Pascale Bourot v NSW Department of Public Works and Services and Another

Industrial Relations Commission (NSW)|2003-12-05|Before: Schmidt J, Haylen J, Curtis AJ, Marks J, While Wright J, Wright J, Walton J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Pascale Bourot v NSW Department of Public Works and Services and Another [2003] NSWIRComm 431 APPELLANT: Pascale Bourot

PARTIES : FIRST RESPONDENT: NSW Department of Public Works and Services

APPELLANT: Mr G Crewdson (as agent)

RESPONDENTS: LEGAL REPRESENTATIVES: Mr S Benson of counsel SOLICITORS: IV Knight Crown Solicitor

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Schmidt J Haylen J Curtis AJ DATE: 5 December 2003

Matter Number IRC 5152 of 2002 PASCALE BOUROT v NSW DEPARTMENT OF PUBLIC WORKS AND SERVICES AND ANOTHER Application by Pascale Bourot for leave to appeal and appeal against a decision of Justice Marks given on 22 August 2002 in Matter Number IRC 5810 of 2000 JUDGMENT

1 This is an application for leave to appeal and if leave be given, to appeal a judgment of Marks J given in August 2002. The hearing of the appeal in July 2003 was vacated, because of the appellant's failure to comply with certain directions given by Justice Wright, President, on delegation from the Full Court as then constituted. The hearing of the appeal was stayed, pending the appellant's compliance with directions as to the preparation of the matter for hearing of the appeal.

2 While Wright J had put in place a mechanism whereby the appellant would be given access to the Court file and a copy of various documents, so that the deficiencies in the Appeal Book which had been filed could be addressed, the appellant did not apparently avail herself of that opportunity. The directions were not complied with.

3 The appellant has been represented by an agent, Mr Crewdson, himself an unrepresented applicant in other proceedings before the Court. In various documents filed by Mr Crewdson in these proceedings, complaints have been made as to how aspects of the appeal proceedings have been dealt with by the Full Court. Reference has also been made to matters of concern to Mr Crewdson, in his own proceedings.

4 During the course of the hearing before Wright J, an application was made by the appellant that his Honour disqualify himself from further hearing the matter, on the basis of apprehended bias. His Honour refused that application, in an ex tempore judgment given on 4 July 2003.

5 The appeal raises various complaints, including an alleged failure by Marks J to correct a factual error in his judgment; his Honour's refusal to give the appellant summary judgment on the basis of certain admissions said to have been made by the respondents Department; the costs order made against the appellant, in relation to her failed application for summary judgment and his Honour's refusal to step aside on the ground of reasonable apprehension of bias. The latter question was not dealt with by Marks J in the judgment of July 2002, but at an earlier point of the proceedings.

6 The appeal was listed before Curtis AJ on 25 November, when the parties were advised that the Full Bench would list the matter on 2 December at 3pm, for hearing of the question of leave. There was no objection to this course by the respondents, despite the appellant's failure to comply with the earlier directions. On 27 November, the Full Bench was reconstituted and the parties advised accordingly.

7 On 28 November, Mr Crewdson filed a letter addressed to his Honour Justice Walton, Acting President, advising that he would not be able to appear on the day upon which the matter was listed for hearing, because of another commitment at Centrelink. No application for an adjournment was made, but a copy of correspondence, sent to "Mr Ian Knight NSW Crown Solicitor" was attached. It was said that injunctions referred to in that correspondence should be granted before any further steps were taken in these proceedings. Mr Crewdson also advised his Honour Justice Walton that "We have a reasonable apprehension of bias arising from the way in which you have dismissed my own appeal." What matter Mr Crewdson was referring to, was not apparent on the face of the letter. Mr Crewdson also complained that a limitation of one hour upon a hearing of the leave question, would lead to "a further serious miscarriage of justice" for "reasons set out in previous correspondence".

8 The injunction referred to in the correspondence was not pressed at the hearing. Mr Crewdson appeared and raised two concerns which he informed the Bench that he and the appellant shared. The first concern was that the matter had been listed only for hearing of the question of leave to appeal and that there was not sufficient time for that question to be properly addressed. The second concern was that the appellant would not be given a fair hearing, given the constitution of the Bench. This apparently arose because their Honours Haylen J and Curtis AJ had sat on another appeal brought by Mr Crewdson, in which he had not succeeded. There was, however, no application made that either of their Honours disqualify themselves from hearing the leave application.

9 A written outline in relation to the question of leave was filed for the appellant in June 2003. Reference was there made to serious errors of fact in the text of the decision, which it was alleged Marks J had wrongly refused to correct. They were submitted to be 'gross and publicly humiliating to Ms Bourot'. His Honour's conduct was submitted to have been unreasonable and unjust, so that the appellant could not now have confidence that he would bring an impartial mind to the hearing.

10 As to the application for judgment on admissions, it was argued that his Honour had failed to consider whether the questions of fact and law raised by the respondents in its defence were false, without merit or vexatious. His Honour proposed to examine this later, but it was submitted that these questions needed to be determined before the rejection of the application for judgment on admissions. The failure to do so amounted to an error of legal principle and a failure to take account of a relevant matter.

11 It was also argued that the later judgment of Schmidt J in Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76 was relevant. There it had been concluded that no person with authority under the statute in question had made a decision that Ms Kerrison's employment should be brought to an end. The Full Bench decision in Wilson v Department of Education and Training (2000) 100 IR 1 had been followed.

12 It was submitted that the admissions before the Court in these proceedings had also established that no person with authority under the Public Sector Management Act 1988 or the relevant Regulation had made a decision to refer Ms Bourot to HealthQuest, or to cause her to be retired. It was argued that this material alone permitted summary judgment in favour of the appellant, without the need for her to establish improper purpose, denial of procedural fairness or bad faith.

13 It followed that the costs order had also been improperly made against the appellant. Even if there had been no such legal error, his Honour had failed to take account of the appellant's special circumstances, which it was submitted required the Court to dispense with the usual costs order.

14 It was also argued that the appellant's application raised questions about the correct approach to be adopted to applications for judgment on admissions under Rule 155 of the Commission's rules, not previously considered by the Court. The procedure was submitted to provide a valuable and cost effective mechanism for expediting proceedings and avoiding unnecessary costs and delay for an applicant. This was especially important in a case where the respondent was well resourced and the individual could only claim minimal costs, because she was not legally represented.

15 The appeal raised questions of public interest concerning the true extent of maladministration in the public service. The treatment revealed in the Kerrison case was continuing three years after the events there considered, suggesting that it was not an isolated case, but a part of a systemic and continuing failure in the NSW Public Service.

16 At the hearing, Mr Crewdson expanded upon the written submissions filed. As to costs, particular complaint was made that a costs order had been made in favour of the respondents in relation to this motion, which it had successfully resisted, when there were no orders as to costs made against the respondents, when it had unsuccessfully pursued a motion to have the proceedings struck out. The appellant also complained that Marks J had incorrectly entertained the application, inconsistently, it was submitted, with binding Full Court authority in Nagle (t/as WD and JL Nagle & Sons) v Tilberg (1993) 51 IR 8.

17 Complaint was also made that the result of that approach had been that the respondents had sought the payment of $28,000, from the appellant.

18 In the respondents' written outline, it was acknowledged that a typographical error had been made in the judgment under appeal. The respondents' position was that had it been approached at the time, it would have consented to the correction sought. It followed that if leave to appeal were to be granted, the appellant should be confined to this correction.

19 It was submitted that the conduct of Marks J could not be fairly described as evidencing actual bias, as some of the appellant's submissions implied. Nor was there a basis for his Honour disqualifying himself pursuant to any reasonable apprehension of bias. The two week hearing fixed before his Honour in March 2003, had only been vacated as the result of this appeal.

20 The application for judgment on admissions was also argued to have been determined in accordance with the applicable principles, with the correct and logical conclusion having been reached on the material before his Honour. The real position was that judgment on admissions had been sought, even though the asserted 'admissions' were in dispute.

21 It was submitted to be relevant, in this respect, that the respondents were obliged to exercise caution in the conduct of the proceedings. This followed, it was argued, from the allegations pressed by the appellant that not only had there been error, but also deceptive conduct by numerous of the respondents' officers, bad faith on their part and that they were motivated by improper purpose. The affidavits and contentions filed clearly rebutted those allegations.

22 It was also argued to be relevant that if the appeal had not been pursued, the matter would have been heard in March 2003. The application for judgment on admissions was ill-conceived and its dismissal did not result from appealable error. There was also misplaced reliance upon written submissions filed after judgment was reserved. The submissions had not been served upon the respondents and it was not open to Marks J to have regard to them, without an application for leave to re-open being made and granted.

23 As to the costs orders, it was argued that the decision had been discretionary and no appealable error demonstrated. Costs usually follow the event. The discretion must be exercised judicially. The special circumstances now relied upon were not put to Justice Marks and ought not be considered. The substance of the submissions was vexatious. It was not the respondents which had engaged in tactics of frustration and delay.

24 At the hearing Mr Benson of counsel confirmed the respondents' agreement to the correction of his Honour's judgment. It was pointed out that his Honour had listed the matter on 24 September 2002, in order that the question of the correction of the judgment might be considered. There was no appearance on that occasion, either by the appellant or Mr Crewdson and so the issue was not dealt with. By that time, this appeal had been filed and his Honour thus vacated the hearing of the application for declaratory relief, which had been fixed for two weeks in March 2003.

25 At the hearing, given the common ground which appeared to exist between the parties as to the correction of the judgment, the Court immediately proposed to order a correction, namely to replace the word 'psychotic', with the word 'psychosomatic'. This was not consented to by the appellant, because there were other concerns with the sentence in which that word appeared and further, because the appellant had other complaints as to his Honour's approach to the correction of the judgment.

26 As to costs, the Court was advised that while the respondents had informed the appellant of the costs incurred in relation to the motion, it was not pressing for payment of the costs and would not do so, until the hearing and determination of the appellant's application for declaratory relief. It was also submitted that the question of the costs of its own unsuccessful motion had not been dealt with, because the appellant had not sought a costs order at the time.

27 We firstly deal with the question of the correction of his Honour's judgment. Given the circumstances and the position of the parties, it is appropriate to grant leave to appeal as to that matter and to order the correction of his Honour's judgment, by the replacement of the word 'psychotic ' with the word 'psychosomatic'. The necessary steps to have the corrected judgment posted on the internet will be taken.

28 This must flow, given the unfortunate advice to the appellant on 23 August, that there was not "any basis for amending the decision". The judgment contains a factual error, the correction of which was available to the parties under the slip rule. Had the appellant approached the respondents to seek its consent to the correction, it would appear on the material before this Bench, that the necessary consent would have been forthcoming. Had the appellant appeared when the matter was listed before his Honour on 23 September, the matter could also undoubtedly have been attended to by consent, given the respondents' attitude. There was no appearance for the appellant that day and there has been no correction to the judgment in the circumstances, the appellant plainly having determined to pursue the appeal which had already at that time been lodged.

29 It is appropriate in those circumstances, that the judgment be corrected now.

30 The appellant also complained about the balance of the sentence in which the word appeared in the judgment. It is plain from the judgment that his Honour was there recording the submissions advanced for the respondents, not the position of the appellant. Ms Bourot rejects that the submission correctly reflects her attitude. Nevertheless, we are not satisfied that the judgment inaccurately reflects the respondents' submission. It follows that no other correction to the judgment is required.

31 We do not otherwise grant leave to appeal. We have not been satisfied that the principles for the grant of such leave have been satisfied, or that the appeal raises questions of public interest, otherwise sufficient to grant leave.

32 His Honour's judgment dealt shortly with the question of whether judgment on admissions was available. He was not so satisfied. Having been taken to the matters relied upon by the appellant, we are satisfied that while the application for declaratory relief plainly raises serious questions to be tried, the admissions relied upon are not of such a character, that his Honour obviously fell into error in the approach adopted, so that leave to appeal from his judgment should properly follow.

33 The appellant attacked his Honour's approach to the respondents' arguments as to the nature of the admissions made and the issues which still required determination, before the declaratory relief sought by the appellant could properly follow. Having considered these matters, we have not been satisfied that his Honour's conclusions were not open on the material before him. More particularly, we do not accept that his Honour "put the cart before the horse", in concluding that the respondents should be heard in relation to the matters which it was argued by the appellant should have been determined before the interlocutory judgment was given. We are well satisfied that it was properly open to his Honour to conclude that the parties should be fully heard on the merits of the matters which are in issue between the parties, before determining questions such as whether the matters of fact and law raised by the respondents in its defence were false, without merit or vexatious.

34 This conclusion is consistent with the approach of the Full Court in Nagle. While the Court's rules make provision for judgment to be given on admissions, that procedure is not one which can properly lead to early judgment in favour of an applicant, unless there is a clear and unanswerable case as the result of the admissions and no serious questions of fact or law remaining to be tried between the parties. We are satisfied that his Honour's approach was open in the circumstances. The judgment later made in Kerrison in relation a different statutory scheme, cannot properly avail the appellant in advancing these arguments.

35 As to his Honour's refusal to disqualify himself, the appellant complained that in an earlier decision, Marks J had not declined to hear the respondents' strike out application. Reliance was placed upon the judgment in Nagle. It must however, be understood that the judgment does not stand for the proposition that parties who make such applications may not be heard. It rather describes the circumstances in which a matter may be brought to an end, before a hearing of the merits, when a jurisdictional point is taken by a respondent. It is implicit in the judgment that a respondent who makes such an application must be heard and if the circumstances do not fall into that category discussed in Nagle, the application must be dismissed.

36 Other complaints were advanced as to his Honour's alleged failure to control the conduct of the Crown solicitor in its pursuit of the respondents' case. While a complaint as to the requirement that the appellant produce her diaries was no longer pursued on the appeal, the issue was also relied upon in order to further the question of disqualification.

37 Two things must be observed about the submissions advanced. A trial judge is not obliged to give reasons for, or an explanation of, every ruling made at a trial. Were it otherwise, the trial process would become unmanageable. While an unrepresented litigant is entitled to be given some assistance by the Court, for example by way of explanation of the Court's processes, there is a limit to the assistance which may properly be expected or given. The trial judge must refrain from advising either party and must ensure that justice is achieved for both parties, including the party which is represented. A rejection by a trial judge of an issue unsuccessfully raised by a party, or even a series of them, is not a proper basis for a finding of apprehended bias. Nor is a typographical error in a judgment, even if it be in relation to the use of an unfortunate word such as 'psychotic'.

38 Mr Crewdson's submissions also evinced a misunderstanding of the role of the provisions of the Evidence Act 1995, in the context of the obligations which a summons to produce documents has upon a litigant. The summons must be answered; the original document must be produced to the Court, at which point questions of access to the document, including photocopy access, are determined. It is not a matter for the person obliged to produce a document to decide to produce photocopies of only parts of the document, although as a practical matter parties often reach accommodations with each other about such matters. That is what apparently happened here, after the documents were required to be produced and access was granted in the first instance to the respondents' counsel and the principle legal practitioners in the Crown Solicitor's office.

39 Having considered the matters relied upon, we are satisfied that no basis for leave to appeal was made out on this ground. The matters advanced in relation to his Honour's alleged failure to discipline the respondent and the Crown solicitor in relation to its conduct of the proceedings, have also not convinced us that leave to appeal should be granted. While the appellant's concerns may well be relevant to the hearing of the application for declaratory relief and eventually, in relation to the question of the costs of the proceedings, they do not provide a basis for the grant of leave to appeal. There were also complaints as to delay advanced. They must, however, be understood in a context where interlocutory applications have been made by both parties, which have delayed the hearing of the appellant's application, as has the instigation of this appeal and the approach adopted by the parties to its pursuit. We are not satisfied that there is any proper ground for complaint as to his Honour's approach to these matters, so as to warrant the granting of leave.

40 As to the costs order appealed against, we note that the order made by his Honour was in accordance with the usual approach, that costs should follow the event. The matter of costs was undoubtedly dealt with, because it was raised by the respondents. His Honour was obliged to determine the matter on the basis of the arguments advanced. He was not entitled to have regard to matters raised later, without any application for re-opening of the case being made and granted. The order was not, however, that such costs be paid forthwith. The Court's usual order, that costs as agreed or assessed should be born by the appellant, was made. That is the inevitable risk which flows for any party who unsuccessfully makes interlocutory applications.

41 His Honour was obliged to decide the matter. We can see no basis for granting leave from that discretionary decision, in the circumstances relied upon.

42 We do, however, note the answer given to the Bench when the respondents was asked why a claim for over $29,000 costs had been made, at this stage of the proceedings. The position is that those costs will not be pressed, until the final determination of the application. It is difficult to see how the hearing of this motion could have resulted in costs of that kind. Undoubtedly, if they are not eventually agreed, they will have to be assessed.

43 Given the conclusions which we have reached on the question of leave, the matter will remain with his Honour for hearing. We note that when the application for declaratory relief was last before his Honour, he raised the question of whether he could hear the matter, given a complaint which had been made to the Judicial Commission, it appears by Mr Crewdson. There was no appearance for the appellant that day. Whether that is still an issue, is a matter for the parties and his Honour.

44 We do not at this stage deal with the question of costs, that not having been the subject of argument at the hearing.

Orders 1. Leave to appeal is granted, in relation to the correction of the judgment of Marks J of 22 August 2002.

The judgment is corrected by the replacement of the word 'psychotic' with the word 'psychosomatic'.

The matter may be relisted on appropriate notice, in relation to the question of costs. ------------------------

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