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

Industrial Relations Commission New South Wales Medium Neutral Citation: Mallegowda v Transport Secretary (No 5) [2024] NSWIRComm 1063 Hearing dates: 9 September 2024 Date of orders: 9 September 2024 Decision date: 09 September 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Pursuant to UCPR 7.18 appointing Mr Prasanna to act as tutor for the applicant, Mr Mallegowda Catchwords: PROCEDURE – tutors – determination that a person is under a legal incapacity – tutor appointed Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Mallegowda v Transport Secretary (No 4) (2024) NSWIRComm 1055 Rappard v Williams (2013) unreported NSWSC 1279 Slaveski v State of Victoria & Ors, [2009] VSC 596; 25 VR 160 Texts Cited: NIL Category: Procedural rulings Parties: Shashikanth Mallegowda (Applicant)

Transport Secretary (Respondent) Representation: Counsel:

Mr M Watts (Respondent)

Solicitors:

Sparke Helmore (Applicant) File Number(s): 2023/70222 Publication restriction: NIL

Ex tempore decision 1. Today the Commission has before it a notice of motion, which is the second time the applicant has sought orders for the appointment of a tutor, pursuant to rule 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (the "UCPR"). 2. In my previous decision, I noted that, on the basis of the evidence before the Commission at that point in time, there had not been compliance with UCPR 7.18(5)(b). 3. In support of this application, Mr Mallegowda has read an affidavit of his own, which was filed on 9 September 2024 and dated 8 September 2024. He has also filed and also has read an affidavit of a Sachin Prasanna dated 28 August 2024, which was the same affidavit that was before the Commission last week and also an affidavit of Sachin Prasanna dated 8 September 2024. 4. I do not intend to read out all of the salient aspects of those affidavits but, firstly, I will deal with the requirement under 7.18(5)(b). Now, in that there is a requirement that the proposed tutor, being Mr Prasanna, consents to being appointed. It is clear that, in the latter affidavit of 8 September 2024, that requirement has been met. 5. Unfortunately, the Commission is left in the same position that it was on the last occasion, that UCPR 7.18(5) is in mandatory terms and must be followed. 6. However, I note the observation of the Full Bench of this Commission in Mallegowda v Transport Secretary (No 4) (2024) NSWIRComm 1055, in which it was suggested that an alternative approach might have been to consider s 67 of the Civil Procedure Act 2005 (NSW) (the "CPA") and stay these proceedings, after determining whether the applicant is suffering under a legal incapacity for the purposes of the CPA and the UCPR, and I will follow that course when making a determination on the material which is before the Commission. 7. I stop there and pause and say, in reaching my view, I have had regard to those cases referred to by the Full Bench and, in particular, Rappard v Williams (2013) unreported NSWSC 1279 and noting the findings of the learned judge at paragraphs [62] and [78] as to what constitutes suffering a legal incapacity and also conduct of legal proceedings. 8. I have also had regard to the findings of the Victorian Supreme Court in Slaveski v State of Victoria & Ors, [2009] VSC 596; 25 VR 160 at 176. 9. In Slaveski, I was relying upon the observations of the learned judge at paragraph [32] and the various matters enumerated in subparagraphs (a) through to (m), in terms of forming the view. 10. Now, I note in terms of the medical evidence that is before the Commission, in particular a report of a Dr Erin Dougherty, consultant psychiatrist dated 9 July 2024, in which the learned doctor sets out a number of findings and, in particular, under the heading "Summary and Opinion", the doctor states as follows: "Presently, Mr Mallegowda presents with mixed episode of bipolar 1 disorder. He meets the criteria for an episode of hypermania and as he experiences irritability, impulsivity, reduced sleep and poor concentration/distractibility. In addition to this, at the same time, he experiences depressive symptoms including depressed mood, anhedonia, feelings of worthlessness and fatigue", and then makes a finding about the main contributing factor was the applicant's previous work at Hornsby City Council. 1. I also note that the Commission's attention was taken to a Centrelink medical certificate, the most recent one dated 23 August 2024, which states that the applicant has an incapacity to work, study or participate in activities from 22 August 2024 through to 22 September 2024. 2. I note the submissions of the respondent about the applicant's capability to attend to his legal affairs. In particular, it was asserted that he was able to cogently and effectively provide submissions to the Commission, not only in these proceedings but also in the appeal and also in other proceedings before other courts and tribunals. It was drawn to the attention of the Commission attention to the fact that the applicant had been involved in nine separate sets of proceedings. 3. It is a drastic step to interfere with the parties' rights to personally participate in proceedings and it is unusual in these proceedings that the application has been made by Mr Mallegowda. 4. However, after scrutinising the evidence relied upon by the applicant in his affidavit, including some views expressed by Mr Prasanna of which I do not accept to be in the nature of medical opinion evidence, and also I have considered the applicant's written submissions and his behaviour, not only today, and on previous occasions, it is the view of the Commission that: 1. there is a level of incoherence many of the things that the applicant has put to the Commission; and 2. he is unable, on occasions to grapple with simple legal questions. 1. Reluctantly, but in the face of all the materials before the Commission, I have formed the view that the applicant is suffering under a legal incapacity for the purpose of UCPR 7.13. 2. I note the affidavit of Mr Prasanna, which now is in compliance with UCPR 7.18(5)(b) that he consents to being appointed and does not have any interest in the proceedings adverse to the interests of the applicant. 3. I will make an order pursuant to UCPR 7.18 appointing Mr Prasanna to act as tutor for the applicant, Mr Mallegowda. 4. I also observe the requirements of UCPR 7.16 that a tutor may not commence any or carry on proceedings on behalf of a person under a legal incapacity unless there has been filed (a) the tutor's consent to act as a tutor. To a certain extent, I think that requirement has been fulfilled by the affidavit of Mr Prasanna dated 8 September 2024. However, there also needs to be filed into the Commission a certificate signed by the tutor's solicitor in the proceedings to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. 5. I am not prepared to waive that requirement and I do require that. 6. Mr Prasanna, as Mr Mallegowda's tutor, will need to file that certificate into the Commission and, for those purposes, I intend to stand this matter over, hopefully for a particular short period of time, to allow that to occur.