Crewdson v New South Wales Department of Community Services & Anor

APPLICANT: Mr G Crewdson in person

LEGAL REPRESENTATIVES: RESPONDENT: Mr P Menzies QC with Ms E Brus of counsel Solicitor: Ms M Rizzo Crown Solicitors Office

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 19 August, 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 INTERLOCUTORY JUDGMENT (NO. 5)

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 details of Mr Crewdson's application are contained in earlier interlocutory judgments in this matter: 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; Crewdson v Department of Community Services (No 4) [2002] NSWIRComm 172.

2 This matter was brought on for directions on 12 August 2002 in order to fix dates for the hearing of Mr Crewdson's application. Dates had been fixed for November 2002 but it became necessary for the Court to vacate those dates. Attempts were made to arrange for new hearing dates by written communications with the parties but no response was received from Mr Crewdson.

3 At the directions hearing Mr Crewdson sought to raise a number of other issues. These were as follows:

1. Whether the respondents had complied with the Court's directions made on 28 June 2002 to file and serve affidavit material that they intended to rely upon in the substantive proceedings. 2) Whether the respondents had complied with directions to file and serve points of contention. 3) That on the basis of new material the Court should re-visit its judgment (interlocutory judgment No 3) where it declined to grant the applicant a judgment on admissions and make a declaratory order by way of summary judgment to the effect that the applicant has been employed on a continuous basis by the first respondent since 1990 and that all decisions taken by various officers of the second respondent relating to his fitness for work were void, invalid and of no effect. 4 The respondents also raised three issues: (i) a failure on the applicant's part to respond to a request dated 24 July 2002 for further and better particulars; (ii) a failure by the applicant to respond to a request for copies of exhibits relating to an affidavit filed by the applicant on 17 July 2001; and, (iii) a notice to produce returnable on Friday 9 August 2002 in respect of which the applicant had not responded.

5 In order that the parties, and in particular, the applicant, are clear about all of the issues raised at the directions hearing on 12 August I intend to deal with each of them. As to the applicant's first issue, directions were made on 28 June 2002 for the respondents to file and serve any material upon which they intended to rely by 6 August 2002. Three affidavits (Mary Roberts, Nathalie Bratt and Pierrick Reily) were filed on 5 August 2002. On 2 August 2002 the respondent sought an extension of three days to file a further affidavit and an extension of one month in relation to another affidavit. The extensions were granted. The respondents subsequently filed a further affidavit (Julia Gillett) on 9 August 2002. At the directions hearing on 12 August the respondents sought a further 14 days to file two more affidavits (Ms Pitchford and Dr Jagger) and this extension is granted. It appears that whether, or in what terms, affidavits are filed in respect of two other persons (Mr Salpeter and Ms Anderson) will depend on the applicant's provision of further and better particulars that have been requested by the respondents. The respondent indicated that it did not intend to file affidavit material from three other persons in respect of whom the applicant had an expectation such material would be filed.

6 It does not appear to me that there are any further issues to be dealt with in relation to the filing and serving of evidence at this stage.

7 No previous direction had been made in relation to points of contention. However, as indicated on the record of proceedings of 12 August the respondents are to file these by 4.00 pm on Friday 20 September 2002 subject to having received information it had sought from the applicant by way of further and better particulars and a notice to produce.

8 In relation to the respondents' request for further and better particulars the applicant, as agreed, is to provide these by 4.00 pm Monday 19 August 2002. In relation to the exhibit material that the respondents seek, they are to make inquiries of my Associate. As to the notice to produce, the parties are to confer and the applicant is to provide to the respondents any relevant material in his possession or control by 4.00pm Monday 19 August 2002.

9 That brings me to Mr Crewdson's application for summary judgment on admissions. In support of his application, Mr Crewdson filed an affidavit of urgency in the following terms: 1. I am the applicant in this matter.

I am currently living and sleeping on the streets of Sydney CBD.

My regular sleeping plce (sic) is by the Mitchell State Library building either on one of the seats or beneath the portico.

I sleep here because other homeless people also sleep in the same locality and there is hopefully some safety in this.

I am mindful of the attacks made upon homeless people in Sydney including murders as reported in Sydney media over the past two or three years.

My greatest concern at the moment is that I have no way of being directly contacted by my family members in New Zealand as I am not on any phone. If some emergency occurred to any of my family members or if I needed to be contacted quickly this could not be done directly.

I am presently relying upon Job Serach (sic) allowance for my weekly income and my current expenses equal or exceed those payments. The critical factor here is the photocopying and wordprocessing costs I must meet because of legal submissions and documents. The excess of expenditue (sic) over income has eroded my small margin of savings. Currently I have about $14.00 left in my Westpac Account.

I have savings of aprox (sic) $1600 (NZ) in a fixed term Westpac Trust Account in New Zealand. I currently cannot afford to fly back to Wellington New Zealand without drawing upon the last of these savings or alternatively borrowing from some source.

On 15 July 2002 in an interlocutory hearing before Justice Boland, Mr Menzies QC on behalf of the respondents stated that there were no documents in existence under specific items I had sought in my Notice to produce served Dec 2001.

I also affirm my previous unchallenged evidence before this Court that I have never submitted any written resignation from the First Respondent and have never received any notification from the First Respondent that any written resignation has been accepted.

It is my belief that the Respondent have no defence against my claims in these proceedings and that this Court should enter immediately summary judgment in my favour reinstating me to my position and ordering payment of all lost remuneration and entitlements to date with interest.

10 The applicant has sought relief by way of declaratory orders. Relevantly, for present purposes, four of 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. 11 In interlocutory judgment No. 2 the Court dismissed a notice of motion by the respondents seeking to have the applicant's application dismissed. One of the issues addressed in that interlocutory judgment concerned admissions. This was explained in interlocutory judgment No. 3 as follows: 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.

12 Interlocutory judgment No. 3 addressed the applicant's claim that he was entitled to the declaratory orders on the basis of admissions made by the respondents. The Court refused the claim.

13 Subsequently, the applicant appealed interlocutory judgment No. 3 and that appeal is pending.

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.

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