Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6 (10 February 2004)

Last Updated: 16 February 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6

FILE NUMBER(S): IRC 3140

HEARING DATE(S): 10/12/2003

DECISION DATE: 10/02/2004

PARTIES:

APPLICANT

Gerard Crewdson

RESPONDENT

New South Wales Department of Community Services

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

APPLICANT

Mr G Crewdson in person

RESPONDENT

Mr P Menzies QC with E Brus of counsel

Solicitors: Mr P Rankin

Crown Solicitors Office

CASES CITED: Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 - revised 14/02/02)

Crewdson v Central Sydney AHS [2002] NSWCA 345 revised - 6/12/2002

Crewdson v Central Sydney Health Service [2000] NSWADT 184

Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121

Crewdson v New South Wales Department of Community Services & Anor [2001] NSWIRComm 216

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. 4) [2002] NSWIRComm 172

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. 6) [2002] NSWIRComm 306

Crewdson v New South Wales Department of Community Services & Anor (No. 7) [2003] NSWIRComm 190

Crewdson v New South Wales Department of Community Services and Anor [2003] NSWIRComm 417

Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5

Crewdson v Niland & Ors [2001] NSWADT 87

Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364

Johnson v Johnson (2000) 201 CLR 488

Killen v The Ministry for the Arts (unreported, matter no: IRC 3729 of 2001, Wright J, President, Walton J Vice President, Boland J, 12 December 2001)

Re JRL; Ex parte CJL (1986) 161 CLR 342

Strathfield Group Ltd V Hall (2002) 121 IR 158

WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Construction Group Limited [2000] NSWIRComm 65

LEGISLATION CITED: Evidence Act 1995

Industrial Relations Act 1996

Protected Disclosures Act 1994

State Records Act 1988

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: BOLAND J

Tuesday 10 February 2004

Matter No IRC 3140 of 2001

GERARD CREWDSON v NSW DEPARTMENT OF COMMUNITY SERVICES & ANOR

Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996)

INTERLOCUTORY JUDGMENT (NO.8)

[2004] NSW IRComm 6

1 This judgment concerns an application by Gerard Michael Crewdson that I disqualify myself from further hearing an application by Mr Crewdson for declaratory relief on the ground that he does not have any confidence that I will "determine these proceedings fairly or impartially and in accordance with law ...". Mr Crewdson's application that I disqualify myself was originally made in proceedings before me on 18 July 2003 and then again on 12 August 2003 but in light of the fact that at the time Mr Crewdson had appealed the latest in a series of interlocutory judgments of mine I could see no utility in considering his disqualification application prior to any judgment in the appeal proceedings.

2 In the result, leave to appeal was refused and Mr Crewdson's appeal was dismissed (Crewdson v New South Wales Department of Community Services and Anor [2003] NSWIRComm 417). Subsequently, Mr Crewdson renewed his disqualification application and made some oral submissions in that regard on 5 December 2003. On that occasion I directed the parties to file and serve written submissions regarding the matter. These were duly received together with an affidavit of Valda Kerrison, filed by the applicant, Mr Crewdson. In summary, Ms Kerrison deposed in her affidavit that:

· She had known Mr Crewdson since 1998.

· She had a conversation with Mr Crewdson in around September 1998 regarding a telephone conversation between Mr Crewdson and Mr Raoul Salpeter, a solicitor with the Crown Solicitor's Office. Mr Kerrison provided details of that conversation.

· She had been employed by the Department of Community Services in March 1998 and whilst so employed had been directed to destroy certain documents and to alter reports regarding care and accommodation of disabled clients.

3 No mention of Ms Kerrison's affidavit was made in Mr Crewdson's written submissions and I do not understand its relevance in relation to the applicant's disqualification application.

4 The respondents submitted that there were no grounds upon which I should disqualify myself.

5 Before going to the grounds and reasons supporting Mr Crewdson's application it is necessary that I explain the somewhat complex background to this matter.

Background

6 On 8 May 2001 Mr Crewdson 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.

7 The matter came before me on 17 May 2001. At that time I was informed that the applicant was involved in proceedings before the Administrative Decisions Tribunal, Equal Opportunity Division ("ADT"). 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.

8 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. The notice of motion was set down for hearing on 22 August 2001. On 22 August 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 by the ADT 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 me stood over until the middle of October for further mention. 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.

9 In Crewdson v New South Wales Department of Community Services & Anor [2001] NSWIRComm 216 at [13] to [18] I decided as follows:

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.

10 The decision of the ADT Appeal Panel was not given until 4 March 2002. In that decision (Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5) the Panel dismissed Mr Crewdson's appeal. I proceeded to hear the respondents' notice of motion seeking to dismiss Mr Crewdson's application for declaratory relief on 18 and 19 March 2002 having set 15-19 July 2002 as the hearing dates for Mr Crewdson's substantive application should the respondent notice of motion be unsuccessful.

11 Judgment on the respondents' motion was delivered on 31 May 2002: See Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121. The Court made the following orders:

1) The notice of motion by the respondents filed in these proceedings on 14 June 2001 is dismissed.

2) The respondents shall file and serve written submissions on the question of the applicant's application for an order pursuant to r 155 of the Industrial Relations Commission Rules 1996 for a judgment on admissions by 4.00 pm on Friday 7 June 2002. The applicant shall file and serve a written reply by 4.00 pm on Friday 14 June 2002.

3) This matter is set down for directions at 4. 15 pm, Wednesday 12 June 2002.

4) The respondents shall pay the applicant's costs of the notice of motion as agreed, or failing agreement, as assessed.

12 On 6 August and 2 November 2001 the applicant had served notices to admit facts on the respondents. On 27 September and 16 November 2001 the respondents filed notices admitting certain facts and disputing others. The applicant contended in a notice of motion filed on 10 December 2001 that the respondents had made admissions that entitled the applicant to orders 1(a) to 1 (h) in his application for declaratory relief. In my judgment of 31 May 2002 I indicated that the applicant was entitled to have a judgment on admissions prior to the substantive proceedings scheduled for 15 to 19 July 2002. Order 2 required the respondents to file and serve written submissions in response to those already provided by the applicant. Judgment on the admissions issue was given on 21 June 2002: See Crewdson v New South Wales Department of Community Services & Anor (No. 3) [2002] NSWIRComm 139. The applicant's motion seeking judgment on admissions was dismissed.

13 Proceedings on 15 July 2002 were vacated for reasons that are explained later in this judgment.

14 Crewdson v New South Wales Department of Community Services & Anor (No. 4) [2002] NSWIRComm 172, a judgment delivered on 30 July 2002, concerned a summons for production filed by the applicant on 21 August 2001 and subsequently served on the Crown Solicitor, a notice of motion by the respondents seeking an order that the applicant's summons be set aside, and a notice to produce filed by the applicant on 11 December 2001 and served on the Director-General of the Department of Community Services (DOCS). The issues to be addressed related to claims by the Crown Solicitor and the respondents that certain of the documents sought to be produced were protected by client legal privilege and/or the summons was oppressive and/or the documents sought had no legitimate forensic purpose. Access to the documents sought under the notice to produce was refused and in respect of the summons the Court ordered that "Except to the extent that documents have been produced in answer to the summons for production filed by the applicant on 21 August 2001 and access to those documents has been granted to the applicant in these proceedings the summons is set aside".

15 On 12 August 2002 the applicant's substantive application was brought on for directions in order to fix dates for hearing. As mentioned earlier, dates had been fixed for November 2002 but it became necessary for the Court to vacate those dates. Attempts were made to arrange for new hearing dates by written communications with the parties but no response was received from Mr Crewdson. At the directions hearing Mr Crewdson raised a number of issues relating to the filing and serving of evidence and other matters in preparation for the substantive hearing. These matters were dealt with in Crewdson v New South Wales Department of Community Services & Anor (No.5) [2002] NSWIRComm 203. Also dealt with in that judgment was a claim by the applicant that:

[O]n the basis of new material the Court should re-visit its judgment (interlocutory judgment No 3) where it declined to grant the applicant a judgment on admissions and make a declaratory order by way of summary judgment to the effect that the applicant has been employed on a continuous basis by the first respondent since 1990 and that all decisions taken by various officers of the second respondent relating to his fitness for work were void, invalid and of no effect.

16 It may be noted that at the time Mr Crewdson sought a reopening of Judgment No. 3 an appeal by him against that judgment was pending but later withdrawn. For the reasons given in Judgment No. 5, Mr Crewdson's application to reopen was refused. The hearing of Mr Crewdson's substantive application was set down for five days commencing 9 December 2002.

17 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. 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.

18 The issues raised in the respondents' notice of motion were dealt with in Crewdson v New South Wales Department of Community Services & Anor (No. 6) [2002] NSWIRComm 306, given on 20 November 2002. In the course of that judgment an additional hearing day for the applicant's substantive application was set for 30 January 2003 in case the five days commencing on 9 December 2002 proved to be insufficient.

19 The hearing of Mr Crewdson's application for declaratory relief proceeded as scheduled during December 2002 and continued on 30 January 2003. The hearing of the matter did not conclude on 30 January and it was adjourned to 14 and 15 August 2003, the earliest available two consecutive days. On 24 January 2003 Mr Crewdson filed a notice of motion seeking four orders, namely:

1. Appropriate disciplinary orders to be made in relation to the first respondent's failure to lawfully and properly comply with summons for production documents and/or breach of State Records Act 1988.

2. An order for summary judgment in favour of applicant on part or the whole of his claim.

3. In the alternative to orders 1 and 2 adjournment of these proceedings to allow for the applicant's stayed application under s 213 of the IR (sic) Act to be expedited.

4. Costs.

20 On 30 January 2003 Mr Crewdson's latest notice of motion was listed for directions. A hearing date in relation to the motion was set for 28 February 2003. The hearing did not conclude on 28 February and was adjourned until 18 July 2003. Mr Crewdson asked that the matter be dealt with sooner than 18 July. He stated "My financial and social plight is untenable ... unless my circumstances change I will not survive till July or August 2003". Directions were issued for the filing of written submissions and the matter was listed for 2 June 2003.

21 In Crewdson v New South Wales Department of Community Services & Anor (No. 7) [2003] NSWIRComm 190 I dismissed Mr Crewdson's application for orders contained in his notice of motion filed on 24 January 2003. Mr Crewdson appealed that judgment. The appeal was unsuccessful: See Crewdson v New South Wales Department of Community Services and Anor [2003] NSWIRComm 417.

22 In proceedings on 5 December 2003 Mr Crewdson renewed his application that I disqualify myself from further dealing with his application for declaratory relief.

Applicant's grounds for disqualification

23 The applicant put forward six general grounds in support of his application that I disqualify myself from continuing to hear and determine his application for declaratory relief. The grounds, as I interpret them, were as follows:

1. That I had a prior role in unrelated proceedings in a miscarriage of justice arising out of legal issues similar to that in the applicant's application for declaratory relief.

2. That in proceedings during 2002, by various acts, omissions or rulings, I exhibited bias against the applicant and in favour of the respondents.

3. That in October 2002 I sat on a Full Bench that dismissed notices of motion by the applicant alleging contempt by the respondents and the Crown Solicitor in proceedings before me and before Commissioner D McKenna. Because the contempt motions overlapped with an appeal filed contemporaneously by the applicant against my judgment in Crewdson v New South Wales Department of Community Services & Anor (No. 3) it was unfair that I should have sat on the Full Bench and that, in effect, I sat in judgment of my own conduct.

4. That in proceedings in November 2002 I did not allow a reasonable time to enable the applicant to prepare for the cross examination of a witness and that the applicant was caught by surprise; that I accepted the witness's testimony without question; and, that I refused requests for the witness to be recalled. Further, that I took inadequate steps to ensure the respondents complied fully with their obligations to produce documents under summons and that in so doing I refused to consider the prejudice to the applicant's case through the loss or destruction of evidence that DOCS was summonsed to produce but failed to do so.

5. That I failed to set aside sufficient days for hearing the applicant's substantive application; that I failed to chair a pre-hearing conference as required by the Commission's Rules; that in the course of the substantive proceedings I refused the applicant sufficient time to cross examine witnesses; that I read privately certain material and pre-judged matters; that I refused leave to the applicant to tender certain evidence; that I allowed unfair cross examination of the applicant by senior counsel for the respondents; that I allowed the applicant to be unfairly criticised by senior counsel for the respondents; that I intervened excessively and unfairly during the applicant's cross examination of witnesses; that I have sufficient material before me to give summary judgment but thus far have refused to do so; and, that I have ignored the applicant's legitimate concerns that the Crown Solicitor has a conflict of interest.

6. That following the dismissal of the applicant's appeal against Interlocutory Judgment No. 7 and in proceedings before me on 5 December 2003 called for the purpose of giving directions concerning the resumption of the hearing of the applicant's substantive application (and during which the applicant renewed his application that I disqualify myself), I accused the applicant of being vexatious and "shouted loudly" at him; that I said certain submissions by the applicant lacked credibility; and, that I have refused to take into consideration the protections that are meant to apply to the applicant under the Protected Disclosures Act 1994.

CONSIDERATION

24 Whilst there is no mention of it in Mr Crewdson's written submissions, it would appears that he considers I should step aside because, for the reasons he has given, there exists a reasonable apprehension of bias. Mr Crewdson referred to this as the basis for his application in proceedings on 12 August 2003. However, given some of his grounds it would seem that Mr Crewdson considers there is actual bias although in his submissions he made no specific allegations of actual bias and no proof was offered of actual bias.

25 In Strathfield Group Ltd V Hall (2002) 121 IR 158 a Full Bench of the Commission was called upon to consider whether statements made by Marks J at the conclusion of his judgment at first instance would cause a fair minded observer to entertain a reasonable apprehension that his Honour did not bring an impartial and unprejudiced mind to the determination of the proceedings. The Full Bench rejected the appellant's contention that the remarks by Marks J "could create in the mind of the fictional "fair-minded lay observer" a reasonable apprehension that "an impartial and unprejudiced mind" had not been brought to the resolution of the proceedings" (at [55]). In arriving at their conclusions the Full Bench referred to the relevant principles as follows:

51 The test of apprehended bias was stated recently by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 at 492 in this way:

It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. (eg Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983)151 CLR 288; Vakauta v Kelly (1989)167 CLR 568; Webb v The Queen (1994)181 CLR 41.

52 The test of apprehended bias is "based upon the need for public confidence in the administration of justice". The Court also emphasised (at 493) that:

... the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". (Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J.)

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

53 The circumstances in which a judge will be required to disqualify himself or herself were considered by Wright J, President, in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 His Honour set out (at [15]) a summary of the principles derived from the relevant cases and from an article by Professor Allars - "Procedural Fairness: Disqualification Required by the Bias Rule" (1999) 4 The Judicial Review 269. The principles emphasise that:

The mere claim that there is an appearance of bias does not establish that a reasonable apprehension exists, as this is a matter which must be determined objectively. Reasonable apprehension of bias must usually be firmly established. The ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely or favourably to one party or the other.

54 It may be noted that the authorities on "reasonable apprehension" have often arisen in circumstances where a party has made an application that the judge disqualify himself or herself during the course of the trial, or at least before judgment is delivered. However, in certain circumstances, it may be appropriate to entertain an application for apprehended bias on a basis which only becomes known after the judgment has been delivered; see, for example: Ebner v Official Trustee in Bankruptcy (2000)205 CLR 337.

26 There is no doubt that Mr Crewdson apprehends that I will not decide the case impartially or without prejudice. But it is not the subjective apprehension of Mr Crewdson that will determine whether or not I should disqualify myself from further hearing his application. Rather, it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson at 492.

27 Moreover, a judge should not too readily accede to a request for disqualification. In WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Construction Group Limited [2000] NSWIRComm 65 at [12] Wright J President quoted with approval from an article by Professor Margaret Allars. The paper was entitled "Procedural Fairness: Disqualification Required by the Bias Rule" (1999) 4 The Judicial Review 269. The article stated, inter alia, at 281:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit. By acceding too readily to suggestions of appearance of bias, judges may encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour (ibid at 352; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; R v George, Harris and Hilton (1987) 9 NSWLR 527; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at 49). A judge therefore has a duty to disqualify himself or herself only for proper reason, namely, where there is an actuality of bias or the existence of grounds for reasonable apprehension of bias, and the judge equally has a duty in other circumstances not to disqualify himself or herself (Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; Rajski v Wood (1989) 18 NSWLR 512 at 519 per Kirby P).

28 With these principles in mind I turn to the six grounds submitted by the applicant as the basis upon which I should disqualify myself from further hearing his application for declaratory relief. In doing so I must say that initially I did not consider that I should engage in addressing what, in a number of instances, are matters that are entirely irrelevant to the question of whether I should disqualify myself. I also considered whether I should take appropriate action in respect of allegations by Mr Crewdson that, in my opinion, might be held to be contemptuous. In the event, however, I decided that the best course of action was to deal with all of the allegations and to regard the potentially contemptuous statements by Mr Crewdson in his written submissions as simply a poor and misguided choice of language on his part.

1. Prior role in alleged miscarriage of justice

29 The proceeding to which Mr Crewdson was referring was Killen v The Ministry for the Arts (unreported, matter no: IRC 3729 of 2001, Wright J, President, Walton J Vice President, Boland J, 12 December 2001). This was an appeal from a decision of Chief Industrial Magistrate Miller. The Full Bench refused leave to appeal and dismissed the appeal. It is unnecessary to go into the detail of the matter other than to say that it was Mr Crewdson's submission that the refusal of leave amounted to a miscarriage of justice because Ms Killen was "improperly directed to HealthQuest and subjected to a psychiatric examination against her will ..." Mr Crewdson alleged that:

Ms Killen's forced referral to HealthQuest involved ... mistreatment of an injured employee and also victimisation of a public sector whistleblower. I do not have any confidence in the members of the Full Bench that dismissed Ms Killen's appeal considering and determining similar issues of HealthQuest malpractice in my matter.

30 Until Mr Crewdson drew it to my attention in his written submissions regarding disqualification, I had no recollection of the proceedings in Killen. But in any event, the proposition that there is a reasonable apprehension of bias or actual bias because I (and it seems the President and Vice President) joined in refusing leave to appeal in a completely unrelated matter that involved a public sector employee being referred to HealthQuest, as happened to be the case with Mr Crewdson, is untenable as well as being offensive. The applicant has not demonstrated that I formed any view about his proceedings based upon the decision in Killen.

31 In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 Mason J (as he then was) said:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in the case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

Exhibited bias against the applicant and in favour of the respondents

32 Mr Crewdson submitted that notwithstanding my decision to dismiss the respondents' notice of motion seeking to dismiss his application for declaratory relief I have prejudged, from the outset, issues central to the applicant's case. This was said to have manifested itself in a number of ways. Firstly, that notwithstanding evidence adduced by the applicant and relevant authorities cited by him to establish that a Deed signed by the applicant on 6 October 1998 releasing the respondents from all actions, claims, demands, etc., was "unconscionable and illegal" I have failed to accept the Deed was invalid. This failure, I presume, is reflected in the fact that I have refused on two occasions to grant the applicant the summary judgment he sought. My refusal to grant summary judgment has been the subject of appeal by the applicant. Leave to appeal was unanimously refused and the appeal dismissed. In delivering his judgment the Vice President said:

12 I am not satisfied that his Honour has so erred. It is clear that his Honour had regard to the appellant’s new evidence. His Honour clearly considered that there were evidentiary issues which remained outstanding and that it would not be “in the interests of justice” to grant summary judgment. Further, I am not satisfied that there was any inadequacy in his Honour’s reasoning. Moreover, having regard to the fact that the appellant had at all times been self-represented, I would note his Honour was mindful of that fact and had sought to extend appropriate assistance to the appellant.

33 Next, the applicant contended that I allowed the respondents to file notices of motion without any supporting affidavits yet he has "always been required by the Registry to file an affidavit in support of my Notices of Motion." As far as I can ascertain from the record of proceedings, no substantive objection was taken by Mr Crewdson in respect of any failure by the respondents to file supporting affidavits. This would not have been because Mr Crewdson was not familiar with the Commission's Rules; he has demonstrated a very good understanding of those Rules and has referred, or resorted, to them on numerous occasions. If a failure to provide a supporting affidavit had been a critical issue I would have required such an affidavit to be filed. Otherwise, it would have been open to me to waive the requirement. I do not consider that by not insisting on supporting affidavits - if in fact the respondents did not file such affidavits - I have exhibited bias against the applicant.

34 The applicant's next complaint was that I had refused to make directions for the filing of pleadings and evidence in relation to the substantive hearing scheduled to commence on 15 July 2002; that I refused to apply the rule against the respondents that "required them to elect not to call evidence if they lost a "no case to answer" application"; and, that the applicant was thereby forced to vacate the July hearing dates. The applicant contended that I had not taken the respondents to task over their lack of pleadings or evidentiary material five weeks prior to the scheduled proceedings. This was to be contrasted, it was submitted, to my admonishment of the applicant upon his failure in proceedings in December 2002 to file and serve witness statements or affidavits in relation to two witnesses.

35 In relation to these complaints it is necessary to understand the sequence of events. On 31 May 2002 I delivered Interlocutory Judgment No. 2 dismissing the respondents' motion seeking orders that the applicant's application for declaratory relief be dismissed. In that Judgment the matter was set down for 12 June 2002 for the express purpose of making any directions in relation to the substantive hearing on 15 - 19 July 2002. In the proceedings on 12 June Mr Crewdson sought directions that the respondents put on any material in reply to the evidence he had filed. Mr Crewdson also sought the production of certain documents that had been the subject of an earlier summons and notice to produce but in respect of which the respondents claimed privilege. The respondents indicated that they would wish to raise a threshold issue in the substantive proceedings, namely, whether the Deed signed by Mr Crewdson in 1998 was a bar to further proceedings. Mr Crewdson objected. I reserved my position regarding the threshold issue and directed the parties to confer on the documents sought in the applicant's summons and notice to produce. The parties were advised by me to "proceed to prepare for the full extent of the case" in July but no specific directions were given in relation to the production of material by the respondents in response to Mr Crewdson's evidence. The matter was stood over until 24 June 2002 for further directions and in order to allow the parties time to confer on the documents in respect of which privilege was claimed.

36 In the meantime, I gave judgment on the applicant's application for judgment on admissions (Interlocutory Judgment No. 3, delivered on 21 June 2002). The application was refused. In that judgment at [29] I noted that:

29 In his written submissions in reply on the admissions question the applicant sought:

1) Leave to amend his application for declaratory orders by adding the following additional orders:

a. An order voiding ab initio provision 4 of the Deed signed between the parties in October 1998

b. An order voiding ab initio provision 1 of the deed to the extent that it purports to pay any remuneration or entitlements to the applicant.

c. An order for the applicant's reinstatement to employment with the Department of Community Services and Department of Ageing Disability and Home Care.

d. An order deeming that the applicant's service is continuous from 29 October 1997

e. An order that the First Respondent pay the amount of remuneration and entitlements lost or foregone by the applicant since 29 October 1997.

2) Orders in addition to or alternative to orders under r 155 "to identify what issues are truly in dispute between the parties and the mode by which these issues should be determined".

3) Orders and directions that his affidavits so far tendered in proceedings be accepted into evidence without further need for cross-examination and that the respondents not be allowed to call any evidence.

30 Not having heard the respondents in respect of these three new applications by the applicant the Court is in no position to grant them. Given that this matter is set down for further directions on Monday 24 June 2002 the applicant may renew his applications at that time.

37 On 24 June 2002 Mr Crewdson sought the orders referred to above. He also said, however, that with the substantive hearing less than three weeks away he had not been provided with any evidence or witness statements from the respondents and no specific pleadings as to questions of fact and law had been filed by the respondents. He expressed concern that he would be "ambushed".

38 After some questioning by me Mr Crewdson indicated that if the orders he sought were made there would be no obstacle to the proceedings going ahead in July but the proceedings could not go ahead if the orders were not made because there would not be sufficient time for him to prepare his case. Mr Crewdson also informed the Court that he had that day (24 June 2002) filed a notice of motion alleging contempt by a number of parties in relation to his proceedings and that I should set dates to deal with that motion.

39 The issues raised before me on 24 June 2002 were as follows:

1. Whether the substantive proceedings scheduled for July 2002 should go ahead and if so what directions were necessary in that respect;

2. What to do with Mr Crewdson's contempt motion, of which the respondents had only received notice that day;

3. What to do with the documents in respect of which the respondents continued to claim legal professional privilege;

4. What to do in respect of the additional orders sought by Mr Crewdson as set out in Interlocutory Judgment No.3 at [29].

40 In view of time constraints on 24 June 2002 the foregoing four issues for determination were stood over until 28 June 2002. In relation to the threshold issue raised by the respondents that the Court should initially consider whether the Deed was a bar to further proceedings, I consider that it is clear from an exchange with Ms E Brus of counsel recorded in the transcript of proceedings of 24 June that as I had determined in Interlocutory Judgment No.2 there was insufficient evidence as to whether or not the deed was a bar to proceedings, there was no utility in making the Deed a threshold issue in the substantive proceedings. I confirmed this in proceedings on 28 June.

41 On 28 June 2002 Mr Crewdson's contempt motion was referred to the President of the Commission pursuant to s 193 of the Act. As to the proceedings scheduled to commence on 15 July, the dates were vacated and new dates set in November 2002. A timetable was set for the filing and serving of evidence and submissions. With regard to the privilege question Mr Crewdson was not in a position to make submissions on that issue and consequently I set the hearing of that matter for 15 July. As to the additional orders sought by Mr Crewdson I made no decision. In hindsight it would have been appropriate for me to do so but it would have made no difference to the way matters developed. The only additional order pressed by Mr Crewdson was order 3, namely:

Orders and directions that his [Mr Crewdson's] affidavits so far tendered in proceedings be accepted into evidence without further need for cross-examination and that the respondents not be allowed to call any evidence.

42 In relation to this order Mr Crewdson submitted that the respondents' submission in their motion to dismiss his application for declaratory relief was a "no case to answer" submission. He relied on Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364. The respondents' case in their notice of motion to dismiss did not amount to a "no case to answer submission". It may be noted that in an application for leave to appeal and appeal filed by Mr Crewdson on 9 July 2002 he one of the matters appealed against was:

The refusal of Justice Boland to apply the "no case to answer" rules set in Davies (sic) v Amalgamated TV Services (1998) against the respondents (21, 24 and 28 June 2002)

Mr Crewdson later withdrew this appeal.

43 Mr Crewdson contended that my alleged failure in various proceedings in June 2002 to direct the respondents to put on their evidence in preparation for the substantive proceedings in July 2002 forced him to have the July proceedings vacated thereby causing him further delay in having his application dealt with. Mr Crewdson would have me believe that the only issue I needed to contend with in June 2002 was his application that the respondents be directed to put on their evidence with sufficient time being made available for him to put on evidence in reply. This overlooks the judgment the applicant had sought on admissions, the additional orders sought by him, the contempt motion by the applicant and the issue of legal professional privilege - all needing, in his mind, to be determined before proceedings commenced on 15 July 2002.

44 In my opinion, in the absence of the other issues, the hearing scheduled for 15 July could have proceeded and it is plain from the record of proceedings that I was anxious for the applicant to be given the opportunity of presenting his substantive case as early as possible. It was the applicant's choice and his right to pursue his other issues, and to challenge the respondents' claim for privilege, but it is somewhat disingenuous to contend that the reason he was forced to abandon the July hearings was because I did not appropriately direct the respondents to put on their evidence. In this respect, despite being given every opportunity to address the privilege issue in relation to documents he said he needed for the July hearings, when it came time to do so on 28 June the applicant submitted he was not ready to present argument.

45 As to Mr Crewdson's complaint that I was not critical of the respondents regarding what he referred to as their failure to put on evidence prior to 15 July but that I was critical of him for calling two witnesses in the December proceedings without having filed affidavits or witness statements, I consider that is not an appropriate or fair comparison of events. The respondents had not been directed to file evidence because events led to the vacating of the hearing in July. Therefore, I could hardly be critical of them for failing to file their evidence. Directions were made in respect of the filing and serving of evidence for proceedings in November (later adjourned to December) and as far as I am aware the respondents followed those directions subject to extensions that were sought and granted. In relation to two witnesses called by Mr Crewdson in the December proceedings, senior counsel for the respondents asked that at least an outline of the witnesses' evidence be provided or that the applicant should give the respondents some idea of the nature of the evidence. This had not been done. I advised Mr Crewdson that matters would be expedited if the respondents were advised of the nature of the evidence. Although Mr Crewdson submitted that he could not have provided written statements or affidavits because the two witnesses refused to provide them, the applicant was well aware of the need to at least advise the other side of the nature of the evidence he would seek to elicit.

46 In my opinion, Mr Crewdson well knew that his comparison of the circumstances relating to the provision of evidence in July and December was erroneous. Nevertheless, he proceeded to use it to bolster his arguments relating to bias. He then said in his submissions that in relation to the July circumstances he "had to make lengthy submissions in the face of intimidating threats of costs applications from Mr Menzies before Your Honour finally conceded to my request [for directions to be given to the respondents to put on their evidence]". Such a submission portrays the events completely out of context. Firstly, I had informed Mr Crewdson that I would not be making any orders at the time in relation to costs and such orders would await the outcome of the substantive proceedings. Secondly, I had already informed the parties that the July proceedings would be vacated and consequently, the issue of directions to put on evidence in relation to those proceedings was otiose. I then asked for submissions on a timetable for the filing and serving of evidence in relation to a five-day hearing scheduled for November 2002. It most certainly was not a case of Mr Crewdson having to make lengthy submissions before I conceded to his request for directions.

47 Mr Crewdson's next contention was that I allowed the respondents to depart from admissions made earlier by them in response to a notice to admit facts. In particular Mr Crewdson contended that I allowed the respondents to depart from an admission that he, Mr Crewdson, was a satisfactory employee by allowing the respondents to put on "a large amount of prejudicial and hearsay evidence that seeks to establish that I was a most unsatisfactory employee." Mr Crewdson submitted that I did this notwithstanding the operation of r 154 of the Commission's Rules and despite the hearsay rule under the Evidence Act. Mr Crewdson did not identify the "prejudicial and hearsay evidence" so I am not certain what evidence he is referring to. Further, whilst I might be mistaken I cannot find in the record of proceedings any objection by Mr Crewdson to evidence by the respondents on the basis the evidence was inconsistent with an earlier admission. I might add that at this stage of the proceedings the admission by the respondents that Mr Crewdson was a satisfactory employee continues to stand as an admission.

48 Next, Mr Crewdson alleged that I allowed the Crown Solicitor to claim legal privilege over a file relating to proceedings involving Mr Crewdson before the Equal Opportunity Tribunal "even though under the Evidence Act legal privilege cannot attach to documents created in pursuance of an abuse of power, fraud or breaches of the law" and that there was prima facie evidence before me that "such an abuse of power, fraud and breach of the law had occurred." These matters were the subject of Interlocutory Judgment No. 4 given on 30 July 2002. Mr Crewdson did not appeal that judgment. He now wishes, however, to contend, in effect, that because I did not find an abuse of power, fraud or breach of the law by certain persons associated with the respondents, such failure to do so indicates bias on my part. I do not accept that Interlocutory Judgment No. 4 provides grounds for a reasonable apprehension of bias. The issues that were the subject of that Judgment were dealt with according to what I considered to be the relevant facts and appropriate law. There was no basis whatsoever upon which a finding of fraud, etc., could have been made.

Participation in decision by Full Bench to dismiss applicant's contempt motions

49 It was alleged by Mr Crewdson that in October 2002 I sat on a Full Bench that dismissed notices of motion by the applicant alleging contempt by the respondents and the Crown Solicitor in proceedings before me (matter no. 3140 of 2001) and before Commissioner D McKenna (matter no. 2827 of 2001). The applicant submitted that because the contempt motion relating to proceedings before me overlapped with an appeal filed contemporaneously by him against my judgment in Crewdson v New South Wales Department of Community Services & Anor (No. 3) it was unfair that I should have sat on the Full Bench dealing with his contempt application and that, in effect, I sat in judgment of my own conduct.

50 Mr Crewdson contended that there was an "overlap" between the contempt motion and an appeal by him against my Interlocutory Judgment No. 3. The alleged overlap appears to be that in the appeal application it was alleged I refused to "appropriately address the unprofessional and unethical conduct of the respondents and their legal representatives" and that it was also this conduct that was the subject of the contempt motion.

51 A Full Bench (Wright J, President, Boland and Haylen JJ) considered the contempt motion on 4 October 2002. The motion consisted largely of allegations that the respondents' legal advisers had deliberately misled or attempted to mislead the court. There was no reference in the motion to any conduct on my part and I do not consider I sat in judgment on my own conduct. The Full Bench, in its discretion, unanimously determined that proceedings for contempt not be commenced pursuant to r 237 of the Commission's Rules. At the time the contempt motion was considered by the Full Bench Mr Crewdson's appeal application, which contained allegations regarding my conduct, was still on foot. It was entirely a matter for Mr Crewdson to proceed with the appeal in order to make good his allegations regarding my conduct of proceedings and what he described in the appeal papers as my "unacceptable level of partiality for the respondents against the applicant". However, he chose not to do so.

Ambush by the respondents

52 Mr Crewdson alleged that in proceedings on 15 November 2002 I did not allow a reasonable time to enable the applicant to prepare for the cross examination of a witness and that the applicant was caught by surprise; that I accepted the witness's testimony without question; and, that I refused requests for the witness to be recalled. Further, that I took inadequate steps to ensure the respondents complied fully with their obligations to produce documents under summons and that in so doing I refused to consider the prejudice to the applicant's case through the loss or destruction of evidence that DOCS was summonsed to produce but failed to do so.

53 The proceedings on 15 November 2002 involved a notice of motion filed by the Premier's Department and Department of Ageing, Disability and Homecare seeking orders setting aside a summons issued by the applicant. The witness in question on 15 November 2002 was Mr Damien Lutvey, a person referred to in my Interlocutory Judgment No. 2 and whom, in short, Mr Crewdson alleged contributed to the circumstances that eventually led to Mr Crewdson's referral to HealthQuest in 1997. In his capacity as Acting Assistant Manager, Support and Accommodation, Department of Ageing, Disability and Homecare Mr Lutvey deposed in his affidavit sworn on 15 November 2002 that he had undertaken or arranged to have undertaken searches for various documents the subject of a summons issued by the applicant on the Department. Some of the material sought was made available to the applicant, in other cases access was opposed and in other cases the material was not produced because it could not be found.

54 Mr Crewdson was only served with the affidavit of Mr Lutvey on 15 November and it must be acknowledged that he was caught somewhat by surprise. I asked Mr Crewdson whether he wished to cross-examine Mr Lutvey regarding his affidavit and he indicated in the affirmative, although there was some expression of concern on his part at only having received the affidavit that day. Mr Crewdson said that he wished to cross-examine Mr Lutvey but that "It would have been easier to have dealt with this, if I had been given the affidavit in advance of this hearing" and that "I'm unhappy about the way that I was presented with this affidavit today, not given the preparation ..." In his submissions on bias Mr Crewdson described his expressions of concern as "vehement objections" by him, despite which I "allowed this ambush to proceed".

55 Mr Crewdson submitted that I did not inform him of his right to seek an adjournment despite him being an unrepresented litigant. I consider that Mr Crewdson, given the amount of litigation he has been involved in and his obvious knowledge of practice and procedure, well understood his right to seek an adjournment and he is not to be believed in this respect. Mr Crewdson was informed that he was entitled to cross examine Mr Lutvey if he wished and he chose to do so after the luncheon adjournment on that day following some mild expressions of concern to which I have referred. Mr Crewdson could have sought an adjournment as he has done on earlier occasions if he needed time to prepare his cross examination and the adjournment would most likely have been granted. There was no ambush.

56 Mr Crewdson submitted that I had refused to consider subsequent requests to recall Mr Lutvey or call other relevant persons to prove the unreliability of Mr Lutvey's evidence. In this respect what Mr Crewdson was referring to was a letter to my Associate dated 5 August 2003. In the letter Mr Crewdson proposed that "either the Commission through the usual procedure or Justice Boland under the IRC rules issue a summons for the following witnesses to appear and give evidence concerning non-production of documents and also to produce relevant documents themselves". Then followed a list of persons, including Mr Lutvey. Mr Crewdson proposed that the dates of 14 and 15 August 2003 that had been earlier set down for hearing the remainder of the applicant's claim for declaratory relief be used instead "to clarify and resolve issues in relation to the non-production of documents ..."

57 By this time Mr Crewdson had made application for leave to appeal and appeal against Interlocutory Judgment No. 7. In light of this development the Crown Solicitor had also written to my Associate proposing that the dates of 14 and 15 August be vacated. Consequently, I felt it prudent to call the matter on to hear what both parties had to say about vacating the dates. I did so on 12 August. The record of proceedings on that day shows that I did not consider it appropriate to proceed to deal with any issues associated with Mr Crewdson's application for declaratory relief in light of his appeal against Interlocutory Judgment No. 7. Moreover, given Mr Crewdson's application that I disqualify myself from further hearing his claim, it made it impossible for me to proceed to deal with issues relating to the non-production of documents on 14 and 15 August.

58 Subject to what I decide in relation to this application that I disqualify myself, there is no obstacle (other than what the respondents might say) to Mr Crewdson making proper application to recall Mr Lutvey or any other person regarding the issue of non-production of documents. It is wrong and misleading of Mr Crewdson to submit that I have refused requests to recall Mr Lutvey.

59 Mr Crewdson complained that I have not dealt appropriately with repeated claims by him regarding non-production or destruction of documents by the respondents. Thus far there is no basis for me doing other than what I have done. Provided I do not disqualify myself and provided he makes the proper application and it is relevant to what I have to determine in the substantive proceedings, Mr Crewdson will have the opportunity to address the issues that seem to be causing him such angst.

Conduct of proceedings in December 2002 and January 2003

60 In his written submissions Mr Crewdson described a number of complaints regarding the conduct of proceedings relating to his substantive application, which was heard in December 2002 and January 2003. It is appropriate that I deal with each of these complaints.

61 Firstly, Mr Crewdson submitted that I did not set aside an adequate number of days for hearing. In August 2002 I set five days for the hearing of Mr Crewdson's application. No party took issue with that at the time. On 24 October 2002 Mr Crewdson raised his concern that five days might not be sufficient hearing time. In Interlocutory Judgment No. 6 I set aside a further hearing day, namely, 30 January 2003 during the period I was duty judge. The difficulty confronting me was that I wished to have the matter concluded as early as possible but no further hearing days were available before mid-2003. I considered six days more than sufficient time to hear the matter and it would have been so if Mr Crewdson had taken a more focused, relevant and efficient approach to his cross-examination of witnesses.

62 Mr Crewdson submitted that in order to deal with the problem of the inadequacy of hearing time he sought a pre-hearing conference but that I did not convene such a conference. He said that at a conference involving only the parties he made considerable concessions by agreeing to remove large amounts of his affidavit evidence. On the other hand, he submitted, senior counsel for the respondents refused to remove large amounts of hearsay evidence in their affidavit material.

63 Mr Crewdson proposed a pre-hearing conference in the course of proceedings on 24 October 2002 to deal with objections to affidavit evidence. Given that I had no time available to chair a pre-hearing conference I suggested the parties could confer between themselves on any objections in order to attempt to resolve any differences. Both parties accepted this and a conference was held. Mr Crewdson seems to imply that because I was not present during the conference between the parties that he was disadvantaged because whilst he agreed to delete material from his documentary evidence, the other side retained "large amounts of hearsay evidence". I do not see how Mr Crewdson was disadvantaged given that he had the opportunity during the substantive proceedings - and took it - of raising any objection to material sought to be tendered by the respondents and his objections were duly dealt with.

64 Mr Crewdson submitted that I did not allow him to fully cross examine a witness, Ms Gillett, and that I intervened in an unfair manner during his cross-examination of the witness. To a considerable degree, even taking into account any lack of skill and experience Mr Crewdson's cross-examination of Ms Gillett was circuitous, sometimes irrelevant and excessively lengthy. Where I did intervene it was either in response to an objection by the respondents or to attempt to keep the cross-examination relevant and to have it finished in a reasonable period of time. In this respect, the record speaks for itself.

65 It was submitted that at one stage I adjourned proceedings to read in Chambers a memorandum written by Ms Gillett on 15 September 1997 and "seemingly accepted the claims in the memorandum despite many of them being of a hearsay nature." The memorandum was in evidence and it was necessary for me to read it on the occasion Mr Crewdson referred to in order to understand his line of cross-examination that was becomingly exasperatingly misdirected. In reading the memorandum what I had sought to do was identify the particular issues about which Mr Crewdson wished to cross-examine and to encourage him to focus on those issues. Mr Crewdson does not explain how it was I "seemingly" accepted the claims in the memorandum" so I cannot respond to this submission in any more detail.

66 It was submitted by Mr Crewdson that I had "privately read" other material and formed pre-judgments prior to allowing the applicant to cross-examine. Mr Crewdson referred to a "Review Report produced by DOCS Senior Practitioner P Reily in June 1998 into client management practices at Fitzpatrick St". Mr Crewdson submitted that having read the report I formed a view - indeed insisted - that a thorough investigation had been conducted into the applicant's allegation of misconduct or malpractice and none of the allegations had been substantiated. The applicant submitted I expressed this view prior to Mr Reily being cross-examined.

67 The record of proceedings of 13 December 2002 shows that I did ask Mr Crewdson questions about the Reily Report, which was in evidence by this time. To suggest that the exchange I had with Mr Crewdson regarding the Report amounted to an insistence on my part that a "thorough" or "full" investigation had been conducted into his allegation's about the management of the group home, that most of the allegations had not been substantiated and that I had, therefore, prejudged the matter, is nonsense.

68 The other instance of alleged prejudgment on my part was that I "privately" read the judgment of the Court of Appeal in Crewdson v Central Sydney AHS [2002] NSWCA 345 revised - 6/12/2002 where the Court of Appeal dismissed an appeal by Mr Crewdson from a decision of the Appeal Panel of the Administrative Decisions Tribunal of New South Wales of 28 December 2001 (Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 - revised 14/02/02). Mr Crewdson submitted that I:

[f]ormed certain views without the benefit of reading the initial judgment in the Tribunal [Crewdson v Central Sydney Health Service [2000] NSWADT 184] and the findings of fact made in that judgement that neither the Tribunal Appeal Panel or Court of Appeal had any power to overturn. Your Honour also formed views without first giving me the opportunity to present full submissions on why the decision is not safe to rely upon and why it is inapplicable to the facts and legal issues in these proceedings.

69 In fact I have read the judgment in Crewdson v Central Sydney Health Service [2000] NSWADT 184 because it was necessary to do so in writing Interlocutory Judgment No. 2. But in any event, it is clear from the transcript of proceedings of 28 February 2003 that I had not formed any concluded views about the applicability or otherwise of the Court of Appeal's decision in Crewdson v Central Sydney AHS. As noted in the transcript, I had not fully read the decision and that is still the case.

70 Mr Crewdson submitted that in proceedings on 28 February 2003 I would not allow him to tender as evidence transcript of alleged admissions by Dr Jagger and Dr Roberts said to have been made in the course of proceedings in the ADT but that I had allowed the respondents to tender "a whole folder of transcript from the ADT ..." The document Mr Crewdson sought to tender was one page of transcript from proceedings in the ADT on 7 April 2000 containing part of the cross examination of Dr Jagger. Senior counsel for the respondents objected to the tender. I did not consider it fair to the respondents that Mr Crewdson be allowed to tender a single page of transcript that he said contained an admission, especially when Dr Jagger was to be called by the respondents as a witness in the proceedings. As to the bundle of transcript tendered by the respondents in proceedings before me on 18 March 2002, it was the case that the whole of the transcript of proceedings before the ADT on 1 May 2001 was admitted. Mr Crewdson initially objected to a bundle of documents being tendered, including the transcript but later agreed to their admission subject to weight and relevance. No later objection was taken to the transcript. It is also the case, however, that Mr Crewdson tendered extracts of transcript from ADT proceedings and they too were admitted.

71 Mr Crewdson complained that I have been quick to condemn or criticise him in relation to cross examination of witnesses but have had nothing adverse to say about Mr Menzies QC for the respondents who, Mr Crewdson submitted, used unfair and improper tactics. I have re-read the transcript of proceedings in December 2002 and I do not accept that anything I have said to Mr Crewdson about cross-examination was unfair or that in any way my conduct of the proceedings gave rise to a reasonable apprehension of bias, either in respect of the cross-examination of witnesses or more generally.

72 My intervention in Mr Crewdson's cross-examination of witnesses, including Mr Salpeter and Ms Gillett was, in my opinion, appropriate and necessary because of what I considered to be Mr Crewdson's circuitous and lengthy questioning and my frequent difficulty in understanding what issue he was seeking to explore.

73 It was submitted by Mr Crewdson that notwithstanding the evidence he has adduced in the proceedings I have refused to take notice of it by refusing him summary judgment. This issue has been dealt with on appeal (see Crewdson v New South Wales Department of Community Services and Anor [2003] NSWIRComm 417) where the Full Bench refused Mr Crewdson leave to appeal and dismissed his appeal against my refusal to give him summary judgment. There is nothing more to be said about this issue.

Proceedings in December 2003

74 Following the dismissal of the applicant's appeal against Interlocutory Judgment No. 7 and in proceedings before me on 5 December 2003 called for the purpose of giving directions concerning the resumption of the hearing of the applicant's substantive application, the applicant renewed his application that I disqualify myself. Mr Crewdson contended that during these proceedings I accused the applicant of being vexatious and "shouted loudly" at him; that I said certain submissions by the applicant lacked credibility; and, that I have refused to take into consideration the protections that are meant to apply to the applicant under the Protected Disclosures Act 1994. I am not certain what Mr Crewdson meant about this last allegation.

75 It is not the case that I shouted loudly at Mr Crewdson but I certainly did raise my voice and I did suggest his conduct was bordering on vexatious. It was inappropriate for me to raise my voice but it was borne out of a sense of frustration. Over what is now nearly three years this Court has spent an inordinate amount of time attempting to finalise the hearing of Mr Crewdson's substantive application and make a determination. The delay is clearly not all Mr Crewdson's fault but his obsessive pre-occupation with attempting to achieve a judgment on admissions or summary judgment, matters in respect of which I have given three interlocutory judgments and a Full Bench one judgment, has contributed significantly to the delay and prompted my "vexatious" comment. Despite the appeal judgment, Mr Crewdson continues to insist that he is entitled to summary judgment.

76 As for my comment that the applicant's reliance on his difficult living situation was losing credibility, Mr Crewdson has repeatedly referred to his difficult circumstances over the past 33 months in order to gain expedition of various proceedings. A previous occasion was in January 2003 when Mr Crewdson sought to have a hearing brought forward on the ground that "My financial and social plight is untenable ... unless my circumstances change I will not survive till July or August 2003." I have sought to accommodate Mr Crewdson's difficult circumstances wherever possible and I have accepted what he has had to say in that respect at face value. But after nearly three years and given the history of these proceedings, I do consider any continued reliance by him on difficult living conditions, for whatever purpose, is losing credibility. The fact that I might hold this view does not mean I am unable to bring an unbiased mind to a determination of his application for declaratory relief.

77 There is an extensive history of litigation involving Mr Crewdson in the ADT. This is summarised in my Interlocutory Judgment No. 2. In giving reasons for its dismissal of a complaint by Mr Crewdson, the Tribunal in Crewdson v Niland & Ors [2001] NSWADT 87 observed at [33]:

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.

This observation by the ADT reflects my experience of Mr Crewdson.

78 For the reasons I have given in this judgment I decline to disqualify myself. In my opinion, there is no proper basis for disqualification and given the amount of time and resources that have already gone into attempting to resolve this matter it would be contrary to the public interest to do so. I intend to proceed to hear and determine the applicant's application for declaratory relief. For that purpose I intend to sit at 9.30 am on Thursday 19 February 2004 to make any necessary directions and to set further hearing dates.

LAST UPDATED: 10/02/2004