Crewdson v New South Wales Department of Community Services & Ors

APPLICANT Mr G Crewdson (via written submissions)

LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel Solicitor: Mr P Rankin Crown Solicitors Office

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 10 September 2004

GERARD CREWDSON v DEPARTMENT OF COMMUNITY SERVICES & ORS

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 proceedings involving Mr Crewdson have a lengthy and complex history most of which is set out in Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6. Following the judgment in Crewdson (No 8), Mr Crewdson made application by way of notice of motion for an order against the Director General of the Department of Community Services and Department of Ageing, Disability and Home Care and against the Central Sydney Area Health Service for "a mandatory injunction" requiring the respondents to restore Mr Crewdson "to his employment and paid duties pending a final determination." Judgment on that application was given on 24 May 2004 in Crewdson v New South Wales Department of Community Service & Anor (No.9) [2004] NSWIRComm 125. The Court refused to grant the application.

3 Two days prior to the hearing in Crewdson (No 9) Mr Crewdson filed and served two notices to produce, one on the Director General of the Department of Community Services (DOCS) and the other on the Director General of the Department of Ageing Disability and Home Care (DADHC). The respondents objected to the short service of the notices to produce and were not in a position to respond to the notices except to say they intended to file a notice of motion opposing production of many of the documents sought by the applicant. In the circumstances, the Court declined to call on the respondents to produce the documents.

4 The respondents subsequently filed and served their notice of motion on 2 June 2004. Mr Crewdson had earlier advised that he had temporarily moved to New Zealand and he was served there with the motion. The motion was listed for directions on 9 August 2004. Mr Crewdson was unable to attend the directions hearing but he emailed submissions relating to the motion and to other matters. The motion was listed for hearing on 20 August 2004. The Court also listed the substantive proceedings for hearing for five days commencing 15 November 2004. Mr Crewdson was subsequently provided with the transcript of the proceedings of 9 August 2004 and the respondents provided him a copy of the outline of their submissions on their notice of motion. Mr Crewdson emailed further submissions on 19 August regarding the respondents' motion and other matters, including renewing his application for summary judgment on his application for declaratory relief. The latter application is refused.

5 In the proceedings on 20 August Ms E Brus of counsel for the respondents helpfully addressed some five notices to produce that had been filed by the applicant since January 2003, including the two notices filed on 20 April 2004. Two notices filed in January 2003 and a further notice filed on 17 July 2003, according to the respondents, had not been called upon by the applicant and Ms Brus submitted that in dealing with the April 2004 notices it was convenient to also deal with the other outstanding notices.

6 The first notice to produce, which I shall refer to as Notice A, was filed on 28 January 2003. The following table sets out the documents sought to be produced, the respondent's response and the Court's order or direction:

Document sought Respondent's response Order/Direction 1. All documents recording investigations inquiries undertaken by Mr Trevor Lee, EE Officer Central Office DOCS Jan-Mar 1998 into complaints made by Applicant including interviews with J Gillett, J Pitchford, and J Ryan, N Bratt. Documents were previously sought in summons for production served on DADHC on 25 Sep 2002 Documents could not be produced (see affidavit of D Lutvey). Documents have still not been found. The respondents are directed to file and serve an affidavit confirming that a proper and thorough search has been made and the documents cannot be found, if that is the case. If the documents are found the applicant is to have access. 2. The DOCS Grievance Policy as of July 1997 (not pressed). Documents produced in response to 25 Sep 2002 summons. The document is not pressed. 3. All Shift reports and Communication Books from Fitzpatrick St forwarded to J Karototha Aug 2002 as referred to in affidavit of D Lutvey 15 Nov 2002 Documents produced in response to 25 Sep 2002 summons. Nothing more to produce. The respondents are directed to file and serve an affidavit confirming that a proper and thorough search has been made and no further documents can be found, if that is the case. If the documents are found the applicant is to have access. 4. Fizpatrick Street "issues" books for 1996-1997 (refer to Ms Gillett who knows what the issues books are) Documents have been produced. The respondents are directed to identify the item in the relevant summons or notice to produce that they say sought the documents and to confirm by affidavit that the documents have been produced. Applicant to have access. 5. Records of Financial Meetings between Alldiss family and Fitzpatrick St staff - 1996-1997 (refer to Ms Gillett) Document produced but access opposed on the ground that the documents have no legitimate forensic purpose. I cannot see where these documents have been produced. The documents are to be produced to the Court for inspection. 6. Records of all Fitzpatrick St staff meetings 1994-May 1997 Access opposed. No legitimate forensic purpose. The record of proceedings for 15 November 2002 in relation to the 25 September 2002 summons indicated that "Home meeting minutes and agenda (Fitzpatrick St) June-Dec 1997" were produced. If that were the case the new request would seem to be superfluous although it is noted it seeks information going back to 1994. I cannot see any legitimate forensic purpose in material prior to May 1997. Access prior to this date is denied. 7. Complete personnel file of Applicant (Gerard Crewdson) see affidavit Ms Bratt) (not pressed). Documents produced. The documents are not pressed. 8. All documents recordings referrals made by N Bratt to HealthQuest while she was in position as HR Manager Northern Sydney DOCS Oppressive. As it is currently framed this item is oppressive. Order that access is denied. 9. Records of any RCA positions, vacancies at Whiteside Group Home July-Sept 1997 Documents produced. I cannot see where these documents were produced. The respondents are directed to identify the item in the relevant summons or notice to produce that they say sought the documents and to confirm by affidavit that the documents have been produced. Applicant to have access. 10. Records of Mr Lutvey's application for ex gratia legal assistance for his failed AVO application against applicant - Sept 1999-Feb 2000 including employment and payments to Solicitor Mr Valarezo, instructions communications between Mr R Best and Mr Valarezo, R Best and Mr Lutvey, and communications between Director General Attorney General's Dept and Director General DOCS Access opposed. No legitimate forensic purpose. It appears that the applicant's purpose in seeking the documents is to challenge the credibility of Mr Lutvey and Mr Best as truthful persons. The applicant contends Mr Lutvey (in the context of an AVO application) swore a false statement regarding the basis upon which it was said Mr Crewdson left DOCS and that Mr Best was complicit in this false statement. Neither Mr Lutvey nor Mr Best are witnesses in the substantive proceedings. Even if it was established that Mr Lutvey swore in relation to AVO proceedings that the applicant was retired medically unfit and Mr Best was complicit in that statement it does not seem to me it would have any probative value in connection with these proceedings. Order that access is denied. 11. Medical file of Allan Moriarty 1993-1997 and records of any investigations, follow up actions undertaken by Ms Pitchford and DOCS Area Management after Allan Moriarty's scalding injury Access opposed. File cannot be found. In any event, opposed because documents serve no legitimate forensic purpose. Respondents admit Mr Moriarty suffered an injury in June or July 1997. The respondents are directed to file and serve an affidavit confirming that a thorough and proper search has been made and no documents can be found, if that is the case. If documents are found they are to be produced to the Court for its inspection. 12. Records of Epping Office inquiry into assault by T McGuire of L Hori 8/5/97 as substantiated in P Reilly report. Nothing to be produced. The respondents are directed to file and serve an affidavit confirming that a thorough and proper search has been made and no documents can be found, if that is the case. If documents are found they are to be produced to the Court for its inspection. 13. DOCS policy on managing poor work performance as referred to in letter of Ms Gillett to Director General DOCS May 1998. Documents produced. I cannot see where the documents have been produced. The respondents are directed to identify the item in the relevant summons or notice to produce that they say sought the documents and to confirm by affidavit that the documents have been produced. Applicant to have access. 14. Incident Report 17/6/97 in possession of Ms Gillett on 13/12/02 (see transcript) and any other such documents in her possession Believe document was produced on 13 December 2002. If not document will be produced. Order that access is granted. 15. All records instructions, communications to Crown Solicitor R Salpeter and T Andersen regarding EOT matters 58 and 67 of 1998 including mediation, cancelling mediation, and terms and conditions of Deed. The applicant later amended this item [in an email dated 2 August 2004] to request "the records of discussions negotiations at which either I, or my brother T Crewdson were present and which accordingly are not covered by legal privilege." Access opposed. Legal professional privilege claimed. I do not understand what it is the applicant is seeking to have produced. The applicant is directed to clarify his position within 14 days of the date of this judgment after which the respondent shall have seven days to respond.

7 The second notice to produce, which I shall refer to as Notice B, was filed on 28 January 2003. The following table sets out the documents sought to be produced, the respondent's response and the Court's order or direction:

Document sought Respondent's response Order/Direction 1. The complete file in possession of HealthQuest concerning applicant Mr Crewdson. Documents can be produced. If the complete file has not been produced it is to be so produced and the applicant is to be granted access. 2. Appointment record for Dr Roberts Access opposed. Not relevant. The applicant shall have access only to the appointment record or records relating to Mr Crewdson's appointment on the day in question if that record is in the possession and control of the respondent. [Items 3 to 7 and 9 in the notice to produce were not pressed by the applicant] not pressed. not pressed. 8. Records of Allan Moriarty's hospitalisation at Concord Hospital after scalding injury (I believe in 1993 or 1994) Access opposed. Not relevant. I fail to see how this information would be of any probative value given it preceded the matters in dispute by some three or four years. Order that access is denied.

8 The third notice to produce, which I shall refer to as Notice C, was filed on 17 July 2003. The applicant indicated that he longer pressed for the documents in Notice C.

9 The fourth notice to produce, which I shall refer to as Notice D, was filed on 20 April 2004. The applicant sought production of the following documents: Copy of all records relating to the AVO action of Mr Lutvey Sept 99-Feb 00 taken against Mr Crewdson in the possession and control of the Dept [DOCS] including records of any investigation into Mr Lutvey's claims prior to assistance being granted and correspondence between Director General DOCS and Director General Attorney General's Office before and after financial assistance granted.

10 I have already ordered in relation to item 10 of Notice A that the documents sought would have no probative value and access was denied. The documents sought in Notice D seem to me to be essentially the same documents sought in item 10 of Notice A. The same ruling applies.

11 The fifth notice to produce, which I shall refer to as Notice E, was filed on 20 April 2004. The following table sets out the documents sought to be produced, the respondent's response and the Court's order or direction:

Document sought Respondent's response Order/Direction 1 All Fitzpatrick St documents or copies of documents in the possession of Julia Gillett ex House Manager 28 Fitzpatrick St which she brought to the Commission 13/12/02 and or 30/1/03 including witness statements or reports relating to assault of L Hori on 8/5/97 and incident report 17/6/97 filled out by D Lutvey for A Moriarty The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. The respondent is strictly correct. However, almost inevitably the applicant will file and serve new notices seeking the same information. If he chooses to do so and seeks documents he says are in the possession of Ms Gillett the appropriate course would be direct any summons for production to Ms Gillett. So ordered. 2 Correspondence between the Director General M Alison and State Records Authority re missing or destroyed documents. The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. As I have noted, the respondent is strictly correct. If, however, the applicant wishes to pursue correspondence of the nature described he will need to be more specific and identify the documents in question. An explanation will need to be provided as to how this material is relevant and its forensic purpose. The applicant should file and serve a new notice to produce if he wishes to pursue these documents. 3 Copies of original (loose) documents from medical file of Allan Moriarty located after further searches as referred to in letter D Roberts to G Crewdson 30/3/04. The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. If these documents are in existence they are to be produced to the Court for its inspection. If they cannot be found the respondent is to file and serve an affidavit to that effect indicating that a proper search has been carried out. 4 House records/registers located after further searches as in item 2. The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. The description of the documents sought is too vague and imprecise. The applicant is directed to file and serve a new notice to produce if he wishes to pursue these documents. 5 Document(s) recording comprehensive and long term plan for addressing the current gaps in compliance with State Records Act as referred to in communication between M Alison and State Records Authority The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. The documents sought have no legitimate forensic purpose. Order that access is denied. 6 Copy of SES contract of employment of current Director General or Acting Director General [of DADHC] The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. The documents sought have no legitimate forensic purpose. Order that access is denied. 7 Copy of all records relating to AVO action of Lutvey Sep 99-Feb 00 taken against Mr Crewdson in the possession or control of the Dept [DADHC]. The items sought in this notice to produce were in relation to interlocutory proceedings heard on 22 April 2004. Those proceedings have been dispensed with and the notices are no longer valid. This item has already been dealt with - twice. Order that access is denied.

12 In the course of dealing with the notices I have made certain directions with which the parties shall comply in the time specified. As I have already noted, the substantive proceedings will continue in November 2004. The applicant is to ensure that if he wishes access to any further documents or wishes to call further evidence he should take early steps to avoid the possibility of having to vacate the proceedings in November. ________________________

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.