Deva v University of Western Sydney

CATCHWORDS: STATUTORY INTERPRETATION - acts of parliament - interpretation - applicant unsuccessful in proceedings for unfair dismissal under Workplace Relations Act 1996 (Cth) -subsequent complaint of unlawful dismissal in respect of the same termination pursuant to Anti-Discrimination Act 1977 (NSW) - whether Anti-Discrimination Act proceedings barred by Workplace Relations Act 1996 (Cth) s 170HB(4) - APPEAL - application for leave to appeal - challenge to findings on remitter from Court of Appeal - Court of Appeal found subject matter of complaint pursuant to Anti-Discrimination Act 1977 (NSW) not same as that dealt with in Workplace Relations Act complaint - whether primary judge reversed or failed to take into account first Court of Appeal ruling - no error demonstrated

Anti-Discrimination Act 1977 (NSW) Judiciary Act 1903 (Cth) LEGISLATION CITED: Workplace Relations Act 1996 (Cth) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Uniform Civil Procedure Rules 2005 (NSW)

Deva v University of Western Sydney [2008] NSWCA 137 CASES CITED: Deva v University of Western Sydney [2009] NSWSC 280 Divine-Bortey v Brent LBC [1998] ICR 886 CA SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190

PARTIES: Pradeep Deva - Applicant University of Western Sydney - Respondent

COUNSEL: Applicant in person S E J Prince - Respondent

SOLICITORS: Applicant in person Lander & Rogers Lawyers - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40224/09 SC 30003/07

McCOLL JA HANDLEY AJA SACKVILLE AJA

1 McCOLL JA: The applicant, Pradeep Deva, seeks leave to appeal from a decision of Smart AJ dismissing the applicant's summons dated 7 January 2007, filed in the Supreme Court on 8 January 2007, seeking judicial review of a decision of a Deputy President of the Administrative Decisions Tribunal (the "Tribunal") of 12 December 2006: Deva v University of Western Sydney [2009] NSWSC 280. The application for leave to appeal has been heard concurrently with the argument which would be presented on appeal if leave was granted. 2 The issue Smart AJ resolved was a narrow one: whether, in the circumstances of the case, s 170HB of the Workplace Relations Act 1996 (Cth) (the "WR Act") barred the applicant from taking proceedings before the New South Wales 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, the University of Western Sydney, had unlawfully discriminated against him by dismissing him on the ground of race. Smart AJ held (at [24]) that s 170HB(4) created a statutory bar and precluded the applicant from taking those proceedings before the ADB.

Statement of the case 3 The background to the present application can be gleaned from an earlier decision of this Court pursuant to which the applicant's summons was remitted to a judge sitting in the Administrative Law List of the Common Law Division of the Supreme Court to determine the s 170HB issue: Deva v University of Western Sydney [2008] NSWCA 137 ("Deva 1"). The judgment was delivered by Tobias JA, Campbell and Bell JJA agreeing. His Honour summarised the factual background as follows: "1 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." 4 It is not clear what papers were before the Court which heard Deva 1. It was apparent from the papers before this Court that the applicant's letter of 29 August 2005 addressed to the President of the ADB made a general complaint that the applicant had "suffered discrimination at the University of Western Sydney": cf Deva 1 (at [3]). After several exchanges of correspondence in which the ADB sought to clarify the applicant's complaint and determine whether any, or part, of the matters complained of occurred more than 12 months before it was lodged (s 89B(2)(b), AD Act), the applicant wrote to the ADB on 5 October 2005. In that letter he set out "Issues leading to unlawful dismissal in January 2005", which included the assertion that he was "terminated in January 2005 racistly" and "they racistly terminated me". It is apparent from its response of 25 October 2005 that the ADB treated this as a complaint that the applicant was "terminated because of [his] race on 1 January 2005" (the "termination complaint"). 5 It is also relevant to note, for reasons which I shall explain, that on 6 July 2006 the ADB wrote to the applicant advising that the President had declined to investigate those parts of his complaint which were alleged to have occurred before 1 September 2004 on the basis that they happened more than 12 months before the complaint. That decision could not be reviewed before the Tribunal: s 89B(4), AD Act. The letter went on to advise the applicant that it would "continue with the investigation of the complaint alleged to have occurred after 1 September 2004, i.e. the termination of your employment". The latter investigation culminated, as Tobias JA said (Deva 1, at [4]) with the President's letter of 4 October 2006 declining the complaint under s 92(1) of the AD Act. 6 The Summons commencing proceedings in the Supreme Court claimed under the heading "Relief claimed": "The plaintiff[s] claim[s] - Judicial review. The NSW ADB/ADT (Anti-Discrimination Board / Administrative Decision Tribunal) alleges the subject matter of unlawful discrimination has already been dealt by another body - AIRC - (Australian Industrial Relation Commission). This is incorrect." 7 As is apparent, therefore, the applicant sought judicial review only in respect of Deputy President Hennessy's decision refusing leave for the termination complaint to proceed before the Tribunal. 8 In the course of the Deva 1 hearing, the respondent submitted that the effect of s 170HB(4) was to prohibit the applicant from commencing proceedings under the AD Act: Deva 1 (at [15]). That submission raised two difficulties outlined by Tobias JA (at [16] - [17]). The first was the effect of s 109 of the Constitution and the fact the respondent had not either previously raised the issue or given notice under s 78B of the Judiciary Act 1903 (Cth) of what Tobias JA concluded involved a matter arising under the Constitution. The second was whether making a complaint by lodging it with the President of the ADB 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 could be characterised as the taking of "proceedings for any other remedy" within the meaning of s 170HB(4). Although Tobias JA proffered a view that such a conclusion could not be reached before the grant of leave to proceed pursuant to s 96(1) of the AD Act, ultimately the question did not arise because, as is clear (Deva 1, at [18]), the respondent did not pursue the s 170HB point at that stage because of its failure to serve s 78B notices. 9 The substantive issue which ultimately fell for determination in Deva 1 was whether the President of the ADB correctly concluded for the purposes of s 92(1)(a)(v) of the AD Act, that the subject matter of the termination complaint had been dealt with by the Australian Industrial Relations Commission (the "AIRC"). 10 Tobias JA considered the nature of the AIRC proceedings and observed (Deva 1, at [24]) that the application before that body was confined to a complaint that the respondent's termination of the applicant's employment on the ground of his unsatisfactory work was harsh, unjust or unreasonable and that no reliance was placed upon any alleged contravention of s 170CK(2)(f) to the effect that the termination was carried out by reason of the applicant's race. 11 Tobias JA concluded that the subject matter of the termination complaint had not been dealt with by the AIRC. In his view the subject matter of the application to the AIRC concerning the applicant's termination was on the grounds of unfair dismissal, whereas the subject matter of the complaint to the ADB was one of unlawful dismissal. Accordingly, in his Honour's view, the subject matter of the AIRC and the proposed Tribunal proceedings were not the same: Deva 1 (at 64). 12 Tobias JA rejected a submission by the respondent that the Court should refuse relief in the exercise of its discretion because to do otherwise would be futile where the effect of s 170HB(4) would inevitably preclude the appellant proceeding in the Tribunal: Deva 1 (at [78]). Tobias JA concluded (at [80]) that while the respondent's submission as to futility would be accepted in the event its argument about s 170HB was correct (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (at [87]) per Kirby J and (at [91]) per Hayne J), the appropriate course was to remit the s 170HB issue to the Administrative Law List for determination.

Legislative framework 13 Prior to amendments which took effect on 27 March 2006, s 170CE, which appeared in Subdivision B (Application to commission for relief in respect of termination of employment), Division 3 (Termination of employment), Part VIA of the WR Act relevantly provided: "(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)." 14 Section 170HB of the WR Act, which appeared in Subdivision F (Other rights relating to termination of employment) of Division 3 Part VIA, relevantly provided: "(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) ,,, (b) …; or (c) under a law of a State …; alleging that the termination was: (d) harsh, unjust or unreasonable (however described); or (e) unlawful ;

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.

(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." (emphasis added) 15 The Explanatory Memorandum which accompanied the Workplace Relations and Other Legislation Amendment Bill 1996 (Cth) described the purpose of s 170HB (at p 52) as ruling out "dual applications (under Subdivision B and otherwise) in relation to a single termination of employment, except for actions seeking entitlements arising from the termination". 16 On 27 March 2006 the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the "Work Choices Act") commenced operation. It renumbered Part VIA of the WR Act (see Schedule 5), but made no substantive changes to s 170CE (which became s 643) or to s 170CK(2) (which became s 659(2)). Section 170HB, which became s 672, was amended as set out in Schedule 1 [152]. These amendments applied only to terminations of employment that occurred after the commencement of Schedule 1 on 27 March 2006: Sch 4, cl 7, Work Choices Act. They need not be further considered. The applicant's employment was terminated in or about 13 January 2005.

Primary judgment 17 After setting out the history of the proceedings and the relevant legislative provisions, the primary judge noted (at [12]) that s 170HB(4) provided "in effect that after an unsuccessful application to the AIRC on the ground that the termination was harsh, unjust or unreasonable or on grounds that include that ground a person (including an employee or a former employee) is not entitled to take proceedings under a State law for any other remedy if it is alleged that the termination was harsh unjust or unreasonable (however described) or unlawful" (emphasis added). He added (at [13]) that ss 170HB (1) and (4) were designed to avoid a multiplicity of proceedings, a proposition Tobias JA had also accepted: Deva 1 (at [62]). Their Honours' observations reflect the Explanatory Memorandum to which I have referred. 18 The primary judge observed (at [16]) that if, on leave being granted under s 96 of the AD Act, proceedings in the Tribunal would be caught by the statutory bar in s 170HB it would be futile for the matter to be remitted to the Tribunal for reconsideration, a proposition which reflected Tobias JA's statement to like effect: Deva 1 (at [80]). 19 The primary judge concluded (at [24]) that as the complaint the applicant made under the AD Act in effect alleged that the termination of his employment by the respondent was unlawful, s 170HB created a statutory bar and precluded proceedings being taken under the AD Act alleging that termination was unlawful. His Honour added (at [25]) that by virtue of s 109 of the Constitution the WR Act prevailed. He dismissed the summons, observing that it would be futile to remit the matter to the Tribunal. He expressed the provisional view that there should be no order as to the costs of the proceedings as the hearing before him was necessary because the respondent had not served notices under s 78B of the Judiciary Act when it wanted to raise and rely on matters involving constitutional issues. The respondent's written submissions in this application advised that it had not sought further to agitate the issue of costs. Consequently, the only order made by the primary judge was to dismiss the summons.

Issues on the application 20 The applicant's principal complaint as it appeared from his written submissions in the White Book, was that the primary judge effectively heard the case raised by his summons either without regard to Deva 1 or that his Honour effectively "reversed the ruling of the Court of Appeal" in Deva 1. He contended that the primary judgment should be quashed in order that his primary complaint of unlawful racial discrimination could be heard. 21 During the hearing of the leave application, the applicant handed the Court another document ("Applicant's … Oral preparation for 25 November 2009") representing any additional argument he wished to make. The document contended that the application was pursuing "the real matter of unlawful discrimination" (par 3) and that "the main issue is not of dismissal but unlawful discrimination" (par 12). 22 The respondent disputed the applicant's characterisation of the primary judgment and contended that the primary judge correctly determined the issue remitted at the conclusion of Deva 1. The respondent submitted that the Court should not grant leave to appeal as the applicant had failed to demonstrate any error in the primary judge's construction of s 170HB. 23 The respondent served s 78B notices prior to the hearing before this Court. Advice was received from the Attorneys General of the Commonwealth and all States and Territories (other than the Attorneys-General of the Northern Territory, Western Australia and Tasmania) that they did not intend to intervene at this stage.

Consideration 24 The issue determined in Deva 1 was, in substance, whether the Deputy President of the Tribunal correctly concluded for the purposes of s 92(1)(a)(v) of the AD Act that the subject matter of the applicant's termination 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'": (Deva 1 at [41]; [64]). 25 As is apparent from the history of the matter earlier outlined, the applicant did not challenge in this Court the ADB's decision of 6 July 2006 refusing to entertain pre - 1 September 2004 complaints. In other words whatever general complaints of unlawful discrimination he may have sought to pursue in addition to the termination complaint were not raised by the Summons. Whatever complaint the applicant may have of "unlawful racial discrimination" independent of the termination complaint was not before this Court, or the primary judge. 26 The issue remitted consequent upon the Deva 1 decision and that with which in my view the primary judge dealt, was, whether accepting Tobias JA's characterisation in Deva 1 of the complaint to the ADB as one of unlawful dismissal, s 170HB barred that application from proceeding. The issue determined in Deva 1 and the issue remitted dealt with different subjects: the first with the operation of s 92(1)(a)(v) of the AD Act, the second with the operation of s 170HB of the WR Act. 27 The primary judge did not, as the applicant contends, reverse the ruling of Deva 1. Rather, he applied it insofar as it was relevant. That aspect of Deva 1 which was relevant was the characterisation of the application to the ADB as involving a complaint of unlawful dismissal: Deva 1 (at 64). It was uncontroversial that the application the applicant made to the AIRC was made pursuant to s 170CE(1)(a), namely on the ground that the termination was harsh, unjust or unreasonable: s 170HB(1). 28 Section 170HB operated in accordance with both a real and a deemed time. The real time was that provided by s 170HB(1). That subsection precluded an application under s 170CE in relation to the termination of employment of an employee on the grounds set out in s 170CE(1)(a) or on grounds including that ground, if prior proceedings for "a remedy in respect of that termination" (emphasis added) had been commenced by or on behalf of that employee, relevantly under a law of a State alleging that the termination was unlawful: s 170HB(1)(e). 29 Section 170HB(4) created the "deemed" time. It operated if the following conditions were satisfied. First, prior to the time the Court was considering whether s 170HB(4) operated, an application must have been made of the kind referred to in s 170HB(1). As I have said, that was satisfied in this case by the application to the AIRC which was dismissed on 22 June 2005. Secondly, s 170HB(4) precluded a person from taking proceedings "for any other remedy" relevantly under a law of a State which if it had been applied for before the s 170HB(1) application would have been precluded by the operation of that subsection. Section 170HB(4), accordingly, required the Court to determine whether the "proceedings for any other remedy" a person was seeking to pursue were deemed to fall within the description of "prior proceedings" in s 170HB(1). 30 The application the applicant sought to pursue in the ADB clearly fell within that description. It was an application by him under a law of a State, the AD Act, for "a remedy in respect of [his] termination … alleging that the termination was … unlawful" (emphasis added). In oral argument in this Court, the applicant expressly accepted that his complaint to the ADB included a claim that the termination of his employment was unlawful. Had the complaint actually been brought before the AIRC application, the AIRC application could not have been made. The effect of s 170HB(4) was to deem the State Act application to be "prior proceedings". Accordingly the effect of s 170HB(4) was that the applicant was not entitled to take proceedings under the AD Act. 31 The consequence is that, as Tobias JA indicated (Deva 1, at [80]) and the primary judge found (primary judgment, at [16], [25]), as it would be futile to remit the matter to the Tribunal, it was appropriate to dismiss the summons. 32 In my view the applicant has not demonstrated any error in the primary judgment which would attract leave to appeal. 33 The respondent sought costs in the event the application was unsuccessful. While the primary judge was entitled, in my view, to make no costs order in respect of the remitter case which was necessary because of the respondent's failure to file s 78B notices, the same does not apply to this application. Had the s 170HB issue been before the Court in Deva 1, and been resolved adversely to the applicant, he would have been exposed to a costs order: Uniform Civil Procedure Rules 2005 (NSW), 42.1. Nothing has been demonstrated as to why the Court should not apply that rule. 34 Accordingly, I would dismiss the application for leave to appeal with costs. 35 HANDLEY AJA: I agree with McColl JA and would only add a brief comment. 36 The result of this Court's construction of s 170HB of the Workplace Relations Act 1996 is that judgment for the employer in proceedings for unfair dismissal bars proceedings for racial discrimination based on the same facts. 37 The Court of Appeal in England reached the same result by holding that the earlier decision created a cause of action estoppel which barred the later proceedings: Divine-Bortey v Brent LBC [1998] ICR 886 CA.

03/12/2009 - "Workplace Relations Act 1966" corrected to "Workplace Relations Act 1996" - Paragraph(s) Catchwords

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