Mallegowda v Transport Secretary

Industrial Relations Commission (NSW)|2024-09-05

EX TEMPORE DECISION This ex tempore decision is published with the citations and quotes from the authorities to which reference was made.

The applicant for leave to appeal, Mr Mallegowda, has brought an application in the Industrial Relations Commission of New South Wales (the Commission), pursuant to s 213 of the Industrial Relations Act 1996 (NSW) (the Act), against the Secretary of Transport New South Wales seeking orders by way of relief as a consequence of his victimisation in his employment (the primary proceedings). This is an application pursuant to s 187 of the Act for leave to appeal from an ex tempore decision of Commissioner O'Sullivan on 29 August 2024, dismissing a Notice of Motion filed by the applicant on 28 August 2024, seeking an order that a tutor be appointed to represent the applicant in the primary proceedings. In addition to seeking leave to appeal, the applicant seeks an order that the primary proceedings be stayed, and the applicant further seeks an order upholding the appeal and an order that the primary proceedings be reallocated to another member of the Commission.

Background

The primary proceedings were listed before Commissioner O'Sullivan on 27 to 31 May 2024. At the time of filing the Notice of Motion, the evidence in the primary proceedings had been completed. The primary proceedings are listed on Monday 9 September 2024 for closing submissions from the parties. The applicant's Notice of Motion sought the appointment of a tutor to represent him during that process.

Leave to appeal

Leave to appeal the decision of a Commission member can only be granted if the Full Bench of the Commission is of the opinion that the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Act.
The principles guiding the determination of leave were set out in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [5]: The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381‑382) and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
Further, the Full Bench in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 held that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error.
In this matter, the appeal relates to an interlocutory decision of the Commission. This Commission has said that appeals from interlocutory decisions as to practice and procedure should be discouraged: Bell v Macquarie Bank Ltd (No 4) (1999) 93 IR 191 at [198]. It has been said that it is only where such appeals have the effect of "finally determining a matter or conclusively altering substantive rights" that they should be allowed: see Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 at [101].

Relief sought

Turning to relief sought, this application has been listed at short notice as, among other things, the applicant seeks a stay of the primary proceedings. As noted above, those proceedings are next listed on 9 September 2024.
Section 190 of the Act empowers the Full Bench of the Commission to stay the decision that is the subject of the appeal, in whole or in part. As noted, the decision under appeal in this matter is the decision of Commissioner O'Sullivan to dismiss the applicant's Notice of Motion, filed on 28 August 2024, seeking the appointment of a tutor to the primary proceedings. That motion, having been dismissed, there is no decision to stay. Section 190 does not grant to the Full Bench of the Commission the power to grant a stay of the primary proceedings.
The applicant has complained that his appeal had been listed urgently, and not just for directions, in a manner not contemplated by the Commission's Appeal Practice Note. As to that, the application seeks leave to appeal the decision not to appoint a tutor. Should the application fail, the primary proceeding would continue to completion without a tutor, and the application for leave to appeal and appeal of the decision not to appoint a tutor would become otiose. Accordingly, it is appropriate and necessary to deal with the application for leave to appeal and appeal on an urgent basis.

Statutory framework and legal principles

Rule 7.14(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that a person under a legal incapacity may not commence or carry on proceedings except by his or her tutor. Rule 7.14(2) provides that, unless the Commission orders otherwise, the tutor of a person under legal incapacity must not commence or carry on proceedings, except by a solicitor. A tutor is not a lawyer appointed by the Commission to take over the running of proceedings. Rather, a tutor is someone who gives instructions to the solicitor with carriage of the matter in place of the person with a legal incapacity. As the applicant is presently unrepresented, the appointment of a tutor would necessitate the applicant (through his tutor) engaging legal representation, absent an order from the Commission dispensing with this requirement.
Rule 7.18 of the UCPR relevantly provides: 7.18 (1) In any proceedings in which a party is or becomes a person under a legal incapacity: (a) if the person does not have a tutor, the court may appoint a tutor, or ... (5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include: (a) evidence that a party for whom a tutor is to be appointed is a person under legal in capacity, and (b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. (6) An application for appointment as tutor under this rule may be made by the court of its own motion, or on the motion of any other person, including the proposed tutor.
Section 3 of the Civil Procedure Act 2005 (NSW) (CPA) defines a "person under legal incapacity" as follows: person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes - (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.
Rule 7.13 of the UCPR provides that, for the purposes of Division 4 of Part 7, a person under legal incapacity includes a person who is incapable of managing his or her affairs.
In Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806, McCallum J (as her Honour then was) cited with approval the principles relating to the circumstances in which the court should regard a person as being "under legal incapacity" within the meaning of UCPR r 7.14, as set out by Hallen J in Rappard v Williams [2013] NSWSC 1279 at [62] and following (Rappard). Hallen J held at [76]: Whether a person is under a legal incapacity is always a task, and time, specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a 'person who is under a legal incapacity in relation to the conduct of legal proceedings' must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of 'person under legal incapacity'.
Her Honour also relied upon the definition of the term "conduct of legal proceedings" as set out at [78] of Rappard as follows: The "conduct of legal proceedings" refers to doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice, and engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceeding: see, for example, Pistorino v Connell [2012] VSC 438, per Dixon J, at [21] - [24].
Having regard to UCPR r 7.14(1), her Honour went on to stay proceedings brought by a man suffering from bipolar disorder, pursuant to s 67 of the CPA, until such time as a tutor had been appointed to carry on the proceedings on behalf of the plaintiff.
Similarly, in Walton v Hartman (as Executor of the Estate of Wanda Resler) [2017] NSWSC 1432, Sackar J was faced with an applicant with a long history of mental illness whom his Honour formed the view was incompetent to continue his legal proceedings (although that did not include a finding that the applicant had been incompetent to commence them). His Honour observed that the decision of the NSW Court of Appeal in Mao v AMP Superannuation Ltd [2015] NSWCA 252 (Beazley ACJ, Emmett and Leeming JJA) (Mao) found that there was no jurisdiction under the UCPR to appoint a tutor "in gross" noting at [50]: …with the possible exception of where a tutor is removed, the regime established by Div 4 does not contemplate an occasion such as the present, where there is no one who can commence or carry on any proceedings, since there is no automatic stay of proceedings simply because a court has determined that a party is a person under legal incapacity. That could be critical in circumstances where the relevant party is a defendant. That is to say, the scheme of Div 4 generally is not consistent with the appointment of a tutor "in gross". The power of the court is to appoint a person as tutor. Unless an identified person, who has consented to act, is appointed as tutor, the power is not exercised.
His Honour held at [38] that the Court was nonetheless able to stay proceedings under s 67 of the CPA unless and until a tutor was appointed, and proceeded accordingly.

The evidence

Turning then to the evidence that was before Commissioner O'Sullivan, in support of the motion, the applicant relied on an affidavit of himself sworn 28 August 2024, in which he set out his history of mental illness and its impact on his ability to function, including his capacity to undertake everyday activities such as cooking, cleaning and driving, as well as his ability to read and retain information. Exhibited to that affidavit were a number of medical records concerning the applicant's mental health diagnosis and history of treatment. The applicant also read the affidavit of his nephew, Sachin Prasanna, sworn 28 August 2024, who deposed that the applicant's wife had asked him to be the applicant's carer in 2020 on account of the applicant's "erratic, insanity and aggressive behaviour" since his discharge from hospital. Mr Prasanna deposed that the applicant had been mentally ill since December 2023 and was unable to manage his own affairs without support from others.

The ruling on the motion

Commissioner O'Sullivan, at [4], noted the mandatory requirement of UCPR r 7.18(5) set out above, that the evidence in support of the motion contain two things. Firstly, there must be evidence that the party for whom the tutor is to be appointed is a person under a legal incapacity. Secondly, there must be evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under a legal incapacity.
Commissioner O'Sullivan then invited submissions directed to the question of whether UCPR r 7.18(5) does not apply in the event that a tutor is appointed by the court (in this case, the Commission). He was not taken to any authority which would support a finding to that effect. There being no evidence before the Commission that addressed the mandatory requirement of UCPR r 7.18(5)(b), Commissioner O'Sullivan dismissed the motion. In doing so, Commissioner O'Sullivan expressly did not consider whether the evidence before the Commission met the requirements of UCPR r 7.18(5)(a), namely, whether the applicant was a person who did not have legal capacity.

The appeal

The applicant has listed four appeal grounds, expressed as follows [sic]: 1. That the Commissioner erred at law by not making any findings whether the applicant is under a legal incapacity though significant medical evidence with expert report were filed to prove that he is suffering from severe form of mental illness (bi-polar disorder). 2. The Commissioner erred at law by not appointing the tutor though there is provision under section 7.18(1)(a) of UCPR. 3. The Commissioner erred by giving excuse that the application did not meet section 7.18(5)(b) is unacceptable because in any case if the court has to appoint the tutor at any stage, then how can the Appellant produce evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity because he has absolutely had no prior contact with the court appointed tutor. 4. The Commissioner erred at law by reading clause 7.18 from the bottom, because if you go with the sequence then the court will appoint the tutor and then the Applicant get chance to communicate with the tutor and then appoint him as tutor and then the Appellant produce evidence that the proposed tutor (appointed by the court) consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. This is the only way to comply 7.18(5)(b) of UCPR.

Leave to Appeal

The decision the subject of this appeal is an interlocutory decision, albeit a procedurally significant one in that the appointment of a tutor for the applicant would give control of his proceedings to a third party.
We do not grant leave in respect of the decision to refuse to make the specific order sought because the applicant has not mounted at least an arguable case pointing to appellable error. The application did not seek to appoint any particular person as a tutor. As noted, in Mao, the Court of Appeal found that there was no jurisdiction under the UCPR to appoint a tutor "in gross".
To the extent it is contended, as it has been, that there was error in so far as the Commissioner failed to turn his mind to whether, in light of the evidence, the applicant does not have legal capacity, leave is refused because the Commissioner's decision is an interlocutory decision that did not conclusively alter substantive rights. The first instance decision merely finds that no tutor could be appointed in the absence of evidence that a person is willing to be a tutor. It does not prevent the appointment of a tutor. A person may become a tutor of a person under a legal incapacity without the need for any formal instrument of appointment or any order of a court: UCPR r 7.15. Before any tutor takes a step in the proceedings, they must file their consent to act as a tutor alongside a solicitor's certificate (of no adverse interest): UCPR r 7.16. If that is done, then the tutor will then be the person who conducts the proceedings.
Nor does the first instance decision prevent the applicant from seeking an alternative order, including a stay of the proceedings, if he can establish a proper basis for one.
It remains available to Commissioner O'Sullivan, in the event that he forms the view that the applicant is a person under a legal incapacity, to stay the primary proceedings, pending the identification of a consenting tutor.
In that respect, we note that to date the Commission has not determined that the applicant is a person under a legal incapacity.
We make no finding about whether the applicant is a person under legal incapacity. The applicant has evidence before the Commission which demonstrates a history of mental illness, in particular, bipolar disorder. The applicant today drew our attention to a medical certificate of Dr Vandana Daya dated 23 August 2024 which states both that the applicant is currently unfit to work due to his depressive illness and that he is fit to work for 20 hours per week. Mr Mallegowda asserted in submissions that he has been involuntarily committed to hospital in the past on a number of occasions. Notwithstanding the evidence of the applicant's medical condition, he has been able not only to institute proceedings, but also to lodge appeals in respect of two separate proceedings (the proceedings at first instance and this appeal) and file affidavit evidence, including on the application for the appointment of a tutor.
The Full Bench is concerned that the applicant may have been under a misapprehension as to what the effect of such a finding would be. In that regard we note that UCPR r 7.14(1) provides that a person under a legal incapacity may not carry on proceedings except by his or her tutor. Further, should the Commission form the view that the applicant is under legal incapacity, then the applicant cannot take any further step in the proceedings until a tutor is appointed: UCPR r 7.17. It is a matter for the applicant if he wishes to press an application before the Commission that he is a person under a legal incapacity.
The Full Bench is also concerned that the applicant may have been under a misapprehension as to what it would mean for a tutor to be appointed; namely, that he thought a tutor would be someone who would take instructions from him and/or act as his advocate. The appointment of a tutor would mean that the tutor would then be the person who makes decisions in respect of the proceedings. The applicant would, in effect, lose any control over the proceedings, which could, for example be discontinued by the tutor.
For the reasons set out above, pursuant to s 188(3) of the Act, we refuse leave to appeal.
Given the refusal to grant leave, there is no basis to grant any relief. However, for completeness, we note that the applicant sought, as Order 4, an order that the proceedings before Commissioner O'Sullivan be reallocated to another Commissioner. Even if the appeal had been upheld, we would not have granted that relief. The proceedings are part‑heard before Commissioner O'Sullivan, and we see no basis that would have led us to have formed a view that they should be reallocated to another Commissioner.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2024

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