Duraisamy v Sydney Trains

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).

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.

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.

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.

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.

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.

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.

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.

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.

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:

The Deed also contains a release in cl 3.1 in the following terms:

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:

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 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.”

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.

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.

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.

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.

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.

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.

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:

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:

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.

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.

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):

In the present case, in my view, invocation of that passage was entirely apposite.

I propose the following orders:

MACFARLAN JA: I agree with Bell P.

PAYNE JA: I agree with Bell P.