Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. Mr Mallegowda (applicant) seeks leave to appeal two decisions of Commissioner O'Sullivan. The first was a procedural decision to appoint a tutor to carry on the proceedings in the applicant's name (First Decision). [1] That application was made out of time. We have decided not to grant an extension of time to appeal that decision because it has no prospects of success.

2. The second was the Commissioner's decision to dismiss the applicant's claim for relief from victimisation (Second Decision). [2] The asserted victimisation was the decision by the Transport Secretary (respondent) to refuse to employ the applicant and to put measures in place to ensure that he would not be employed in the future. We have determined not to grant leave to appeal the Second Decision despite finding that in one respect the Commissioner at first instance appeared to fall into error. That is because the error, if made, did not affect the outcome of the proceedings.

3. Ordinarily, this Commission would not give detailed reasons for refusing leave to appeal. However, given the nature and history of these proceedings which have involved multiple decisions, we consider it appropriate to set out in clear terms why we have decided to refuse leave to appeal both decisions.

Background

4. The applicant was employed by the Crown working for the predecessors of Transport for NSW, including the Roads and Maritime Services Division (RMS) from 2006-2017. During that time there were disputes between the applicant and his employer, whose functions were exercised by the respondent. [3] The applicant made a number of internal complaints concerning his employment. He also made complaints to the Australian Human Rights Commission and this Commission concerning issues including racial discrimination. In 2012, the applicant and RMS reached a settlement in relation to a number of complaints made by the applicant in 2011 and 2012, as a consequence of which the applicant received a compensation payment.

5. On 5 June 2014, the applicant was charged with contempt of court for threatening a witness in a defamation proceeding that the applicant had commenced. On 9 August 2016, following a plea of guilty to and conviction on that charge on 18 November 2015, the applicant was sentenced to nine months' imprisonment with a non-parole period of six months. The applicant's sentence was suspended on the basis that he entered into a good behaviour bond.

6. On 14 August 2016, the Sydney Morning Herald published an article which identified the applicant as an RMS employee. Two days later, on 16 August 2016, the applicant was suspended from work and an investigation was conducted in relation to an allegation that he had breached the Transport Code of Conduct by failing to disclose that he had been charged with and convicted of a criminal offence. The applicant's employment with RMS was terminated on 31 March 2017 following the investigation.

7. On 6 April 2017, the applicant commenced unfair dismissal proceedings in the Commission pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act). On 10 April 2017, the applicant made a separate complaint to the Australian Human Rights Commission alleging discrimination and victimisation in regard to the termination of his employment. In July 2017, a settlement was reached with respect to the applicant's unfair dismissal proceeding which was recorded in a Deed of Release (the Deed). The Deed stated that the applicant would be provided with a statement of service by RMS which included the words "he resigned from his employment effective 3 April 2017" and that a copy of the applicant's resignation letter would be placed on his personnel file. In addition, specified employees of the respondent would be told that the applicant had resigned from his position with the respondent and questions from prospective employers would be directed to a specified individual at RMS who would answer those questions consistently with the statement of service.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a2c47e9960f248e1c7b5f)

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