Industrial Relations Commission of New South Wales in Court Session CITATION : Crewdson v New South Wales Department of Community Services & Anor [2001] NSWIRComm 216 APPLICANT (RESPONDENT ON NOTICE OF MOTION) Gerard Crewdson PARTIES : FIRST RESPONDENT (APPLICANT ON NOTICE OF MOTION) State of New South Wales (Department of Community Services) SECOND RESPONDENT (APPLICANT ON NOTICE OF MOTION) State of New South Wales (Central Sydney Area Health Service) FILE NUMBER: IRC 3140 of 2001 CORAM: Boland J CATCHWORDS : Practice and Procedure - Declaratory relief - Interlocutory proceedings - Notice of Motion to strike out application for declaratory relief - Notice to admit - Notice of Motion adjourned pending outcome of proceedings before Administrative Decisions Tribunal - Costs reserved LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 CASES CITED : Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126 Nagle (t/as WD & JL Nagle & Sons) v Tilburg (1993) 51 IR 8 HEARING DATES: 08/22/2001 DATE OF JUDGMENT: 09/13/2001 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr S Prince of counsel Solicitor: Mr G Demetriou Crown Solicitor's Office JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 13 September, 2001 Matter No IRC 3140 of 2001 GERARD CREWDSON V STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES) AND ANOR Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 On 8 May 2001 Gerard Crewdson ("the applicant") made application for declaratory relief under s 154 of the Industrial Relations Act 1996. The respondents named in the application were the State of New South Wales (Department of Community Services) ("the first respondent") and the State of New South Wales (Central Sydney Area Health Service) ("the second respondent"). The declarations sought were in the following terms: a) That the applicant is and at all times since 9 Sept 1990 has been employed by the first respondent-the NSW Department of Community Services and its predecessors. b) That all decisions taken on and after 11 Sept 1997 by officers of the first respondent to refer the applicant for a fitness to continue assessment by the Government Medical Officer (GMO) are void invalid and of no effect. c) That all decisions taken by the GMO and or officers/consultants employed by the second respondent-Central Sydney Area Health Service on or after 10 October 1997 with regard to the applicant's fitness for work are void, invalid and of no effect. d) That all decisions taken by officers of the first respondent on and after 29 October 1997 suspending the applicant from his duties and placing him on Sick leave and then Leave without Pay are void, invalid and of no effect. e) That terms and conditions of a DEED signed between the applicant and the first and second respondents 6-30 Oct 1998 requiring the applicant to resign his employment from the first respondent are void invalid and of no effect. f) That all terms and conditions of the said DEED signed 6-30 Oct 1998 purporting to pay remuneration to the applicant or any benefit less than the minimum benefits guaranteed under relevant industrial instruments and industrial legislation are void invalid and of no effect. g) That the applicant be entitled to be paid all emoluments pertaining to his position as a full time residential care assistant employed with the first respondent together with interest thereon and to retain all leave and other entitlements together with interest thereon. h) That with respect to any moneys otherwise earned by the applicant since 29 October 1997 that allowance be made in that sum. i) Such other orders as the honourable Commission in Court (sic) deems appropriate. 2 The grounds and reasons in support of the application referred to a long-running dispute between the applicant and the respondents that has been aired before a number of different tribunals. The dispute related to the time of the applicant's employment as a Residential Care Assistant with the first respondent between 1990 and 1998. The relief sought relates to the applicant's removal from duty, the circumstances that brought about the end of the applicant's employment in 1998 and his alleged treatment by the respondents in connection with those events. 3 The matter came before me on 17 May 2001. The applicant was represented in person. Mr A Moses of counsel represented the respondents. I was informed that the applicant was at the time involved in proceedings before the Administrative Decisions Tribunal, Equal Opportunity Division ("ADT"). Mr Moses submitted that the Commission in Court Session should not proceed to deal with the applicant's application for declaratory relief until the matter had been dealt with to finality by the ADT because both claims relied on the same facts. Mr Moses foreshadowed a notice of motion by the respondents to strike out the applicant's application on the grounds of abuse of process and Anshun estoppel. 4 The applicant indicated that he was unemployed and living on the street. He said that he had limited resources and was anxious to have his claim dealt with expeditiously. He denied that his application in this Court might be subject to estoppel because of the different nature of the proceedings before the ADT. The applicant also advised the Court of current applications before other members of the Court and an application for relief from victimisation pursuant to s 213 of the Act before McKenna C in the Commission. 5 In the expectation there may have been some developments in the proceedings before the ADT, I stood the matter over for further mention to 31 May 2001. On that day the respondents informed me that the proceedings before the ADT were dismissed for want of prosecution. The applicant denied this was the case. 6 In any event, the respondents signalled their intention to file a notice of motion to have the application for declaratory relief struck out on a number of grounds including estoppel. I gave directions for the respondents to file and serve their notice of motion and any affidavit material in support on or before 4.00 pm on 14 June 2001 and for the applicant to file and serve any material in reply by 4.00 pm on 28 June 2001. The respondents' notice of motion was set down for hearing on 22 August 2001. 7 The respondents' notice of motion was duly filed and served together with supporting material although not in affidavit form. On 17 July 2001 the applicant filed a notice of motion seeking orders to set aside the respondents' notice of motion and orders requiring the respondents in the substantive proceedings to file and serve "within a specified time full and proper pleadings in defence, and any supporting affidavits and documentary evidence and the applicant to file and serve material in reply." 8 On 22 August Mr S Prince of counsel for the respondents informed me that the applicant had filed an appeal in respect of the proceedings in the ADT. The appeal was heard on 17 August but was not completed. The applicant was given leave to file further written submissions by 14 September and a decision was not likely before October 2001. In those circumstances, the respondents sought to have their notice of motion before the Commission in Court Session stood over until the middle of October for further mention. 9 The applicant acknowledged that an appeal had been lodged in respect of the ADT proceedings. However, he urged the Court that rather than merely standing over the respondents' notice of motion until mid-October, appropriate directions should issue requiring the matters raised in the notice of motion to be dealt with at the same time as his substantive application for declaratory relief: Nagle (t/as WD & JL Nagle & Sons) v Tilburg (1993) 51 IR 8. 10 The applicant also challenged the respondents' notice of motion on the basis that it did not comply with the requirements of r 82(2) of the Industrial Relations Commission Rules 1996 in that it was not filed within seven days of the applicant's application for declaratory relief: Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126 11 On 6 August 2001 the applicant filed a notice to admit facts and admit documents pursuant to r 154 and r 157 of the Commission's Rules and served it on the respondents. The applicant submitted that as no response had been received from the respondents within 14 days after service, the facts referred to in the notice should be admitted and the documents referred to in the notice should be admitted as being authentic. 12 In relation to the applicant's contention that the notice of motion was out of time, Mr Prince submitted that the respondents would address this issue at the time the notice of motion was set down for hearing. In relation to the notice to admit facts and to admit documents, Mr Prince contended that because of the nature and extent of the allegations in the notice it would have been impossible to respond within the 14 days required by the Rules. Mr Prince foreshadowed that if it was necessary, the respondents would seek leave to withdraw any admission pursuant to r 154(3) and r 157(3) of the Commission's Rules. In the meantime, however, Mr Prince sought an extension of 28 days to respond to the notice to admit. Consideration 13 I have given consideration to the applicant's submission that the jurisdictional issues raised in the respondents' notice of motion should be dealt with at the same time as his substantive application. I would not be in a position to hear the substantive application before May 2002. I am however, in a position to hear the respondents' notice of motion later this year and given the nature of the issues raised in the notice, if the respondents were successful, it would avoid what could be a five-day hearing on the substantive application. 14 I propose to adjourn the respondents' notice of motion and the applicant's notice of motion for further mention at 9.45 am on 23 October 2001. At that time I expect to be informed about the state of the appeal in relation to proceedings before the ADT. If there has been a decision handed down in that appeal, I will proceed to hear the motions commencing at 10.00 am on 26 October 2001. If there has been no appeal decision, the matters will be stood over to 14 December 2001. If by that time an appeal decision has been handed down I will hear the motions commencing at 10.00 am that day. 15 It should be noted by the respondents that the applicant has contended that their notice of motion is out of time and the onus falls on them to show otherwise. 16 In relation to the applicant's notice to admit, in circumstances where the respondents say they needed more time to respond, the appropriate course would have been for them to apply for an extension of time prior to the expiry of the fourteen day period prescribed by r 154(2) and r 157(2). In the circumstances, however, given that there will be no hearing of the substantive application until next year and given the extensive nature of the notice, pursuant to s 170 of the Act the respondents are given an extension of fourteen days from the date of this Judgment to respond to the applicant's notice to admit. That means the respondents will have had six weeks to respond to the applicant's notice to admit, which is more than sufficient time. 17 Mr Crewdson had sought orders requiring the respondents in the substantive proceedings to file and serve "within a specified time full and proper pleadings in defence, and any supporting affidavits and documentary evidence and the applicant to file and serve material in reply". I do not propose to make such orders until the respective motions are dealt with in October or December and only then if it becomes necessary to do so. 18 Depending on the outcome of the hearing of the motions in October or December, I have tentatively reserved 13-17 May 2002 for the hearing of the applicant's application for declaratory relief. Costs are reserved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.