Industrial Relations Commission New South Wales Medium Neutral Citation: Mallegowda v Transport Secretary (No 7) [2024] NSWIRComm 14 Hearing dates: 25 November 2024 Date of orders: 25 November 2024 Decision date: 25 November 2024 Jurisdiction: Industrial Relations Commission Before: Paingakulam J, Deputy President Decision: See paragraph [10] Catchwords: CIVIL PROCEDURE — Appeal — Application for finding of legal incapacity to be set aside — Oral application — Applicant no longer under legal incapacity Legislation Cited: Industrial Relations Act 1996 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ferrier v Nationwide News P/L (No 3) [2015] NSWSC 1806 Rappard v Williams [2013] NSWSC 1279 Category: Procedural rulings Parties: Shashikanth Mallegowda (Applicant) Transport Secretary (Respondent) Representation: Counsel: M Watts (Respondent) Solicitors: Sparke Helmore (Respondent) File Number(s): 2024/412635 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission Jurisdiction: Industrial Relations Commission Citation: [2024] NSWIRComm 1064 Date of Decision: 17 October 2024 Before: Commissioner O'Sullivan File Number(s): 2023/70222 DECISION 1. Mr Mallegowda has lodged an application for leave to appeal and an appeal in relation to two decisions of this Commission as follows: 1. A decision of Commissioner O'Sullivan on 17 October 2024 dismissing Mr Mallegowda's application under s 210 of the Industrial Relations Act 1996 (NSW) (the Act) that he was victimised as a prospective employee by the respondent; and 2. A decision of Commissioner O'Sullivan on 9 September 2024 finding that Mr Mallegowda was a person under a legal incapacity and appointing Mr Sachin Prasanna as his tutor in the proceedings referred to above. 1. On 18 November 2024, the respondent filed a Notice of Motion in the Commission, seeking to have Mr Mallegowda's appeal dismissed as incompetent, supported by an affidavit of Felicity Edwards, solicitor for the respondent, sworn on that date. 2. Both matters were listed before me on 25 November 2024, pursuant to s 156(5)(b) of the Act, to enable directions to be made. Mr Mallegowda appeared for himself at the directions hearing and stated that he was now fit to represent himself in the appeal proceedings. In effect, Mr Mallegowda made an application to have the finding that he was a person under a legal incapacity set aside. Pursuant to s 156(5)(b) of the Act, I acceded to that application. My reasons for that decision are as follows. Background 1. The matter has a significant procedural history which can be relevantly summarised as follows: 1. On 29 August 2024, Commissioner O'Sullivan dismissed an application made by Mr Mallegowda to have a tutor appointed on his behalf in the proceedings on his application pursuant to s 210 of the Act: Mallegowda v Transport Secretary (No 3) [2024] NSWIRComm 1054. 2. Mr Mallegowda appealed that determination by the Commission. On 5 September 2024, the Full Bench refused Mr Mallegowda's application for leave to appeal: Mallegowda v Transport Secretary (No 4) [2024] NSWIRComm 1055. 3. On 9 September 2024, Mr Mallegowda made a second application before Commissioner O'Sullivan, to have Mr Prasanna appointed as his tutor in respect of that proceeding. Mr Prasanna consented to that application and was appointed as Mr Mallegowda's tutor, subject to filing the required documentation (which did not occur). 4. On 16 October 2024, the final day of the hearing of the proceedings on his application, Mr Prasanna requested that he be removed as Mr Mallegowda's tutor and indicated that Mr Mallegowda was fit to carry on the proceedings. A medical certificate of that date from a general practitioner stated that Mr Mallegowda was "fit for full time duty". That certificate was not sufficient to satisfy the Commission that Mr Mallegowda was fit to carry on the proceedings and the proceedings continued with Mr Prasanna's consent to continue to act as Mr Mallegowda's tutor. 5. On 17 October 2024, Commissioner O'Sullivan dismissed Mr Mallegowda's application. A Notice of Motion filed by the respondent seeking its costs in those proceedings is before Commissioner O'Sullivan. Statutory Framework and Legal Principles 1. 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. 2. Section 3 of the Civil Procedure Act 2005 (NSW) 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. 1. In Ferrier v Nationwide News P/L (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). His Honour 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". 1. Her Honour also relied upon the definition of the term "conduct of legal proceedings" as set out at [78] of Rappard: 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]. The Evidence 1. In support of his application for revocation of the finding that he was a person under legal incapacity, Mr Mallegowda provided the Commission with two medical certificates. The first was the medical certificate that he provided to O'Sullivan C on 16 October 2024, referred to at [4] above. The second was a certificate dated 9 November 2024 from Consultant Psychiatrist Dr Richa Rastogi which stated that Mr Mallegowda is "fit to represent himself in the current court proceedings from the psychological perspective". Finding 1. Based on the medical certificate from Dr Rastogi and consistent with Mr Mallegowda's presentation before me in court on 25 November 2024, I find that, as of 9 November 2024, Mr Mallegowda is no longer a person under a legal incapacity. Accordingly, I proceed to make directions in these matters. Orders 1. I order: 1. The matters are set down for hearing on 11 March 2025. 2. I make orders for the filing of evidence in both the Notice of Motion and the Appeal as set out in the Annexure to these reasons. ********* Annexure to [2024] NSWIRComm 14 (152981, pdf) Amendments 26 November 2024 - Annexure added. 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: 26 November 2024