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

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.
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:

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.

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

This notice of motion was brought after proceedings were commenced in the Supreme Court of New…

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.

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Details

Case: [2019] NSWDC 250
Decision Date: 03 May 2019

CaseChat Overview and Summary

In the case of Duraisamy v Sydney Trains, the plaintiff, Duraisamy, initiated multiple proceedings against Sydney Trains, seeking identical relief, across different courts. Initially, the plaintiff filed a claim in the Local Court, followed by proceedings in the District Court, and subsequently in the Supreme Court. The Supreme Court stayed the proceedings pending the payment of costs orders from the District Court. The plaintiff then sought to set aside the District Court judge's orders under UCPR r 36.15, but later withdrew the notice of motion. The court was required to determine whether the plaintiff's actions constituted an abuse of process and whether the plaintiff should be ordered to pay costs on an indemnity basis.

The court identified that the plaintiff's repeated attempts to seek the same relief in different courts constituted an abuse of process. Despite the Supreme Court staying the proceedings, the plaintiff continued to pursue the same relief, which was deemed vexatious. The court emphasised that a party should not be permitted to circumvent costs orders by initiating successive proceedings in different courts. The plaintiff's decision to withdraw the notice of motion did not alter the court's view that an order for indemnity costs was warranted.

The court granted the plaintiff leave to withdraw the notice of motion but ordered the plaintiff to pay Sydney Trains' costs of the notice of motion on an indemnity basis. The court underscored the importance of preventing parties from repeatedly initiating proceedings to achieve the same relief and highlighted the need to discourage such vexatious conduct. This decision reinforces the principle that courts have the discretion to manage and control litigation to prevent abuse of the judicial process.

Orders were made under the Civil Procedure Act 2005, requiring the plaintiff to pay Sydney Trains' costs of the notice of motion on an indemnity basis. The court's decision serves as a reminder of the importance of procedural fairness and the need to prevent the misuse of court resources.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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