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 M Rizzo Crown Solicitors Office

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 12 June 2003

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 This matter has by now accumulated a significant history which I do not propose to recount here except to say that the source of the proceedings is an application filed by Gerard Michael Crewdson on 8 May 2001 for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996. The orders 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 In Crewdson v New South Wales Department of Community Services & Anor (No 3) [2002] NSWIRComm 139 the Court dealt with an application by Mr Crewdson for a judgment on admissions pursuant to r 155 of the Industrial Relations Commission Rules 1996. In that judgment the Court noted that: 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.

3 The Court dismissed the application on the basis that "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." Mr Crewdson filed an application for leave to appeal and appeal against Interlocutory Judgment No 3 but apparently he did not proceed with the application.

4 In Crewdson v New South Wales Department of Community Services & Anor (No 5) [2002] NSWIRComm 203 the Court dealt with an application by Mr Crewdson for summary judgment. In that judgment the Court said: 14 Notwithstanding the fact that the applicant has appealed, he has contended that it is open to this Court to re-visit its judgment on the basis of what he submits is new material. He also relies on the dire straits he finds himself in as set out in his affidavit of urgency. The applicant submitted that the Court should, as I understand him, make orders declaring to the effect that his employment has remained continuous since 1990 and that the steps taken by various public sector officers culminating in his removal were unauthorised and unlawful. 15 The two principal bases upon which the applicant relies for re-opening the judgment are that, firstly, in proceedings on 15 July 2002 Mr Menzies QC for the respondents indicated that in response to a notice to produce seeking documents relating to the delegated authority of certain officers, Mr Menzies indicated there were no documents to produce. The applicant submitted this non-production should be taken by the Court as a clear admission that the relevant officers did not have the necessary authority to take the actions of which the applicant complains. Secondly, that as the Court had earlier found that the applicant had not resigned from his employment and that the respondents had ample opportunity to show that he did, that this was an admission supporting a judgment in the applicant's favour that his employment had continued uninterrupted since 1990. 16 The applicant cited Pt 13 r 2 of the Supreme Court Rules 1970 in support of his contention that it was open to the Court to give summary judgment on his claim. The applicant also referred to GPI Leisure Corp Ltd v Yuill (unreported, SC (NSW), Young J, 6 August 1997). The applicant also referred to s 162(2)(a) and s 163(1)(c) of the Industrial Relations Act 1996, that is, the duty of the Commission to act as quickly as practicable and the duty to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 17 In my opinion, the Court is clearly functus officio in relation to interlocutory judgment No. 3 and there is no basis upon which it would be open to the Court to re-visit that judgment. In any event, in earlier proceedings Mr Moses , who was counsel for the respondent at the time, indicated in relation to the "delegated authority documents" sought by the applicant, there were none to produce so there was nothing new about Mr Menzies indicating the same thing. In so far as the applicant's resignation is concerned, nothing new has occurred regarding that issue since interlocutory judgment No. 3 was handed down. 18 In relation to the applicant's personal plight, there can be nothing but concern and sympathy for it. But such a situation does not provide grounds for this Court to grant the declaratory relief sought by the applicant. 19 The applicant's application to re-open the judgment in Crewdson v Department of Community Services (No 3) [2002] NSWIRComm 139 is refused. The applicant's application for declaratory relief is set down for hearing for five days commencing 9 December 2002.

5 The hearing of Mr Crewdson's application for declaratory relief proceeded as scheduled during December 2002 and continued on 30 January 2003. The hearing of the matter did not conclude on 30 January and it was adjourned to 14 and 15 August 2003, the earliest available two consecutive days.

6 On 24 January 2003 Mr Crewdson filed a notice of motion seeking four orders, namely: 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 IR (sic) Act to be expedited.

7 On 30 January 2003 Mr Crewdson's latest notice of motion was listed for directions. A hearing date in relation to the motion was set for 28 February 2003. The hearing did not conclude on 28 February and was adjourned until 18 July 2003. Mr Crewdson asked that the matter be dealt with sooner than 18 July. He stated "My financial and social plight is untenable … unless my circumstances change I will not survive till July or August 2003". Directions were issued for the filing of written submissions and the matter was listed for 2 June 2003.

8 In relation to the first order sought, that is, "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", Mr Crewdson contended that he had sought by way of summons served on the Director General, New South Wales Department of Ageing, Disability and Home Care ("the Department"), a number of documents which had not been produced. Because the documents had not been produced, Mr Crewdson contended there had been a breach of the State Records Act. Mr Crewdson submitted that the Court: [C]ould have found that there has at least been a breach of the State Records Act 1998 by the Respondents along with a breach of the Department's Record Keeping Policies relating to the protection of client's files. Your Honour could have referred the evidence of these breaches onto relevant authorities such as the State Records Authority and/or NSW Ombudsman's Office. In addition the Respondents legal counsel have a professional duty to ensure their clients know and act within the law. On the evidence already before this Court the Respondents legal counsel have failed in this duty and appear to be ignorant of their client's legal obligations under the State Records Act 1988. The Respondents have also failed to undertake a proper and thorough search for documents sought under summons and prima facie are in contempt of court. The Respondent's legal counsel have allowed their clients to engage in this behaviour and tried to defend it.

9 In response to Mr Crewdson's summons served on the Department Mr Damian John Lutvey, Acting Assistant Manager, Supported Accommodation gave evidence as to the documents sought in the summons. The documents not produced by the Department in response to Mr Crewdson's summons fell into four categories: 1. Documents not produced because they never existed. These included: "Documents recording alleged supervisions of the applicant's work practices as Residential Care Assistant by Cassie Rec and Claire Davis (refer para 7 affidavit J Pitchford 20/8/02)". It was Mr Lutvey's evidence that he contacted Ms Rec as to the documents who informed him that no such documents existed. 2. Documents not produced because they have been destroyed. These included: "Morning and evening routines for residents as referred in memorandum J Gillett 15/9/97". It was Mr Lutvey's evidence these documents were "Thrown away". 3. Documents not produced because they were missing. These included: (a) "All shift reports (Fitzpatrick Street) for period Sept 1996-Dec 1997"; (b) "All incident reports for period 1/6/97-1/12/97"; (c) "Complete medical file Allan Moriarty 1993-1997 including records of period spent at Concord Hospital recovering from serious scalding to feet"; (d) "Incident report of Allan Moriarty's scalding injury (circa 1994/1995)"; (e) "Records of all follow up action taken by Area Management after Allan's scalding accident including notification to his parents"; "Records of Guardianship Board dispute between DOCS (Ms Pitchford) and Alldiss family over Maryanne Alldisses financial guardianship"; (f) "Records of fact finding inquiry into allegation of assault by Thomas McGuire against Louisa Hori held by Epping Area Office DOCS in about May 1997 (refer Reily Report June 1998)"; (g) "Records of investigations interviews undertaken by Mr Trevor Lee EEO Officer DOCS Jan-Feb 1998 into complaints submitted by Gerard Crewdson into conduct of Northern Sydney Area Management and Fitzpatrick St Group Home (including interview with Julia Gillett)". As to 3 (a), (b), (c) and (d) above Mr Lutvey's evidence was that a search had been carried out but the material was unable to be located. In any event, access was opposed. As to 3 (e) and (f) Mr Lutvey's evidence was that he had been unable to locate the material but would continue searching. He said, however, access to such material would be opposed. As to 3(g) Mr Lutvey said further inquiries were being made. The Court was later advised, however, that a search for the material had been unsuccessful. 4. Documents not produced because search made for wrong document. These documents included: (a) "Summary information from Audit of critical incidents for the period 1/6/97-1/12/97 conducted by Northern Sydney Area"; (b) "Summary information from audits of restrictive practices conducted by Northern Sydney Area"; (c) "Report on Programming Services provided for Fitzpatrick Street clients dated 1/6/98"; (d) "Exercise Book or Books recording communication and incidents between Fitzpatrick St staff and Alldiss family and other resident's families". In relation to 4(a) and (b) above Mr Lutvey said he could not identify the documents sought and was, therefore, unable to make proper inquiries. In relation to 4(c), counsel for the Department indicated that it was unclear as to what was being sought and whilst there was some material that might satisfy the summons, the Department opposed access. In relation to 4(d) Mr Lutvey said the material could not be located but in any event access was opposed.

10 This Court has no power to make orders relating to breaches of the provisions of the State Records Act. Nonetheless, that does not prevent me from expressing concern at the prospect that the Department's failure to produce documents in response to Mr Crewdson's summons may involve such a breach. I express no concluded view about that matter but having regard to the requirements of the State Records Act regarding the custody and protection of State records and the Department's failure to produce, for example, a client's medical file because it is missing is, in my opinion, a serious matter. I propose to direct the Industrial Registrar to forward a copy of this judgment to the State Records Authority and to make relevant parts of the Court's file in this matter available to that Authority in the event it decides there are grounds to investigate the matter further.

11 As to the position of counsel regarding the documents that have not been produced, I have been assured by senior counsel that the Department has searched "assiduously" for the documents and that if they had been available to be produced to the Court they would have been. I accept unequivocally what counsel have said in that regard.

12 At this point I should note that the Department of Ageing, Disability and Home Care is not a respondent to the proceedings. It has appeared by counsel in response to summonses served on it by Mr Crewdson and, indeed, Mr Crewdson has sought to have the Department joined to the proceedings but he has not pressed his application for joinder. In proceedings on 18 March 2002, however, the following was stated: CREWDSON: Perhaps I should say, I have made inquiries with the Department of Ageing, Disability and Home care. On Thursday I went to their offices in Clarence Street and spoke to a legal officer there, whose name I can't recall, but the understanding that I was given in relation to the transfer of the Disabilities Sector from the Department of Community Services to the Department of Ageing, Disability and Home Care is that where legal proceedings have commenced against the Department of Community Services contained within the disabilities sector then the Department of Community Services were still handling those matters in the Department of Community Services as it now is or the Department of Ageing, Disability and Home care and I was told by the legal officer that the legal office of DOCS are effectively acting as their agent. MOSES (counsel for DOCS): …the Crown will take no technical objection to the naming of the first respondent as to whom an order will be effectively against, it could not be said to be a misjoinder. It would be rather a misnomer in terms of the proper identity of the respondent if it turns out it should be the Ageing, Disability and Home Care Department. So I state that on the record.

13 The second order sought by the applicant was an order for summary judgment in his favour on part or the whole of his claim. The application for summary judgment relies essentially on the proposition that an officer of the Department of Community Services, Ms Jackie Pitchford, was not delegated with the authority of the Department's chief executive officer to refer the applicant to Healthquest for examination by a psychiatrist on 29 October 1997. There is more to the applicant's claim than this but the applicant contends, in effect, that in the absence of the proper authority to refer him for psychiatric examination in the first place, everything that occurred thereafter was also invalid. Mr Crewdson submitted that the respondents had "no arguable defence against the evidence that their actions referring me to Healthquest were not authorised by the necessary written delegation under cl 17 of the PSM Act (sic)".

14 Mr Crewdson submitted that whilst the Court had previously decided that it was not prepared to give summary judgment, that earlier decision had been in relation to a claim for summary judgment on admissions under r 155 of the Industrial Relations Commission Rules 1996. The present claim, however, was made under r 13.2 of the Supreme Court Rules 1970 which, according to Mr Crewdson, allowed the Court to have regard to "critical" new evidence that arose in these proceedings during the course of the hearing on 9 to 13 December 2002. 15 Whilst Mr Crewdson acknowledged that any decision to give summary judgment was discretionary this was, he submitted, subject to the Court's obligations to: act quickly as possible (s 162(a)); act in accordance with equity, good conscience and the substantial merits of the case (s 163(2)); have regard to the public interest; and, to take into considerations the principles of the Anti Discrimination Act 1977 in the exercise of its functions (s 169).

16 Mr Crewdson submitted: Given these obligations, the present state of the evidence and my ongoing grave financial/social difficulties, I believe that the Court should now act quickly to grant me declaratory relief.

17 The application for summary judgment was opposed by the respondents. Senior counsel submitted that there had been no evidence brought forward that changed the circumstances asserted by the applicant. It was submitted that even if it did, it would only lend itself to summary judgment if the evidence was irrefutable, unqualified and was able to satisfy the Commission to the requisite standard of proof. It was submitted for the respondents that their case had not concluded and that the applicant was asking the Commission to deny the respondents the opportunity to present their case in an orderly and reasonable fashion.

18 As I have already observed, at the core of Mr Crewdson's case is the proposition that there was an absence of appropriate written delegated authority for Ms Pitchford to refer the applicant for psychiatric examination and that, therefore, every act committed by the respondent to the applicant's detriment, including the purported termination of his employment, was invalid. This proposition is nothing new; it has been put by the applicant from the outset and underpinned his earlier application for summary judgment.

19 As to the proposition there is new evidence that supports the application for summary judgment the only evidence that might be said to be relevant has been that of Ms Gillett who said she did not regard the applicant as being a danger to himself or to clients. This evidence the applicant submitted, supported his case that there were no grounds under cl 17 of the Public Sector Management (General) Regulations 1996 to refer him to Healthquest. As the respondents, contended, however, it was Ms Pitchford who made the referral and not Ms Gillett, and Ms Pitchford is yet to give her evidence in the matter.

20 In contending the respondents had no arguable defence to the absence of a written delegated authority Mr Crewdson referred to Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76 a decision of Schmidt J given on 21 March 2003. In Kerrison the applicant sought declaratory orders under s 154 of the Act to the effect she was at all material times employed by the Technical and Further Education Commission and that she was entitled to all of the benefits accruing to her position as a full time teacher since 1988. Ms Kerrison's case rested on the fundamental premise that no person with authority to do so had ever made a decision that her employment should be terminated as required by the relevant provisions of the Technical and Further Education Commission Act 1990.

21 In her judgment Schmidt J said: 184 Given the evidence, it must be concluded that how TAFE dealt with the question of Ms Kerrison's employment and its termination was not only quite inappropriate, but also entirely inconsistent with the statutory scheme. What the evidence plainly pointed to, was a fundamental misunderstanding by TAFE of the role of HealthQuest in any determination made under s20 of the Act.

185 There appears to have been a real misunderstanding at TAFE as to what HealthQuest's role was, when an employee was referred to it and what was necessary to be done by TAFE, in the event that it wished to rely on the advice given to it by HealthQuest, so that the employment of an employee like Ms Kerrison could be brought to an end in accordance with the provisions of s20 by TAFE. The import of HealthQuest issuing a 'retirement certificate' to such an employee and the effect of an appeal from such a document, was also not properly appreciated. 186 These conclusions flowed inevitably from the evidence. Dr Ramsey's evidence was that he did not make a decision requiring Ms Kerrison to retire. To the contrary, he understood that in such a case it was HealthQuest which made that decision. 187 While s8 of the Act contemplated that the TAFE Commission could delegate certain of its functions, including those provided by s20, to 'authorised persons', there was no suggestion that such a delegation had ever been made in favour of anyone employed at HealthQuest. Nor did the parties address the question of whether such a delegation would have been possible, given the definition of 'authorised person' in s8(4). … 214 I am quite satisfied, on the basis of the evidence in these proceedings, that it cannot be inferred that any person with authority to do so, ever made a decision that the authority to cause Ms Kerrison to retire should be exercised. TAFE acted as if that had occurred, merely by the issuing of a 'retirement certificate' by HealthQuest and the failure of the appeal lodged against that certificate. That is not a basis provided in the legislation for the termination of the employment of a TAFE employee. It follows that there has never been any valid, or effective, termination of Ms Kerrison's employment. 215 This conclusion accords with binding authority . See Wilson v Department of Education and Training (2000) 100 IR 1, where reference is made at p10 to Ward v Director-General of School Education (1998) 80 IR 175 at 179-80: Whether the relationship of a Crown servant and the Crown be regarded as contractual or not, it is now clear that where there is a statute governing such employment, the employment must comply with the terms of the statute which constitutes a code and displaces or overrides any common law or prerogative rights which would otherwise exist but which are inconsistent with the code prescribed by the statute: Director General of Education v Sutting (1987) 62 CLR 427 at 437-38; Hunkin v Siebert (1934) 51 CLR 538 at 542; otherwise provisions, manifestly intended for the protection and benefit of the officer, would be rendered superfluous, useless and delusive: Gould v Stuart [1896] AC 575 at 578. See also Bennett v Commonwealth of Australia [1980] 1 NSWLR 581.

22 Mr Crewdson obviously sees some similarity in the injustice wrought on Ms Kerrison and that which he alleges he suffered at the hands of the respondents. He also contends that, as was the case in Kerrison, he was subjected to decisions taken without proper authority. Whilst that may well prove to be the case, I have already decided in judgments No 3 and No 5 that I am not prepared to give summary judgment. Nothing has changed since I gave those judgments that would cause me to decide otherwise. The respondents say that if I were to give summary judgment they would be denied natural justice in not having had the opportunity to put their full case. I agree. The first respondent has submitted that the absence of an instrument of delegation with regard to the referral of the applicant to the second respondent for medical assessment does not and cannot void or invalidate all or any subsequent decisions. The respondents also contend that the deed signed by the applicant on 6 October 1998 was a bar to any proceedings against the respondents. The deed contained the following provision: 5. Mr Crewdson releases The State of New South Wales and the Service and their agents, officers and servants and each of them from all actions, suits, causes of action, claims, demands, claims for costs or expenses whatsoever which Mr Crewdson now has or may at any time hereafter have against them or any of them arising from or in any way related to the employment and/or the health assessment.

23 Notwithstanding that there is apparently no relevant instruments delegating authority I would not be confident that giving summary judgment would be in the interests of justice. I intend to proceed to hear all of the evidence and submissions of the parties and I will then give a considered judgment.

24 The applicant drew attention to his personal plight, which I have referred to in earlier judgments. He has said in his supporting affidavit to the present motion "unless my circumstances change I will not survive till July or August 2003". Out of consideration for the personal difficulties in which Mr Crewdson finds himself, I listed for hearing his application for summary judgment at the earliest available time, namely, 28 February 2003. Mr Crewdson tendered written submissions and took the course of addressing those written submissions at length. I advised Mr Crewdson in the course of proceedings on 28 February 2003 that it was not necessary to rehearse his written submission orally because I had only set one day aside to hear the motion. In the result, as I have already observed, the matter did not conclude on 28 February and consequently it was adjourned to the next available date, namely, 18 July 2003. At Mr Crewdson's request I vacated another matter scheduled for 2 June 2003 and brought the hearing of his motion forward.

25 I should add that this Court has been most concerned with Mr Crewdson's personal circumstances and that he is a self represented litigant. Wherever it has been reasonably possible I have attempted to accommodate the applicant's difficult circumstances and I have given him a good deal of latitude in making out his case whilst at the same time seeking to avoid any unfairness against the respondents. The applicant has not made that an easy task. In my opinion, if the applicant had focused on having his case heard to completion by the Court in the times that have been allotted for that purpose (but which have either been abandoned or extended) rather than pursuing distracting and largely fruitless interlocutory proceedings, the matter would have been well and truly determined by this time.

26 The application by Mr Crewdson for summary judgment, I consider, borders on an abuse of the Court's process. The application is refused.

27 The third order sought by Mr Crewdson was that in the alternative to orders 1 and 2 these proceedings be adjourned to allow for the applicant's stayed application under s 213 of the Act to be expedited. This particular order was not pressed in any serious way by the applicant and in fact I was given no information about the application under s 213. The order is refused.

28 The fourth application was for an order for costs. The matter of costs is reserved until the substantive issues in these proceedings have been determined.

29 The Court makes the following orders: 1. The application for orders contained in the notice of motion filed by the applicant on 24 January 2003 is dismissed. 2. The Industrial Registrar is directed to provide a copy of this judgment to the State Records Authority. ________________________

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