Supreme Court New South Wales Medium Neutral Citation: Ittyerah v Coles Supermarkets Pty Ltd [2022] NSWSC 1115 Hearing dates: 22 August 2022 Date of orders: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) The plaintiff's proceedings against the sixth defendant are dismissed without prejudice to the plaintiff's entitlement to recommence the proceedings in an appropriate court and within any limitation period applicable to any cause of action he wishes to propound. (2) The plaintiff is to pay the sixth defendant's costs of the proceedings excluding the costs of and incidental to its unsuccessful motion of 8 June 2021. Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of proceedings – by consent Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Ittyerah v Infosys Technologies Pty Ltd [2022] NSWSC 1048 Texts Cited: Nil Category: Consequential orders Parties: George Ittyerah (Plaintiff) Coles Supermarkets Pty Ltd (Sixth Defendant) Representation: Counsel: Ms V Bulut (Sixth Defendant) Solicitors: Lander & Rogers (Sixth Defendant) File Number(s): 2020/00305502 Publication restriction: Nil extempore Judgment (revised) 1. In this matter Mr Ittyerah commenced proceedings against six defendants in circumstances fully explained in my judgment of 5 August 2022 in the matter of Ittyerah v Infosys Technologies Pty Ltd [2022] NSWSC 1048. In respect of the second defendant there was no issue that the proceedings should not be maintained because of the operation of the provisions of the Corporations Act 2001 (Cth). In respect of four of the remaining five defendants, I summarily dismissed the proceedings for reasons I then explained. In respect of the proceedings against the sixth defendant, Coles Supermarket Australia Pty Ltd, I declined the application for summary judgment, but I directed that Mr Ittyerah further amend the proposed amended statement of claim he had propounded to conform to the reasons I gave. 2. There are a number of causes of action asserted and it was clear in respect of certain of them, referred to in the proceedings, and adopted by me in my judgment, as the statutory claims that this Court did not have jurisdiction, but the District Court had vested Federal jurisdiction. Accordingly, I made an order granting Mr Ittyerah leave to amend the statement of claim to incorporate the pleadings he attached to his notice of motion of 21 November 2021 as annexure E but as further amended in accordance with my reasons. I allowed 14 days for compliance with that order. I selected the period of 14 days because during the hearing of these complex notices of motion Mr Ittyerah told me that he would ask of the Court a further period of 7 days to finalise the amended pleadings against all five active defendants that he then propounded. In view of that, it seemed to me that a period of 14 days to deal with one of the defendants only should have been adequate. 3. I listed the matter for mention before me today to check compliance with that order and also to give consideration to the transfer of the whole of the proceedings against the sixth defendant to the District Court of New South Wales. I had that in mind for two reasons: first, because it had jurisdiction in respect of the statutory claims; and secondly because it appeared to me that when one considered the other claims arising out of Mr Ittyerah's contract of employment with Coles, the District Court's monetary jurisdiction would have been more adequate to cover the maximum amount of any claim that he may be able to advance. 4. When the matter was called for mention today, Mr Ittyerah informed me that he had not been able to comply with my order and it was beyond him to do so. I should here say that part of the background to Mr Ittyerah's claims against the various defendants has been an underlying mental health issue. Mr Ittyerah had not made clear in his pleadings a claim for damages for mental harm against any defendant, although it seems that his condition may have arisen, in his view, during his employment with the first defendant, Infosys Technologies, due to that company's treatment of him. Perhaps paradoxically, he did not assert a claim against Infosys for damages for mental harm. He seemed, so far as I could deduce, to possibly assert such claims rather against the third and fourth defendants, who are mental health professionals. Those claims have been summarily dismissed for the reasons I gave. 5. Now, one can readily accept the effect of a mental health problem on the capacity of a person, even an intelligent and experienced person like Mr Ittyerah, to perform technical work that requires concentration and application. However, my difficulty is that there is no evidence before me from any mental health professional supporting Mr Ittyerah's complaint to me in that regard. That also means that there is no prognosis available to me as to when he may be in a position to complete the work that he may wish to do to advance any claim he may have against the sixth defendant. 6. During the hearing of the mention Mr Ittyerah suggested to me that perhaps I could transfer the statutory claims to the District Court, by implication leaving the claims arising out of the contract of employment in suspended animation in this Court. I indicated to him that I was not prepared to do that. First, I was not prepared to allow him to split his claims against the one defendant arising out of the same set of circumstances. All claims need to be brought together at the one time against the one defendant arising out of the same cause of action. Secondly, splitting the claims so that the defendant has to fight on two fronts is inherently unfair and generates an unnecessary duplication of legal costs which is not in the interests of justice or the administration of justice. 7. Thirdly, I am not prepared to transfer these proceedings to another court, which will not be fully seized of the circumstances of the case and the history of the proceedings as the Supreme Court is, unless and until the pleadings upon which Mr Ittyerah relies are in good order in conformity with the Uniform Civil Procedure Rules 2005 (NSW). I therefore discussed with Mr Ittyerah whether I should stay the proceedings until he was able to indicate he was fit to go on; or, given his claims seem to be within time, as is common ground between the parties, dismiss the proceedings without prejudice to his right to recommence them against the sixth defendant within time in a court seized of the necessary jurisdiction, when he is in a position to do so. 8. Mr Ittyerah indicated to me a preference for the second option. I enquired of Ms Bulut, of counsel, as to the sixth defendant's position in relation to the matter. She indicated to me that the sixth defendant had no objection to the dismissal of the proceedings without prejudice as I had outlined but, understandably, the sixth defendant sought its costs. 9. I asked Mr Ittyerah about the costs question and his response was, in substance, that he understood he had lost the argument the subject of my judgment of 5 August 2022 and accordingly he had to bear the costs. I should say that Mr Ittyerah did successfully resist the application for summary dismissal, which was the primary relief sought by the sixth defendant in its notice of motion filed on 8 June 2021. It seems to me that the costs of and incidental to that motion should be excluded from any costs order that I make. In saying that, I have taken into account that Mr Ittyerah was not entirely successful in the relief he sought against the sixth defendant in his motion of 21 November 2021, but substantially he was, subject to amending his proposed amended statement of claim in accordance with my reasons. 10. I make the following orders, 1. The plaintiff's proceedings against the sixth defendant are dismissed without prejudice to the plaintiff's entitlement to recommence the proceedings in an appropriate court and within any limitation period applicable to any cause of action he wishes to propound. 2. The plaintiff is to pay the sixth defendant's costs of the proceedings excluding the costs of and incidental to its unsuccessful motion of 8 June 2021. ********** 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: 23 August 2022