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

Industrial Relations Commission New South Wales Medium Neutral Citation: Mallegowda v Transport Secretary (No 3) [2024] NSWIRComm 1054 Hearing dates: 29 August 2024 Date of orders: 29 August 2024 Decision date: 29 August 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Notice of motion filed on 28 August 2024 by the applicant is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission- procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking for appointment of a tutor-failure to meet evidentiary requirements of UCPR 7.18(5)(b) Legislation Cited: Industrial Relations Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: NIL Texts Cited: NIL Category: Procedural rulings Parties: Shashikanth Mallegowda (Applicant) Transport Secretary (Respondent) Representation: Shashikanth Mallegowda (self-represented)

Counsel:

Martin Watts (respondent)

Solicitors:

Sparke Helmore Lawyers (respondent) File Number(s): 2023/00070222 Publication restriction: NIL

EX Tempore decision 1. There is a notice of motion which is before the Commission filed by the applicant which seeks the following order: "Appoint the tutor/legal practitioner to represent applicant in the Commission in accordance with 7.18 of the Uniform Civil Procedure Rules 2005". 1. In these proceedings, the applicant, Mr Mallegowda, relies on an affidavit of himself dated 28 August 2024, along with a number of annexures and, secondly, an affidavit of Mr Sachin Prasanna also filed 28 August 2024. 2. Firstly, this is clearly a notice of motion which has been filed in accordance with UCPR 7.18 seeking the appointment of a tutor pursuant to UCPR 7.18(1). 3. It is a mandatory requirement of UCPR 7.18(5) that two things must be put into evidence in support of the motion. Firstly, evidence that the party for whom a tutor is to be appointed is a person under a legal incapacity and, secondly, 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. 4. There is no other legislative provision, and the applicant was given an opportunity to take the Commission to, which would provide or caselaw that would support a submission that UCPR 7.18(5) does not apply in circumstances where what is being sought is an appointment of a tutor by the court, noting that this is in the Commission and I will take the term "court" to include Commission under UCPR 7.18(1). 5. In those circumstances, the applicant was required to put on evidence in support of the motion which included 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. Given the failure of the applicant on his notice of motion to bring forth evidence in supporting the above requirement, the motion is dismissed. 7. In dismissing the motion, I note that the Commission has not had to deal with the requirement under UCPR 7.18(5)(a) concerning the applicant's alleged legal incapacity.