Crewdson v New South Wales Department of Community Services & Anor

APPLICANT: Mr G Crewdson in person

LEGAL REPRESENTATIVES: RESPONDENTS: Mr P Menzies QC with Ms E Brus of counsel Solicitor: Mr G Demetriou Crown Solicitors Office

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 30 July, 2002

GERARD CREWDSON v DEPARTMENT OF COMMUNITY SERVICES & ANOR Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996

1 On 8 May 2001 Gerard Michael Crewdson ("the applicant") filed an application seeking declaratory relief under s 154 of the Industrial Relations Act 1996. The declarations sought were in the following terms: 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 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. 2 The application for declaratory relief has been the subject of three earlier interlocutory judgments: Crewdson v Department of Community Services [2001] NSWIRComm 216; Crewdson v Department of Community Services (No 2) [2002] NSWIRComm 121; Crewdson v Department of Community Services (No 3) [2002] NSWIRComm 139.

3 This judgment relates to a summons for production filed by the applicant on 21 August 2001 and subsequently served on the Crown Solicitor, a notice of motion by the respondents seeking an order that the applicant's summons be set aside, and a notice to produce filed by the applicant on 11 December 2001 and served on the Director-General of the Department of Community Services (DOCS). The issues to be addressed relate to claims by the Crown Solicitor and the respondents that certain of the documents sought to be produced are protected by client legal privilege and/or the summons is oppressive and/or the documents sought have no legitimate forensic purpose.

4 The first two categories of documents sought by the applicant from the Crown Solicitor under the summons and in respect of which privilege was claimed were:

1. ALL documents, communications, instructions and advice between the NSW Department of Community Services and the Crown Solicitor's Office relating to and generated for Crewdson v Department of Community Services matter number 58 of 1998 Equal Opportunity Tribunal including: 1.1 Records of mediation 25 June 1998

1.2 Records of negotiation of Deed September-October 1998 2) ALL Documents, communications, instructions and advice between Central Sydney Area Health Service and Crown Solicitor's Office relating to and generated for Crewdson v Central Sydney Area Health Service matter number 67 of 1998 Equal Opportunity Tribunal including: 2.1 Records of mediation 25 June 1998 2.2 Records of negotiation of Deed September-October 1998

5 The applicant contended that, notwithstanding the claim of privilege, he was entitled to access to the foregoing categories of documents on a number of grounds. The first was that by raising the issue of the reasonableness of the terms of settlement of the dispute with the applicant the respondents had "pleaded into relevance" the documents sought. In this respect the applicant was referring to the grounds in support of the respondents' notice of motion seeking to have the applicant's application for declaratory relief dismissed: see Crewdson Department of Community Services (No 2). In those grounds the respondents had pleaded that the deed of release representing the terms of settlement between the parties was "valid and enforceable".

6 In support of his contentions the applicant relied on State of Western Australia v Southern Equities Corporation Ltd (in liq) (1996) 142 ALR 597 where French J held that the applicant, by raising the issue of the reasonableness of its settlement had "pleaded into relevance" documents that were, or recorded the substance of "without prejudice" communications. The applicant also referred, somewhat obliquely, to Benecke v National Australia Bank (1993) 35 NSWLR 110.

7 In the present case the respondents have not pleaded and have not stated in any evidence that the deed of settlement was "reasonable". It does not necessarily follow that because a deed is said to be valid that it must, therefore, be reasonable. All that the respondents have said is that the deed was valid - that is, having legal force - and enforceable. It does not follow that by pleading that the deed was valid and enforceable, without more, pleads the documents sought by the applicant into relevance. Moreover, this is not a case where the respondents have put into issue in the proceedings any reliance, expressly or impliedly, on legal advice as to the validity of the deed. The material is therefore, not accessible by the applicant on this basis.

8 The applicant also relied on s 131 of the Evidence Act 1995, specifically s 131(2)(c), (e), (f), (k) and (j) in support of his claim for access to the documents in categories one and two. On its face, s 131 of the Evidence Act applies only in court and not in the pre-trial context. However, given that I am concerned with a summons for production under s 165(3) of the Industrial Relations Act and Pt 14 of the Industrial Relations Commission Rules 1996, I consider that the Evidence Act does apply by virtue of r 89(5) of the Commission's Rules and Pt 36 r 13 of the Supreme Court Rules 1970. Section 131 of the Evidence Act relevantly provides: 131. Exclusion of evidence of settlement negotiations

(1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2) Subsection (1) does not apply if: … (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or … (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute, or (f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue, or (g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence, or … (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. 9 I will deal firstly with the exception in s 131(2)(c). The applicant contended that certain material that had already found its way into evidence in earlier interlocutory proceedings had had the effect of partly disclosing the substance of the evidence of the communications and documents the applicant seeks under categories one and two. The material referred to by the applicant was:

1. A letter from Mr Salpeter of the Crown Solicitor's Office to the applicant dated 16 September 1998 in which the Crown Solicitor sought assurances from the applicant that he would abide by any deed of release made in settlement of the dispute between the applicant and the first and second respondents.

2. The deed of release and an annexure to the deed.

3. Various evidence (albeit unspecified) of the applicant going to negotiations between himself and the respondents in 1998.

10 As to the letter from Mr Salpeter, it could not be said that the respondents consented to its disclosure, it having come from the Crown Solicitor. As to the deed and its annexure, they are documents that record the terms of settlement and are not documents "prepared in connection with an attempt to negotiate a settlement of a dispute": see State Rail Authority of New South Wales v Smith (1998) 45 NSWLR 382 at 385 per Beazley J. As to the reference to other evidence that the applicant submitted demonstrated partial disclosure I was not taken to that particular evidence and so I am not in a position to judge whether or not it meets the requirements of s 131(2)(c). Consequently, the applicant is not entitled to the material under s 131(2)(c) of the Evidence Act.

11 In relation to s 131(2)(e) it is not sufficient to simply say, as the applicant did, that "I would argue at the very least that evidence could qualify the evidence already in." The documents are not accessible under s 132(2)(e).

12 In relation to s 131(2)(f) it simply has no application to the proceedings. In relation to s 131(2)(j) and (k) Mr Crewdson referred in particular to Crewdson (No 2) where it was said: 108. The applicant submitted that in signing the deed and Annexure B he did not consent, and did not authorise his brother to consent, to Annexure B being read out to the Tribunal in isolation from the deed. Nor did the applicant agree that Annexure B constituted an apology on his part. To the extent the Tribunal was not informed that the statement read to it on 6 November 1998 was an annexure to a deed of release not shown to the Tribunal and was not to be regarded as any form of public apology, it could be said that the Tribunal was misled. Further, the statement read to the Tribunal stated that the applicant had resigned on 2 October 1998. The applicant denies he has resigned and I have seen no evidence of such an occurrence. The applicant claims that there are other aspects of the statement read to the Tribunal on 6 November 1998 that are misleading, including the proposition that the applicant acknowledged that the respondents had not subjected him to victimisation and/or discrimination as a result of discussions between the parties. Moreover, the applicant submitted that the deed and Annexure B were signed under duress and without legal advice. 109. It seems to me that the presentation to the Tribunal on 6 November 1998 leading to the Tribunal dismissing the complaints was less than satisfactory. I am also concerned that the circumstances leading to the applicant signing the deed and Annexure B may make it unsafe to rely on the validity of those documents. Consequently, I consider that to apply the Anshun rule and dismiss the applicant's application in these proceedings would work an injustice on the applicant to a degree as to justify the displacement of the prima facie rule.

114. There is sufficient material available for me to seriously question whether the deed of release was validly made. The material of which I speak, and which I have earlier summarised, suggests the following: 1) At the time the applicant signed the deed he was under severe financial and emotional stress. 2) There is a serious question to be determined by the Court as to whether the respondents or their employees or agents acted unlawfully and unconscionably in obtaining the release from the applicant. 3) There is a serious question to be determined by the Court as to whether, in obtaining the release, the respondents, their employees or agents, acted consistently with statutory provisions governing such arrangements and whether the deed is consistent with statutory provisions governing the employment of the applicant.

… 116. I am not satisfied that I have the necessary material to reach a clear and final decision on the question of whether the deed was validly made. Indeed, it seems to me that, prima facie , it was not. Accordingly, I do not propose to summarily dismiss the applicant's application on the ground that the deed is a bar to the proceedings.

13 The applicant contended, in effect, that the observations and findings by the Court in Crewdson (No 2) satisfied the requirements of s 131(2)(j) and/or (k) of the Evidence Act. Mr Crewdson referred to State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 and the statement by Callinan J at 632 that: Once the falsity of the dockets and the improper process by which they were produced were deposed to by a witness a prima facie case was plainly raised. 14 In Crewdson (No2) the Court decided that there were serious questions to be determined in relation to the making of the deed. However, despite the prima facie view expressed by the Court, there was insufficient material available to determine the questions. In relation to s 131(2)(j) of the Evidence Act there is no basis upon which the Court could find that a communication was made or a document was prepared in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. Nor is there any material upon which the Court could find that one of the persons in dispute, or an employee or agent of such a person, knew that a communication was made, or a document was prepared, in furtherance of a deliberate abuse of power in order that s 131(2)(k) might be invoked by the applicant. The remaining question in relation to s 131(2)(k) is whether one of the persons in dispute, or an employee or agent of such a person, ought reasonably to have known that a communication was made, or a document was prepared, in furtherance of a deliberate abuse of power. There is no material upon which the Court could arrive at such a conclusion.

15 It would be a giant leap in logic, in the absence of compelling evidence to the contrary, to accept that merely because the Court arrived at a prima facie view that a deed of release had not been validly made that persons involved in negotiating the terms of that deed did so in furtherance of a fraud or knew or ought reasonably have known that it was done in furtherance of a deliberate abuse of power. The material is not accessible under s 131(2)(j) or (k) of the Evidence Act.

16 Mr Crewdson also relied on ss 125 and 126 of the Evidence Act in support of his claim for access to the documents in categories one and two. I do not consider those sections have any application in these proceedings.

17 The applicant also sought access to the: File of DZ (Advice regarding DZ and DCS 28/10/89 DZ District Officer Dept of Community Services refer footnote 1706 Wood Royal Commission Report Vol IV Chap 8 p887). 18 The applicant submitted that the "DZ" material was relevant because it was evident from the material relating to this matter in the Wood Royal Commission that it put into question "the integrity of the whole system", the conduct of departmental officers and it showed that procedural fairness had been afforded to DZ but not to the applicant.

19 The DZ episode apparently occurred in 1989. Whilst it might call into question the conduct of the first and second respondents in relation to that episode I fail to see how, if it were accepted into evidence, it could rationally affect the assessment of the probability of a fact in issue in these proceedings. I rule accordingly.

20 The remaining documents sought by the applicant in his summons and which the respondents resist are:

5. ALL documents in the possession of the Crown Solicitor's Office recording joint public statements within terms similar or identical to the joint public statement forming Annexure B to Deed signed by Gerard Crewdson 6 October 1998 (see attached)

6. ALL documents in the possession of the Crown Solicitor's Office recording any form of public apology and/or retraction of complaints /allegations made by a complainant/plaintiff against a government agency or officer represented by the Crown Solicitor. 21 Mr Crewdson subsequently narrowed his claim to include joint public statements and public apologies and/or retraction of complaints/allegations arising out of the settlement of matters in which the Crown Solicitor has been involved within the Equal Opportunity Tribunal or the Administrative Decisions Tribunal. 22 The respondents contended that the requests in categories five and six were oppressive. Further, that the requests could not lead to any relevant line of inquiry and were, therefore, a fishing expedition.

23 In Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573 Jordan CJ said: A subpoena duces tecum ought not be issued to [a stranger] requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. 24 In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250, at 254, Owen J (with whom Street CJ and Herron J agreed) noted: It is true, as counsel for the appellant has argued, that a defendant in a libel action who has pleaded justification is not to be allowed to go on a mere 'fishing expedition' into the plaintiff's records in the hope of finding there something which may supply him with the evidence necessary to support this plea. But whether a particular expedition is a mere 'fishing expedition' depends upon the meaning of that phrase. A 'fishing expedition' in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. 25 I think Mr Menzies QC for the Crown Solicitor was correct in contending that in seeking the material in categories five and six the appellant was engaging in a classic fishing expedition. The applicant has no knowledge as to whether such material exists and hopes that his summons will throw up something he may be able to use in prosecuting his claim. The documents are not accessible by the applicant and I rule accordingly.

26 In a notice to produce filed on 11 December 2001 the applicant sought ten categories of documents. Only the first two categories, which related to payments made to the applicant under the deed, were in contention. In respect of those two categories the applicant was given access to some of the documents and client legal privilege was claimed in respect of the remainder. The applicant said that he relied on the same arguments in his call for the documents under the notice to produce as those that he put forward in relation to the summons. It is not entirely clear to me which of his arguments he relies upon in relation to categories one and two of the notice to produce but it appears that the applicant relies on s 131(2)(c), (j) and (k) of the Evidence Act

27 One of the difficulties I have encountered in attempting to address the applicant's claims for access to documents is the applicant's failure to fully articulate his case in support. This is not meant as a gratuitous criticism of the applicant, who has done a remarkable job as a layperson in understanding the law and its application to the facts. But, for example, in claiming access to the material in categories one and two of his notice to produce it is not sufficient to simply rely on the provisions of s 131(2) of the Evidence Act. In relation to the claim under s 131(2)(c) there was no explanation provided to the Court as to how it could be said that:

· the substance of the evidence had been partly disclosed with the express or implied consent of the persons in dispute; or,

· full disclosure was reasonably necessary to enable a proper understanding of the other evidence that has already been adduced. 28 In those circumstances, I am unable to give Mr Crewdson access to the documents in categories one and two of his notice to produce under s 131(2)(c) of the Evidence Act and I rule accordingly. Further, based on my earlier findings in relation to s 131(2)(j) and (k) of the Evidence Act, I rule that these provisions do not apply to the material sought in categories one and two of the applicant's notice to produce.

1. Except to the extent that documents have been produced in answer to the summons for production filed by the applicant on 21 August 2001 and access to those documents has been granted to the applicant in these proceedings the summons is set aside.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.