respondents. We have decided to give the respondents 14 days from the date of this judgment to consider whether, in view of the laborious nature of these proceedings and the apparently pyrrhic nature of any costs order, they actually wish to press for costs. Failing any application (including written submissions in support) within that time, there shall be no order as to costs. Should the respondents choose to make such an application, Mr Crewdson will have a further 14 days in which to file written submissions in reply and we shall then decide the matter on the papers.

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