Mallegowda v Transport Secretary [2026] NSWIRComm 3 | Case summary

Industrial Relations Commission (NSW)|2026-04-14|Before: Taylor J

The application expressly challenges two decisions of Commissioner O'Sullivan. The more recent of these, being Mallegowda (No 9), was handed down on 16 January 2026. There is no dispute regarding the timeliness of the appeal against this decision, which was filed within 21 days of its delivery in accordance with the limitation period prescribed by s 189 of the IR Act.
By contrast, the appeal against Mallegowda (No 6), handed down on 29 October 2024, is very significantly out of time.[27]
The appeal also describes as "questionable" Commissioner O'Sullivan's decision in Mallegowda (No 5). That decision was handed down on 9 September 2024. To the extent the references to that decision are indicative of an intention to challenge it by way of the application, it is also very significantly out of time.
A further and more fundamental issue with the proposed appeal in respect of Mallegowda (No 5) and Mallegowda (No 6), is that both have already been the subject of an application for leave to appeal and appeal, and that application was dismissed.[28] An application to appeal the decisions again would be "unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings" and thereby amounts to an abuse of process.[29]
Having regard to the relevant principles as set out in Kumari v State of New South Wales, NSW Treasury, I refuse leave to appeal against . There is no reasonable explanation for the extensive delay, nor could there be in circumstances where those decisions were in fact appealed within time on an earlier occasion. In that regard Mr Mallegowda is quite candid in expressing the view that he would like a second opportunity to challenge them. As for prospects of success, in circumstances where the application amounts to an abuse of process, there is no prospect of success.

(1) The Nagaraj Motion is dismissed.

(2) The Mallegowda Motion is dismissed.

(3) Leave is granted to Mr Mallegowda, either by his tutor or by a person seeking to become his tutor, to file an application to replace Mr Nagaraj as tutor. Any such application is to be made within 60 days.

(4) Leave to appeal Mallegowda v Transport Secretary (No 5) [2024] NSWIRComm 1063 and Mallegowda v Transport Secretary (No 6) [2024] NSWIRComm 1064 is refused.

(5) Mr Mallegowda, by his tutor, is to file an amended application for leave to appeal and appeal within 60 days to address the defects identified in this decision, including to remove so much of the application as seeks to appeal Mallegowda v Transport Secretary (No 5) [2024] NSWIRComm 1063 and Mallegowda v Transport Secretary (No 6) [2024] NSWIRComm 1064.

(6) The proceedings are listed for directions at 2.30pm on 18 June 2026 at which time consideration can be given to the balance of the Respondent's Motion being referred to a Full Bench for determination.

(7) The issue of costs is reserved.

[1] Mallegowda v Transport Secretary (No 8) [2025] NSWIRComm 10.

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

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

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

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

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

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

[9] Mallegowda v Transport Secretary (No 7) [2024] NSWIRComm 14.

[10] Mallegowda v Transport Secretary (No 8) [2025] NSWIRComm 10.

[11] Mallegowda v Transport Secretary (No 9) [2026] NSWIRComm 1001.

[12] Mallegowda v Transport Secretary (No 9) [2026] NSWIRComm 1001.

[14] Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284 at [45].

[16] Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596 at [34].

[17] Rappard v Williams [2013] NSWSC 1279 at [88], citing Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [35].

[18] Saigal v Goel [2026] NSWCA 45 at [12]; Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at 255-256; [2009] NSWCA 369; Stokes v McCourt [2014] NSWSC 61 at [28], citing Rappard v Williams [2013] NSWSC 1279 at [76].

[19] Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102 at [23]; Xiang v Tong [2021] NSWSC 44 at [57], citing Rappard v Williams [2013] NSWSC 1279 at [79].

[21] "Acting for the Incapable - A Delicate Balance" (2011) 35 Aust Bar Rev 244, 246-247.

[26] Xie trading as Ocean City Chinese Restaurant v Liang [2012] NSWIRComm 44 at [31]; Sparke v State Training Services [2014] NSWIRComm 3 at [23]- [24].