Industrial Relations Commission New South Wales Medium Neutral Citation: Mallegowda v Transport Secretary [2023] NSWIRComm 1078 Hearing dates: Determined on the papers Date of orders: 8 August 2023 Decision date: 08 August 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that the notice of motion filed by Mr Mallegowda on 10 July 2023 be dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking order that the Commission order the Transport Secretary to appear in person to give evidence or, in the alternative, that the applicant be granted leave to issue a summons to him – leave also sought to issue summonses to attend and give evidence to two other witnesses – whether summonses would have a legitimate forensic purpose Legislation Cited: Industrial Relations Act 1996 ss 164, 165, 210, 213 Industrial Relations Commission Rules 2022 r 5.6 Transport Administration Act 1988 s 68C Uniform Civil Procedure Rules 2005 rr 7.3, 33.1 Cases Cited: Attorney General v Collier [2022] NSWSC 323 Bassam Hamzy v Commissioner of Corrective Services and ors. (No 1) [2017] NSWSC 183 Laurie Oke v Health Secretary (Ambulance Service of New South Wales) [2018] NSWIRComm 1067 Monteiro v State of New South Wales [2022] NSWSC 148 NHB Enterprises v Corry (No 4) [2020] NSWSC 426 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Texts Cited: Nil Category: Procedural rulings Parties: Shashikanth Mallegowda (Applicant) Transport Secretary (Respondent) Representation: Shashikanth Mallegowda (self-represented) M Watts of Counsel (Respondent) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/00070222 Publication restriction: No DECISION 1. Shashikanth Mallegowda has brought proceedings pursuant to s 213 of the Industrial Relations Act 1996 ("Act"). He is self-represented. 2. On 10 July 2023, Mr Mallegowda filed a notice of motion seeking certain orders. To the extent that the motion is pressed, he asks the Commission to make orders to the following effect: 1. that he be granted leave to issues summonses to attend and give evidence to two employees of Transport for NSW ("TfNSW"), Paul McKaysmith and Sadia Javed; and 2. that Howard Collins, currently the Transport Secretary, "appear in person to give evidence at the hearing" or, in the alternative, that Mr Mallegowda be granted leave to issue him with a summons to give evidence. 1. The Transport Secretary opposes the motion. Legislation and principles 1. As Mr Mallegowda is self-represented, he requires the leave of the Commission to issue a summons: r 7.3 of the Uniform Civil Procedure Rules 2005 ("UCPR"), noting that "subpoena" is defined in r 33.1 of the UCPR to include a summons under s 165 of the Act. 2. It is for Mr Mallegowda to establish that leave should be granted. Leave should not be given unless there is a good reason to do so. Mr Mallegowda bears the onus of demonstrating that the summonses have a legitimate forensic purpose, having regard to the issues in these proceedings: Bassam Hamzy v Commissioner of Corrective Services and ors (No 1) [2017] NSWSC 183 at [5]-[6], quoted with approval by Commissioner Constant (as the Chief Commissioner then was) in Laurie Oke v Health Secretary (Ambulance Service of New South Wales) [2018] NSWIRComm 1067 at [16]. [1] 3. The question as to whether a subpoena has been issued for a legitimate forensic purpose was considered in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council"). Bell P observed (at [65]) that it is sufficient to justify a subpoena "as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or,…it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist" (at [65], emphasis in original). 4. Brereton JA observed that "at least in civil proceedings…no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case" (at [89]). 5. Blacktown City Council concerned an appeal against a decision to refuse to set aside a subpoena to produce documents. However, I consider that the observations of the Court of Appeal apply equally to a summons to attend and give evidence. I observe that in Monteiro v State of New South Wales [2022] NSWSC 148 Campbell J dealt with an application for leave to issue "various subpoenas to produce documents, subpoenas to give evidence and the making of other orders to procure evidence" (at [2]). His Honour relied on Blacktown City Council to determine the matters before him, and there is nothing on the face of his decision to suggest that the principles set out in Blacktown City Council were not equally as applicable to subpoenas to give evidence as to subpoenas for the production of documents. The proceedings before the Commission 1. These proceedings arise from a decision made by employees of TfNSW to reject an application for employment made by Mr Mallegowda. He contends, in short, that he had progressed through the selection process to the point that pre-employment checks were being undertaken. However, he was told that a decision had been made not to proceed further with his application. He claims that he was given two reasons for that decision: first, that his employment with Roads and Maritime Services ("RMS") (later subsumed into TfNSW) had been "terminated in 2017 following a disciplinary investigation", and second, that he has a criminal history. Those reasons are said to have been false, and were offered to distract from the "actual reason" for the decision, being that he had made several complaints against the respondent, including three to the Australian Human Rights Commission, two to this Commission and two to the Anti-Discrimination Board. This is alleged to have been a contravention of s 210 of the Act. Consideration Paul McKaysmith 1. The key premise on which Mr Mallegowda relied in seeking leave to issue a summons to Mr McKaysmith flows from the Transport Secretary's contention that the person who decided to reject Mr Mallegowda's application for employment was Darren Keenan, a Senior Manager in the Professional Standards and Conduct Unit of TfNSW ("PCSU"). Mr Keenan reports to Mr McKaysmith, who is the Director of the PCSU. 2. Mr Mallegowda argued that no decision could have been made to reject his application for employment, whether by Mr Keenan or anyone else, without Mr McKaysmith's approval as Director of the PCSU. It followed, it was submitted, that Mr McKaysmith was "the key person and [decision] maker". 3. Mr Mallegowda further submitted that other facts warranted the grant of leave. In particular, in 2017 Mr Mallegowda commenced proceedings in the Commission as a result of the termination of his employment with RMS. Those proceedings were resolved by agreement between the parties. The terms of settlement, reflected in a deed of release executed by the parties, included that Mr Mallegowda would resign from his employment. Mr McKaysmith was involved in those proceedings. Mr Mallegowda stated that Mr McKaysmith made arrangements to give effect to the agreed settlement, including the preparation of a statement of service which referred to Mr Mallegowda having "resigned his employment effective 3 April 2017". 4. It followed, Mr Mallegowda submitted, that although Mr McKaysmith knew that Mr Mallegowda had not been "terminated in 2017 following a disciplinary investigation", he directed the "PCSU team" to use that as an excuse to reject Mr Mallegowda's application for employment. Mr Mallegowda's submissions refer to Mr McKaysmith as being "completely biased". 5. Mr Mallegowda further contended that Mr McKaysmith had become aware of Mr Mallegowda's history of complaints against RMS, and that this knowledge could be imputed to others in the PCSU. He contended that "the people involved in the pre-employment checks or [decision] making were aware of [the] Applicant's [myriad] of complaints and many legal proceedings against the Respondent including [the] 2017 Deed before making the [decision] to not to [sic] employ the Applicant". 6. The Transport Secretary submitted, in summary, that Mr McKaysmith played no role in the decision-making that resulted in the alleged victimisation. Consequently, his prospective evidence was said to be irrelevant to the proceedings. 7. There is no evidence that Mr McKaysmith was directly involved in making the decision not to proceed with Mr Mallegowda's application for employment, or even that he had prior knowledge that it was to be made. Mr Mallegowda invites the Commission to infer that by virtue of his position alone Mr McKaysmith must have approved the decision. The evidence does not support that inference. It is in effect an assumption that Mr Mallegowda asks the Commission to make. 8. It follows that Mr Mallegowda has not demonstrated that, to the extent that Mr McKaysmith has knowledge of Mr Mallegowda's prior employment with RMS, it is relevant to the question as to whether the impugned decision was taken for one of the proscribed reasons in s 210(1) of the Act. 9. There is similarly no evidence to support the contention that members of the PCSU were aware of Mr Mallegowda's history with RMS. In support of his submissions in this regard, Mr Mallegowda relied on email correspondence sent to Mr McKaysmith between 24 and 27 February 2023. These include emails sent by the Director Legal of the Legal, Privacy & Internal Audit section of TfNSW, which are largely redacted. Mr Mallegowda made a number of assertions as to the likely contents of those emails, but this is pure speculation. On the face of the documents there is no way of knowing whether, through those emails, Mr McKaysmith imparted any knowledge of Mr Mallegowda's employment history to the Director Legal or to any other person. 10. More particularly, it is clear on the evidence that the email correspondence was engaged in after Mr Mallegowda had been informed that his application for employment would not proceed. To the extent, if any, to which Mr McKaysmith had knowledge of Mr Mallegowda's previous complaints against RMS and imparted that in the email correspondence, it cannot have had a bearing on the decision the subject of these proceedings. 11. Mr Mallegowda's submissions suggest that he wishes to explore with Mr McKaysmith whether the deed made in 2017 precluded his future employment with TfNSW, and also whether Mr McKaysmith, with his understanding of the relevant history, should have intervened to prevent Mr Mallegowda's application for employment being rejected. It is unclear how these issues have a bearing on the question as to whether the decision by TfNSW not to proceed with Mr Mallegowda's application for employment was made on one of the grounds proscribed by s 210(1) of the Act. 12. For these reasons I am not persuaded that there is a legitimate forensic purpose in a summons to attend and give evidence being issued to Mr McKaysmith. Sadia Javed 1. Ms Javed is a Talent Coordinator with TfNSW. Mr Mallegowda submitted that she could provide relevant evidence in these proceedings as she was "heavily involved" in the recruitment process and she failed to comply with applicable policies and procedures. He contended that this failure was "very critical" and that the Transport Secretary was "purposefully not calling her as [a] witness". 2. Mr Mallegowda drew my attention to an email from Jarrad Perks, a Talent Specialist with TfNSW, to David Hutchinson, Senior Manager Talent Acquisition at TfNSW, sent on 24 February 2023. In that email, Mr Perks stated that Mr Mallegowda "did not make it through the 'PECS' pre employment checks, which includes, police checks, medical and references". Mr Mallegowda contended that it had not been suggested that there was an issue with the medical and reference checks. Consequently, he submitted, Ms Javed was required to give evidence to clarify the matter as "these checks were done by Ms Javed". 3. The evidence led by Mr Mallegowda does not support all of these contentions. I accept that Ms Javed was active in the recruitment process. However, the documents on which Mr Mallegowda relied do not suggest that she personally performed any pre-employment checks or that she had any decision-making authority. Nor do they demonstrate to my satisfaction that Ms Javed breached any relevant policies and procedures. Rather, the evidence supports the Transport Secretary's submission that Ms Javed was: "…a conduit of information between the Applicant and TfNSW, and between the Respondent's recruitment (Talent) team and Professional Standards and Conduct Unit. She simply sent and received emails. She did not make any decisions relating to the Applicant's prospective employment." 1. I am not persuaded that there would be a legitimate forensic purpose in Ms Javed being summonsed to attend and give evidence at the hearing. The Transport Secretary 1. Mr Mallegowda did not articulate the basis on which the Commission could order Mr Collins to appear in person to give evidence at the hearing. I have assumed that he seeks to have the Commission exercise its powers under s 164(1)(c) of the Act to issue a request or direction to the Registrar under r 5.6(4) of the Industrial Relations Commission Rules 2022 to issue a summons to Mr Collins. 2. The Transport Secretary is the respondent to these proceedings by virtue of s 68C(3) of the Transport Administration Act 1988. In Attorney General v Collier Hamill J considered, amongst other things, whether a self-represented defendant ought to be granted leave to issue a subpoena to give evidence to the Attorney General. His Honour stated that he was "not satisfied that the fact that the Attorney General is the named plaintiff in the proceedings is sufficient reason to require the current holder of that office to be subject to compulsion, by means of a subpoena, to attend the hearing and give evidence" (at [10]). I consider those comments to be apposite to the present case. 3. Indeed, the evidence on which Mr Mallegowda relied highlights the distinction between the office and the officeholder. He drew my attention to a document titled "Transport Core Recruitment Policy" which he submitted had been "approved and signed personally by the Transport Secretary". He contended that that policy and other procedures that had been approved by the Transport Secretary are relevant to his case and that "the Respondent must appear in person during the hearing and give evidence on these issues". The Transport Core Recruitment Policy was signed by Rob Sharp, Mr Collins' predecessor as Transport Secretary. 4. Further, Mr Mallegowda's case rests on the false premise that the hearing cannot proceed in the absence of the Transport Secretary in person. His submissions in this regard rely on a decision of the Court of Criminal Appeal which is said to stand for the proposition that "a trial cannot start in the absence of a defendant". It is not necessary to explore that argument. It is inapt for civil proceedings such as the present matter. 5. Mr Mallegowda has not demonstrated that Mr Collins himself could give evidence that would "materially assist on an identified issue" or would "likely add, in the end, in some way or another, to the relevant evidence in the case". There is no evidence that Mr Collins was involved in any way in the events which culminated in the decision giving rise to these proceedings. 6. I am not persuaded that the Commission should exercise its powers under s 164(1)(c) of the Act to issue a request or direction to the Registrar under r 5.6(4) of the Rules to issue a summons to Mr Collins. Further, Mr Mallegowda has not discharged his onus of demonstrating that he should be granted leave to issue a summons to Mr Collins under s 165 to attend and give evidence. Orders 1. I order that the notice of motion filed by Mr Mallegowda on 10 July 2023 be dismissed. Damian Sloan Commissioner ********** Endnote 1. See also NHB Enterprises v Corry (No 4) [2020] NSWSC 426 at [11] and Attorney General v Collier [2022] NSWSC 323 at [7] 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: 08 August 2023