Industrial Relations Commission of New South Wales in Court Session CITATION : Crewdson v New South Wales Department of Community Services & Anor (No. 6) [2002] NSWIRComm 306 APPLICANT ON NOTICES OF MOTION Director General, Department of Ageing, Disability and Home Care Director General, Premier's Department APPLICANT/RESPONDENT ON NOTICES OF MOTION PARTIES : Mr G Crewdson FIRST RESPONDENT New South Wales Department of Community Services SECOND RESPONDENT Central Sydney Area Health Service FILE NUMBER: IRC 3140 of 2001 CORAM: Boland J CATCHWORDS : Practice and Procedure - Application for declaratory relief - Summons for production - Notice to produce - Whether summons were an abuse of process - Legitimate forensic purpose LEGISLATION CITED : Industrial Relations Act 1996 Crewdson v Department of Community Services [2001] NSWIRComm 216 CASES CITED : Crewdson v Department of Community Services (No 2) [2002] NSWIRComm 121 Crewdson v Department of Community Services (No 3) [2002] NSWIRComm 139 Crewdson v Department of Community Services (No 4) [2002] NSWIRComm 172 HEARING DATES: 11/15/2002 DATE OF JUDGMENT: 11/20/2002 APPLICANT ON NOTICES OF MOTION: Ms E Brus of counsel Solicitor: Ms M Rizzo LEGAL REPRESENTATIVES: Crown Solicitors Office RESPONDENT ON NOTICES OF MOTION: Mr G Crewdson in person JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 20 November, 2002 Matter No IRC 3140 of 2001 GERARD CREWDSON v DEPARTMENT OF COMMUNITY SERVICES & ANOR Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (NO. 6) 1 On 8 May 2001 Gerard Michael Crewdson ("the applicant") filed an application seeking declaratory relief under s 154 of the Industrial Relations Act 1996. The details of Mr Crewdson's application are contained in earlier interlocutory judgments in this matter: Crewdson v Department of Community Services [2001] NSWIRComm 216; Crewdson v Department of Community Services (No 2) [2002] NSWIRComm 121; Crewdson v Department of Community Services (No 3) [2002] NSWIRComm 139; Crewdson v Department of Community Services (No 4) [2002] NSWIRComm 172. 2 On 25 September 2002 Mr Crewdson filed a summons for production directed to the Director General, Department of Ageing, Disability and Home Care. On 27 September Mr Crewdson filed a further summons for production directed to the Director General, Premier's Department. The summonses sought the production of documents that purportedly related to the applicant's claim for declaratory relief. 3 On 17 October 2002 the Crown Solicitor, on behalf of both the Director General, Department of Ageing, Disability and Home Care and the Director General, Premier's Department, filed notices of motion seeking to have various paragraphs of the summonses set aside on the ground that the paragraphs were an abuse of process as they lacked a legitimate forensic purpose. Department of Ageing, Disability and Home Care 4 The motions came before me on 15 November 2002. In relation to the motion on behalf of the Director General, Department of Ageing, Disability and Home Care it became evident that the documents sought to be produced fell into three classes: 1. Documents that were in fact produced. 2. Documents that were not in the possession of the applicant on the motion and, therefore, were not produced. 3. Documents in respect of which production was opposed on the ground they lacked a legitimate forensic purpose. 5 As to the first class of documents, these were produced and the respondent on the motion was granted access. As to the second class of documents, a substantial number of them were subject to a search undertaken by Damian John Lutvey, Acting Assistant Manager, Supported Accommodation, Department of Ageing, Disability and Home Care. Mr Lutvey deposed that he had undertaken searches but was unable to find the relevant documents. Mr Lutvey was subject to cross-examination by Mr Crewdson regarding his attempts to find the documents. 6 Despite Mr Crewdson's expressed dissatisfaction with Mr Lutvey's efforts and his concern that Mr Lutvey was charged with the task of finding the documents (Mr Lutvey is alleged to have had a confrontation with Mr Crewdson in 1997 prior to Mr Crewdson being referred for psychiatric examination), there is no basis for me to question the bona fides of the Department as to its inability to produce the relevant documents. 7 The documents in the Department's possession and not produced on the ground of lack of legitimate forensic purpose were: 1. Exercise Book or Books [covering the period 1994 and 1995] recording communications and incidents between Fitzpatrick St staff and Alldiss family and other resident's families. 2. Records of Guardianship Board dispute between DOCS (Ms Pitchford) and Alldiss family over Maryanne Alldisses (sic) financial guardianship. 8 Maryanne Alldiss was a client of the Department of Community Services living at the Fitzpatrick Street, Eastwood Group Home operated by DOCS at the time Mr Crewdson was employed at that Home. As I understand Mr Crewdson's case it involves, in part, allegations that he was victimised by DOCS for lodging complaints against Ms Julia Gillett, and other staff members employed at the Home, for breaches of various departmental policies in 1997 in respect of clients including Ms Alldiss. 9 Documents relating to the period 1994 and 1995 in connection with Ms Alldiss and the alleged dispute over financial guardianship are not, in my opinion, sufficiently proximate to the issues raised in Mr Crewdson's application for declaratory relief to have a legitimate forensic purpose. If, of course, the respondents in the substantive proceedings seek to make Mr Crewdson's conduct prior to 1997 an issue and consequently treatment of clients in 1994 and 1995 becomes an issue, I may need to review the position. Director General, Premier's Department 10 In relation to the motion on behalf of the Director General, Premier's Department the documents sought to be produced fell into four classes: 1. Documents that were in fact produced. 2. Documents in relation to which the applicant on the motion misunderstood as to their nature. 3. Documents in respect of which production was opposed on the ground they lacked a legitimate forensic purpose. 4. Documents not produced on the ground they were not in the Department's possession. 11 As to the first class of documents, these were produced and the respondent on the motion was granted access. As to the second class of documents, the applicant on the motion misunderstood what Mr Crewdson was seeking to have produced. The applicant has undertaken to conduct a further search and advise Mr Crewdson and the Court as to whether the documents are available to be produced or whether the summons in relation to those documents should be set aside as oppressive or not serving any legitimate forensic purpose. The applicant on the motion is to advise the respondent and the Court what it intends to do in this respect by 4.00 pm Friday 22 November 2002. 12 The documents not produced on the ground they lacked a legitimate forensic purpose related to the transfer of Ms Carmel Niland (former Director General of DOCS) to the unattached list. I agree with the submissions of the applicant on the motion. The documents serve no legitimate forensic purpose. 13 As to the fourth class of documents, Ms Cathy McInnes, Senior Industrial Officer in the Public Sector Management Office, deposed that such documents were not in the Department's possession. Ms McInnes was not required for cross examination. 14 Other than the documents referred to in pars [7], [8] and [9] of Mr Crewdson's summons to the Director General, Premier's Department and in respect of which a search is still being undertaken, there are no other documents to be produced to Mr Crewdson arising out of the two summonses. 15 Mr Crewdson raised the question of whether the five days set aside in December 2002 to hear his application for relief will be sufficient. I have no time available for many months into 2003. I would, however, be prepared to set aside Thursday 30 January 2003 as an additional day if the matter does not conclude on 13 December, 2002. 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.