Crewdson v New South Wales Department of Community Services & Ors

Crewdson v New South Wales Department of Community Services & Ors - [2005] NSWIRComm 308 - NSWIRComm 2005 case summary — Zoe

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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 (sic) 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 It is over four years since the applicant commenced his action in these proceedings. The delay may be attributed in large part to the Court having to deal with a succession of interlocutory applications by the applicant seeking summary judgment including: Crewdson v New South Wales Department of Community Services & Anor (No. 3) [2002] NSWIRComm 139; Crewdson v New South Wales Department of Community Services & Anor (No.5) [2002] NSWIRComm 203; Crewdson v New South Wales Department of Community Services & Anor (No.7) [2003] NSWIRComm 190; Crewdson v New South Wales Department of Community Services & Anor (No.9) [2004] NSWIRComm 125. 3 Much of the background to the applicant's claim for relief is set out in Crewdson v New South Wales Department of Community Services & Anor [2002] NSWIRComm 121 ("Crewdson (No 2)"). In those early interlocutory proceedings the Court dismissed a motion by the respondents to dismiss the applicant's claims. Since the judgment in that matter the Court has heard all of the evidence and what was missing in terms of the facts has now been filled in. 4 Accordingly, I propose to flesh out the background recorded in Crewdson (No 2) but before doing so it needs to be placed in an overall context. Firstly, it was the applicant's contention that in 1997 he was the subject of a conspiracy amongst a number of persons he then worked with in a home caring for persons ("clients" or "residents") with developmental disabilities. Putting it in broad terms, the applicant contended that because of concerns he had and complaints he made about the inadequate standard of care of clients by certain staff members, and the failure of those in supervisory positions to act on his complaints he was victimised, subject to verbal abuse and eventually, in order to get rid of him, directed to attend for a psychiatric examination at HealthQuest in October 1997. The direction, it was contended, was made without any proper authority and on wholly specious grounds, they being mainly allegations about his mental and emotional state. Further, the applicant alleged corrupt conduct by the first respondent in attempting to cover up improper treatment of clients. 5 Secondly, HealthQuest having declared him unfit for work for three months and having been removed from his duties, the applicant alleged that he had been unlawfully discriminated against and pursued his complaints against the respondents before the Equal Opportunity Tribunal throughout much of 1998. The applicant was unsuccessful and on 6 October 1998 he signed a deed that provided for Mr Crewdson to be paid a sum in settlement of all of the proceedings before the Equal Opportunity Tribunal and released: 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. 6 Subsequently, although accepting payment under the terms of the deed, Mr Crewdson claimed, inter alia, that the deed was illegal and not binding on him. He commenced fresh proceedings in January 1999 against the Director-General of the first respondent, the Government Medical Officer and the lawyers representing the respondents alleging victimisation under s 50 of the Anti-Discrimination Act 1977. The complaints were declined in August 1999. Applications for review and appeal by Mr Crewdson followed but these were also unsuccessful. In May 2001 Mr Crewdson initiated these current proceedings. 7 The respondents in these proceedings contended there were three "fundamental elements" to the applicant's case and I will identify these at the outset because it assists in keeping matters in perspective: (1) The Applicant was sent to Healthquest as either some form of punishment and/or to silence him because he had made complaints about his colleagues (Mr. Combie-Brown and Mr. Lutvey). (2) A deed of release signed by the Applicant in October 1998 was signed under duress and as such does not bar him from obtaining relief from this Commission. (3) The referral to Healthquest was invalid because there was not a proper delegation for such a referral to take place and as such, any findings or recommendations that flowed because of the referral to Healthquest are void. 8 It was the respondents' case that if the applicant failed in his claim on the deed, then the deed acted as a bar for the balance of applicant's summons and the matter should be dismissed. I will come later to the deed but it is necessary to provide the relevant factual background that I have taken from the evidence in the proceedings. Firstly, there are the events leading up to Mr Crewdson being directed to HealthQuest for a psychiatric examination in October 1997. EVENTS LEADING TO HEALTHQUEST REFERRAL 9 Mr Crewdson commenced full time employment with the first respondent on 7 September 1990 as a "Residential Care Assistant" in what was then called the Macquarie Developmental Disability Services at Fitzpatrick Street, Eastwood. His primary duties involved the care and support of clients of the first respondent with developmental disabilities. The applicant was employed under the provisions of the Public Sector Management Act 1988. 10 In May 1997 an incident occurred where a staff member, Mr Tom McGuire, tried to physically force a client from a vehicle whilst she was resisting and the client fell to the ground. The staff member's conduct was regarded as a serious breach of his duty of care. He requested a transfer to another work location because he found working at Fitzpatrick Street too stressful. Mr McGuire was counselled and warned any further breach of his duty of care would lead to more serious disciplinary action. The relevance of the reference to Mr McGuire will become clearer later but Mr Crewdson compared Mr McGuire's treatment (counselling and transfer) for assaulting a client whilst the staff member claimed he was under stress, and the treatment he received (unauthorised direction to attend HealthQuest for complaining about poor treatment of clients and what he regarded as victimisation at the hands of other staff). 11 In June 1997 an incident occurred where a client (AM) was injured in a fall. The House Manager, Ms Julia Gillett, in her evidence before this Court, acknowledged the injury to the client's face and nose was reasonably serious. The client was totally blind, had cerebral palsy, suffered from epilepsy and had an intellectual disability. Mr Crewdson took a particularly close interest in this client's wellbeing. He said that no investigation was conducted into the incident and that he expressed his concern about the incident to the House Manager and made known to her his view that the injury to the client was the fault of another staff member, Mr Damian Lutvey, who failed to care for the client in the proper manner. Mr Crewdson believed that Mr Lutvey had been "abusive and bullying" towards AM. The applicant also began to express his concern at the treatment of other clients by staff at the House. 12 The applicant said that following his complaint regarding Mr Lutvey he was subjected to "increasingly violent verbal attacks and harassment" by another staff member, Brian Combie-Brown, and that Ms Gillett permitted this to occur. The first verbal attack occurred on 22 June 1997. Mr Crewdson said at the end of his shift he was farewelling a resident, AM, who had asked Mr Crewdson not to go. The applicant said he was assuring the resident he would be back on night shift when Mr Combie-Brown "suddenly interjected, asked me to leave and alleged that my manner of interaction with [AM] would cause him to engage in 'difficult behaviours' for the rest of the shift." Mr Crewdson said he was "shocked by his outburst and deeply embarrassed …I ran out of the door. As a consequence of his attack I suffered a bout of depression and insomnia." Mr Crewdson wrote to Mr Combie-Brown about what had occurred but he did not receive a reply.

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16 On 1 September 1997 Ms Gillett raised a number of further issues with the applicant concerning complaints by other staff about the increase in workload the applicant was causing them. Ms Gillett said she was concerned about what might be described as the applicant's less than objective approach to caring for some of the clients and that this was creating problems for other staff. She said Mr Combie-Brown had valid criticisms of the applicant, which apparently upset the applicant greatly. In the course of the discussion the applicant again raised with Ms Gillett his wide-ranging concerns and criticisms regarding Mr Combie-Brown and Mr Lutvey and inadequate treatment of clients. The applicant stated that Ms Gillett verbally attacked him and suggested he seek a transfer to another group home, Whiteside. Ms Gillett indicated she would speak to Ms Jackie Pitchford, Assistant Community Manager, Disabilities, North Ryde District, about the transfer. Ms Pitchford had person-to-person contact with Mr Crewdson at monthly group house meetings. It is difficult to see how the matters raised by Ms Gillett amounted to a "verbal attack" although I note Mr Crewdson considered she had "a fierce look on her face". 17 It would appear that sometime after 1 September 1997 and prior to 11 September 1997 Ms Gillett had a conversation with Ms Pitchford about sending Mr Crewdson to HealthQuest for a psychiatric examination. It is not entirely clear which of the two suggested HealthQuest but Ms Gillett indicated that what she was concerned about was what she regarded as the applicant's continuing obsession with Mr Combie-Brown and Mr Lutvey, client management issues and staff complaints about the applicant's conduct. 18 On or before 11 September 1997 Ms Pitchford made a decision to arrange an appointment for Mr Crewdson to attend HealthQuest. She did this after conferring with Ms Gillett and Mr John Ryan, another Community Manager and after seeking advice from Nathalie Bratt, Human Resources Manager at the Northern Sydney Office of the first respondent. Ms Pitchford said in her evidence: I had formed the view from direct discussions with the Applicant, Julia Gillett and John Ryan Acting Community Manager, Ryde, that the Applicant's inappropriate behaviour and visible stress was affecting his ability to perform his duties. So that this could be addressed and his specific needs professionally assessed it was decided that a referral to HealthQuest be recommended. 19 At some time between 11 September and 15 September 1997, Ms Pitchford requested Ms Gillett to put in writing her concerns regarding the applicant. This she did in a memorandum dated 15 September.

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20 Ms Gillett's eight-page memorandum was headed "Consideration of Temporary Transfer - Mr Gerard Crewdson". Whilst the memorandum requests a temporary staff "swap" for Mr Crewdson it goes into extraordinary detail about Mr Crewdson's conduct and his mental and emotional state as perceived by Ms Gillett and recounts a number of instances that highlight her "grave concern". Some of the instances do indicate that Mr Crewdson's behaviour at the time was becoming somewhat obsessive, stressed, excessively sensitive to any criticism and disruptive of the normal routine but other instances cited were either only marginally relevant to his perceived mental state or of no relevance whatsoever. Ms Gillett did, however, state in her memorandum: My dilemma is not knowing what might, and not wanting to, push Gerard 'over the edge', into a state of true paranoia or further stress and unhappiness, or more seriously into a truly suicidal state. 21 Whilst Ms Gillett expressed her concerns about Mr Crewdson at length there was nothing poisonous or vindictive about the tone of the letter. Indeed, it conveyed a caring, sympathetic sentiment. However, I have approached Ms Gillett's perceptions about Mr Crewdson's mental and emotional state with some caution. I do not accept, for example, she considered him to be suicidal or paranoid or suffering any significant depressive illness because if that were the case a responsible manager would have moved much more quickly to remove Mr Crewdson from the house out of concern for the client's welfare and most certainly would not have proposed merely transferring him to another group home. There was a tendency towards exaggeration in Ms Gillett's memorandum and some of the instances cited as indicating a deteriorating mental condition on Mr Crewdson's part were unfair overstatements. For example, Ms Gillett stated: Gerard concerned some staff members … with expression of a belief that the Department was being taken over by McDonalds apparently with some conviction. 22 It was clearly the case that Mr Crewdson at the time he made the remark was joking with a staff member and it was mischievous to suggest otherwise. 23 I also note that on 20 September 1997 Ms Gillett indicated her agreement with Mr Crewdson's competency self-assessment form that he was competent to maintain a healthy and safe environment. This was a form that was required to be sent to Ms Pitchford and then on to Ms Bratt. In signing the form Ms Gillett was practising a deception on Mr Crewdson or did not believe much of what she had written in her memorandum of 15 September 1997. Neither alternative reflects well on Ms Gillett. The evidence did not establish that Ms Pitchford had read the assessment but in the normal course she was required to. 24 Nevertheless, I accept that Mr Crewdson's conduct at the time was such as to give rise to some concern in Ms Gillett and other staff. He was becoming obsessed with what he perceived to be the unfair attacks on him by Mr Combie-Brown, inadequate regard by some staff members for the care of clients and what he regarded as Ms Gillett's failure to pay proper heed to his complaints. Mr Crewdson's concern for clients was most commendable but it seems to me that by September 1997 it had become such a fixation for him that it was disturbing other staff and becoming disruptive to the smooth functioning of the group home. In her evidence in chief Ms Gillett stated: I do not think that is the time he gave me a formal complaint and I'm really not sure about the exact dates, and he gave me a formal complaint about Mr Brian Crombie-Brown, and I had rung Ms Pitchford and said things hadn't settled down and Mr Crewdson still didn't want to go to for counselling and he wouldn't let go of the Brian Crombie-Brown episode, and the staff also had been complaining to me they didn't want to work any more with him and could I put them on other shifts, because he would start to interrogate them about what they had said to me about why he was being asked about his work performance and they didn't like being interrogated about what they had said, or he would ask them about what they thought of his work performance and they felt uncomfortable because they weren't going to say they didn't think he was really up to scratch because they had to work with him, one on one and they felt uncomfortable. And they had worked out, they had reported to me they felt he was trying to get a case against Brian or Damien or whoever and trying to, I suppose, get a game together, but it wasn't really like that, it was really more to get their views, whose side were they on: His or Brian Crombie-Brown's, and he wouldn't let go of the Crombie-Brown issue and put in a formal complaint about it.

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· Deceived Mr Crewdson by not informing him of Ms Gillett's memorandum of 15 September 1997. 35 I have to accept there is some substance in Mr Crewdson's complaints against Ms Pitchford and it highlights a probable lack of procedural fairness in the treatment of Mr Crewdson by the first respondent. 36 Mr Crewdson worked nightshift on 13 October 1997. He said he examined the shift report that Mr Lutvey had written in relation to AM's fall on 17 June 1997 and he concluded AM had been mistreated by Mr Lutvey. He believed that Mr Lutvey had "acted dishonestly and abused and assaulted" AM on 17 June. He stated that he had "further formed the view that the actions taken against me from 22/10/97 by Mr Combie-Brown, Ms Gillett and Mr Lutvey were linked to a cover-up of Mr Lutvey's misconduct." Mr Crewdson said he sought to pursue the complaint through the first respondent's Human Resources Northern Sydney office "unaware of their involvement in the HealthQuest process." Ms Bratt was apparently on leave at the time and Ms Heijkoop was acting in her place. Ms Heijkoop did not investigate the complaint and apparently left the matter for Ms Bratt on her return. Mr Crewdson submitted: Had Ms Heijkoop responded to my calls on behalf of Ms Bratt and listened to what I had to say the HealthQuest referral should have been stopped then and there and years of suffering averted. 37 A significant element of Mr Crewdson's case was the failure of the first respondent to address his concerns about the treatment of clients and his victimisation by staff members for raising such concerns such victimisation culminating in the referral to HealthQuest. 38 It is not this Court's role to engage in an investigation of the treatment of clients at the group home in 1997 or to make any findings in that respect other than where those findings may be relevant to a determination of the application in this matter. That is, I am not required to take this issue any further than giving consideration to whether there was any validity in Mr Crewdson's assertions that one of the reasons he was victimised and removed from his position at the group home was because of his complaints about the poor or inadequate treatment of clients, and that the first respondent wanted to conceal or cover up this treatment and because of his complaints against Mr Combie-Brown, Mr Lutvey and Ms Gillett. I make this point because it was evident to me that throughout much of the proceeding, Mr Crewdson saw it as an opportunity to press a case not only on behalf of himself, but also on behalf of clients who he considered had not received fair treatment. 39 The applicant contended it was improper of the respondents to send him to HealthQuest on the basis of these complaints and, indeed, he contended the respondents were guilty of an offence under s 47 of the Community Services (Complaints, Review and Monitoring) Act 1993, which provides: 47 Protection of complainant against retribution (1) A person who takes or threatens to take detrimental action against another person because that other person or any other person: (a) makes, or proposes to make, a complaint to a service provider, an Official Community Visitor or the Ombudsman, or (b) brings, or proposes to bring, proceedings before the Tribunal, or (c) provides, or proposes to provide, information, documents or evidence to an Official Community Visitor, the Ombudsman or the Tribunal, is guilty of an offence. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (2) It is a defence to a prosecution for an offence under this section if it is proved: (a) that the action referred to in subsection (1) on which the prosecution was based was taken or proposed in bad faith, or (b) that any material allegation was known by the person making it to be false. (3) In this section, detrimental action means action causing, comprising or involving any of the following: (a) injury, damage or loss, (b) intimidation or harassment, (c) discrimination, disadvantage or adverse treatment in relation to employment, (d) dismissal from, or prejudice in, employment, (e) prejudice in the provision of a community service, (f) disciplinary proceedings. 40 My view of the evidence in the proceedings regarding the alleged mistreatment of clients in 1997 is that whilst there were instances that required certain procedures and the conduct of staff to be modified, there was no evidence of serious or wilful mistreatment such as to generate in a reasonable person the significant level of concern and agitation exhibited by Mr Crewdson regarding client management practices at the group home. 41 To some extent this is supported by a review undertaken into Mr Crewdson's complaints in June 1998 regarding client management practices by Mr Pierrick Reily. I say to some extent because Mr Reily did not pretend to carry out an exhaustive investigation and relied largely on written material provided by Mr Crewdson and interviews with AM to the extent that was possible, Mr Crewdson, Ms Pitchford and Ms Gillett. 42 Mr Reily gave evidence in the proceedings. At the time he gave his evidence he was Director, Disability Services for Metro North Area of the Department of Ageing, Disability and Home Care. His formal qualifications were Bachelor of Science (Psychology) and Master in Clinical Psychology. He is a registered Psychologist. Mr Reily reviewed 15 allegations made by Mr Crewdson and found that four had no validity, seven were unsubstantiated and four were substantiated. 43 Of the 15 allegations three related to AM. It was alleged by Mr Crewdson that AM had been subject to emotional abuse, bullying and assault. Mr Reily found there was no evidence of bullying although some language used by staff members was inappropriate. As to the alleged assault on AM Mr Reily found the allegation was not substantiated. 44 The four substantiated allegations were: (1) Assault of LH (a female client) by staff member. This was the assault by Mr McGuire referred to earlier. Mr Reily considered that appropriate disciplinary action had been taken against Mr McGuire. (2) Denial of choice in bathing/showering. Mr Reily recommended a review of "the rationale for use of shower with consideration of client preference and needs and of the need to introduce a formal behaviour intervention and support programme." (3) Lack of respect for residents as evidenced by language used in communication book and in staff discussions. Mr Reily recommended a review of training to staff regarding their use of language to ensure it was appropriate and a review of action against staff members guilty of using inappropriate language to "ensure that continued transgressions are being dealt with more formally by management." (4) Failure of staff to maintain client medical and financial records. Mr Reily did not consider this was a serious issue and he recommended no action be taken. 45 It is not a matter for this Court to determine whether an offence has been committed under s 47 of the Community Services (Complaints, Review and Monitoring) Act. My view, however, is that the allegation that the applicant was subjected to detrimental action because he had sought to bring to the attention of the relevant authorities his concern about the treatment of clients in the group home, lacks substance. I have come to this conclusion after very carefully considering whether Ms Gillett and Ms Pitchford improperly, or in bad faith, conspired to refer Mr Crewdson to HealthQuest in order to "get rid of him" punish him or as part of a cover up of mistreatment of clients. I was especially concerned at the exaggeration of Mr Crewdson's mental or emotional state and whether this was contrived to paint him in a poor light with any examining psychiatrist at HealthQuest. But even if there were an element in the thinking of Ms Gillett and Ms Pitchford of wanting to remove Mr Crewdson from the Fitzpatrick Street Home because he was regarded as a potential whistleblower and that his condition was exaggerated for that purpose, as I will shortly explain the psychiatrist at HealthQuest who assessed Mr Crewdson did so primarily on the basis of her observations of his behaviour at the time of her assessment and not on the basis of material she was provided with by Ms Pitchford. 46 I hasten to add I do not consider the decision to direct Mr Crewdson to HealthQuest was because he was considered a whistleblower.

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47 In summary, my view of the evidence relating to the events leading to the decision to direct Mr Crewdson to attend HealthQuest for an examination as to his fitness for work is as follows: (1) In June 1997 AM was injured in a fall whilst being physically handled by Mr Lutvey. Mr Crewdson seemed to have a particular concern for AM's welfare and considered AM's "difficult behaviours" following his fall were due to the injuries he sustained to his face and nose. Mr Crewdson began to fuss over AM and considered that other staff were not giving AM sufficient attention. (2) Mr Crewdson's concern for AM and the attention he was giving him attracted criticism from other staff. They considered that Mr Crewdson's attention was causing them difficulties in managing AM because they were not able to devote the same time and attention to AM as Mr Crewdson. Mr Combie-Brown criticised Mr Crewdson. Mr Crewdson found Mr Combie-Brown's criticism very hurtful and suffered depression as a consequence. Mr Combie-Brown's criticism could hardly be described as an "attack" and Mr Crewdson's reaction was out of all proportion to what, in fact, was said to him. (3) Mr Crewdson's concern with AM began to increase and he started questioning behaviour management routines for AM and other residents. The bases of Mr Crewdson's concerns could not reasonably be regarded as matters of great significance or substance. That is not to detract from Mr Crewdson's genuine concerns for AM but the first respondent's responsibility for the care of AM had not, in my opinion, been seriously compromised. Nevertheless, Mr Crewdson began complaining to Ms Gillett. (4) Mr Crewdson's concerns began to take on the character of obsessions and attracted further criticism from Mr Combie-Brown, criticism that caused Mr Crewdson "great agitation and unhappiness". The criticisms were inappropriate and it must have been obvious to Mr Combie-Brown that in Mr Crewdson's excessively sensitive state he would find the criticisms distressing. Nonetheless, from an objective point of view the criticisms were not such as to create mental turmoil for a person in a stable emotional state. I would make the same observations about Mr Lutvey's remarks. (5) Mr Crewdson continued with his complaints to Ms Gillett. What Mr Crewdson described as Ms Gillett's "verbal attacks" on him were really not much more than relatively mild rebukes. (6) Ms Gillett spoke to Ms Pitchford regarding Mr Crewdson's behaviour. On 11 September Ms Pitchford decided to refer Mr Crewdson to HealthQuest. In my opinion, that decision was premature. Ms Pitchford could not have been entirely satisfied at that stage that such a serious step was necessary. On or about 15 September Ms Pitchford received Ms Gillett's memorandum. Ms Pitchford appears to have accepted what was contained in the memorandum without question and without making proper inquiry as to whether the serious allegations and assertions had any foundation. (7) The references to "suicide", "delusions" and "paranoia" in Ms Gillett's memorandum of 15 September were exaggerations of Mr Crewdson's condition and prejudicial. Nevertheless, there was a proper foundation for Ms Gillett to be concerned about Mr Crewdson's welfare because he was clearly showing signs of stress and emotional instability to a much greater extent than, on any objective assessment, circumstances warranted. (8) I do not consider that Ms Gillett was engaged in any conspiracy to "get rid of" Mr Crewdson because she was trying to cover up the incident involving Mr Lutvey and AM. There was nothing of sufficient significance to conceal. Whilst I consider Ms Gillett and her staff could have given more attention to AM's injury at the time and of that being an explanation for his subsequent "difficult behaviours", I also consider Mr Crewdson's concern for AM and his subsequent fixation in that respect was out of proportion to the gravity of the matter. Further, if Ms Gillett had wanted Mr Crewdson out of the group home because he would not agree with her approach to behaviour management or in order to stem his criticisms it would have been a simple matter of arranging a transfer. (9) It was incumbent on Ms Pitchford to undertake a proper investigation into the contents of Ms Gillett's memorandum, something she did not do. Nor did she make her own proper assessment of Mr Crewdson's emotional state and what it was that had caused him to become quickly upset, agitated and hypersensitive to criticism. (10) There is no doubt that Mr Crewdson's behaviour could not be ignored and it was obvious he needed some assistance for his less than robust emotional state. This would have been evident to Ms Gillett and to the extent that Ms Pitchford relied on Ms Gillett's assessment of Mr Crewdson and on her own, albeit cursory, observations of the applicant's behaviour, one cannot be too critical of Ms Pitchford and Ms Gillett in wanting to obtain assistance for Mr Crewdson. However, their handling of the situation could have been better. Before taking steps to refer Mr Crewdson to HealthQuest for a psychiatric examination Ms Pitchford and Ms Bratt should have taken steps to interview Mr Crewdson in order to test Ms Gillett's assertions about his behaviour and to consider pressing him to attend counselling prior to any consideration of a HealthQuest referral. There should also have been a contemporaneous investigation into his complaints to determine whether there was substance to them. (11) A finding is open that Mr Crewdson was not accorded procedural fairness. But even if I were to make that finding I do not consider it was such as to render the decision to direct Mr Crewdson to HealthQuest to be without proper foundation. (12) Despite the flaws in the process, I do not consider that the referral of Mr Crewdson to HealthQuest was unconscionable or done in bad faith, or discriminatory, or done for an improper purpose or other than out of concern for the applicant's welfare. (13) Notwithstanding the flawed process I, nevertheless, consider there were reasonable grounds for concern regarding Mr Crewdson's emotional or mental state. and that it would not have been reasonable to take no action at all. There were, in my opinion, reasonable grounds for believing that Mr Crewdson's mental health may have been seriously affected if he remained on duty.

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ABSENCE OF AUTHORITY TO DIRECT APPLICANT TO HEALTHQUEST 48 To refer a person to a psychiatric assessment to determine whether he or she is fit to work is a very serious step. It is one that requires the approval of the Department Head or a person with the Department Head's delegated authority. Section 12 of the Public Sector Management Act 1998 provided: 12 Delegation by Department Head (1) A Department Head may delegate to an officer of the Department any of the Department Head's functions under this Act, other than this power of delegation. (2) If: (a) a function of a Department Head is delegated to an officer of the Department in accordance with subsection (1), and (b) the instrument of delegation authorises the sub-delegation of the function, then, subject to any conditions to which the delegation is subject, the officer may sub-delegate the function to another officer of the Department. (3) In this section: (a) a reference to the functions of a Department Head includes a reference to any functions delegated to the Department Head under this Act, and (b) a reference to an officer of a Department includes: (i) a reference to a person holding an appointment to or in the Department, and (ii) where the Department is the group of staff attached to a body, organisation or group specified in Schedule 1 - a reference to a person holding an appointment to or in that body, organisation or group, and (iii) a reference to a temporary employee. 49 Section 49 of the Interpretation Act 1987 provides: 49 Delegation of functions (1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned. (2) A delegation: (a) may be general or limited, (b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and (c) may be revoked, wholly or partly, by the delegator. (3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject. (4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function. (5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate. (6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator. (7) If: (a) the exercise of a function by a person or body is, by virtue of an Act or instrument, dependent on the opinion, belief or state of mind of the person or body in relation to any matter, and (b) the person or body has delegated the function to some other person or body, the function may be exercised by the delegate on the opinion, belief or state of mind of the delegate in relation to any such matter. (8) If a function is delegated to a particular officer or the holder of a particular office: (a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and (b) the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned. (9) A function that has been delegated may, notwithstanding the delegation, be exercised by the delegator. (10) This section applies to a sub-delegation of a function in the same way as it applies to a delegation of a function, but only in so far as the Act or instrument that authorises the delegation of the function also authorises the sub-delegation of the function. 50 Clause 17 of the Public Sector Employment and Management (General) Regulation 1996 provides: 17 Health and safety (1) For the purposes of this clause, a member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member's remaining on duty or, if the member of staff is absent from duty, by the staff member's resuming duty. (2) The appropriate Department Head may direct a member of staff to submit to such medical examination or other health assessment as the Department Head may, on the advice of HealthQuest, consider necessary, if the Department Head has reason to believe that the member of staff is not fit for work. (3) If the appropriate Department Head has issued any such direction to a member of staff, the member of staff: (a) must, if on duty, cease duty immediately, and (b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of HealthQuest is first obtained or a certificate is furnished by a medical practitioner that the member of staff is fit for work. (4) If the appropriate Department Head receives a health assessment from HealthQuest that a member of staff: (a) is fit for work, the Department Head is to direct in writing that the member of staff, if absent from duty, must resume duty, or (b) is not fit for work, the Department Head is to direct in writing that the member of staff must cease duty immediately or, if absent from duty, must not resume duty. (5) If a direction has been given to a member of staff under subclause (4), the nature of the leave, if any, to be granted to the member of staff during the absence from duty is to be determined by the appropriate Department Head after consideration of any relevant advice of HealthQuest. (6) A member of staff to whom a direction has been given under subclause (4) (b) must not resume duty unless the appropriate Department Head, on the advice of HealthQuest, approves in writing. (7) The appropriate Department Head is to give the health care professional providing a health assessment of a member of staff under this clause any requested information about the duties of the staff member's position that is reasonably required for the purpose of providing the assessment. 51 It was not an issue in the proceedings that Ms Pitchford and Ms Bratt had no authority under s 12 of the Public Sector Management Act to refer Mr Crewdson to HealthQuest; there was no instrument of delegation and no suggestion that the necessary authority had been conferred on the two managers.

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52 Further, there was no evidence that the Department Head or any person who had been delegated the necessary authority by the Department Head, directed Mr Crewdson to "submit to such medical examination or other health assessment as the Department Head may, on the advice of HealthQuest, consider necessary, if the Department Head has reason to believe that the member of staff is not fit for work": cl 17(2) of the Regulation. 53 The conclusion is inescapable that Ms Pitchford had no authority to direct Mr Crewdson to HealthQuest and the Department Head did not make such a direction. Mr Crewdson submitted that consequently, "The absence of any instrument of delegation renders the whole process applied to me unlawful and invalid." On the other hand, the respondents submitted: Whether there was a delegation for referral to Healthquest, is irrelevant. The applicant attended Healthquest and engaged with that organization through its consultant Dr Roberts. The situation would be different had the applicant refused to attend and subsequently relied upon the absence of delegations to justify or support his non-attendance. However, the applicant attended in accordance with the direction to do so. Furthermore, he attended with materials in hand to demonstrate that he had made complaints about his colleagues and workplace. In doing so the applicant not only demonstrated compliance with the directive but a willingness to be involved in the process. Having attended Healthquest, the opinion expressed by Dr Roberts remains valid and the reliance placed upon such an opinion also remains valid. The above proposition can be tested this way: let it be assumed that the applicant presented himself to Healthquest at his own instigation and as a result, Dr Roberts formed the same medical opinion about the applicant that he now so vigorously contests. It could not be suggested that, in those circumstances a valid opinion as to the health of the applicant could not be arrived at by Dr Roberts and acted upon, simply because of the mechanism by which he attended the location where he was assessed or came under the notice of Healthquest. The mechanism that brought the applicant to the notice of Dr Roberts is irrelevant. Were this not so, it would mean that the employer would be incapable of discharging its duty of care to the employee unless and only if the employer became aware of a possible medical condition in the same circumstances as posited by the applicant. The fact that, because of the absence of an appropriate delegation, the person who directed him to attend Healthquest may not have had the power to require him to do so, has nothing to do with the question whether Healthquest has the capacity to make a valid diagnosis, if he does attend, or whether the employer can validly act upon that diagnosis. 54 Mr Crewdson's answer to the respondents' submission was that: Had Ms Pitchford not directed me to attend HealthQuest on 13/10/97 I would not have attended. At the time I understood that Ms Pitchford had authority to make such a direction when in fact she had no such authority. My attendance was obtained under false premises compounded by the fact that Ms Pitchford did not inform me that the appointment was for a psychiatric examination. 55 Mr Crewdson submitted that there was no valid consent to a psychiatric examination. He contended there are three elements that must be satisfied before consent may be said to constitute a valid consent: (1) That any consent given is freely and voluntarily given; (2) That any consent given is properly informed; and (3) That the person giving consent has the legal capacity to give such consent. 56 Clause 17(2) of the Regulation provides that the appropriate Department Head may direct a member of staff to submit to such medical examination or other health assessment as the Department Head may, on the advice of HealthQuest, consider necessary, if the Department Head has reason to believe that the member of staff is not fit for work. A member of staff is not fit for work if the health of the member of staff: (a) may render the member of staff a danger to other members of staff or to the public, or (b) is likely to be seriously affected by the staff member's remaining on duty or, if the member of staff is absent from duty, by the staff member's resuming duty: cl 17(1). 57 There is nothing to prevent a member of staff volunteering to be referred to HealthQuest to determine their fitness for work or a manager, for instance, requesting a staff member to attend for an examination. If the staff member refused, there would be no basis upon which the manager could require the staff member to cease work pursuant to cl 17(4)(b) on the basis the staff member was found unfit unless the manager had the delegated authority to do so. But the point is that cl 17 does not represent the only means by which a staff member may attend at HealthQuest to determine his or her fitness for work. It would fly in the face of common sense to find otherwise. 58 In the present case, Mr Crewdson was directed by Ms Pitchford "to attend an appointment with HealthQuest". The applicant said he attended because he believed he was required to do so in accordance with the direction that had been given to him. Does this unauthorised direction have the effect of invalidating all that occurred thereafter, as Mr Crewdson contended? If Mr Crewdson were correct it would mean, to start with, his examination by Dr Roberts on 19 October 1997, her finding that the applicant was unfit for work and his subsequent placement on sick leave for three months were all invalid. 59 The short answer to the above question must be "no". However, this should not be seen as endorsing a procedure that allows an unauthorised person to direct an employee to attend at HealthQuest to undergo a psychiatric examination. It seems to me that cl 17 is there to protect the rights of employees from mischievous, vexatious, frivolous or vindictive actions of managers or supervisors in the public sector by putting in place a procedure where such referrals are made by the Department Head or appropriately authorised persons, with adequate safeguards built in to the process. 60 Here we have a situation, however, where although the applicant was not made aware that he could refuse to attend HealthQuest because the person directing him to do so did not have the proper authority, Mr Crewdson knew of the purpose of the referral; he could not have been mistaken about that because of the letter he received from Ms Pitchford directing him to attend HealthQuest. Mr Crewdson kept the appointment. Dr Roberts advised him she was a psychiatrist before the assessment began. During the course of his discussion with Dr Roberts he showed her documents about his complaints against staff members and his workplace grievances that he had brought to the appointment. 61 Dr Roberts subsequently assessed Mr Crewdson. Dr Roberts did not have sufficient time to carry out a full and proper examination because Mr Crewdson was late for the appointment having been given the wrong address and because of Mr Crewdson's hostility and lack of cooperation. Dr Roberts also did not have a full and true picture of the circumstances that led to Mr Crewdson's referral to HealthQuest. Dr Roberts, nevertheless, formed the belief that Mr Crewdson "may well have been suffering from significant mental illness." Dr Roberts said in her evidence, which I accept: Mr Crewdson's intensely agitated state, his clear anxiety, his hostility and very marked distrust of anyone and everything meant that I could not rule out psychotic illness. Some of the mistrust for example, could be seen in his attempt to write down every word I said. What was actually written on the paper seemed to me to be only random and irrelevant pieces of information, that were not strung together logically. In the examination Mr Crewdson was neatly groomed but extremely anxious, agitated and hostile, suspicious and mistrustful. The form (structure) of his thought was within normal limits, but he showed very marked obsessionality. He did not show signs of current acute psychotic episode in the form of his thought. Mr Crewdson was extremely guarded and he refused to give me much information and as such I could not determine within any degree of accuracy the content of his thought. 62 Dr Roberts felt it was inappropriate that Mr Crewdson returned to work and recommended that the applicant take leave and consult a private psychiatrist. Dr Roberts consulted with Dr Helen Jagger, Deputy Director of HealthQuest, who agreed with the course of action proposed by her. Consequently, the first respondent was advised by Dr Jagger on 29 October 1997 that: Mr Crewdson is currently unfit for work and in need of further psychiatric assessment and consideration of treatment. He has been told he should seek referral to a psychiatrist via his own doctor. He should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest. This will take about three months as he needs to be seen more than once to explore his mental health fully. 63 On 30 October 1997 Ms Gillett advised Mr Crewdson she had received a call from Ms Pitchford and told that the applicant had been declared "unfit for three months" and he was to be placed on sick leave. 64 Between 1 and 18 November 1997 the applicant went home to New Zealand on annual leave that had been arranged prior to him being declared unfit for work. Whilst in New Zealand, Mr Crewdson received three letters. The first letter was a copy of Dr Gapper's letter referred to above. A second letter from HealthQuest requested that the applicant forward a third letter to a doctor in order to obtain a report. The third letter (signed by Dr Roberts for Dr Gapper) requested an unnamed doctor (presumably one of Mr Crewdson's choice) to: Forward a medical report about Gerard Crewdson. At my consultation he was very agitated & hostile. However, he refused to give any details, but the MSE is strongly suggestive of a psychotic illness. Could you please assess in this regard together with any possible … (last three words unintelligible). 65 On 20 November 1997, upon his return to Sydney, Mr Crewdson wrote to the Northern Sydney office of the first respondent seeking clarification of his employment status. He received no reply. On 26 November 1997 he was given access to his personnel file and discovered a series of documents recording the HealthQuest referral. In the file Mr Crewdson found the 15-page memorandum written by Ms Gillett on 15 September 1997.

[39]

66 On 1 December 1997, the applicant's brother, Mr Tony Crewdson sent facsimile messages to Mr Ken Burke, Area Manager, Northern Sydney for the first respondent and to Dr Gapper, indicating his intention to appeal against the HealthQuest referral. He received no reply or acknowledgement. 67 From this point onwards and until proceedings were commenced in this jurisdiction in 2001 Mr Crewdson, with assistance from his brother, pursued on several fronts complaints about his treatment and the treatment of residents. The details are contained in Crewdson (No 2). Mr Crewdson was unsuccessful and, as I mentioned earlier, in October 1998 he signed a deed that the other parties believed would have the effect of bringing all matters to an end including the end of any litigation arising from or in any way related to the employment and/or the health assessment of Mr Crewdson. I will come to the deed shortly. 68 It may be seen from the foregoing that Mr Crewdson attended HealthQuest and was subjected to an examination by Dr Roberts who formed the opinion that the applicant was unfit for work. This led to him being placed on some form of leave. Mr Crewdson decided not to follow Dr Roberts' advice of attending at his own doctor and undertaking further assessment within three months to determine his fitness for work. Instead he decided, as was his right, to pursue complaints of discrimination and unfair treatment against the respondents. 69 That the direction to Mr Crewdson to attend at HealthQuest was unauthorised and that Mr Crewdson was not advised he could refuse a psychiatric examination does not, in my opinion, invalidate Dr Roberts' opinion as to the applicant's fitness for work or her subsequent recommendations. In Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 revised - 6/12/2002, Handley JA, with whom Ipp AJA and Davies AJA agreed, stated at [19]: 19 The alleged unfairness in the procedures which led to the appellant's psychiatric examination and in the course of that examination, including the alleged bias of Dr Roberts, do not raise issues directed to the accuracy of the statement. One cannot establish that a medical opinion is "incorrect … or misleading" by establishing that the procedures followed were legally flawed or the doctor was biased. The opinion may still be correct. 70 It could not be the case, in my view, that an opinion expressed by a medical practitioner that led to a conclusion by the practitioner that a person was unfit for work could simply be rendered invalid because the procedure that led to the person's medical assessment was unfair or, as Handley JA stated, "legally flawed". If it were otherwise, the person found to be unfit could immediately return to work with impunity notwithstanding that he or she represented a danger to himself or herself or to other staff or to the public. 71 Mr Crewdson also challenged the validity of Dr Roberts' opinion that he was unfit for work. Mr Crewdson adduced no expert evidence to contradict the opinion given by Dr Roberts and I am not in a position to conclude otherwise: Crewdson v Central Sydney Area Health Service at [30]. 72 Mr Crewdson relied on Fernando & Ors v Commissioner of Police (1995) 36 NSWLR 567 for the proposition that in the absence of any lawful authority a person could not be required to submit to a medical examination and any attempt to carry out such an examination in the absence of authority constituted a trespass to the person. In that case it was held by Priestley and Powell JJA (Clarke JA dissenting) that s 353A of the Crimes Act 1900 did not authorise the drawing of blood from within the body of a person in lawful custody; the section merely permitted an external examination involving an examination by eye and by touch. 73 At 591 Powell JA stated: One's approach to the first of these questions is, as it seems to me, necessarily, and to a significant degree, affected by two fundamental principles of the common law, they being: 1. in the absence of clear statutory, or other lawful, authority, or excuse, no person - whether a prisoner or other detainee, or not - may be required to submit to a medical examination, and still less to undergo any form of medical treatment or to be detained in a hospital for the purposes of any form of medical treatment, without his consent (see, eg, R v Hallstrom: Ex parte W [1986] 1 QB 1090 at 1104), the corollary of which is, of course, that, in the absence of such authority, or of some excuse recognised by the law, any attempt to carry out such a medical examination, or medical treatment, without the consent of the subject person, constitutes a trespass to the person; … 74 The accused in Fernando did not consent to the police taking blood samples. In the present case Mr Crewdson knew the purpose of his attendance at HealthQuest, he had come prepared with his version of what had led to his referral to HealthQuest, he was aware that Dr Roberts was a psychiatrist and he participated, albeit in a hostile and less than cooperative manner, in the examination. In my opinion, Fernando may be distinguished from the facts of this case. 75 Mr Crewdson also relied on Wilson v Department of Education and Training (2000) 100 IR 1 for the proposition that there has to be strict compliance with the terms of the statute governing the employment of a public sector employee, that the unauthorised direction by Ms Pitchford to the applicant to attend HealthQuest was, therefore, unlawful and it followed that "all subsequent action and process was ultra vires".

[40]

76 At [54] the Full Bench in Wilson cited the submissions of senior counsel for the appellants: 54 A defendant is not permitted to substitute procedures for statutory or regulatory provisions. Dunford J held in Ward v Director of School Education (1998) 80 IR 179: … where there is a statute governing such employment, the employment must comply with the terms of the statute, which substitutes 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 ... otherwise provisions, manifestly intended for the protection and benefit of the officer, would be rendered superfluous, useless and delusive. 77 No further reference was made to Ward nor was reliance placed on it in the Full Bench decision in Wilson but, of course, the proposition for which Ward stands is, with respect, correct. That, however, does not render Dr Roberts' opinion of the applicant's mental state invalid. Whilst cl 17 exists for the protection of a staff member so that they are not subjected to unfair and improper treatment, there was a reasonable basis for concern about the state of Mr Crewdson's mental health and despite the flaws in the procedure that brought the applicant to HealthQuest, once a valid medical opinion was expressed the first respondent was in no position to question the validity of that opinion. 78 That is to say, faced with the advice of the Deputy Director of HealthQuest, Dr Jagger, that Mr Crewdson was unfit for work "and in need of further psychiatric assessment and consideration of treatment" it was not reasonably open to the first respondent to ignore that advice and allow Mr Crewdson to return to work. 79 I find that the opinion expressed by Dr Roberts and supported by Dr Jagger as to the applicant's unfitness for work was a valid opinion. Further, that the first respondent's direction to the applicant to proceed on leave in accordance with the recommendation of Dr Jagger and that he not resume work until he had provided a report requested from his consulting psychiatrist to HealthQuest, was a valid act. 80 Mr Crewdson contended that he was subjected to unlawful discrimination contrary to s 49D of the Anti Discrimination Act 1977, which provides, inter alia, that it is unlawful for an employer to discriminate against an employee on the ground of disability: s 49D(2). Mr Crewdson submitted that at the relevant time he was satisfactorily performing his duties but that he was treated less favourably than other staff members "not believed to be suffering from mental illness and not directed to attend HealthQuest." 81 Mr Crewdson relied on Annexure A to the deed, which provided that "Mr Crewdson was a satisfactory employee who resigned of his own accord." As I understood his contention, he was performing his duties at a standard at least equal to other staff, something recognised by his employer as a consequence of what was said in Annexure A, but he was subjected to a detriment by being directed to attend HealthQuest by Ms Pitchford. In response to this contention I can only repeat what I have said, that the direction to Mr Crewdson to attend HealthQuest was given in good faith on the grounds of a bona fide belief that the applicant's conduct suggested he was experiencing some mental or emotional turmoil. That the first respondent regarded Mr Crewdson as a satisfactory employee does not detract from the genuineness of the concern that was held about his conduct. In other words, Mr Crewdson could have been and, I consider, was a satisfactory employee. But his behaviour in the latter part of 1997 suggested he was in need of some assistance. The respondents' conduct was not discriminatory. THE DEED

[54]

The State of New South Wales undertakes to pay to Mr Crewdson the sum of $22,000 in settlement of all of the proceedings before the Tribunal and the gross monetary value less tax of the recreation leave and extended leave due to him as at 2 October 1998, being a net payment of $3,354.86, and to provide him with a certificate of service in the terms set out in Annexure A to this DEED within 14 days from the date on which this DEED is signed, sealed and delivered by Mr Crewdson. 2. Mr Crewdson undertakes to publicly acknowledge that The State of New South Wales and the Service did not subject him to discrimination and/or victimisation within the meaning of the Act by means of the issue of a joint public statement by the parties to this DEED in the terms set out in Annexure B to this DEED. 3. Mr Crewdson undertakes to agree that the Tribunal should dismiss his complaints. 4. Mr Crewdson undertakes to submit his written resignation from the employment with effect from the close of business on 2 October 1998. 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. 6. This DEED and its annexures constitute the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. 7. This DEED shall bind the parties hereto and any executor, administrator, transferee, assignee, liquidator or trustee in bankruptcy appointed in respect of any party to this DEED. 8. This DEED may be pleaded in bar by any party hereto to any actions, suits, or proceedings commenced, continued or taken by any other party hereto or on their behalf in connection with any of the matters referred to in this DEED. 9. This DEED shall be governed by and construed in accordance with the law of New South Wales and the parties agree to submit to the jurisdiction of the Courts of that State. 10. Each party shall pay and bear their own costs and expenses in connection with this DEED. 11. The parties shall promptly do and perform such further acts and execute and deliver all further instruments required by law or reasonably requested by any other party to establish, maintain and protect the respective rights and remedies of the parties and to carry out and effect the intent and purpose of this DEED. 12. With the exception of this issue of a joint public statement in the terms set out in Annexure B to this DEED each of the parties to this DEED agree that they shall not disclose, or in any way authorise the disclosure of, the terms of this DEED or any matter relating to or arising out of the terms of this DEED or the circumstances surrounding the entering into of this DEED to any other person, except as they may be required to do so by law.

[62]

The Department of Community Services acknowledges that Mr Crewdson was a satisfactory employee. 86 Mr Crewdson said he signed the deed on 6 October 1998, as well as Annexures A and B. He stated in cross-examination: I read through it and the final thing I read through was the clause stating: This deed shall be governed and construed by the law of New South Wales. I then signed the deed understanding that I could not be signing my agreement to anything that was in conflict with the law of the State of New South Wales. Applicant's contentions regarding invalidity of deed 87 The applicant claimed there was no evidence to show that the parties to the deed contemplated the compromise of any proceedings under the Industrial Relations Act when the deed was signed. Therefore, it was submitted, he was free to pursue the declaratory relief in these proceedings. 88 Next, Mr Crewdson claimed he signed the deed under duress knowing it to be false and misleading; he said he would be bound by a deed that was "based upon justice and the underlying facts" but that the deed did not meet that test and was not enforceable. 89 Mr Crewdson stated in his evidence that those aspects of the deed that he considered to by unjust or unlawful were: The requirement to resign, the requirement to sign a joint public statement were not lawful. The requirement to cover up evidence of corrupt conduct and mal-administration in both the Department of Community Services, and Health was not lawful either, and I could not be bound by such. 90 In relation to the requirement to resign Mr Crewdson said that the statement in the deed that "Mr Crewdson undertakes to submit his written resignation from the employment with effect from the close of business on 2 October 1998" was false and misleading "because I had not in fact resigned on 2 October 1998 or at any time prior to or after that date." 91 Mr Crewdson also regarded Annexures A and B as false and misleading but he signed them because "it was the only way I could obtain the financial compensation of $25,000 promised to me under Provision 1 of the DEED." 92 As to corrupt conduct and maladministration it would appear that Mr Crewdson had the view that the terms of the deed represented a "cover up".

[68]

(2) A provision of a contract that provides for payment of remuneration to the employee that is contrary to this Part is void. 96 Also in relation to the first allegation (non compliance with the Public Sector Management Act), it was asserted by the applicant that s 37 of that Act required an officer to resign in writing and a resignation may only be accepted by the Department Head if it is in writing and signed and delivered to the Department Head or that person's delegate. The applicant signed the deed on 6 October 1998. The deed required him to backdate his resignation to 2 October 1998 (something the applicant has never done). The requirement in the deed to backdate a resignation, it was submitted, was inconsistent with the provisions of s 37 of the Public Sector Management Act. Ms Niland, as Department Head of the first respondent and a signatory to the deed, did not have authority to agree to a procedure that was at variance with s 37 of the Public Sector Management Act. The deed, it was submitted, was, therefore, void. 97 The fourth allegation, which alleged criminal breaches of the Community Services (Complaints, Review and Monitoring) Act and the Protected Disclosures Act, relate to Mr Crewdson's following allegations: (1) That from 22 June 1997, by virtue of him raising complaints about the treatment of clients in his Group Home, the provisions of s 47 of the Community Services (Complaints, Review and Monitoring) Act applied; that employees of the first respondent had breached the provisions of s 47 of that Act by taking or threatening to take detrimental action against the applicant. (2) That the decision by the first respondent to suspend him without pay and the decision to require him to resign were taken substantially in reprisal for making protected disclosures (his complaints about mistreatment of clients) within the meaning of the Protected Disclosures Act . Further, because of the operation of s 21(1) of that Act the claims and demands imposed by cll 5 and 12 of the deed requiring the applicant to withdraw from or cease to make protected disclosures were without legal effect. Further, in imposing a requirement on the applicant to resign, cl 4 of the deed imposed a liability on the applicant as a result of making protected disclosures and was, therefore, invalid under s 21 of the Protected Disclosures Act. 98 The fifth allegation of fraud and conspiracy to pervert the course of justice, can be elucidated by again referring to Crewdson (No 2) at [35] to [37]: 35 On 6 November 1998 the two cases referred to in par [22] hereof were listed before the Equal Opportunity Division of the Administrative Decisions Tribunal, which by that stage had assumed the jurisdiction previously exercised by the Equal Opportunity Tribunal (the Equal Opportunity Tribunal had ceased to exist on 6 October 1998 by virtue of the Administrative Decisions Tribunal Act 1997 ). Mr Crewdson did not appear before the Tribunal and on that date Ms Rogers, a solicitor from the State Crown Solicitor's Office, appeared for the respondents. Ms Rogers informed the Tribunal that she had been asked by Mr Crewdson's brother to mention the matter on his behalf. Ms Rogers read to the Tribunal the Joint Public Statement, which was Annexure B to the deed. Murrell J referred to the Joint Public Statement as "an apology".

[71]

37 Mr Crewdson said in his evidence that "I felt deeply humiliated to read Judge Murrell's interpretation of the Joint Public Statement as my apology." 99 It would appear that Mr Crewdson was contending that he did not agree to offer a public apology and by the reference to it in the Tribunal there was fraud and conspiracy to pervert the course of justice. Further, he submitted that he had not agreed to the making of the statement to the Tribunal and that Ms Rogers falsely stated that the applicant had resigned on 2 October 1998. It was further submitted that Ms Rogers falsely stated that the applicant had acknowledged as a result of discussions between the parties that the respondents had not subjected him to unlawful discrimination. 100 Despite his view about the invalidity of the deed and that he regarded it as false and misleading at the time he signed it on 6 October 1998, Mr Crewdson accepted the payment under the deed and went to Europe for a number of months. His justification for accepting the money whilst regarding the deed as unlawful was that the money was only consideration for the dismissal of his discrimination complaints and nothing else. Mr Crewdson did not advise the other signatories to the deed before he signed the deed that he considered it to be unlawful and that he considered he was not bound by the deed. Events post the signing of the deed 101 On 21 January 1999 Mr Crewdson lodged with the President of the Anti-Discrimination Board complaints of victimisation under s 50 of the Anti-Discrimination Act against Ms Carmel Niland (the Director-General of the first respondent), Dr Helia Gapper (Government Medical Officer), Mr Raoul Salpeter (senior solicitor, Crown Solicitor's Office) and Ms Teresa Anderson (counsel for the respondents). Mr Salpeter and Ms Anderson had been involved in earlier proceedings involving Mr Crewdson and were instrumental in proposing settlement of proceedings by way of a deed. 102 Mr Crewdson had alleged, inter alia: 5. I alleged that my respondents (sic) took deliberate advantage of my financial vulnerability to press upon me an unfair and unjust Public Statement of Apology as a pre-condition of my being granted financial relief. 6. I allege that this Joint Statement was also set as a condition for my being granted a Statement of Satisfactory Service. 7. I allege that my resignation from DOCS was also set as a condition of my being granted financial relief and a Statement of Satisfactory Service. 8. I allege therefore that by their action of setting such conditions and by the pressure they exerted to guarantee my compliance, the Respondents subjected me to detriments that would be in breach of s 50 of the AD Act.

[82]

105 In considering the validity of the deed I need to deal with each of the applicant's contentions in this regard. Intention of the parties 106 Firstly, he submitted that there was no evidence to show that the parties to the deed contemplated the compromise of any proceedings under the Industrial Relations Act when the deed was signed. Mr Crewdson submitted that the deed was only in relation to proceedings in the Anti-Discrimination Tribunal. Mr Crewdson relied on Grant v John Grant & Sons (1954) 91 CLR 112 at 123-124 where it was stated by Dixon CJ, Fullagar, Kitto and Taylor JJ: The principle which it is thus sought to apply was expressed by Lord Westbury in London & South Western Railway Co. v. Blackmore (1870) LR 4 HL 610 as follows: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given" (1870) LR 4 HL, at p 623. It was expressed by Taunton J. in Upton v. Upton (1832) Dow PC 400; 36 RR 817 in this way: ". . . the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed" (1832) Dow PC, at p 406; 36 RR, at p 821. 107 At 126 the Court referred with approval to Sir Frederick Pollock's Principles of Contract, 13th edition (1929) at 412: This includes the proposition that in equity 'a release shall not be construed as applying to something of which the party executing it was ignorant.' 108 The release in Grant's case was in quite general terms: Each of the parties hereto hereby releases the other and others of them from all sums of money and accounts and civil actions proceedings claims and demands whatsoever which any of them at any time had or has at or prior to the completion against the other for or by reason or in any (sic.) respect of any act, cause, matter or thing and without limiting the generality thereof the H. C. Grant family releases the defendants in the hereinbefore recited litigation from all costs in respect of the said litigation. 109 Clause 5 of the Operative Provisions of the subject deed provided that: 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. 110 In reading the deed it must have been evident to Mr Crewdson that what was in contemplation was that in signing the deed he was releasing the State from all actions, suits, etc., 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 (my emphasis)". The deed was quite specific and there could have been no mistake or ignorance on Mr Crewdson's part as to the extent he was being asked to release the State. Unconscionability 111 Mr Crewdson next contended the deed was unconscionable because he was suffering a special disability (poverty) and the respondents were aware of this disability. Once this had been established, it was submitted, the onus was on the respondents to prove that the deed was reasonable, just and fair: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. 112 In considering the question of unconscionability it is necessary to re-visit the events leading to the signing of the deed by the applicant. In June 1998 the applicant attended mediation where settlement of the proceedings in the Equal Opportunity Tribunal was explored. In this respect the applicant's evidence was: Ms Anderson on behalf of the respondents offered me $3,000 if I would follow the orders of HealthQuest. I rejected this and proposed instead that I be paid my lost remuneration and that the Department fully investigate my allegations. I then offered to go on Leave without pay for an extended period while this was being done and the issues were being resolved. This reasonable and generous offer was rejected. Given this refusal the only other proposal that I could put was that I resign but on the basis that I be fully compensated for the loss of wages to date and the loss of wages for the next two years. The respondents returned with a counter offer amounting to a derisory 14 (sic - 31) weeks payment of wages and my signing a DEED of release. 113 In early July 1998, the applicant provided the respondents with a written authority, wherein he authorised his brother, Mr. Tony Crewdson, to "…act as his advocate in respect of all of my employment related issues currently being addressed." As the respondents submitted, this authority to act was never revoked by the applicant. All further negotiations between the respondents and the applicant were conducted with Mr Tony Crewdson. Mr Tony Crewdson was not called by the applicant to give evidence on his behalf. I can understand the difficulty confronting the applicant in arranging for his brother to travel from New Zealand to give evidence but there is always the facility available for taking the evidence by video or telephone. 114 On 16 September 1998, the applicant was sent a letter that asked for written confirmation that he intended to comply with the terms of a deed of release. In cross-examination, the applicant confirmed that he had indicated to Mr Salpeter that he would abide by the terms of any deed of release that were "based upon justice and the underlying facts". Further, the following exchange took place in cross examination: Q. So it follows, does it not, that if the deed did not satisfy those requirements you did not feel yourself bound; is that right? A. If a deed is void then you cannot be bound by it.

[84]

Q. And if the deed was not based upon justice-- A. On justice or the underlying facts, if it was fraudulent, no, I would not be bound by the deed and if the deed was contrary to - if it tried to cover up what amounted to corrupt conduct and maladministration, then I knew at that point from a reading about the Protected Disclosures Act that such a deed would not be enforceable … 115 Thus, in September 1998 Mr Crewdson had formed the intention that if he regarded the deed as not being based upon "justice and the underlying facts" he would not be bound by it. When he read the deed in October 1998 he regarded it as false and misleading and not based upon "justice and the underlying facts", yet he proceeded to sign the deed and receive the monies promised under the deed. 116 Mr Crewdson's position was that in being offered terms of settlement of the dispute between himself and the respondents his intention was not to be bound by the terms if those terms did not align with his perception of "justice and the underlying facts"; that at the time he came to sign the deed he considered the deed would not be binding upon him; but, he signed the deed because he was impoverished and needed the money. 117 Whilst the applicant contended his impoverished state was caused by the respondents and he was forced to sign the deed because the respondents had made him impoverished, it is difficult to see how the applicant could hope to justify a position whereby: he was paid a substantial amount in settlement of a dispute in circumstances where he had no intention of being bound by the settlement if it did not meet his view of "justice and the underlying facts"; did not advise the respondents that he would not be bound by the deed; kept the money despite regarding the whole deed as illegal; and, contrary to his undertaking in the deed, commenced an action against the respondents in this Court. As senior counsel for the respondent correctly submitted, "he who seeks equity must do equity" 118 It is necessary, nevertheless, to look more closely at this issue of unconscionable conduct alleged against the respondents. Mr Crewdson contended that he was forced to sign the deed because of his impoverished state, a state caused by the conduct of the respondents. In this respect, Mr Crewdson placed reliance on Amadio, especially at 474 where Deane J stated: The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or "unconscientious" that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable … 119 Amadio was a case about an elderly Italian couple unfamiliar with written English who executed a mortgage in favour of a bank over land they owned to secure an overdraft for a company which their son controlled. The mortgage instrument which the bank submitted for execution contained a guarantee. The mortgage and the guarantee secured all amounts owing or which might be owing to the bank on the company's account. The mortgagors executed the deed mistakenly believing it to be limited to $50,000 and to be for six months. The bank was aware that the plaintiffs had been misinformed about the contents of the instrument they were executing. It was held by Gibbs CJ, Mason, Wilson and Deane JJ, Dawson J dissenting, that the instrument should be set aside unconditionally on the ground, inter alia, that the mortgagors were under a special disability when they executed the deed containing the guarantee. The disability was sufficiently evident to the bank to make it prima facie unfair or unconscientious for it to be allowed to rely on the guarantee. The onus lay on the bank to show that the guarantee should not be set aside, and it had not been satisfied. 120 At 477, Deane J stated the following in respect of the disabilities the Amadios were under: the combination of their age, their limited grasp of written English, the circumstances in which the bank presented the document to them for their signature, and most importantly, their lack of knowledge and understanding of the contents of the document was that,…they lacked assistance and advice where assistance and advice were plainly necessary if there were to be any reasonable degree of equality between themselves and the bank. 121 Mr Crewdson also referred to Blomley v Ryan (1956) 99 CLR 362 at 405 where Fullagar J listed some examples of a special disability: The categories of special disadvantage are not closed and include … poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary (my emphasis). 122 The circumstance of the Amadios was quite different to the position of Mr Crewdson. The Amadios executed a mortgage about which, because of their difficulty with English, they had a mistaken belief as to its effect. The bank was aware that the Amadios had been misinformed about the contents of the instrument they were executing. The Amadios were seeking to have put aside the agreement that would have required them to pay money to the bank. Mr Crewdson, on the other hand, seeks to have put aside an agreement whereby he received money under the terms of a deed that he regarded as invalid at the time he signed it and in respect of which he had no intention of being bound. Further, Mr Crewdson: · Had been offered terms of settlement of a dispute with the respondents in the form of a deed;

[87]

123 Even though it can be said the respondents were aware of Mr Crewdson's impoverished state, they did not require or coerce him to sign the deed. Moreover, the applicant was assisted by his brother throughout the negotiation of the deed and consulted his brother before signing the deed. It could not be said that Mr Crewdson had a mistaken belief about the terms of the deed. 124 As to the applicant's contention that the conduct of the respondents was unconscionable because they caused his impoverishment and then took advantage of that by negotiating a deed to settle his claims against them, I have already determined that I do not consider the first respondent's conduct in directing Mr Crewdson to HealthQuest was unconscionable. Nor was Dr Roberts' opinion that the applicant was unfit for work, nor was the first respondent's decision to comply with HealthQuest's recommendation that Mr Crewdson not return to work until it had been deemed appropriate by a psychiatrist. Further, it was always open to Mr Crewdson to comply with the recommendation of HealthQuest to seek to obtain a favourable psychiatric report and return to work if he were fit to do so. This would not necessarily have compromised his original anti-discrimination claims. Instead, the application chose a course of conduct that led him into a state of destitution. The applicant had every right to choose that course but the responsibility for where it led cannot be placed at the feet of the respondents. 125 As to the contention that the respondents took advantage of the applicant's impoverished state, there was no obligation on the respondents to offer any terms of settlement. That they did was a perfectly legitimate and commonplace approach to the settlement of disputes. There was no obligation on the applicant, in the circumstances I have described, to accept the terms of settlement offered and he could have continued with the process of litigation or, alternatively, sought to achieve a return to work. Illegality of the deed

[89]

127 I have already dealt with at length the issue of the absence of any instrument of delegation and found that the absence of that instrument did not render the whole referral process invalid. The applicant contended, however, that even if the Court were to accept Dr Roberts' opinion as valid, the steps taken by Ms Bratt, Ms Pitchford, Ms Gillett and Mr Burke in: removing the applicant from his duties; placing him on sick leave against his will; and, subsequently placing him on leave without pay, were not authorised under the Public Sector Management Act and Regulation and were accordingly "null and void". 128 In relation to the applicant's removal from work and placement on leave, I have already found the first respondent had no reasonable alternative other than to comply with the recommendation from HealthQuest that Mr Crewdson not attend for duty until he had been cleared to do so. Whilst cll 84 and 85 of the Regulation provide that it is the Department Head who is to make decisions about the taking of sick leave and leave without pay and this was not so in Mr Crewdson's case (nor, it would appear, were the decisions taken by a person with delegated authority), the failure to do so did not, in my opinion, make the deed illegal, as Mr Crewdson appears to contend. 129 It would be inconsistent of the Court to make a finding that the first respondent's decision to place the applicant on leave because he was deemed unfit for work was a reasonable response to HealthQuest's recommendation, albeit arrived at under a flawed process, and then find that because the process remained flawed (there being non-compliance with cll 84 and 85 of the Regulation), the sending of the applicant on sick leave and, later, leave without pay was "null and void". 130 In any event, I fail to see how it was that non-compliance with the Regulation in respect of the granting of leave rendered the deed void or illegal. 131 Mr Crewdson signed the deed on 6 October 1998. The deed provided as follows: Mr Crewdson undertakes to submit his written resignation from the employment with effect from the close of business on 2 October 1998. 132 Mr Crewdson submitted the requirement in the deed to backdate a resignation was inconsistent with the provisions of s 37 of the Public Sector Management Act. It was submitted Ms Niland, as Department Head of the first respondent at the time and a signatory to the deed, did not have authority to agree to a procedure that was at variance with s 37 of the Public Sector Management Act. The deed, it was submitted, was, therefore, void. 133 Mr Crewdson submitted that the statement in the deed that "Mr Crewdson undertakes to submit his written resignation from the employment with effect from the close of business on 2 October 1998" was false and misleading "because I had not in fact resigned on 2 October 1998 or at any time prior to or after that date." This was one of the reasons why Mr Crewdson considered that at the time he signed the deed he regarded it as false and misleading and that, therefore, he considered he was not bound by the deed. 134 Mr Crewdson cannot succeed in the proposition that he knew the deed was illegal at the time he signed it because it was backdated and then claim that, as the deed was illegal because it had been backdated contrary to the provisions of s 37 of the Public Sector Management Act, he was not bound by the deed. Given at the time he signed the deed the applicant considered it to be false and misleading because it backdated his resignation date, it would have been a simple matter for him, if he had been acting in good faith, to have the deed amended. But he did not, and chose instead to use the backdating as a reason why he was not bound by the deed. As far as I can ascertain, there was no improper purpose intended by the first respondent in providing for a resignation date of 2 October 1998. That Mr Crewdson signed the deed on 6 October appears to have been simply a function of the delay in sending the deed to New Zealand. 135 The applicant has never submitted a written resignation in accordance with his undertaking in the deed to do so and as required by the Regulation. Even if one were to take a strict view of the requirement to submit a written resignation before it could be said the applicant had resigned, I would not, in the exercise of my discretion, provide the relief sought in the application for declaratory orders. 136 Mr Crewdson submitted the deed was illegal because of the first respondent's non-compliance with s 121 of the Industrial Relations Act and fraud under tax legislation. I cannot see any substance in these grounds. Even if it be correct that after the deed was signed there was non-compliance with the relevant provisions of the Industrial Relations Act or the tax legislation in the making of payments to the applicant pursuant to the agreement in the deed, that does not have the retrospective effect of rendering the deed illegal. 137 Mr Crewdson submitted that at no time did he seek or apply for or authorise a payment of $3,354.86 in respect of leave entitlements. This refers to the provision in cl 1 of the deed that "the gross monetary value less tax of the recreation leave and extended leave due to him as at 2 October 1998, being a net payment of $3,354.86". Again, on grounds of equity Mr Crewdson cannot succeed in the contention that he did not seek or apply for or authorise the leave payment, sign the deed knowing he did not seek or authorise the payment and then later claim that he was not bound by the deed because he had not sought the leave payment or authorised it. 138 Mr Crewdson claimed the respondents had committed criminal breaches of the Community Services (Complaints, Review and Monitoring) Act and the Protected Disclosures Act, thereby rendering the deed illegal. I have already found there was no improper purpose in the first respondent directing the applicant to HealthQuest, let alone any act of criminal retribution. 139 Mr Crewdson alleged fraud and conspiracy to pervert the course of justice arising from the false nature of a public apology by him that was read out in proceedings before the Anti-Discrimination Tribunal on 6 November 1998. Whilst it was wrong to describe the Joint Public Statement in Annexure B to the deed as an apology and that this was hurtful to Mr Crewdson, I note that it was Murrell J who referred to it as such and Ms Rogers did not correct her. The failure to do so on Ms Rogers' part falls far short of a fraud or conspiracy by the respondents and provides no basis for concluding the deed was illegal or void or voidable. That Ms Rogers read out Annexure A to the deed could not be regarded as a fraud. The statement was headed "Joint Public Statement" and so, in the normal course, one would expect it to be made public whether before a Tribunal or otherwise. As to the contention Ms Rogers had falsely stated to the Tribunal that the applicant had acknowledged there had been no unlawful discrimination, Mr Crewdson had in fact, by signing the deed, acknowledged there had been no unlawful discrimination. He cannot contend that he signed the deed notwithstanding that he considered he had been the subject of unlawful discrimination, deliberately refrained from advising the respondents that this was the basis upon which he signed the deed and then complain that the respondents fraudulently stated there had been no unlawful discrimination. CONCLUSION

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140 I find that the deed was not void or voidable by reason of the respondents' conduct and the deed was not illegal. The deed was validly made and is binding on the parties to it. 141 Whilst cl 5 of the operative provisions of the deed is a bar to the applicant's claims for declaratory relief in these proceedings and, conceivably, I could have confined myself to the question of the validity of the deed without addressing his other contentions, I have intentionally sought to deal with the whole of the applicant's case. I took this course in order to show the applicant that I had fully considered all of the relevant matters he raised in support of his application. 142 I expect the applicant will not be satisfied with the view I have taken in relation to his claims, regardless of whether he believes I have considered all of his arguments. I note what the Equal Opportunity Tribunal said in Crewdson v Niland & Ors [2001] NSWADT 87 at [33]-[34] 33 From his demeanour and the evidence that he has put before the Tribunal, the complainant is quite clearly absolutely convinced of the validity of his complaint. He is so persuaded to this view that any finding which differs from the path he seeks to take he regards as demonstrating some form of bias against him, or some mistake in law. He takes any such finding very personally, and the process clearly causes him stress. This situation is unlikely to change no matter when the process takes place. 143 I think the foregoing observation holds true today. Nonetheless, whilst I have great sympathy for the applicant for what he put himself through during the past seven years over what he considered to be gross injustice, an objective consideration of the law and the facts does not bear out his complaints. Accordingly, there is no other course open to me other than to dismiss Mr Crewdson's application for declaratory relief. 144 Before doing so, there is one final matter to be addressed. On 29 July 2005, seven days after the hearing of the applicant's substantive application concluded and the decision in the matter was reserved, Mr Crewdson filed a notice of motion seeking: 1 Orders 1 (a)-(g) as set out in the Applicant's original Application for Declaratory Relief (filed 8/5/01) 2 In combination with order (1) an injunction restraining the Respondents and their agents/legal counsel from taking any further detrimental actions against the Applicant in criminal breach of the Community Services (Complaints Appeals (sic - Review) and Monitoring) Act 1993 and the NSW Protected Disclosures Act 1994 3 Costs 145 I did not call the motion on for directions because there would have been no utility in doing so. The substantive hearing had been concluded and the decision reserved. The grounds in support of the motion were simply a summary of the applicant's case in the substantive proceedings and the relief sought in the motion included the same relief sought in the applicant's claim for declaratory relief. ORDERS

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