Mallegowda v Transport Secretary

Attorney-General v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481

Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209

Favre v Commissioner of Police (No 2) [2024] NSWIRComm 1022

Imogen Pty Ltd v Sangwin [1996] IRCA 654; (1996) 70 IR 254

Jaggi v City of Parramatta Council (No 3) [2024] NSWIRComm 1043

Mallegowda v The Transport Secretary [2024] NSWCATEN 1

Mallegowda v The Transport Secretary [2024] NSWCATEN 2

Mallegowda v Transport Secretary [2023] NSWIRComm 1078

Mallegowda v Transport Secretary [2024] NSWIRComm 1018

Mallegowda v Transport Secretary (No 2) [2023] NSWIRComm

Mallegowda v Transport Secretary (No 3) [2024] NSWIRComm 1054

Mallegowda v Transport Secretary (No 4) [2024] NSWIRComm 1055

Mallegowda v Transport Secretary (No 5) [2024] NSWIRComm 1063

Mallegowda v Transport Secretary (No 6) [2024] NSWIRComm 1064

Payne v NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors [2024] NSWIRComm 1031

Peden v Lake Macquarie Refrigeration Pty Ltd (2003) 134 IR 149

Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85

Tapia v Emibarb Pty Ltd t/as Lagoon Seafood Restaurant [2005] NSWIRComm 232

Yakmor v Hamdoush (No 2) [2009] NSWCA 284

1. By way of amended notice of motion (the "Motion"), the respondent seeks an order pursuant to s 181 of the Industrial Relations Act 1996 (NSW) (the "IR Act") for the payment of its' costs of these proceedings, and these costs be fixed in the sum of $68,000.00 pursuant to s 98(4)(b) of the Civil Procedure Act 2005 (NSW) (the "CP Act").
2. The principal proceedings for which costs are sought, are in relation to an application for relief from victimisation filed on 2 March 2023.
3. The relevant background
4. The proceedings were lengthy and complicated and were the subject of numerous notices of motion and adjournments.
5. The relevant background is conveniently detailed in the respondents' written submissions filed on 17 September 2025 which are set out below (footnotes omitted):

(a) on 2 March 2023, the Applicant commenced the proceedings against the Respondent seeking relief from victimisation under s 213 of the Industrial Relations Act 1996 (IR Act);

(b) in April and May 2023, the Respondent produced various documents to the Applicant pursuant to a summons to produce that he issued seeking 34 categories of documents;

(c) on 10 July 2023, the Applicant filed a notice of motion in the proceedings seeking various orders, including that he be granted leave to issues summonses to attend to give evidence to Paul McKaysmith and the Transport Secretary personally (First NOM);

(d) on 8 August 2023, the Commission dismissed the First NOM (Mallegowda v Transport Secretary [2023] NSWIRComm 1078);

(e) on 14 September 2023, the Applicant filed a motion seeking access to documents produced by the Respondent over which privilege was claimed (Second NOM);

(f) on 28 September 2023, the Applicant filed a motion seeking leave (again) to issue a summons to attend to give evidence to Mr McKaysmith (Third NOM);

(g) on 10 October 2023, the Second NOM and Third NOM were dismissed (Mallegowda v Transport Secretary (No 2) [2023] NSWIRComm 1103). The Applicant consequently asked for the substantive hearing dates (10 to 13 October 2023) to be vacated so that he could appeal that decision. Tellingly, following the Commission vacating the dates, the Applicant told the Respondent's legal representatives "I know how to play these games";

(h) on 14 March 2024, the Full Bench refused leave to appeal from the Commission's decision of 10 October 2023 to dismiss the Second NOM and Third NOM (Mallegowda v Transport Secretary [2024] NSWIRComm 1018);

(i) on 10 April 2024, the Applicant further amended his originating application (FA Application);

(j) on 27 to 31 May 2024, the Commission conducted a hearing of the evidence on the FA Application, with the hearing adjourned for submissions;

(k) on 31 July 2024, the NSW Civil and Administrative Tribunal dismissed applications made by the Applicant to have the Respondent and his legal representatives referred to the Supreme Court of NSW for contempt arising from the use of his FA Application in separate discrimination proceedings he brought against the Respondent (Mallegowda v The Transport Secretary [2024] NSWCATEN 1; Mallegowda v The Transport Secretary [2024] NSWCATEN 2);

(l) on 25 August 2024, two days after the Respondent's application for costs was filed, the Applicant wrote to the Commission stating he was suffering from a mental illness and was under a legal incapacity;

(m) on 28 August 2024, and shortly prior to the scheduled hearing of closing submissions on the substantive application, the Applicant filed a motion seeking to have a tutor appointed to act on his behalf (Fourth NOM);

(n) on 29 August 2024, the Commission dismissed the Fourth NOM (Mallegowda v Transport Secretary (No 3) [2024] NSWIRComm 1054);

(o) on 5 September 2024, the Full Bench refused leave to appeal the dismissal of the Fourth NOM (Mallegowda v Transport Secretary (No 4) [2024] NSWIRComm 1055);

(p) on 9 September 2024, when the substantive hearing was due to conclude by way of oral submissions, the Applicant filed a motion again seeking to have a tutor appointed (Fifth NOM). The Commission heard the Fifth NOM the same day, concluding the Applicant was under a legal incapacity, and appointed a tutor to appear on his behalf. The consequence was that the substantive proceedings were adjourned to a later date (Mallegowda v Transport Secretary (No 5) [2024] NSWIRComm 1063 (TJ));

(q) on 16 October 2024, the hearing resumed and oral submissions were presented;

(r) on 17 October 2024, the Commission dismissed the Applicant's FA Application (Mallegowda v Transport Secretary (No 6) [2024] NSWIRComm 1064 (PJ));

(s) on 25 November 2024, Paingakulam J, on delegation from a Full Bench comprised to hear an appeal of both the TJ and PJ, concluded that the Applicant was, on and from 9 November 2024, no longer under a legal incapacity (Mallegowda v Transport Secretary (No 7) [2024] NSWIRComm 14);

(t) on 7 May 2025, the Full Bench refused leave to the Applicant to appeal either the TJ or PJ (Mallegowda v Transport Secretary (No 8) [2025] NSWIRComm 10;

(u) on 16 May 2025, shortly after the Motion was filed, the Applicant (via his nephew) filed an affidavit contending he was again under a legal incapacity. A motion seeking to have a tutor appointed to act on his behalf was subsequently filed on 18 May 2025 (Sixth NOM);

(v) on 23 May 2025, the Commission made orders standing over the current Motion until September 2025, to allow the Applicant to receive medical treatment and file any further evidence in support of the Sixth NOM; and

(w) on 3 September 2025, the Commission made orders programming the Motion to a hearing. The Commission concluded that the Applicant was again under a legal incapacity, but a timetable was set that accommodated him having an ability to obtain a tutor to appear at the hearing on his behalf.

1. At the commencement of the hearing, a member of the Registry called the matter out three times, there was no appearance for the applicant, and the respondent was represented by Watts of counsel.
2. Legislation and Relevant Principles
3. Section 181 of the Act is in these terms:

Section 181 of the IR Act is in the following terms:

181 Costs

(1) Subject to the rules of the Commission and any other Act or law:

(a) the Commission may award costs, and

(b) costs are in the discretion of the Commission, and

(c) the Commission may determine by whom and to what extent costs are to be paid, and

(d) the Commission may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(2) However, the Commission may award costs only in the following cases:

(a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or

(b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or

(c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or

(c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if:

(i) the industrial agent fails to file a certificate as required by section 90A, or

(ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or

(d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373.

(3) (Repealed)

(3A) Despite subsection (1), the Commission may not award costs in proceedings under Part 7 of Chapter 2.

Note. This subsection does not prevent the award of costs in appeals relating to questions of law in relation to public sector promotional and disciplinary matters under section 197B.

(a) costs of or incidental to proceedings in the Commission, and

(b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.

1. The approach in the determination of the present costs application is well settled and involves a two-stage process, with the Commission first determining whether s 181(2) of the IR Act is enlivened, and if so, then determining whether to exercise its discretion to either award costs or not (see Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 at 219, Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 at [28], Jaggi v City of Parramatta Council (No 3) [2024] NSWIRComm 1043 at [27]- [51]; Payne v NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors [2024] NSWIRComm 1031 at [49]- [57] and Favre v Commissioner of Police (No 2) [2024] NSWIRComm 1022 at [41]- [47].
2. With respect to whether an application is frivolous, the Commission in Peden v Lake Macquarie Refrigeration Pty Ltd (2003) 134 IR 149 ("Peden") at [20], stated that an application will be frivolous:

"if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter."

1. As to vexatious, the Commission in Peden at [28], referred to the test articulated by Justice Roden in Attorney-General v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481, being that proceedings are "vexatious" if:

(1) they are instituted with the intention of annoying or embarrassing the person against whom they are brought;

(2) they are brought for a collateral purpose, and not for the purpose of having the court adjudicate on the issues for which they give rise; or

(3) if, irrespective of a motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

1. Justice Backman in Tapia v Emibarb Pty Ltd t/as Lagoon Seafood Restaurant [2005] NSWIRComm 232 ("Tapia") at [122] observed:

"122 There is some overlap in various meanings [of "frivolous", "vexatious" and "instituted without reasonable cause"] adopted [in the decision] above. An application, for example, brought by the applicant could be both frivolous and vexatious, on the objective test for vexatiousness, if it is manifestly groundless."

1. At [121] of Tapia, Justice Backman in dealing with a submission that there was no substantial difference in meaning between "vexatious" and "without reasonable cause" referred to the judgment of Wilcox CJ in Imogen Pty Ltd v Sangwin [1996] IRCA 654; (1996) 70 IR 254 in which he said at 257:

I doubt that this is correct; if the two expressions were intended to mean the same thing, there would have been no need for Parliament to use both of them. If there is a difference in meaning, "without reasonable cause" is the lower standard. Accordingly, as I said in Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257, "for the qualification of s 347 to operate, it is sufficient that the proceeding be instituted 'without reasonable cause'". ...

In Kanan I collected the authorities on the meaning of the phrase "without reasonable cause". At 264-265 I proposed a test:

It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause."

1. Finally, the question of whether a proceeding has been instituted without reasonable cause involves a lower standard to the one used for the test of what is "frivolous" or "vexatious", and involves asking whether, on the facts apparent at the time the proceedings were commenced, there was no substantial prospect of success.
2. Respondent's case
3. The respondent relied upon two affidavits of Ms Felicity Edwards dated 23 August 2024 and 16 May 2025 as well as written submissions filed on 17 September 2025, supplemented by oral submissions at the hearing of the Motion.
4. Firstly, the respondent clarified that the costs order it was seeking related only in relation to the hearing of the substantive proceedings, up to and including the decision dismissing the application on 17 October 2024.
5. The respondent contends that the first step under 181(2) of the Act is present and thus the Commissions' discretion to award costs is enlivened. In support of its contention, the respondent relies upon ss 181(1)(a) and (b) in that the Application was frivolous, was otherwise pursued vexatiously by the applicant and commenced without reasonable cause.
6. With respect to ss 181(2)(a), the respondent made the following submissions (footnotes omitted):

10. Firstly, as the Respondent's evidence establishes, the Applicant has engaged in open dialogue with the Respondent's legal representatives, in which he made it clear that he was deliberately trying to cause the Respondent prejudice. The fact of him obtaining an adjournment of the substantive proceedings on 10 October 2023, causing inconvenience to the various witnesses who had attended to give their evidence, and a wasting of legal costs, in order to pursue a manifestly hopeless appeal of an interlocutory decision (which was largely abandoned at the hearing), and then expressly describing such tactics as "games", illuminates the vexatious nature of the Applicant's claim and conduct of the proceedings.

11. In a similar and apparent endeavour of gamesmanship, the Applicant has repeatedly threatened the Respondent and his legal representatives with contempt. Such allegations were, and are, baseless. However, the Applicant's reliance on such allegations is plainly behaviour that is designed to cause annoyance or embarrassment. Similarly, the Applicant engaged in lengthy, repetitious and impolite exchanges with the Respondent and witnesses throughout the hearing, which also aligns with the conclusion that the Applicant's primary, if not sole, purpose in the proceedings was to cause the Respondent and his employees annoyance or embarrassment. Such behaviour enlivens s 181(2)(a) of the IR Act.

12. Secondly, and relatedly, the Applicant pursued various interlocutory steps in the proceeding that were manifestly hopeless. This includes each of the First to Fourth NOM's, none of which had any prospects of succeeding. The pure manner in which the Applicant has pursued the litigation has necessitated the Commission publishing no less than 9 separate decisions. So much is demonstrative of the completely disproportionate burden the Applicant's claim, and his prosecution of that claim, has placed on the Commission's resources. Plainly, the Respondent's resources were similarly burdened. Insofar as the Applicant's conduct of the proceedings were entirely at odds with his obligations under s 56 of the Civil Procedure Act 2005, and included steps that were manifestly groundless and utterly hopeless, so much is consistent with the conclusion that the substantive proceedings were "frivolous" and "vexatious".

1. As to 181(1)(c), the respondent's submission was that the Application was manifestly groundless, and the applicant was aware of the exact reason for his removal from the preferred candidate list.
2. Discretion Enlivened
3. As to the applicant's conduct in relation to the proceedings, Ms Edwards in her evidence states that on 10 October 2023, following the vacating of the three days of hearing listed for 10-13 October 2023, Mr Mallegowda had the following conversation with Mr Watts:

Mr Mallegowda: Sorry, you look disappointed.

Mr Watts: I'm not disappointed, it is not personal for me.

Mr Mallegowda: No, I can see on your face that you're disappointed.

Mr Watts: No, it just might make things more difficult for my client but it is what it is.

Mr Mallegowda: I know how to play these games.

Mr Watts: What games do you mean?

(Mr Mallegowda does not respond]

Mr Watts: [repeats] What games do you mean?

Mr Mallegowda: I've been in court proceedings before. /'II exercise my rights. They know what they've done.

1. Ms Kennedy then deposes to the following conduct of the applicant following the adjournment of the initial hearing date:

22. Separately, the Applicant has brought two applications against the Respondent in the NSW Civil and Administrative Tribunal, on or around 26 March 2024 and 2 April 2024 respectively, alleging the Respondent, and its legal representatives, engaged in contempt of the Tribunal. Both of those applications have subsequently been dismissed: see Mallegowda v The Transport Secretary [2024] NSWCATEN 1; Mallegowda v The Transport Secretary [2024] NSWCATEN 2.

23. In connection with those dismissed applications, I am aware that the Applicant also made complaints about me, Ms Galvin and Mr Watts to the Legal Services Commissioner. I understand the Legal Services Commissioner forwarded those complaints to the Law Society of NSW, who have since informed me that the complaints against me and Ms Galvin are closed with no action required. I do not know the status of the complaint against Mr Watts.

24. Annexed to this affidavit and marked "FE-2" are several examples of emails that I have received from the Applicant during the course of the proceedings. In particular:

a. On 18 April 2023, the Applicant wrote to me, stating that I (by which I understood the Applicant to mean, the Transport Secretary) had not complied with his summons to produce, and threatening me and the Transport Secretary with orders for contempt;

b. On 30 May 2023, the Applicant wrote to me in relation to various issues, in which, amongst other things, he resisted my suggestion that he obtain independent legal advice, stating, "I know how to run my case and when to seek legal advice", and otherwise saying to me, "I suggest you take independent external legal advice to know whether you have any miniscule possibility of winning this case and honestly provide the same advice to your client because no one can stop me getting back my job and back to Transport";

c. On 13 March 2024, the Applicant wrote to Mr Watts, copied to me, asserting that Mr Watts had committed a contempt of the NSW Civil and Administrative Tribunal by tendering his amended application in the IRC to the Tribunal for the purposes of a hearing as to whether the Tribunal would grant leave for a discrimination case against the Respondent to proceed. After stating that he would be pursuing Mr Watts personally for contempt, and making a complaint to the Office of the Legal Services Commissioner, the Applicant then referred to making a settlement offer, which he wanted a response to prior to making his contempt application. The settlement offer to which the Applicant referred in that email (the content of which I will not reveal, as it is subject to 'without prejudice' privilege), was an offer to resolve these proceedings before the Commission. I read and understood the Applicant's email to be saying that, if he received a favourable response to his settlement offer, he would not make an application for Mr Watts to be held in contempt; and

d. On 19 March 2024, the Applicant wrote to Mr Watts, copied to me, as well as the Transport Secretary personally and other senior employees of Transport for NSW, enclosing a complaint he said he had made to the NSW Bar Association about Mr Watts, and referring to making a complaint about me and Ms Galvin that he would imminently be making to the Law Society of NSW. After that, the Applicant set out a heading, "Without Prejudice". In my view, nothing following that heading (or in the email generally) contains any attempt to negotiate a settlement of the dispute, and therefore, it is not the subject of any 'without prejudice' privilege. The Applicant went on to threaten the Respondent with adverse media attention, referred to himself as having "12 years [sic] legal experience" and stated that he would "make sure the Transport Secretary and 3 others must be punished and defamed. in [sic] the public". I understood the reference to "3 others" to be to be a reference to me, Ms Galvin and Mr Watts.

1. In addition to these proceedings in the Commission, the applicant also pursued complaints and/or legal proceedings in relation to his non-employment by the respondent in the Fair Work Commission (discontinued for want of jurisdiction), Anti-Discrimination Board of NSW, the NSW Civil and Administrative Tribunal with leave to proceed refused and the Australian Human Rights Commission.
2. Given the nature of each of these complaints and proceedings, it is clear that the applicant alleged a different reason for the decision to reject his application for employment. For example, in the Australian Human Rights Commission, the applicant alleged that the decision of the respondent to reject his application for employment was due to his race.
3. During the evidentiary hearing of the proceedings, the Commission made "stopwatch" orders limiting the time that the parties had for examination of witnesses. The applicant consistently sought to extend time for cross examination of witnesses and additionally his examination of the respondent witnesses was repetitious and marked with impolite exchanges with the respondent and witnesses.
4. The conduct of the applicant set out above, leads to the inevitable conclusion that his primary, if not sole, purpose in the proceedings was to cause the respondent and his employees' annoyance or embarrassment. It is for this reason that I have concluded that the proceedings are vexatious and accordingly, the discretion to consider ordering costs under s 181 of the Act is enlivened.
5. Given the finding in relation to the proceedings being vexatious, I need not determine whether the proceedings were frivolous or commenced without reasonable cause.
6. Discretion
7. In considering whether to exercise the discretion to award costs, I have taken into consideration the following comments made by the applicant to the respondent on 26 November 2024:

"...you could not get anything from me as I don't have money or property. You cannot bankrupt me if I become a person under a legal incapacity...In the past none of the people who obtained judgement could get any costs from me".

1. These comments provide an insight into the reasons for the applicant's approach in these proceedings, in particular that he was aware of his exposure to the imposition of a costs order and was contemptuous as to the ramifications of the outcome. Knowing of his exposure, the applicant acted in a manner which gave rise to the finding above. This clearly demonstrates a disregard for the Commission and processes. It is for these reasons, that the making of a cost order is appropriate.
2. As to the amount, the respondent's costs overall were in the amount of $229,376.20 (inclusive of GST), thus the amount sought of $68,000 gross is in the circumstances somewhat less than many would consider appropriate, however it is not an amount which is unreasonable.
3. As Mr Prasana was the tutor for the applicant at the time the proceedings concluded and as such any costs order against the applicant could be made as against Mr Prasana: see Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [44]- [45] and Al Mousawy bht Margaret Dodds v Howitt-Stevens Constructions Pty Ltd & Ors (No 2) [2010] NSWSC 1398 at [22].
4. Sub-section 181(1)(c) provides the Commission with the discretion to determine upon whom a costs order made be made. In this matter, the conduct giving rise to the vexatious finding above was solely undertaken by the applicant and not Mr Prasana.
5. Given the above, it is appropriate that the costs order be made against the applicant and not Mr Prasana and accordingly I make the following order:

(1) Pursuant to s 181 of the Industrial Relations Act 1996 (NSW) the applicant is to pay the respondent's costs of the proceedings fixed at the sum of $68,000.00 gross.