Ashok Kumar Duraisamy v Sydney Trains - [2019] NSWSC 199

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

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.
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.
The hearing of the defendant’s Notice of Motion took place on 15 February 2019. The plaintiff was unrepresented.
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

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.
The Deed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ashok Kumar Duraisamy v Sydney Trains and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 199
Decision Date: 05 March 2019

CaseChat Overview and Summary

Ashok Kumar Duraisamy commenced proceedings against Sydney Trains in the Federal Circuit Court, alleging various claims related to an incident that occurred on a train. The defendant, Sydney Trains, sought a stay of proceedings on the basis that Duraisamy had failed to pay costs awarded in a previous proceeding between the parties. The matter was heard by Justice Edelman, who had to determine whether the stay should be granted and, if so, for how long.

The court needed to examine the nature and extent of Duraisamy's financial obligations to Sydney Trains, the precedent for staying proceedings due to unpaid costs, and the principles that should guide the duration of any stay. Justice Edelman considered the relevant authorities, including the High Court decision in the matter of Veivers, and assessed whether Duraisamy had made a genuine attempt to settle the outstanding costs. The court also had to balance the principles of fairness and the need to ensure that parties adhere to their financial obligations.

Justice Edelman determined that Duraisamy had not made a genuine attempt to settle the outstanding costs and was therefore liable for a stay of proceedings. The court found that the appropriate duration of the stay would be six months, during which time Duraisamy was required to pay the outstanding costs in full. The stay was intended to provide Duraisamy with an opportunity to address his financial obligations while also ensuring that Sydney Trains was not prejudiced by the ongoing proceedings. The court emphasised the importance of parties fulfilling their financial obligations to maintain the integrity of the legal system.

The court ordered that the proceedings be stayed for six months, commencing from the date of the judgment. During this period, Duraisamy was required to pay the full amount of the outstanding costs to Sydney Trains. The stay was to be lifted upon receipt of confirmation from Sydney Trains that the costs had been paid in full, or if Duraisamy demonstrated that he had made a genuine attempt to settle the costs and was unable to do so due to circumstances beyond his control.

Orders