Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Duraisamy v Sydney Trains [2019] NSWCA 269 Hearing dates: 29 October 2019 Date of orders: 06 November 2019 Decision date: 06 November 2019 Before: Bell P at [1], Macfarlan JA at [28], Payne JA at [29] Decision: 1. In matter 2019/170767: (a) refuse an extension of time to file the summons seeking leave to appeal and dismiss the notice of motion filed 3 July 2019; (b) dismiss the summons; (c) order that the applicant pay the respondent's costs of the application to extend time and the summons seeking leave to appeal including any costs of the notice of motion. 2. In matter 2019/290445: (a) refuse an extension of time to file the summons seeking judicial review; (b) dismiss the summons; (c) order that the applicant pay the respondent's costs of the application to extend time and the summons seeking leave to appeal. Catchwords: CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal and summons seeking judicial review – application refused – no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Cases Cited: Gee v Office of the Director of Public Prosecutions [2019] NSWCA 257 Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) Category: Principal judgment Parties: Ashok Kumar Duraisamy (Applicant) Sydney Trains (Respondent) Representation: Counsel: Self-represented (Applicant) E Raper SC (Respondent) Solicitors: Bartier Perry Lawyers (Respondent) File Number(s): 2019/170767 and 2019/290445 Decision under appeal Court or tribunal: Supreme Court of New South Wales, District Court of New South Wales Jurisdiction: Common Law, General Citation: [2019] NSWSC 199 Date of Decision: 05 March 2019 Before: Ierace J, Robison DCJ File Number(s): 2018/296875, 2017/347036 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Headnote [This headnote is not to be read as part of the judgment] Mr Ashok Kumar Duraisamy (the applicant) was employed by Sydney Trains (the respondent) from 2003 to 2017. In June 2017, the applicant signed a Deed of Release (the Deed) and, at around the same time, provided a letter of resignation to the respondent. The Deed contained a clause which acknowledged that all "Entitlements", defined to include "any claim for wages", had "either been taken by Mr Duraisamy during the Employment or paid to Mr Duraisamy by Sydney Trains". Additionally, the Deed contained a release by which the applicant "release[d] and forever discharge[d] the Released Parties… 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…" The amount of $35,000 payable under the Deed was not paid on the due date by the respondent but some 5 days later. The applicant has retained it. Notwithstanding this, the day after the settlement payment was made, the applicant purported to revoke the Deed. He then brought unfair dismissal proceedings against the respondent in the Fair Work Commission, which were subsequently appealed unsuccessfully to a Full Bench of the Fair Work Commission. The applicant commenced further proceedings in the District Court of New South Wales in November 2017, seeking damages in the sum of $500,000, which were dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), together with an order for costs. Following this, the applicant brought proceedings in the Local Court of New South Wales for unpaid wages in the sum of $3,622.42, which were also dismissed pursuant to r 14.28 of the UCPR, together with an order for costs. The applicant then commenced proceedings in the Common Law Division of the Supreme Court of New South Wales, seeking wages and compensatory damages in the sum of $125,292. The Supreme Court made orders staying these proceedings, until the costs of the District Court and Local Court proceedings had been paid. The applicant lodged applications seeking an extension of time to file a summons seeking leave to appeal from proceedings in the District Court and the Supreme Court. The applicant was out of time by 483 days and 87 days respectively. The applicant further sought an extension of time to file a summons seeking judicial review of the decision of the Local Court, which was out of time by some 369 days. The principal issue on appeal was whether extensions of time should be granted to the applicant. The Court held (Bell P, Macfarlan JA and Payne JA agreeing): 1. The applicant failed to provide an adequate explanation for the significant delay, and there would be little to no utility in granting such extensions. Such an extension would also likely prejudice the respondent: [16]-[18], [22], [24] (Bell P); [28] (Macfarlan JA); [29] (Payne JA). 2. The summonses seeking leave to appeal and judicial review be dismissed with costs: [24] (Bell P); [28] (Macfarlan JA); [29] (Payne JA). Judgment 1. BELL P: There are listed before the Court two applications for an extension of time. They are described as applications for "extension of time to file notice[s] of appeal". In truth, however, they are applications for an extension of time, first, to file a summons seeking leave to appeal which was filed on 31 May 2019. That summons for leave to appeal seeks leave to appeal from proceedings 2018/00296875 in the Supreme Court of New South Wales (Supreme Court), proceedings 2017/00347036 in the District Court of New South Wales (District Court) and proceedings 2018/00125435 in the Local Court of New South Wales (Local Court). 2. Secondly, the applicant seeks an extension of time in relation to a separate summons, styled "Summons (Supervisory Jurisdiction)" which is a summons seeking judicial review from the whole of the decision in the Local Court, the applicant recognising that his application for leave to appeal is incompetent in relation to that decision. 3. The application for leave to appeal in respect of the District Court and the Supreme Court decisions is out of time by 483 days and 87 days respectively. The summons seeking judicial review is out of time by some 369 days. 4. The orders made in the Local Court were orders dismissing a statement of claim pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the making of a costs order in the sum of $547.00. 5. The orders made in the District Court were orders dismissing the applicant's proceedings pursuant to r 13.4 of the UCPR together with an order for costs. 6. The orders made in the Supreme Court were orders which stayed the proceedings brought by the applicant in the Supreme Court until the costs of the District Court and Local Court matters had been paid. Background 1. The background to the proceedings is that the applicant was employed by the respondent from 2003 to 2017. In June 2017, the applicant signed a Deed of Release (the Deed) and at around the same time provided a letter of resignation to the respondent. 2. The amount of $35,000 payable under the Deed was not paid on the due date, but some 5 days later. The applicant has retained this amount. Notwithstanding this, the day after the settlement payment was made, the applicant purported to revoke the Deed. He then brought unfair dismissal proceedings against the respondent in the Fair Work Commission. These proceedings were subsequently appealed unsuccessfully to a Full Bench of the Fair Work Commission. 3. The applicant also commenced proceedings in the District Court on 16 November 2017 seeking damages in the sum of $500,000. Following their dismissal, he brought proceedings in the Local Court for unpaid wages in the sum of $3,622.42. These later proceedings were commenced on 20 April 2018, but were dismissed on 13 September 2018. On 28 September 2018, the applicant also commenced proceedings in the Common Law Division of this Court against the respondent, seeking wages and compensatory damages in the sum of $125,292. 4. It should be noted that the Deed, which has not been set aside and pursuant to which the amount of $35,000 was paid and has been retained by the applicant, contains an acknowledgement in cl 2.5 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." "Entitlements" was defined in the Deed as including: "any claim for wages, salary, overtime pay, penalty rates, personal leave pay, allowances, notice, pay in lieu of notice, redundancy pay, superannuation, commissions, incentive payments, bonuses or any other benefits, whether arising under an award, Industrial Instrument, contract, statute or otherwise". 1. The Deed also contains a release in cl 3.1 in the following terms: "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." "Claims" was defined in the Deed as including: "actions, suits, obligations, sums of money, causes of action, complaints, proceedings, disputes, accounts, costs, charges, expenses, claims and demands both at law or in equity and/or arising under any Industrial Instrument or statute excluding any entitlement or claim that Mr Duraisamy may have in relation to statutory workers' compensation." Extension of time 1. It is plain that the applicant requires an extension of time to bring his proceedings in this Court. So much is recognised by the two applications which he has filed in that regard, dated 3 July 2019 and 2 August 2019. The first of these applications was supported by an affidavit affirmed on 3 July 2019 which is in the following terms: "1. I am Ashok Kumar Duraisamy the [p]laintiff 2. The [d]efendant has history of delaying previous proceedings and has again attempted to delay the proceeding in this Honourable Court 3. I commenced Summons seeking Leave of Appeal proceedings in the light of Supreme Court Orders 2018/296875 and its Observations on District Court Orders 2017/00347036 and Fair Work Commission Decision 4. I have been consistent in pursuing the matters in consequence and sequence to Fair Work Commission Decision, District Court, Local Court and Supreme Court Orders, which are matters challenged in this Honourable Court 5. Delay in the matters have occurred due to [d]efendant suppressing facts and attempting to abort the course of [j]ustice 6. I seek mercy of this Honourable Court in granting extension of time to [a]ppeal." 1. The second application is supported by a more extensive affidavit affirmed on 2 August 2019 which is a combination of evidence and submissions. Paragraph 4 of that affidavit states that: "The [a]pplicant has been seeking his due wages and consequential damages in all previous proceedings and [j]ustice has been denied. Without exception to Australian legislations [sic] there is no legislation worldwide which denies the fundamental right of [a] worker, namely wages. All proceedings till [sic] date have impliedly denied wages due to [the] [a]pplicant. By seeking extension of time, the [a]pplicant seeks [j]ustice". 1. The balance of the affidavit really provides nothing more than a chronology of proceedings, interspersed with assertions such as that "the [d]efendant has history of delaying proceedings including this proceeding" and "[a]pplicant has high prospects of success in the [p]ending [a]ppeal proceedings, [i]njustice rendered in previous proceedings is very evident." 2. The respondent opposes the applications for extension of time on the basis that the applicant has failed to provide an adequate explanation for the delay, the significant delay in itself, the prejudice to the respondent and the lack of utility in granting an extension given that the applicant does not have a fairly arguable case. 3. I agree with the respondent's submission that no adequate explanation has been proffered for the delay in the filing of the various applications for leave to appeal and the summons for judicial review. The affidavit material filed in support of the extensions of time is exiguous in terms of providing any explanation and does not grapple with the extreme delays relative to the timeframe in which applications for leave to appeal and applications for judicial review should be brought. 4. To the extent that the applicant seeks to provide an explanation, he has resorted to the wholly general, completely unparticularised assertion to which I have already referred, namely that the "[d]elay in the matters has occurred due to the [respondent] suppressing facts and attempting to abort the course of justice". In truth it would appear that, rather than seeking leave to appeal the initial decision of the District Court, the applicant has sought to re-agitate his underlying grievance, albeit claiming different amounts of damages, first in the Local Court and then in the Common Law Division of the Supreme Court. 5. Apart from the factors of gross and unexplained delay, there would be, in my opinion, little to no utility in granting an extension of time. Each of the decisions in respect of which leave to appeal is sought is interlocutory in nature, and involves matters of practice and procedure. The character of those decisions is such that, even if an extension of time were granted, the applicant would still need to overcome the high hurdle which stands in the way of applications for leave to appeal from such decisions: see generally, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48; see also Gee v Office of the Director of Public Prosecutions [2019] NSWCA 257. 6. Nothing in the applicant's submissions supports the conclusion that the applicant would be likely to secure a grant of leave to appeal. Indeed, the contrary is the case. In this respect, the applicant's underlying complaint about non-payment of wages runs headlong into the acknowledgment contained in the Deed which I have set out at [10] above, and the fact that the Deed has not been set aside. 7. Even if there was any basis to think that the late payment by Sydney Trains of the amount under the Deed amounted to repudiatory conduct, it is tolerably clear that, by his acceptance and retention of the payment of $35,000 under the Deed (whether that be characterised as an eligible termination payment or compensation for wages), the applicant must be taken to have affirmed the Deed and waived any right to terminate it for any breach that may otherwise have been properly characterised as repudiation. The applicant's acknowledgement and release in the Deed therefore appear to stand squarely in the way of his claim for unpaid wages. No arguable basis to read down the apparent breadth of the release contained in the Deed was shown. 8. In relation to the application for judicial review of the Local Court decision, I accept paragraph 23 of the respondent's submission which is to the following effect: "As to the application to extend time to allow the [a]pplicant to file the Summons in the Court's Supervisory Jurisdiction to '[s]et aside Local [C]ourt decision and associated costs orders struck out' no arguable case has been disclosed. To do so the [a]pplicant must be capable of establishing error in the decision due to a lack of jurisdiction or denial of procedural fairness. No basis for judicial review is disclosed; beyond mere assertion that the decision was 'ult[r]a vires' and "against Natural Justice – Denial of wages". The submissions filed on 10 October 2019 do not advance the matter further." 1. Finally, the respondent calls in aid prejudice. That prejudice may be understood in a number of ways. First and foremost, timeframes set for the bringing of applications for leave to appeal, appeals and applications for judicial review recognise and protect the importance and the value of finality in litigation. Whilst the existence of discretion to extend time recognises that finality is not an absolute value, it is nonetheless an important one and the greater the delay, the greater that value is undermined. Secondly, each of the three sets of proceedings seem to be animated by the same underlying complaint being one that had already travelled through the Fair Work Commission. It was this fact which led Ierace J to the conclusion he expressed at [33] of his decision (Duraisamy v Sydney Trains [2019] NSWSC 199), namely that: "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 [C]ourt be stayed until the plaintiff pays the defendant's costs." 1. The multiplicity of the proceedings seeking to agitate the same underlying complaint has no doubt magnified the respondent's costs. They are evidently thus far unrecovered. 2. For all of the above reasons I would refuse the applications for extension of time with costs. It follows that I would also dismiss the application for leave to appeal in proceedings 2019/170767 and the summons seeking judicial review in proceedings 2019/290445, also with costs. 3. I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep): "the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent." 1. In the present case, in my view, invocation of that passage was entirely apposite. Orders 1. I propose the following orders: 1. In matter 2019/170767: (a) refuse an extension of time to file the summons seeking leave to appeal and dismiss the notice of motion filed 3 July 2019; (b) dismiss the summons; (c) order that the applicant pay the respondent's costs of the application to extend time and the summons seeking leave to appeal including any costs of the notice of motion. 2. In matter 2019/290445: (a) refuse an extension of time to file the summons seeking judicial review; (b) dismiss the summons; (c) order that the applicant pay the respondent's costs of the application to extend time and the summons seeking leave to appeal. 1. MACFARLAN JA: I agree with Bell P. 2. PAYNE JA: I agree with Bell P. ********** 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: 06 November 2019