Duraisamy v Sydney Trains

[2019] NSWDC 250

District Court

New South Wales

Medium Neutral Citation:	Duraisamy v Sydney Trains [2019] NSWDC 250
Hearing dates:	3 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the plaintiff to withdraw the notice of motion. (2) Plaintiff to pay the defendant’s costs of the notice of motion on an indemnity basis.
Catchwords:	PRACTICE AND PROCEDURE – abuse of process - claims in the Local, District and Supreme Courts for identical relief – plaintiff brings proceedings in the District Court seeking the same relief as that sought in the Local Court – proceedings dismissed – plaintiff brings proceedings in the Supreme Court for the same relief – those proceedings stayed pending the payment of costs orders made by the District Court judge - plaintiff brings proceedings to set aside the District Court judge’s orders pursuant to UCPR r 36.15 – plaintiff withdraws notice of motion but ordered to pay costs on an indemnity basis
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 36.15
Cases Cited:	Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Duraisamy v Sydney Trains [2019] NSWSC 199 Lu v The Age Co Limited [2016] NSWCA 115 Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181
Texts Cited:	P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Australia)
Category:	Procedural and other rulings
Parties:	Plaintiff: Ashok Kumar Duraisamy Defendant: Sydney Trains ABN 59 325 778 353
Representation:	Counsel: Plaintiff: In person Defendant: Ms M Gaven   Solicitors: Plaintiff: In person Defendant: Bartier Perry
File Number(s):	2017/347036
Publication restriction:	None

Judgment

1. The plaintiff by notice of motion filed on 12 March 2019 brings an application pursuant to r 36.15 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to set aside orders made by Robison J in this Court on 2 February 2018. Rule 36.15 UCPR provides that the circumstances in which an order may be set aside on the basis of irregularity, illegality or being against good faith are set out extensively in the notes to Ritchie’s Uniform Civil Procedure New South Wales at [36.15.10]ff.

2. In the present case, the particular ground asserted is one of irregularity, in that Robison J made errors of law in the course of his judgment which the plaintiff, who appears for himself, submits are set out in the judgment of Ierace J in Duraisamy v Sydney Trains [2019] NSWSC 199 at [27]-[32], which are as follows:

1. The District Court proceedings which resulted in orders dismissing the plaintiff’s claim in its entirety were made and entered on 2 February 2018, and that decision has not been the subject of appeal.

2. A year later on 12 March 2019, this application was brought to set aside this judgment pursuant to rule UCPR 36.15(1).

3. This notice of motion was brought after proceedings were commenced in the Supreme Court of New South Wales Common Law division in more or less identical form, namely a statement of claim for “wages and compensatory damages” in the sum of $125,292 (see Duraisamy v Sydney Trains at [1]), which resulted in orders made by Ierace J for a stay.

3. The orders made by Ierace J on 5 March 2019, a week before the application before me was filed, were as follows:

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.

2. Plaintiff to pay the defendant’s costs.

4. The defendant opposes the relief sought in the notice of motion, arguing that the failure to comply with the payment of the outstanding costs orders means that the merits of the claim should not even need to be considered. The defendant also points to proceedings commenced by the same plaintiff in the Local Court on 20 April 2018, which resulted in the claim being struck out pursuant to UCPR r 14.28, with a fixed sum costs order that was payable within 28 days. These costs have also not been paid.

5. The result is that the plaintiff has effectively commenced two sets of proceedings, one in this Court and one in the Local Court for the same relief. These had been struck out wholly on their merits. He then brought a third set of proceedings in the Supreme Court which have been stayed by reason of his failure to comply with the costs orders in question.

6. Applications for the same relief from different courts, like applications, differ from a repeated interlocutory application of the kind commonly referred to in cases such as Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (see the discussion of this case in Liu v The Age Co Limited [2016] NSWCA 115 at [294]). Claims of abuse of process in terms of litigating concluded issues are generally of the Anshun variety (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589), or involve parties who were not joined in the earlier litigation (UBS AG v Tyne (2018) 92 ALJR 968). The degree to which the same issue between the same parties is being litigated is rarely as clear as it is in these proceedings.

7. This is a case where the same substantive relief has been sought from not one, but two Courts, namely this Court and the Local Court, where in both cases the proceedings have been struck out in their entirety without there being any appeal (and I note the limited right of appeal from orders made in the Magistrates’ Court in any event).

8. I am unaware of there being a parallel case of the jurisdiction of all three courts at three different first instance levels coming before the Court. One thing is clear, namely that is that the bringing of a notice of motion in lieu of using the appellate process in relation to the orders of Ierace J, as a way of going behind the stay orders made by his Honour, is not a process that should be encouraged.

9. The plaintiff’s main submission to me was that the District Court judgment is irregular, in light of the errors pointed to in the Supreme Court judgment, and that, as the costs followed from a judgment that was irregular, any application for those costs should be set aside or dismissed.

10. However, errors in the merits of a substantive decision do not make a judgment irregular, for the reasons explained by Garling J in Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181 at [121]. Upon these principles being pointed out to the plaintiff, and his indicating that he is aware of the need to attend to the expiry of the period of time to bring an application to commence an appeal from the decision of Ierace J and/or Robison DCJ, he indicated that he wish to withdraw his notice of motion.

11. I propose to grant leave to the plaintiff to withdraw his motion, and I set out these reasons in relatively brief form, in order to assist him to present any such appeal to the Court of Appeal, in the event that the Court of Appeal takes the view that the issues raised by Ierace J might warrant an extension of time.

12. The remaining order to be made is one in relation to costs. Exhibit 2 consists of two letters sent by the solicitors for the defendant dated 30 April and 2 May 2019, inviting the plaintiff to withdraw his motion and warning that, if this did not occur, the costs that the defendant proposed to seek would be the payment of costs on an indemnity basis.

13. Making of a costs order on an indemnity basis is not a step to be taken lightly. It is to be used in extreme circumstances where there has been conduct which, if not necessarily contumelious, is at least bordering upon it. The circumstances in which the jurisdiction of three first instance courts have been called upon to determine the same issue is of concern. So is the bringing of a notice of motion inviting me to set aside Robison DCJ’s orders, thereby performing the task of the New South Wales Court of Appeal, which would require me to disregard the orders made by Ierace J. Individually, each of these factors fall within the requisite range of conduct warranting the making of such an order. Parties who commence identical litigation in more than one court (in the present case, in three courts) as a forum-shopping exercise do so at their peril as to indemnity costs.

Orders

14. Accordingly, the orders I propose to make are as follows:

1. Grant leave to the plaintiff to withdraw the notice of motion.

2. Plaintiff to pay the defendant’s costs of the notice of motion on an indemnity basis.

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