Supreme Court New South Wales Medium Neutral Citation: Ashok Kumar Duraisamy v Sydney Trains [2019] NSWSC 199 Hearing dates: 15 February 2019 Date of orders: 05 March 2019 Decision date: 05 March 2019 Jurisdiction: Common Law Before: Ierace J Decision: (1) The proceedings be stayed pursuant to rule 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) until payment of costs in the following matters: (a) case number 2017/00347036 in the District Court; and (b) case number 2018/00125435 in the Local Court. (2) Plaintiff to pay the defendant's costs. Catchwords: PRACTICE AND PROCEDURE — Judgments and orders — Stay of proceedings — Pending payment of costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agar v Hyde (2000) 201 CLR 552 Ashok Kumar Duraisamy v Sydney Trains [2017] FWC 4824 Ashok Kumar Duraisamy v Sydney Trains [2017] FWCFB 5842 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28; Category: Procedural and other rulings Parties: Ashok Kumar Duraisamy (Plaintiff) Sydney Trains (Defendant) Representation: Counsel: Self-represented (Plaintiff) E Raper (Defendant) Solicitors: In person (Plaintiff) Bartier Perry (Defendant) File Number(s): 2018/296875 Judgment 1. On 28 September 2018, Ashok Kumar Duraisamy, (the plaintiff), filed a statement of claim against Sydney Trains Pty Ltd claiming "wages and compensatory damages" in the sum of $125,292. This amount was itemised (paragraph 10) as comprising "unpaid wages" ($3,622.42), "Legal Counsel fees" ($12,500), "District Court Cost" (21,721), "Local Court Cost" ($547) and "compensatory damages, calculated at "$3,622 x 24 due from Nov 2016" ($86,908). I note that those sums in fact render a total of $125,298.42. 2. On 3 December 2018, Sydney Trains Pty Ltd (the defendant) filed a Notice of Motion seeking to have the proceedings summarily dismissed pursuant to rule 13.4(1)(a), (b) and/or (c) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") and, in the alternative, that they be stayed pursuant to r 12.10 of the UCPR. 3. The hearing of the defendant's Notice of Motion took place on 15 February 2019. The plaintiff was unrepresented. 4. For the reasons which appear in this judgement, I have determined that the proceedings filed by the plaintiff ought to be stayed pursuant to r 12.10 of the UCPR, pending payment of the defendant's costs in earlier proceedings in the District and Local Courts. Background and Previous Litigation 1. The plaintiff was employed by the defendant from 1 September 2003 as train crew, in particular, as a guard. He remained on the payroll until 17 July 2017. On 15 June 2017, the plaintiff signed a Deed of Release with the defendant. The terms of the Deed acknowledged that the plaintiff had filed a complaint with the NSW Anti-Discrimination Board on or around 2 March 2017, alleging that the defendant and/or its employees had discriminated against him on the grounds of race. It also acknowledged that on 25 May 2017, the plaintiff had filed an application with the Fair Work Commission against the defendant, requesting the Commission to deal with a dispute. 2. The Deed stated that: D. On 13 June 2017, the employment was terminated (Dismissal). E. Without admission of liability by either of the parties, the parties have agreed to resolve all disputes and bring any claims whatsoever by Mr Durisaimy to an end in the manner set out in this document. 1. Although the Deed refers to the plaintiff being dismissed, he forwarded a letter of resignation to the defendant dated the same date that he signed the deed, in which he stated that his resignation was effective "on 13 June 2017". 2. The Deed provided for a number of benefits and obligations, including a payment to the plaintiff: "… Sydney Trains will, within 21 days of receiving this Deed executed by Mr Duraisamy, pay Mr Duraisamy the gross sum of $35,000 less taxation as an eligible termination payment …" ("the settlement payment") (cl. 2.1) and that "Sydney Trains will make a payment to Mr Duraisamy in relation to accrued untaken annual leave and long service leave, and the Parties otherwise acknowledge that all entitlements have either been taken by Mr Duraisamy during the employment or paid to Mr Duraisamy by Sydney Trains" (cl. 2.5). 3. The Deed also provided that, within 7 days of the Deed's execution, the defendant would provide the plaintiff with a "statement of service", noting the reason for cessation of employment as "resignation", the dates of his employment and his position title, and an appropriate Human Resources contact for future employer inquiries (cl. 2.2). 4. The word "entitlement" is defined in the Deed to mean, inter alia, "any claim for wages, salary, overtime pay, penalty rates, personal leave pay, allowances, notice, pay in lieu of notice, redundancy pay …" (cl 1.1). 5. Clause 3.1 is as follows: By this document Mr Duraisamy releases and forever discharges the Released Parties (or any member of it) from all claims which Mr Duraisamy now has or could, would or might but for this release have or have had against the Released Parties (or any member of it) by reason of or arising out of or in any way related directly or indirectly to one or more of the following: (a) the Employment; (b) the Dismissal; and )(c) the Proceedings. 1. The Deed also contained an acknowledgement that the plaintiff had "read the terms of the document" (cl. 8.1) and "had been given the opportunity to take independent legal advice as to the nature, effect and extent of the document" (cl. 8.2). It appears to be common ground that the plaintiff was represented by a solicitor at the time. 2. It appears from correspondence between the defendant and the plaintiff's solicitor in July 2017 that the settlement payment, which was due by 13 July 2017, was not paid until about 18 July 2017. 3. The following day, on 19 July 2017, the plaintiff sent a letter to the defendant, purporting to revoke the Deed. 4. On 4 August 2017 he lodged an unfair dismissal remedy application with the NSW Fair Work Commission. On 22 September 2017, the Commission dismissed the plaintiff's application, because it had no reasonable prospects of success: Ashok Kumar Duraisamy v Sydney Trains [2017] FWC 4824. In his judgement, Vice President Hatcher explained that his determination had two bases: that the plaintiff had not been dismissed but rather, had resigned, and that the Deed operated as a complete answer to the plaintiff's unfair dismissal application. 5. The Vice President noted that the plaintiff alleged that he had signed the Deed out of "extreme duress" and "blackmail" and claimed that he was owed wages for a 21-day period while he was employed. Accordingly he could revoke the deed because of the defendant's alleged failure to pay wages owed, the late payment of the settlement payment and the late provision of the Statement of Service, which should have been provided by 22 June 2017 but was not provided until 8 August 2017. However, his Honour found that there was nothing in the Deed suggesting that time was of the essence in the making of the settlement payment or providing the Statement of Service and, with respect to the claim for wages for the 21-day period, he had expressly acknowledged in the Deed that all entitlements, including wages, had been paid. As well, there was no repudiatory conduct on the part of the defendant (who was the respondent in those proceedings) and the plaintiff did not purport to revoke the deed until after he had received the payment. 6. The plaintiff appealed to the Full Bench of the Fair Work Commission, which on 2 November 2017, refused permission for him to appeal; Ashok Kumar Duraisamy v Sydney Trains [2017] FWCFB 5842. 7. On 16 November 2017, the plaintiff filed proceedings in the District Court of NSW, seeking damages in the sum of $500,000. In a Notice of Motion filed on 8 December 2017, the defendant sought that the proceedings be dismissed pursuant to r 13.4(1)(a), (b) and/or (c) of the UCPR. On 12 February 2018, His Honour Judge Robison dismissed the proceedings pursuant to r 13.4(1)(a), (b) and/or (c) of the UCPR, stating that all of the matters in r 13.4 had been made out. His Honour also made an order for costs as agreed or assessed on the ordinary basis up to and including 20 January 2018, and on an indemnity basis thereafter. 8. The costs were not paid. The defendant filed an application for assessment of costs on 14 November 2018. A certificate of determination of costs was issued on 30 January 2019 in the sum of $29,189.41 and a certificate of determination of the manager's assessment costs in the amount of $2,978.25. On 12 February 2019 the defendant applied to the Local Court to register the certificates of determination as a judgement with a view to enforcement of the order for costs. 9. On 20 April 2018, the plaintiff instituted proceedings in the Local Court of NSW, seeking unpaid wages in the sum of $3,622.42. On 17 August 2018, the defendant filed a Notice of Motion seeking summary dismissal. On 13 September 2018, the proceedings were dismissed, with an order that the defendant pay costs of $547 within 28 days. Those costs have not been paid. 10. The material tendered by the defendant includes an exchange of correspondence in relation to an offer by the plaintiff made in writing on 25 October 2018. Presumably it was included by the defendant because the plaintiff indicated in the exchange that he would "present" it in "further proceedings". I have disregarded the correspondence for the purposes of this application. 11. Accordingly, the plaintiff's statement of claim is his fifth commencement of proceedings seeking financial redress against his former employer. The nature of the claim has not been uniform throughout, although the claim of unpaid wages has been an element, either directly or indirectly, in most of the proceedings. The Notice of Motion 1. The Notice of Motion proposes alternative bases for an order that the proceedings not continue; either that they be dismissed pursuant to r 13.4 of the UCPR or that they be stayed pursuant to r 12.10, until the payment by the plaintiff of costs orders made against him in the earlier matters in the District or Local Court. 2. Rule 13.4 is as follows: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under sub-rule (1). 1. The essence of the defendant's case on the Notice of Motion is that the plaintiff is bound by the Deed of Release, which effectively prevents the plaintiff from seeking payment for outstanding wages. I accept that the terms of the Deed, as set out earlier in this judgement, have that effect, but the plaintiff submits that the Deed was revoked, on various bases. 2. Summary dismissal of proceedings should only occur if there is a high degree of certainty about the ultimate outcome of the proceedings, and must always be used with caution; Agar v Hyde (2000) 201 CLR 552 at [57] per Gaudron, McHugh, Gummow and Hayne JJ; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24] per French CJ and Gummow J. 3. For these reasons, it would be necessary to examine the plaintiff's prospects of success. Although the plaintiff was legally represented at the time he executed the Deed of Release, he has appeared unrepresented in all the litigation proceedings. There are aspects of the earlier judgements which are troubling, such as the question of the late provision of the Statement of Service. Vice President Hatcher, in his judgement, stated at [19]: There is nothing in the Deed which suggests that time was of the essence in relation to the making of the settlement payment or the performance of the other obligations in the Deed was conditional upon receipt of the payment at the specified time, and I note that Mr Duraisamy did not purport to revoke the Deed until after he had received the payment. 1. However, there is a "time is of the essence" clause in the Deed: 11. If any provision of this document requires a party to perform an obligation under this document and a time is prescribed for the performance of the obligation, then time is of the essence in respect of the performance of the obligation. 1. The plaintiff has provided a copy of the transcript of proceedings before the Full Bench of the Fair Work Commission on 2 November 2017. I note that counsel for the defendant conceded this error by the Vice President, but only in relation to the tardiness of the settlement payment, not the late provision of the Notice of Service (PN118). Neither aspect, nor the error at first instance, was addressed in the judgement of the Full Bench, which refused permission to appeal. 2. In his judgement, Robison DCJ noted the "time is of the essence" clause in the Deed. His Honour considered that the terms of the correspondence between the plaintiff's solicitor and the solicitor for the defendant at the time of the late payment implied a waiver on behalf of the plaintiff of his rights in relation to it, which is in my view a reasonable conclusion. However, his Honour did not address the late provision by the defendant of the Notice of Service, which was some three weeks after the plaintiff had purported to revoke the Deed and about six weeks after the notice was supposed to have been provided, and whether that failure impacted upon the status of the Deed of Release. 3. The alternative order sought is that the proceedings be stayed pursuant to Rule 12.10 of the UCPR, which is in the following terms: 12.10 Stay of further proceedings to secure costs of proceedings dismissed If: (a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and (b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced, the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit. 1. It seems logical to me that the issue of the plaintiff's failure to pay costs is the gateway consideration, at least in this case; that it arises before one turns to an assessment of the merits of the plaintiff's case, even for the purpose of considering an application for summary dismissal. 2. Given the close nexus between the matters litigated in the District and Local Courts and in this Court and the failure of the plaintiff to comply with costs orders arising from them, I am of the view that it is appropriate that the proceedings in this court be stayed until the plaintiff pays the defendant's costs. 3. Accordingly, I make the following orders: 1. The proceedings be stayed pursuant to rule 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) until payment of costs in the following matters: 1. case number 2017/00347036 in the District Court; and 2. case number 2018/00125435 in the Local Court. 1. Plaintiff to pay the defendant's costs. ********** 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: 05 March 2019