Crewdson v New South Wales Department of Community Services & Anor

SECOND RESPONDENT Central Sydney Area Health Service FILE NUMBER: IRC 3140 of 2001 CORAM: Boland J CATCHWORDS : Practice and Procedure - Application for judgment on admissions - Formal admissions - Informal admissions - Principles to be applied in giving judgment on admissions - Application dismissed Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 LEGISLATION CITED : Industrial Relations (General) Regulation 1996 Public Sector Management Act 1988 Public Sector Management (General) Regulation 1996 Civil and Civic Pty Ltd v Pioneer Concrete (NT) Pty Ltd (1991) 103 FLR 196 Ellis v Allen [1914] 1 Ch 904 Gerard Crewdson v Department of Community Services [2002] NSWIRComm 121 Greig and Murray Ltd v Hutchinson (1889) 15 VLR 706 CASES CITED : In the Matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks "Certina" and "Certina DS" (1970) 44 ALJR 191 Lancashire Welders Ltd v Harland and Wolff Ltd [1950] 2 All ER 1096 Nominal Defendant v Zdravkovic (1990) 100 FLR 214 Termijtelen v Van Arkel [1974] 1 NSWLR 525 Trust Company of Australia Ltd v Perpetual Trustees (WA) Ltd (No2) (1995) 36 NSWLR 654 HEARING DATES: 03/18/2002; 03/19/2002; 06/12/2002 DATE OF JUDGMENT: 06/21/2002

APPLICANT Mr G Crewdson in person

LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel Solicitor: Mr G Demetriou Crown Solicitors Office

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 21 June, 2002 Matter No IRC 3140 of 2001 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 respondents named in the application were the State of New South Wales (Department of Community Services) ("the first respondent" or "DOCS") and the State of New South Wales (Central Sydney Area Health Service) ("the second respondent"). 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 respondents had sought to have the application seeking declaratory relief dismissed. However, in an earlier interlocutory judgment (Gerard Crewdson v Department of Community Services [2002] NSWIRComm 121) that application was refused.

3 Another issue addressed in the earlier interlocutory judgment concerned admissions. On 6 August and 2 November 2001 the applicant 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 had made admissions that entitled the applicant to orders 1(a) to 1 (h) in his application for declaratory relief. The applicant contended that the admissions made by the respondents established that: (a) the applicant's employment was governed by the Public Sector Management Act (PSM Act) and Regulation (b) the applicant has not resigned from his employment with the first respondent either in fact or in law (c) the respondents have falsely represented that the applicant resigned of his own accord on 2 Oct 1998 and this false representation has vitiated the DEED signed by the applicant 6 Oct 1998 (d) the applicant was a satisfactory employee and there were no grounds that would allow the first respondent to encourage require or seek the termination of the applicant's employment (e) the applicant was not paid any remuneration or entitlements under the DEED signed 6 Oct 1998 (f) actions taken by officers of the first respondent from September 1997 onwards leading up to and including the applicant being directed on 13 Oct 1997 to attend an assessment at HealthQuest were unauthorised under the PSM Act and Regulation (g) actions taken by the respondents on or after 29 October 1997 removing the applicant from his duties, accessing his leave entitlements and then suspending him without pay were unauthorised under the PSM Act and Regulations.

4 In relation to the admissions question, the Court said in the earlier interlocutory judgment: The respondents have not addressed the applicant's claim for judgment on admissions in any serious way, although it seems to me they have had every opportunity to do so in the face of very comprehensive submissions by the applicant. Nevertheless, I do not think justice would be served by the Court entering summary judgment in the applicant's favour on this question of admissions. I am not satisfied that I have the necessary material to reach a clear and final decision on the question of admissions at this stage of the proceedings.

The applicant I consider, is entitled to have a judgment on admissions prior to the proceedings scheduled for 15 to 19 July 2002. Accordingly, I propose to direct the respondents to provide written submissions and to allow the applicant to reply to those submissions prior to the commencement of the next scheduled proceedings. I will endeavour to hand down judgment on admissions prior to 15 July 2002. 5 The Court made the following order: … 2) The respondents shall file and serve written submissions on the question of the applicant's application for an order pursuant to r 155 of the Industrial Relations Commission Rules 1996 for a judgment on admissions by 4.00 pm on Friday 7 June 2002. The applicant shall file and serve a written reply by 4.00 pm on Friday 14 June 2002. 6 The submissions of the parties were duly received and this judgment deals with the question of the applicant's application for a judgment on admissions. 7 The applicant's notice to admit facts and the respondents' notice in reply were served pursuant to r 154 of the Industrial Relations Commission Rules 1996, which provides as follows: 154. Notice to admit facts

(1) A party to proceedings may, by notice served on another party, require that party to admit, for the purpose of the proceedings only, the facts specified in the notice. (2) If, as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice. (3) A party may, with the leave of the Commission, withdraw an admission under subrule (2). 8 A party may, pursuant to r 155 of the Commission's Rules, make application to enter judgment or for any order to which the applicant is entitled on admissions made by another party. Rule 155 provides: 155. Judgment on admissions

(1) Where admissions are made by a party, the Commission may, on the application of any other party, give any judgment or make any order to which the applicant is entitled on the admissions. (2) The Commission may exercise its powers under subrule (1) notwithstanding that other questions in the proceedings have not been determined.

9 Rule 155 is obviously designed to prevent delay and avoid expense where a defence is unambiguously not available. Further, there are cost implications if a party serves a notice disputing a fact under r 154 and afterwards that fact is proved in the proceeding: see r 214. 10 The grant of relief in the form of a judgment on admissions is clearly discretionary under the terms of r 155. See also Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 529. Any admissions relied upon by a court to enter judgment or make orders can be express or implied, formal or informal but the admissions must be generally clear admissions of fact: Ellis v Allen [1914] 1 Ch 904 at 909; Nominal Defendant v Zdravkovic (1990) 100 FLR 214 at 215. Formal admissions include answers or failure to answer a notice to admit facts: see r 154 of the Commission's Rules. Informal admissions are usually statements, oral or written, usually made out of court. In Ellis v Allen it was a letter written after commencement of proceedings. In In the matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks "Certina" and "Certina DS" (1970) 44 ALJR 191, in the course of a trade mark dispute, the respondent admitted in correspondence that he could not maintain the registration of certain trade marks. Barwick CJ decided that the respondent's unequivocal admission was sufficient to support a judgment but he emphasised that judgment on admissions is given only where an applicant makes out a clear and unanswerable case. Judgment is not given on admissions where a serious question of fact or law requires consideration: Greig and Murray Ltd v Hutchinson (1889) 15 VLR 706.

11 The respondents have contended that a judgment on admissions can only be in respect of the formal admissions made by them in the notice responding to the applicant's notice to admit facts and does not include informal admissions. The respondents rely on the construction of rr 154 and 155. 12 In Ellis v Allen the court was concerned with the meaning of Order XXXII r 6 of the Rules of the Supreme Court 1883, which provided that any party may: At any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court or a judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties … 13 In considering the words "either on the pleadings, or otherwise" Sargant J disagreed with the contention for the defendant that the words limited any judgment on admissions to formal admissions made under the rules. Sargant J said at 909: I do not think r 6 should be confined as suggested. In my judgment it applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed. 14 Ellis v Allen was applied by Barwick CJ in Certina.

15 Rule 155 of the Commission's Rules does not use the phrase "either on the pleadings, or otherwise" and simply refers to "Where admissions are made by a party …". There are no words of limitation such as that found by Asche CJ in Civil and Civic Pty Ltd v Pioneer Concrete (NT) Pty Ltd (1991) 103 FLR 196 where his Honour held that by virtue of the provisions of r 35.04 of the Northern Territory rules the use of the word "proceeding" precluded the court from entering judgment on an informal admission given outside the proceeding.

16 Given the absence of any words of limitation, I do not agree with the respondents' submission that the reference to admissions in r 155 should be read down to mean the formal admissions referred to in r 154. In my opinion, r 155 countenances both formal and informal admissions made at any time prior to or during the proceeding.

17 It seems to me that there are four guiding principles relating to judgment on admissions pursuant to r 155 of the Commission's Rules:

1. The admission may be formal or informal, express or implied but in any event it must be strong and unambiguous. 2) The giving of a judgment on admissions is a discretionary exercise to be carried out having regard to all the circumstances. 3) The applicant must show a clear and unanswerable case. 4) Judgment is not given on admissions where a serious question of fact or law requires consideration. 18 The other relevant consideration in the present proceedings is that the applicant here seeks declaratory orders. In general, equity does not make declaratory orders without a proper contradictor: Trust Company of Australia Ltd v Perpetual Trustees (WA) Ltd (No2) (1995) 36 NSWLR 654 at 660C-661E.

19 The first order sought by the applicant and which he contends he is entitled to on the basis of admissions made by the respondents, or either one of them, is:

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. 20 It is clear from the admissions that were made by the respondents, and which are referred to in the earlier interlocutory judgment, that the applicant did not submit a written resignation dated 2 October 1998, that the applicant's employment was governed by the Public Sector Management Act 1988 and Public Sector Management (General) Regulation 1996 and that the first respondent regarded the applicant as a satisfactory employee. However, there has been no admission by the respondents 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." What the applicant is in effect asking the Court to do is that by having regard to a combination of formal and informal admissions and assertions by the applicant regarding the interpretation and operation of certain provisions of the Industrial Relations Act 1996, Industrial Relations (General) Regulation 1996, Public Sector Management Act and the Public Sector Management (General) Regulation (see pars [119] to [142] of the earlier interlocutory judgment), the Court could imply that the respondents had admitted that the applicant's employment continued uninterrupted from 7 October 1990 to the present.

21 Ultimately, the applicant might be correct but it is not a matter for this Court to embark on the determination of a question of law involving the interpretation of statutes in order to determine, in a pre-trial context, whether it could imply that the respondents have made an admission. Any admission has to be clear and unambiguous. As Sargant J said in Ellis v Allen there must be "a clear admission of facts in the face of which it is impossible for the party making it to succeed." I do not consider that I am in a position to say that the respondents have made a clear admission, expressly or impliedly, that the applicant has been continuously employed since 1990 and it is impossible for them to deny this fact.

22 The applicant relied, in part, on Lancashire Welders Ltd v Harland and Wolff Ltd [1950] 2 All ER 1096. In that case the plaintiffs claimed an amount of £31,657 14s 2d for work done. The defendants filed an affidavit admitting that an amount of £1,694 19s 9d was owing to the plaintiffs. The district registrar gave unconditional leave to defend as a whole. Later, the defendants filed a defence in which they admitted indebtedness in the sum of £1,756 18s 8d but disputed the claim as to the residue. The plaintiffs issued a summons asking for judgment for the sum admitted in the defence. The order was refused and the plaintiffs appealed. It was held by the Court of Appeal that the amount claimed was very much larger than the amount admitted and that withholding the amount admitted would result in an injustice to the plaintiffs. The appeal was upheld. The applicant contended that the amount admitted by the defendants was the equivalent to certain admissions by the respondents in these proceedings. That is a contention I do not accept. The admission by the defendants in Lancashire Welders was a clear admission made in the pleadings. In the present case the respondents have made certain formal admissions but they do not amount to admissions that make it impossible for them to make out a case against the orders sought by the applicant for declaratory relief.

23 In respect of the remaining orders sought by the applicant the same barriers exist that prevent the Court making order 1(a) sought by the applicant. Serious questions of fact and law remain to be determined before the Court will be in a position to decide whether or not to make the orders sought by the applicant. For example, the applicant contended that because the respondents had indicated that in responding to a notice to produce there was nothing to be produced, the Court could conclude that the document sought (a delegation of authority) did not exist. Therefore, it was submitted, the respondents had impliedly admitted a failure to comply with the relevant statute and any decision made in the absence of evidence of the delegation of authority was "null and void".

24 That the respondents did not produce the documents sought does not, in my opinion, amount to a clear and unambiguous admission that certain decisions by officers of the first and second respondents were made without authority.

25 The applicant has registered his strong protest at the failure of the respondents to address all of his evidence and submissions relating to his application for a judgment on admissions. In this respect, the respondents limited their submissions essentially to the argument that r 155 does not countenance informal admissions - an argument that I have rejected - and that in any event the so-called informal admissions referred to by the applicant are not admissions at all for the purpose of r 155 - an argument that generally I accept.

26 It was open to the respondents to address all of the applicant's submissions relating to this question of admissions but, having chosen not to, I cannot be critical because, as I have already indicated, I do not consider that the Court should be required to engage in a detailed forensic search of the evidence and the law for the purpose of determining whether a party is entitled to a judgment on admissions.

27 If, as the applicant contends, he has been put to the trouble and expense of proving facts that should not have been in dispute then the remedy will lie in a costs order.

28 For the reasons I have expressed, the application by the applicant in his notice of motion filed on 10 December 2001 for a judgment on admissions in the form of orders 1(a) to 1(h) in the application for declaratory relief filed on 8 May 2001 is refused.

29 In his written submissions in reply on the admissions question the applicant sought:

1. Leave to amend his application for declaratory orders by adding the following additional orders: a. An order voiding ab initio provision 4 of the Deed signed between the parties in October 1998 b. An order voiding ab initio provision 1 of the deed to the extent that it purports to pay any remuneration or entitlements to the applicant. c. An order for the applicant's reinstatement to employment with the Department of Community Services and Department of Ageing Disability and Home Care. d. An order deeming that the applicant's service is continuous from 29 October 1997 e. An order that the First Respondent pay the amount of remuneration and entitlements lost or foregone by the applicant since 29 October 1997. 1) Orders in addition to or alternative to orders under r 155 "to identify what issues are truly in dispute between the parties and the mode by which these issues should be determined". 2) Orders and directions that his affidavits so far tendered in proceedings be accepted into evidence without further need for cross-examination and that the respondents not be allowed to call any evidence. 30 Not having heard the respondents in respect of these three new applications by the applicant the Court is in no position to grant them. Given that this matter is set down for further directions on Monday 24 June 2002 the applicant may renew his applications at that time. Orders

1. The application by the applicant in his notice of motion filed on 10 December 2001 in matter No IRC 3140 of 2001 for orders (order 3) pursuant to r 155 of the Industrial Relations Commission Rules 1996 is dismissed. 2) Costs are reserved.

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