Deva v University of Western Sydney

CATCHWORDS: ADMINISTRATIVE LAW - Judicial review - s 69 Supreme Court Act 1970 - Whether summons was 'so obviously untenable' - General Steel test - Whether refusal by Administrative Decisions Tribunal to consider complaint that appellant was terminated for reason of race disclosed error of law on the face of the record - Construction of the phrase 'subject matter' - Whether subject matter of complaints to Australian Industrial Relations Commission and Anti-Discrimination Board were the same - Distinction between unfair and unlawful termination of employment - Requirement to give notice under s 78B of the Judiciary Act in relation to s 109 Constitution question - RELIEF - Discretion to refuse relief - Whether it would be futile to remit the summons - COSTS - Litigant in person not entitled to costs to compensate him for time spent in preparing and conducting his case.

Administrative Decisions Tribunal Act 1997 (NSW) sections 119, 122 Anti-Discrimination Act 1977 (NSW) sections 8, 87, 87A, 89A, 89B, 92, 93A, 93B and 96 Anti-Discrimination Amendment (Miscellaneous Provision) Act 2004 (NSW) Commonwealth of Australia Constitution Act section 109 LEGISLATION CITED: Industrial Relations Act 1996 (NSW) sections 6, 169 Judiciary Act 1903 (Cth) section 78B Supreme Court Act 1970 (NSW) section 69 Supreme Court Rules (NSW) Part 51 r 4D Workplace Relations Amendment (Work Choices) Act 2005 (Cth) sections 643, 659 and 672 Workplace Relations Act 1996 (Cth) sections 170CE, 170CF, 170CFA, 170CG, 170CK, 170CL, 170CM, 170CN, 170CO, 170CP, 170CQ, 170CR, 170HB and 170HBA

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374 Deva v University of Western Sydney [2006] NSW ADT 350 Deva v University of Western Sydney [2007] NSWSC 341 Emerald Ocean Developments Pty Ltd v Johnson (2002) 120 IR 381 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 CASES CITED: House v The King [1936] HCA 40; (1936) 55 CLR 499 Johnston v Department of Mineral Resources (1997) 73 IR 267 Lawrence v M D Nikolaidis & Co [2003] NSWCA 129; (2003) 57 NSWLR 355 Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78 Saville v Health Care Complaints Commission [2006] NSWCA 298 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190

PARTIES: Pradeep Deva University of Western Sydney

COUNSEL: Cl: Self represented Opp: S Prince

SOLICITORS: Cl: Self represented Opp: Lander & Rogers, Sydney

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30003/2007; ADT 061096

LOWER COURT DATE OF DECISION: 17 April 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Pradeep Deva v University of Western Sydney [2007] NSWSC 341

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40290/07 SC 30003/07 ADT 061096

TOBIAS JA CAMPELL JA BELL JA

Tuesday 17 June 2008 PRADEEP DEVA v UNIVERSITY OF WESTERN SYDNEY Judgment 1 TOBIAS JA: In 1995 the appellant commenced employment with the respondent as a Systems Administrator. In or about February 2004 he was stood down from work on full pay whilst the respondent reviewed his work performance. On 13 February 2005 his employment was terminated. 2 The appellant thereupon commenced proceedings in the Australian Industrial Relations Commission (the AIRC) pursuant to s 170CE(1)(a) of the Workplace Relations Act 1996 (Cth) (the WR Act) seeking relief in respect of the termination of his employment on the ground that it was harsh, unjust or unreasonable. On 22 June 2005 Commissioner Lawson dismissed those proceedings. 3 By letter dated 29 August 2005 the appellant lodged a complaint (the complaint) with the Anti-Discrimination Board (the ADB) alleging pursuant to s 8(2)(c) of the Anti-Discrimination Act 1977 (NSW) (the AD Act) that the respondent had unlawfully discriminated against him by dismissing him for reason of his race. 4 On 4 October 2006 the President of the ADB gave notice in writing to the appellant declining the complaint pursuant to s 92(1)(a)(v) of the AD Act. That provision is relevantly in the following terms: "92 President may decline complaint during investigation If at any stage of the President's investigation of a complaint:

(a) the President is satisfied that: … (v) the subject matter of the complaint has been, is being, or should be, dealt with by another person or body …" (b) … The President may then, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. …"

5 Pursuant to s 93A(1) of the AD Act, the appellant requested the President to refer the complaint to the Administrative Decisions Tribunal (the Tribunal). However, by virtue of s 96(1) of the AD Act, the complaint so referred could not be the subject of proceedings before the Tribunal without its leave. Deputy President Hennessy of the Tribunal refused leave on 12 December 2006 essentially on the ground that the subject matter of the complaint had been dealt with by the AIRC and that public policy considerations militated against the appellant being given another opportunity to seek relief for the termination of his employment: Deva v University of Western Sydney [2006] NSWADT 350. 6 On 7 January 2007 the appellant filed a summons in the Administrative Law List of the Common Law Division of the Supreme Court seeking "judicial review" of the Deputy President's decision to refuse leave. In this respect that decision could only be challenged by way of judicial review as s 96(4) of the AD Act provided that a decision of the Tribunal under s 96(1) with respect to the granting of leave could not be the subject of an appeal to the Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act) and any appeal to the Supreme Court under that Act only lay from a decision of the Appeal Panel: see s 119. 7 By Notice of Motion filed on 1 February 2007 the respondent sought an order that the appellant's summons filed on 7 January 2007 be summarily dismissed upon the ground that as an appeal to the Supreme Court only lay from the decision of the Appeal Panel of the Tribunal, and then only on a question of law (ADT Act, s 119(1)), and as no appeal lay to the Appeal Panel from the Tribunal's decision to refuse leave as a consequence of s 96(4) of the AD Act, it followed that no appeal lay from that decision of the Tribunal to the Supreme Court. The Notice of Motion appeared to overlook the fact that the appellant's summons was not framed in terms of an appeal from the decision of the Tribunal but sought judicial review of that decision. 8 On 17 April 2007 Patton AJ determined the respondent's motion in its favour but not upon the basis advanced by the respondent. Rather, his Honour held that the appellant's case for judicial review of the Deputy President's decision to refuse leave was, in terms of the test stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, "so obviously untenable that it cannot possibly succeed". He therefore held that there was no real question to be determined either of fact or law with the consequence that the appellant's summons should be dismissed: Deva v University of Western Sydney [2007] NSWSC 341. 9 On 14 May 2007 the appellant filed in this Court an ordinary summons for leave to appeal which was determined on the papers by Giles JA and myself on 13 July 2007 pursuant to Part 51 r 4D of the Supreme Court Rules (now repealed). Leave was granted but was limited to whether it was reasonably arguable that there was an error of law on the part of the Deputy President. If there was, then the primary judge was in error in summarily dismissing the appellant's summons on the basis of the General Steel test. 10 However, in our reasons for granting leave we indicated that it would be unfortunate if the appeal was confined to whether the error of law asserted by the appellant with respect to the Deputy President's decision to refuse leave was reasonably arguable rather than this Court dealing finally with the merits of the question of construction to which the alleged error related. We therefore encouraged the parties to agree upon orders enabling this Court to determine that matter as a separate question. Although there was no such agreement, the matter has been fully argued on the appeal and neither party suggested that this Court should not deal fully and finally with the issue.

The relevant statutory provisions 11 Section 170CE of the WR Act relevantly provides: "(1) … an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or (b) on the ground of an alleged contravention of s 170CK …; or (c) … on a ground or grounds in paragraph (b) and the ground in paragraph (a)." 12 Section 170CK(2) relevantly provides that: "… an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (f) race, …" 13 Section 170HB of the WR Act relevantly provides as follows: "(1) An application must not be made under s 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that includes that ground, if proceedings (the prior proceedings ) for a remedy in respect of that termination have been commenced by or on behalf of the employee: (a) under another provision of this Act; or (b) …; or

(d) harsh, unjust or unreasonable (however described); or

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination. (2) … (3) … (4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application: (a) is discontinued by the applicant; or (b) fails for want of jurisdiction". 14 On 27 March 2006 the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the 2005 Act) relevantly commenced operation. Apart from renumbering Part VIA of the WR Act as it stood prior to the 2005 Act (and which included the provisions of Subdivisions B, C and F of Division 3, that Part with which the Court is concerned in this appeal), no substantive changes were made to the text of s 170CE (which became s 643) or to s 170CK(2) (which became s 659(2)). However, s 170HB became s 672 and was recast as follows: "(1) An application under subsection 643(1) alleging termination of employment on the ground referred to in paragraph 643(1)(a), or grounds that include that ground, must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings: (a) have been discontinued by the employee who commenced the proceedings; or (b) have failed for want of jurisdiction. (2) An employee must not commence other termination proceedings in respect of a termination of employment if an application under subsection 643(1) alleging termination of employment on the ground referred to in paragraph 643(1)(a), or on grounds that include that ground, has already been made, unless the application: (a) has been discontinued by the employee; or (b) has failed for want of jurisdiction. (3) In this section: other termination proceedings means proceedings, in respect of a termination of the employment of an employee: (a) for a remedy in respect of the termination: (i) under a provision of this Act other than section 643; or (ii) under another law of the Commonwealth; or (iii) under a provision of a law of a State or Territory that is not excluded by section 16; and (b) that allege that the termination was unlawful for any reason (other than a failure by the employer to provide a benefit to which the employee was entitled on the termination)." 15 I mention s 170HB (s 672) as it was submitted by the respondent that the effect of s 170HB(4) (s 672(2)) was to prohibit the commencement of proceedings by the appellant under the AD Act on the ground that the termination of his employment by the respondent was unlawful within the meaning of s 8(2)(c) of that Act. That submission raises at least two difficulties. 16 The first concerns the effect of s 109 of the Commonwealth of Australia Constitution Act (the Constitution) and the fact that the respondent had not previously raised the issue nor given notice under s 78B of the Judiciary Act 1903 (Cth). The giving of such notices was mandated as the submission clearly involved a matter arising under the Constitution. 17 The second is whether the making of a complaint by lodging it with the President of the Tribunal pursuant to s 89A of the AD Act and/or making a request under s 93B(1) of that Act that the President refer the complaint to the Tribunal, can be properly categorised as the taking of "proceedings for any other remedy" within the meaning of the old s 170HB(4) or as the commencement of "other termination proceedings" within the meaning of the current s 672(3) of the WR Act. In my opinion the better view is that they do not, at least unless and until the Tribunal grants leave pursuant to s 96(1) of the AD Act. Without the grant of such leave a complaint referred to the Tribunal on the request of a complainant under s 93A(1) cannot become "the subject of proceedings before the Tribunal": cf Emerald Ocean Developments Pty Ltd v Johnson (2002) 120 IR 381 at 388 [20], 391 [32] noting that this case was decided before the extensive amendments effected by the Anti-Discrimination Amendment (Miscellaneous Provision) Act 2004 (NSW) which inserted a new s 96. 18 However, the respondent ultimately eschewed any submission which required a determination by this Court as to whether the effect of s 170HB (s 672) created a statutory bar to the Tribunal granting leave pursuant to s 96(1) of the AD Act as it accepted that the constitutional issue which such a submission raised required the giving of notices under s 78B of the Judiciary Act. 19 The respondent nevertheless submitted that the Court could take the effect of those provisions into account when determining whether, as a matter of discretion, to grant relief under s 69 of the Supreme Court Act 1970 (NSW). However, it ultimately conceded that the constitutional issue could not be side stepped, as it were, by the respondent reframing its submission in terms of a discretionary, as distinct from a statutory, bar to the relief claimed by the appellant. Accordingly, it was submitted that in the event that the appeal succeeded, the proceedings should be remitted to the Administrative Law List of the Common Law Division of the Supreme Court where the respondent could, upon giving the appropriate s 78B notices, raise the issue posed by s 170HB (s 672) for determination on a remitted hearing of the summons.

The decision of Commissioner Lawson of the AIRC 20 Commissioner Lawson gave his decision on 22 June 2005. Having noted (at [2]) that the appellant sought determination of his application under s 170CE for relief concerning the termination of his employment by the respondent on 13 January 2005, the Commissioner observed (at [4]) that notwithstanding the opportunities provided to the appellant to present a case, he had failed to deal with the essential features of s 170CG(3) and to challenge in any real way the comprehensive evidence of the respondent's witnesses and other documentation. I interpolate that s 170CG(3) relevantly provides that in determining whether a termination was harsh, unjust or unreasonable, a Commissioner must have regard to, inter alia: "(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee …" 21 The Commissioner then continued in these terms (at [ 4]): "That evidence reveals in the aggregate, (1) a long history of unsatisfactory work performance by Mr Deva, accompanied by documented counselling sessions; (2) opportunities to respond to counselling; (3) an 11 month paid absence from work while his performance was reviewed; and finally, a formal 'unsatisfactory performance' review carried out in accordance with the parties' certified agreement." 22 The Commissioner then referred (at [5]) to the appellant having relied upon: "largely unsubstantiated contentions about his competency levels and his training requirements which he claimed were neither recognised, nor satisfied by the respondent". 23 The Commissioner then dealt (at [6]) with the various requirements of s 170CG(3) finding with respect to subparagraph (a) that there was a valid reason for the appellant's termination related to his unsatisfactory work performance. At [8] he determined that the respondent's decision to terminate the appellant's services on 13 January 2005 was neither harsh, unjust nor unreasonable. He therefore dismissed the appellant's application. 24 It is apparent from the Commissioner's decision, and so much was conceded by the appellant, that the hearing before the AIRC was deliberately confined to the ground that the respondent's termination of the appellant's employment on the ground of his unsatisfactory work performance was harsh, unjust or unreasonable and that no reliance was placed upon any alleged contravention of s 170CK(2)(f) to the effect that that termination was carried out by reason of the appellant's race.

The decision of Deputy President Hennessy of the Tribunal 25 The Deputy President noted (at [1]) that on 1 September 2005 the appellant had lodged a complaint with the President of the ADB alleging that the respondent had discriminated against him by terminating his employment relevantly on the ground of race and (at [2]) that the President had declined the complaint on the basis that it had already been dealt with by the AIRC. The Deputy President then noted (at [5]) that the AIRC had found that the appellant had a long history of unsatisfactory work performance for which he was counselled on several occasions and that it had therefore concluded that there was a valid reason for the appellant's termination which related to his work performance. 26 The Deputy President then set out (at [6], [7], and [8]) the reasons advanced by the appellant as to why leave should be granted. These included the appellant's contention that the subject matter of the complaint to the ADB had not been dealt with by the AIRC in that his application to that body was an unfair dismissal application and not a complaint of unlawful termination on a discriminatory ground. The appellant further submitted that he had not placed before the AIRC evidence supporting his allegations of discrimination or which included emails from work colleagues and/or supervisors which allegedly contained racial slurs. Although the Deputy President examined these documents, she did not consider it necessary to make any findings with respect to them. In fact, at [6] she said: "I examined those documents and concluded that they were not relevant to any finding I needed to make in order to decide whether or not to grant leave to [the appellant] for his complaint to be the subject of proceedings before the Tribunal." 27 The Deputy President then turned to the terms of s 92(1)(a)(v) and, in particular, to the expression "subject matter of the complaint". She referred (at [11]) to the judgment of Merkel J in Military Superannuation & Benefits Board of Trustees No.1 v Drake [2003] FCA 78 where at [28] his Honour said: "Section 19(1)(a) [of the Superannuation (Resolution of Complaints) Act 1993 (Cth)] requires that the complaint to the Tribunal be 'about the same subject matter' as the complaint to the Trustee. It is significant that the statutory requirement in s 19(1)(a) is not that the complaint to the Tribunal and the Trustee be the same complaint or be a complaint that makes the same claim for relief. The two complaints may still be about the same subject matter, notwithstanding that the way in which a complainant may wish to have the complaint resolved might differ in each complaint." 28 The learned Deputy President then continued in these terms: "12. A similar point applies to s 92(1)(a)(v) of the AD Act . That provision does not require that the same complaint has been dealt with by another body. It merely requires that the subject matter of the complaint has been dealt with by another body. The subject matter of Mr Deva's application to the AIRC was that his employment was terminated unlawfully and that he should receive a remedy for that termination. That was also the subject matter of his complaint to the Anti-Discrimination Board. The subject matter does not change because Mr Deva says that the termination was for a discriminatory reason rather than because it was harsh, unjust or unreasonable. 13. The purpose of [s 92(1)(a)(v)]is to avoid an applicant bringing proceedings against the same respondent twice in relation to the same circumstances or events. It is an extension of the principle of res judicata. That principle is that once a judgment is entered, no further proceedings can be maintained on the same cause of action. Section [s 92(1)(a)(v)] applies to proceedings relating to the same subject matter. The public policy for both res judicata and s 92(1)(a)(v) are to protect respondents from being exposed more than once to litigation in relation to the same cause of action or the same circumstances or events." 29 The Deputy President then considered (at [14]) that it was necessary that there should be a substantial reason for leave to be granted under s 96(1) of the AD Act but that there was no such reason in the present case. She continued: "The subject matter of the complaint has been dealt with by the AIRC and public policy considerations militate against [the appellant] being given another opportunity to seek relief for the termination of his employment."

The decision of the primary judge 30 After reciting the history of the matter, including the decisions of Commissioner Lawson and Deputy President Hennessy, the primary judge noted (at [10]) that the President of the ADB, in declining the appellant's complaint pursuant to s 92(1) of the AD Act, seemed to have concluded that the burden of the appellant's complaint was that his employment had been determined by an act of unlawful discrimination. He continued: "As he [the appellant] had been on paid leave from February 2004 until such determination, it seems unlikely that other unlawful discrimination could have been perpetrated within 12 months before the making of the complaint as contemplated by s 89B(2)(b) of the Anti Discrimination Act , which provides, as a ground for the President to decline a complaint, 'if the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint." 31 It is true that s 89B(2) empowers the President of the ADB to decline a complaint if: "(b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint".

In the present case the complaint was made on 29 August 2005. In the 12 months prior to that date the appellant had been on paid leave from February 2004 to 13 February 2005, when his employment was terminated. Whether in the 12 months prior to 12 August 2005 and, in particular, during the period between 1 September 2004 and 13 February 2005 when his employment performance was under investigation, there had been racial slurs made against the appellant is unknown. Certainly it can be assumed that the appellant would, if the matter came to a hearing on the merits, rely upon alleged racial remarks that predated his suspension on full pay in February 2004. However, there is nothing to suggest that the President of the ADB declined the appellant's complaint upon the ground set forth in s 89B(2)(b), which in any event involved a discretionary ground for declining to entertain a complaint which may or may not have been adopted in the particular circumstances. 32 Having noted (at [11]) that by virtue of the provisions of s 96(4) of AD Act that no appeal lay from the decision of the Deputy President to the Appeal Panel of the Tribunal, his Honour observed that s 122 of the ADT Act provided that nothing in that Act affected the power of the Supreme Court in the exercise of its original jurisdiction to review the decisions of the Tribunal. He thus accepted that the summons before him was one filed pursuant to s 69 of the Supreme Court Act which empowered the Court to quash a determination of the Tribunal on the basis of an error of law on the face of the record. The latter included the Deputy President's reasons: see s 69(4). 33 The primary judge then set out (at [13]) the paragraphs of the appellant's summons which purported to identify the relevant error of law committed by the Deputy President. He noted (at [14]) that the latter did not conclude that Commissioner Lawson had determined the issue of unlawful discrimination, as plainly he had not. However, as the Deputy President had pointed out, unlawful discrimination was a basis upon which the appellant could have sought relief from the AIRC as ss 170CE(1)(b) and 170CK(2)(f) of the WR Act expressly so provided. 34 His Honour then continued: "15. What Hennessy DP decided was that the 'subject matter of the complaint' to the ADB had been dealt with by another body, namely the AIRC and that such 'subject matter' was the termination of the [appellant's] employment. 16. The conclusion of Hennessy DP that the [appellant's] complaint to the ADB concerned an alleged termination of his employment on the ground of unlawful discrimination was not, in my view, a question of law. She was, in my opinion, entitled to accept, as did the President of the ADB, that, as a matter of fact, this was the substance of the complaint, virtually by a process of elimination, as the complaint itself did not assist her. 17. Whether the subject matter of the complaint was dealt with by the AIRC was, in my opinion, a question of law. …" 35 The question which therefore arose was this: the appellant's application to the AIRC was that the termination of his employment with the respondent was unfair in that it was harsh, unjust or unreasonable. His complaint to the ADB was that his employment had been unlawfully terminated on the ground of race. Was the "subject matter" of each of those "complaints" the same? The resolution of that question depended upon the true construction of the expression "the subject matter of the complaint" in s 92(1)(a)(v) of the AD Act. 36 His Honour then referred, as had the Deputy President, to the decision of Merkel J in Drake and cited the paragraph from his Honour's judgment, which I have recorded in [27] above. The primary judge (at [23]) cited two further passages from Merkel J's judgment, of which the following is presently relevant: "Accordingly, in each case it is necessary to identify the subject matter of the complaint before the Tribunal and enquire whether a complaint about the same subject matter had previously been made to the Trustee. In determining that matter the complaint 'should not be read, parsed and analysed with the eye of a pleader'." 37 His Honour then observed (at [24]) that the Deputy President was correct to regard the judgment of Merkel J in Drake as helpful in resolving the issue before her and that: "she was also entitled to conclude that the subject matter of the [appellant's] complaint to the ADB was the termination of his employment with the [respondent] and she was also entitled to find that this was the subject matter of his complaint to the AIRC. Thus the matter fell within [s 92(1)(a)(v)] of the Anti-Discrimination Act and the President had been entitled to decline it." 38 He then noted (at [25]) that the Deputy President was exercising a judicial discretion in accordance with s 96(1) of the AD Act, observing that it was not necessary to the exercise of that discretion that she make "the finding of law to which I have referred as she was not conducting a review of the merits of the President's decision". It is not clear as to which "finding of law" of the Deputy President to which his Honour was referring unless it be her conclusion, which his Honour regarded as a question of law (see [17] of his judgment) that the subject matter of the complaint to the ADB was the same as that dealt with by the AIRC. 39 The primary judge then noted that the fact that the appellant could have litigated his claim of discrimination in the proceedings before the AIRC was clearly a relevant, if not decisive, factor. This may be so but there was nothing to indicate that the Deputy President took that fact into account when exercising her discretion to refuse leave pursuant to s 96(1). Furthermore, it should be noted that s 92(1)(a)(v) refers to whether the subject matter of the complaint (to the ADB) "has been, is being, or should be" dealt with by another body: not that it "could have been" or 'should have been' so dealt with. Accordingly, the fact that the subject matter of the appellant's complaint to the ADB should have been (in the sense that it could have been) dealt with by the AIRC was not a matter which s 92(1)(a)(v) addressed, although it may well be a matter to which the President could have had regard under s 92(1)(b). However, there is no suggestion that he did. 40 Having therefore considered that the Deputy President did not err in law in holding that the appellant's complaint to the ADB concerned the same subject matter as his complaint to the AIRC, his Honour applied the General Steel test and found that there was there was no real question to be determined of either fact or law. Consequently the appellant's summons was summarily dismissed.

Was there an error of law on the part of the Deputy President of the Tribunal? 41 The essence of the Deputy President's decision was that the subject matter of the appellant's complaint to the ADB was the same as the subject matter of his application to the AIRC, namely, "that his employment was terminated unlawfully and that he should receive a remedy for that termination". 42 The Deputy President did not consider that there was a change in the subject matter between the two complaints merely because in one case the ground of termination was that it was "harsh, unjust or unreasonable" whereas in the other it was that it was unlawful being for a discriminatory reason. 43 The Deputy President determined (at [13]) that the purpose of s 92(1)(a)(v) was to "avoid an applicant bringing proceedings against the same respondent twice in relation to the same circumstances or events."

44 The only common circumstance or event in the present case was the termination of the appellant's employment with the respondent on 13 February 2005. The subject matter of each complaint was nevertheless held by the Deputy President (at [12]) to be the unlawful termination by the respondent of the appellant's employment. The initial question that arises on this appeal is whether that was an unarguable proposition in the terms of the General Steel test. In my opinion, it was not. 45 The answer to the question posed depends upon the level of generality or abstraction at which one defines the expression "the subject matter of the complaint", always bearing in mind that one is concerned only with the subject matter of the complaint to the ADB. At the highest level of generality the expression can be construed to refer, in the context of the present case, to the respondent's termination of the appellant's employment. At a lower level of generality the expression can be construed in the present context as referring to the termination of the appellant's employment for reason of his race. The middle position would appear to be that adopted by the Deputy President, namely, the unlawful termination of the appellant's employment, but without encompassing also the ground of or reason for that termination. 46 As I have indicated, the identification of the "subject matter of the complaint" for the purpose of s 92(1)(a)(v) must be determined in the context of those provisions of the AD Act which relate to conduct constituting unlawful discrimination. Section 87 defines a "complaint" as one made under s 87A which, in turn, refers to a complaint alleging that a person has contravened a provision of the Act. 47 The AD Act provides that it is unlawful for a person to, inter alia, discriminate against another person on various grounds including that of race. Relevantly, s 8(2)(c) provides that it is unlawful for an employer to discriminate against an employee on the ground of race by dismissing the employee. A complaint that an employer has so unlawfully discriminated against an employee is properly categorised as a complaint of unlawful discrimination simpliciter or as unlawful discrimination on the ground of race. 48 By way of contrast, the dismissal of an employee on the ground of unsatisfactory work performance can never be unlawful although it may be, in the circumstances, unfair. Hence an application under s 170CE(1)(a) of the WR Act, for relief in respect of the termination of an employee's employment on the ground that it is harsh, unjust or unreasonable has properly been categorised as an application with respect to an unfair dismissal. Such an application, if so confined, is essentially different to one alleging unlawful dismissal. The latter involves a breach of the law; the former does not. 49 In the present case, therefore, the Deputy President was incorrect when (at [12]) she categorised the appellant's application to the AIRC as one alleging that his employment was terminated unlawfully: it was not. It was allegedly terminated unfairly. At [10] of her judgment she acknowledged as much when she noted that there was no dispute that the appellant's "unfair dismissal application" was "dealt with" by the AIRC which was a relevant "body" for the purposes of s 92(1)(a)(v). 50 In my view it is appropriate to determine the "subject matter" of the appellant's complaint to the ADB by asking, simply, what was his complaint about? The answer as a matter of common sense is: the alleged unlawful termination of his employment on the ground of race. If one asks the same question with respect to the appellant's application to the AIRC the answer is: the unfair termination of his employment on the ground that it was harsh, unjust or unreasonable. The addition to the answer of the relevant ground may not be necessary. It may be sufficient to say that the complaint to the ADB was that the appellant was unlawfully dismissed whereas that to the AIRC was that he was unfairly dismissed. As I have said, the two are in my view fundamentally different. 51 Although the respondent submitted that the question should be approached at a very general level so that it was sufficient to categorise the subject matter of the appellant's complaint to the ADB on the one hand and his application to the AIRC on the other as being the termination of his employment, in my view such an approach is at too high a level of generality. It fails to appreciate that although the appellant's complaint related to the termination of his employment, the "subject matter" or substance of his complaint about his dismissal was in the one case that it was unlawful, and in the other, unfair, in each case on different grounds which of themselves did not necessarily overlap. 52 The primary judge attributed to the Deputy President (at [15]) a finding that the "subject matter" of each complaint was the same, namely, the termination of the appellant's employment. This was a finding that, according to his Honour at [24], she was entitled to make. But as I have indicated, the Deputy President identified the subject matter of the complaint to both the ADB and the AIRC as being the unlawful termination of the appellant's employment. To the extent to which his Honour was of the view that the subject matter of each complaint was no more than the termination of the appellant's employment, he fell into error. That may have been what the complaint related to, but it was not its subject matter. 53 Nevertheless the respondent contended in oral argument that the subject matter of each complaint was the anterior facts, circumstances and events which led to the appellant's dismissal and that they were the same in each case. This submission also asserted that the subject matter of the complaints was in each case "the manner in which he [the appellant] was terminated". When asked what was meant by the "manner" of the termination, the response was "the circumstances". A short time later it was submitted that the "subject matter of the complaint is the termination of his [the appellant's] employment". These various shifts in the respondent's contentions underscore the difficulty in accepting the Deputy President's and primary judge's response to the critical question. 54 The respondent sought to support its contention that the subject matter of the complaint to the ADB was no more than the termination of the appellant's employment by submitting that the concept of unfair dismissal was broad enough to encompass unlawful dismissal but not vice versa. If this be correct (and it may not be), then the submission leads to a different result. It was common ground that the complaint to the ADB was one of unlawful dismissal and that that to the AIRC was one of unfair dismissal. Section 92(1)(a)(v) requires one to identify the subject matter of the complaint to the ADB. As I have said, it was one of unlawful dismissal. As such, on the respondent's own argument, it could not encompass matters that made the appellant's dismissal unfair. If this be so, then it must logically follow that the subject matter of the complaint to the AIRC (unfair dismissal) was not the same as, for it could not be encompassed in, the subject matter of the complaint to the ADB (unlawful dismissal). 55 The foregoing is given emphasis by the dichotomy in s 170CE(1) between subparagraph (a) which is concerned with unfair dismissal and subparagraph (b) which is concerned with unlawful dismissal, being an alleged contravention of ss 170CK, 170CL, 170CM or 170CN. Each of those provisions (in particular s 170CK(2), 170CL(3), 170CM(1) and 170CN) is couched in terms of a prohibition, namely, that "an employer must not terminate an employee's employment …". 56 Although a contravention by an employer of those provisions is not an offence (see s 170CO), an employee's remedy is to apply to the Federal Court of Australia pursuant to s 170CP(1) for an order under s 170CR. Pursuant to s 170CR(1), the Federal Court, if satisfied that an employer has contravened s 170CK or 170CN in relation to the termination of an employee's employment, may make an order imposing a penalty on the employer of not more than $10,000 ($1,000 for a contravention of s 170CL) and/or order that the employee be reinstated and/or requiring the employer to pay to the employee compensation. It is noteworthy that where the employee alleges a contravention of s 170CK(2) - which includes termination by reason of race - s 170CQ provides that it is not necessary for the employee to prove that the termination was for a proscribed reason (defined as a reason set out in s 170CK(2)), although it is a defence if the employer proves that the termination did not include a proscribed reason. 57 The procedure when an application is lodged with the AIRC under s 170CE is also of some relevance. The AIRC must attempt to settle the matter to which the application relates by conciliation: s 170CF. Where it is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the AIRC must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground: s 170CF. Section 170CFA relevantly then provides: "(1) If the certificate given by the Commission under subsection 170CF(2) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful, the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed. (2) If the certificate given by the Commission under subsection 170CF(2) identifies only: (a) the ground referred to in paragraph 170CE(1)(a); and (b) the ground of an alleged contravention of section 170CM; as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both or neither of the following: (c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; (d) to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention of section 170CM. (3) If the certificate given by the Commission under subsection 170CF(2) identifies: (a) the ground referred to in paragraph 170CE(1)(a); and (b) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN; as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either or neither of the following: (c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; (d) to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions. (4) If the certificate given by the Commission under subsection 170CF(2) identifies only a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL, 170CM and 170CN as the ground or grounds where conciliation is, or is likely to be unsuccessful, the applicant must elect to do either, both or neither of the following: (a) so far as concerns an alleged contravention of a section or sections other than section 170CM - to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions; (b) so far as concerns an alleged contravention of section 170CM - to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention. (5) If the certificate given by the Commission under subsection 170CF(2) identifies: (a) the ground referred to in paragraph 170CE(1)(a); and (b) the ground of an alleged contravention of section 170CM; and (c) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN; as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect: (d) to do either or both of the things permitted in subsection (2); or (e) to do either or both of the things permitted in subsection (4); or (f) to do none of those things." 58 A consideration of the above provisions of s 170CFA emphasises the distinction between an application under s 170CE for relief in respect of the termination of an employee's employment on the ground identified in s 170CE(1)(a) that the termination was harsh, unjust or unreasonable on the one hand and on the ground identified in s 170CE(1)(b) being, relevantly, an alleged contravention of s 170CK on the other. Where conciliation is unsuccessful or is likely to be unsuccessful, and where the employee relies on the grounds set out in each of subparagraphs (a) and (b) of s 170CE(1) (other than s 170CM), he or she is required to elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or to begin proceedings in the Federal Court for an order under s 170CR in respect of the alleged contravention of s 170CK. In my opinion the distinction between these grounds is thus demonstrated. 59 It follows from the foregoing that the respondent's submission that an application under s 170CE(1)(a) that the termination of the appellant's employment was harsh, unjust or unreasonable was capable of including a complaint that his termination was for reason of his race and was, therefore, discriminatory, should be rejected. The analysis of the relevant provisions of the WR Act undertaken above demonstrates that an application on a ground identified in s 170CE(b) is not only different in substance to an application on the ground identified in s 170CE(1)(a) but also is to be processed differently to the point where the employee is required, absent a successful conciliation, to elect between them and, therefore, cannot pursue both: s 170CFA(3). The statutory distinction between the two applications is manifest. 60 One can accept, as the respondent submitted, that in determining whether the termination of the appellant's employment was harsh, unjust or unreasonable, the AIRC was required pursuant to s 170CG(3) to have regard, relevantly, to whether there was a valid reason for the termination and to any other matter which the AIRC considered relevant. It was therefore submitted that a claim that a dismissal was harsh, unjust or unreasonable might raise questions of racial discrimination. Reliance for that proposition was placed upon a statement to that effect by Schmidt J in Johnston v Department of Mineral Resources (1997) 73 IR 267 at 272. However her Honour was dealing there with s 169 of the Industrial Relations Act 1996 (NSW) which provided that the Commission must, in the exercise of its functions, take into account the principles contained in the AD Act. Further, in the definition of industrial matters, s 6(2)(f) of the former provides that an example of an industrial matter was discrimination in employment in any industry on a ground to which the AD Act applied. Johnston is, therefore, clearly distinguishable. Furthermore, in my view the respondent's proposition gains no support from the provisions of s 170CG(3)(a) and (e) when read in the context of s 170CFA. 61 The respondent nevertheless pressed upon the Court that the appellant's complaint was always that there was a racially motivated conspiracy against him in which, as he conceded, the facts and circumstances relied upon by him before the AIRC were the same as those now sought to be relied upon in the Tribunal. Given that the purpose of s 92(1)(a)(v) of the AD Act, like s 170HB of the WR Act, is to prevent a multiplicity of litigation with respect to complaints involving the same subject matter and so preventing any abuse by employees of the wide range of statutory alternatives from which they can choose, employees should be required to elect between the various statutory remedies provided by the legislature with respect to the termination of their employment. 62 There are at least three difficulties with this submission. First, although it can be accepted that s 170HB (and, for that matter, s 170HBA, which prohibits more than one application under s 170CE in respect of the same termination) is intended to prevent a multiplicity of proceedings in different forums in respect of the same termination of employment, s 92(1)(a)(v) is not prescriptive in its terms but merely identifies a factor which, if satisfied, may engage the discretion of the President of the ADB to decline to entertain a complaint under the AD Act. 63 Second, s 92(1)(a)(v) is not directed to, although it is capable of including, a complaint with respect to the termination of an employee's employment. Third, it follows from the foregoing that the emphasis which the respondent seeks to place upon the perceived purpose of s 92(1)(a)(v) of avoiding a multiplicity of proceedings in respect of the same termination of employment, loses its force insofar as it is relied upon to support a construction of the expression "the subject matter of the complaint" at a high level of generality. 64 In summary, therefore, my conclusions are as follows: (a) Section 92(1)(a)(v) required the subject matter of the appellant's complaint to the ADB to be identified;

(b) Although the complaint was with respect to the termination of his employment by the respondent, that was not its " subject matter ";

(c) The subject matter of the complaint was that the respondent had unlawfully dismissed him on the ground of race;

(d) The appellant's application to the AIRC was that he had been unfairly, as distinct from unlawfully, dismissed in that the termination of his employment by the respondent was harsh, unjust or unreasonable;

(e) The relevant provisions of the WR Act draw a clear distinction between unfair dismissal and unlawful dismissal;

(f) As the subject matter of the appellant's complaint to the ADB was one of unlawful dismissal and as the subject matter of his application to the AIRC was unfair dismissal, they were not the same;

(g) Accordingly, in terms of s 92(1)(a)(v) of the AD Act , the subject matter of the appellant's complaint to the ADB had not been dealt with by the AIRC (it was not suggested by the respondent that it should be so dealt with noting that the subsection does not refer to a complaint that " could have been" or " should have been" so dealt with);

(h) It follows that: (i) the Deputy President was in error in categorising the appellant's application to the AIRC as one of unlawful as distinct from unfair termination;

(ii) given the relevant statutory provisions, it was not open as a matter of law to the Deputy President to find that the subject matter of the appellant's complaint to the ADB was the same as the subject of his application to the AIRC;

(iii) to the extent to which the Deputy President and the primary judge held that the subject matter of the appellant's complaint to the ADB was the termination of his employment by the respondent, they were in error as they approached the construction of s 92(1)(a)(v) of the AD Act at too high a level of generality. 65 It will be appreciated from the foregoing that I have gone beyond finding that the primary judge erred in holding that the appellant's construction of s 92(1)(a)(v) was unarguable which would have been sufficient for disposing of the appeal in terms of the limited ground upon which leave to appeal was granted. However, in the course of argument the respondent accepted, as had been foreshadowed on the grant of leave, that as the issue of construction had been fully argued (at least by the respondent), it would be appropriate for the Court to determine that issue on a final basis. This I have attempted to do. 66 The respondent submitted, however, that in order for the appeal to succeed and relief under s 69 of the Supreme Court Act to be granted, the Court would need to find that it was not open to the Deputy President to find that, as a matter of fact, the subject matter of the complaint to the ADB was the same as that of the application to the AIRC. I so find for the reasons articulated above.

Some further issues raised by the respondent 67 The respondent submitted that the primary judge was correct to dismiss the appellant's summons as it did not allege or disclose any recognised form of jurisdictional error by the Deputy President in her decision to refuse leave. However, relief is available under s 69 of the Supreme Court Act if it is established that the Tribunal has committed an error of law on the face of the record: Saville v Health Care Complaints Commission [2006] NSWCA 298 at [24]. Jurisdictional error in the sense that the Tribunal acted without jurisdiction is not the only ground upon which a decision of an administrative body such as the Tribunal may be subject judicial review. 68 In the present case it is true that the Tribunal was exercising its discretion under s 96(1) of the AD Act as to whether or not to grant leave to enable the appellant's complaint to be the subject of proceedings before it. Had the Deputy Registrar refused leave as a matter of discretion then the appellant may have had difficulty in establishing a relevant error of law as distinct from an error in the exercise of her discretion of the nature of that referred to in House v The King (1936) 55 CLR 499 at 504-505. 69 In the present case the Deputy President, although not obliged to do so, nevertheless squarely based her decision to refuse leave upon her finding that the subject matter of the appellant's application to the AIRC was the same as that of his complaint to the ADB within the meaning of s 92(1)(a)(v) of the AD Act. Critically she said (at [12]): "The subject matter does not change because [the appellant] says that the termination was for a discriminatory reason rather than because it was harsh, unjust or unreasonable." 70 The Deputy President determined to exercise her discretion to refuse leave because of that finding and the process of reasoning which led to it. She made clear at [14] of her reasons that it was not necessary for her to consider the submission of the respondent that leave should be refused because the appellant's complaint was frivolous, vexatious, misconceived and lacking in substance as she had decided not to grant to leave "on another basis". That basis related solely to her construction of the expression "the subject matter of the complaint" in s 92(1)(a)(v) and so involved a question of law, the determination of which was fundamental to her ultimate decision. If the Deputy President's construction of that expression was in error, as I consider it was, then there was an error of law on the face of the record which, subject to the Court's discretion, would prima facie justify the grant of relief under s 69 of the Supreme Court Act in the nature of an order quashing the Deputy President's decision and remitting the matter to her for reconsideration in accordance with law. 71 The respondent nevertheless contended that in truth the Deputy President's decision to refuse leave was directed (at [13]) by the policy considerations underlying s 92(1)(a)(v) being the necessity: "to avoid an applicant bringing proceedings against the same respondent in relation to the same circumstances or events." 72 The particular passage relied on was the following (at [14]): "The subject matter of the complaint has been dealt with by the AIRC and public policy considerations militate against [the appellant] being given another opportunity to seek relief for the termination of his employment." 73 In my view, however, it cannot be said that the Deputy President based her decision on public policy considerations independent from her finding that the subject matter of the complaints to the AIRC and the ADB was the same. The policy considerations to which she was referring were those to which I have referred at [71] above as underlying s 92(1)(a)(v). But those considerations were only triggered if the anterior question as to whether the subject matter of the complaint to the ADB had been dealt with by the AIRC was answered in the affirmative. The Deputy President was of the opinion that they were, but in my respectful view, they were not. 74 The respondent next submitted that the appellant had conceded in his submissions on the appeal that the facts and incidents the subject of the proceedings in the AIRC were the same as those upon which he proposed to rely in support of his complaint in the Tribunal. Although I do not regard that submission, even if accurate, to be relevant, I shall nevertheless in fairness to the parties respond to it. 75 The appellant's written and oral submissions in this respect were a little confusing. Thus in a submission filed on 10 January 2008 in response to the respondent's written submissions, he stated the following: "11. Subject matter therefore is a combination of the issue and facts. The facts submitted by me to AIRC and to ADB/ADT are the same. The issue of Equal Opportunity was not included in AIRC - and the issue of Common Workplace values was not included in the application of the ADB. 12. I therefore submit that if facts are different or if the issue is different - the subject matter is different." 76 There is no doubt that the common fact in the two complaints was that the appellant's employment with the respondent was terminated. But I did not understand the appellant to be conceding that the facts and circumstances upon which he proposed to rely to establish that the termination of his employment was in breach of s 8(2)(c) of the AD Act were identical in all respects to those upon which he relied, whether orally or in writing, before the AIRC. There is no suggestion in Commissioner Lawson's decision that the appellant's evidence went beyond matters going to his work performance. 77 In this context the respondent in its written submissions to this Court stated as follows: "32. The appellant was invited by the AIRC to make any comments about the employer's evidence which detail his poor performance. 33. It appears that the appellant's application was put on the basis that: (a) there was no valid reason for the termination; (b) the termination was harsh and unjust as he was denied training opportunities, equipment and credit for success."

What relief, if any, should be granted? 78 The respondent submitted that the Court should in its discretion refuse relief as to do otherwise would be futile for two reasons. First, if the matter were remitted to the Deputy President, there would seem little doubt that her decision would be the same. Second, the effect of s 170HB(4) or, in its current form s 672(2), of the WR Act would inevitably preclude the appellant proceeding in the Tribunal. 79 As to the first ground, although I acknowledge the width of the Tribunal's discretion to refuse leave under s 96(1) of the AD Act, nevertheless such a result is not inevitable if, as I consider to be the case, s 92(1)(a)(v) is not engaged in the present case. 80 The second ground has more force but does not lead to the outcome contended for by the respondent. I have already referred to its submissions based on s 170HB. Whether or not that provision or its successor mandates the refusal of leave under s 96(1) was not agitated either before the Deputy President or the primary judge. But there is no reason to deny the respondent the opportunity to rely upon those provisions subject to compliance with s 78B of the Judiciary Act. If it be the case that the appellant is precluded from proceeding in the Tribunal on his complaint, then it would indeed be futile for the matter to be remitted for reconsideration: cf SZBYR v Minister for Immigration & Citizenship [2007] 81 ALJR 1190 at 1207 [87] per Kirby J and [91] per Hayne J. 81 This question is most appropriately resolved by remitting the s 170HB issue to the Administrative Law List of the Common Law Division of the Supreme Court for determination. However, an order should be made quashing the decision of the Deputy President to refuse the appellant leave for the complaint to be the subject of proceedings in the Tribunal but at this stage without remitting the question of leave to the Tribunal for redetermination.

Conclusion 82 In my opinion the appellant is entitled to succeed on the appeal. However, as he is an unrepresented litigant he is not entitled to the usual order for costs to compensate him for time spent in preparing and conducting his case either before the primary judge or this Court: Cachia v Hanes (1994) 179 CLR 403; Lawrence v M D Nikolaidis & Co (2003) 57 NSWLR 355. I would therefore propose the following orders: (a) Appeal allowed.

(b) Set aside the orders made by Patten AJ on 17 April 2007.

(c) Order that the Notice of Motion filed by the respondent on 1 February 2007 in the Administrative Law List of the Common Law Division of the Supreme Court be dismissed.

(d) Order that the decision of Deputy President Hennessy of the Administrative Decisions Tribunal on 12 December 2006 in Matter No: 061096 be quashed.

(e) Remit the hearing of the appellant's summons filed on 7 January 2007 in the Administrative Law List of the Common Law Division of the Supreme Court to a judge of that List for determination, subject to the respondent complying with s 78B of the Judiciary Act 1903 (Cth), of the effect of s 170HB of the Workplace Relations Act 1996 (Cth) upon the appellant's complaint to the Anti-Discrimination Board made on 1 September 2005.

(f) Order that the respondent pay to the appellant the court fees incurred by him with respect to the filing of the summons for leave to appeal and the Notice of Appeal pursuant to the grant of leave. 83 CAMPBELL JA: I agree with Tobias JA. 84 BELL JA: I agree with Tobias JA.

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