Pradeep Deva v University of Western Sydney

COUNSEL : Pradeep Deva (in person) - Plaintiff Ms N Rontidis - Defendant

SOLICITORS : M Croucher, Office of University Legal Counsel - Defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 This was a motion seeking summary dismissal of the proceedings commenced by the Plaintiff's summons. When filed it was predicated on the Plaintiff having no right in law to seek any relevant relief but, as will appear, that states the position rather too narrowly. In the result, the matter was argued on its merits and I have reached a conclusion which will enable the proceedings to be wholly disposed of. At the hearing the Plaintiff appeared in person and Ms N Rontidis, solicitor, appeared for the Defendant in support of the motion. 2 What follows is an outline of facts which are not in dispute: · The Plaintiff commenced employment with the Defendant as a Systems Administrator in or about 1995. · In or about February 2004 the Plaintiff was stood down from work, on pay, while the Defendant reviewed his work performance. · On 13 February 2005, the Plaintiff's employment was terminated. · The Plaintiff commenced proceedings in the Australian Industrial Relations Commission (AIRC) claiming that his dismissal had been "harsh, unjust or unreasonable" (The Unfair Dismissal Proceedings) · On 22 June 2005 Commissioner Lawson dismissed the Unfair Dismissal Proceedings. · By letter dated 29 August 2005, the Plaintiff made a complaint to the Anti-Discrimination Board (ADB). · The President of the ADB on 4 October 2006 declined the Plaintiff's complaint. · Thereafter the complaint to the ADB was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal) at the request of the Plaintiff. · Deputy President Hennessy in the Tribunal on 12 December 2006 refused leave for the Plaintiff's complaint to be the subject of proceedings before the Tribunal. · On 7 January 2007, the Plaintiff filed a summons in this court for "Judicial Review" of Deputy President Hennessy's decision. · On 2 February the motion now before the Court was filed. 3 More needs to be said about some of the facts outlined above. In evidence is an edited version of the reasons given by Commissioner Lawson on 22 June 2005. The paragraphs quoted hereunder adequately, I think, demonstrate the issues before him and his reasoning process: "In this matter, the applicant, Mr Pradeep Deva seeks determination of his substantive application filed pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) for relief concerning the termination of his employment by the respondent employer, the University of Western Sydney on 13 January 2005. Mr Deva was initially represented by the Community and Public Sector Union (CPSU), and the matter proceeded through two conciliation conferences on 10 and 31 March 2005 pursuant to section 170CF of the Act. It was not settled at those conciliation conferences. The CPSU then withdrew its representation. ……………………………….. When given opportunities today (21 June 2005) to present a case, Mr Deva failed to deal with the essential features of section 170CG(3) of the Act and failed to challenge in any real way the comprehensive evidence of the respondent's witnesses and other documentation. 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. Throughout the hearing today, Mr Deva relied upon largely unsubstantiated contentions about his competency levels and his training requirements which he claimed were neither recognised, nor satisfied by the respondent. There was little reference to corroborating evidence, nor to other supporting witness evidence. Indeed, Mr Deva's cross-examination of the respondent's witnesses was truncated and ineffective. The cross-examination only served to reinforce the absence of merit in the substantive application. In my view, Mr Deva failed in every respect to present a cogent and understandable case required of him under the legislation. This case serves as a reminder of the difficulties faced by unrepresented litigants in the legislative regime applicable to termination of employment matters. However, going into this arbitration Mr Deva said he knew and understood his obligations and responsibilities to the Commission proceedings. Sadly, he did not meed those obligations. Having considered the material presented today, in regard to section 170CG(3) (a), I find that there was a valid reason for Mr Deva's termination related to his unsatisfactory work performance. In relation to section 170CG(3) (b), I find that there was a valid reason for Mr Deva's termination related to his unsatisfactory work performance. In relation to section 170CG(3)(b), I find that the reasons for termination were notified to him on specific occasions and formally dealt with in counselling sessions. In relation to section 170CG(3)(c), I find that Mr Deva was given numerous opportunities to respond. He did so formally in writing when required to do so. In regard to section 170CG(3)(d), I find the applicant was warned and formally counselled concerning his unsatisfactory performance on many occasions. Appropriate records demonstrate no identifiable change in performance. In relation to subsections 170CG(3) (da) and (db), neither of those subsections are relevant in this determination. Finally in relation to section 170CG(3)(e), I find that the 11 month gap between Mr Deva being stood aside with pay while his work performance was formally reviewed in a manner consistent with the certified agreement, and the decision to terminate his services, was regrettable, yet the gap served at the same time to enable a thorough review process to be completed. That review process was followed by yet another appeal to the Vice Chancellor. In the end, the Vice Chancellor's decision to terminate Mr Deva's services took into account both the majority and minority report of the 'Unsatisfactory Performance Committee' review. The reports did not bind the Vice Chancellor despite a flaw with regard to subclause 60.3 of the relevant certified agreement. I do not consider that identified flaw to be procedurally unfair such as to tarnish the overall process. Having regard to all of the above conclusions, I therefore determine that the Respondent's decision to terminate Mr Deva's services on 13 January 2005 was neither harsh, nor unjust, nor unreasonable. In those circumstances, the substantive matter is dismissed." 4 The letter to the ADB dated 29 August 2005 was in these terms:- "Discrimination at the University of Western Sydney. I suffered discrimination at the University of Western Sydney (580 High Street, Penrith NSW 2750), The University states to be an EEO employer but practices the opposite, I.E. discrimination. My experience is as follows: Compared to the rest of my team colleagues, they confined me to other menial, manual mundane work, excluded me from meetings and information, abusively denied me training; and I received an abusive email stating my kind are good for repetitive work. On numerous occasions I tried to conciliate the matter up to HR to no avail. Corrective measures need to be actioned immediately." 5 On 4 October 2006, the President of the ADB wrote to the Plaintiff. The first 3 paragraphs of such letter read:- "I am writing about your complaint against University of Western Sydney received on 1 September 2005. The Board has now finished investigating your complaint. I have looked at all the information you and the University have given the Board and I have decided to decline your complaint under section 92(1) of the Anti-discrimination Act 1977 (NSW)(ADA) on the basis that I am satisfied that the subject matter of your complaint has been dealt with by another body. A copy of sections 92(1), 93A and 96 is attached to this letter. What can you do now? If you want to continue with your complaint, you can ask me to send your complaint to the Administrative Decisions Tribunal (the Tribunal). The Tribunal is like a court and is able to hear complaints of unlawful discrimination. However, if you want the Tribunal to hear your complaint you must ask the Tribunal's permission to proceed. I have enclosed information about the Tribunal for you to read." 6 Sections 92(1), 93A and 96 of the Anti Discrimination Act referred to in the President's letter are in the following terms:- "92 President may decline complaint during investigation (1) If at any stage of the President 's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations , or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. …………………………….. 93A Referral of complaints to Tribunal at requirement of complainant (1) If the President has given a complainant a notice under section 87B (4), 91 (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President , by notice in writing, to refer the complaint to the Tribunal . (2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal

……………………….. 96 Leave of Tribunal required for inquiry into certain matters (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal . (2) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal . (3) Subsection (2) does not affect the operation of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997 in relation to evidence given before, or findings made by, the Industrial Relations Commission. (4) A decision of the Tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 7 The matter of the Plaintiff's complaint was subsequently referred to the Tribunal at the Plaintiff's request and it came before Hennessy DP for her to exercise the jurisdiction contemplated by s 96. She conducted a hearing on 6 December 2006 and delivered a decision on 12 December. In her judgment, after reviewing the background of the matter, she continued "6. Mr Deva submitted that the subject matter of his complaint was not dealt with by the Industrial Relations Commissioner for several reasons and tendered bundles of documents in support of his case. 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 Mr Deva for his complaint to be the subject of proceedings before the Tribunal. 7. In support of his submission Mr Deva said that his application to the AIRC related to unfair dismissal, not to unlawful termination on a discriminatory ground. The Workplace Relations Act 1996, as then enacted, allowed an employee to apply to the AIRC for relief in respect of a termination that was said to be "harsh, unjust or unreasonable": s 170CE. In addition, or in the alternative, an employee was able to apply for relief on the basis that the termination was for a discriminatory reason such as race, age or marital status: s170CK(2)(f). Mr Deva sought relief for unfair dismissal, not for dismissal based on a discriminatory reason. He says that that was because he was given advice to take the "softly/softly" approach. 8. Another reason Mr Deva says that the subject matter of his complaint was not dealt with by the AIRC was that relevant evidence supporting his allegations of discrimination were not before the AIRC or if they were before it, the Commissioner did not read that evidence. Mr Deva said that while he mentioned Equal Employment Opportunity, the Commissioner found his submissions to be incomplete and incomprehensible. He says that that is because he did not include all the relevant information about the discriminatory treatment. In particular, Mr Deva said that three significant documents were not before the AIRC. He refers to those documents as documents 16, document 66 and document 69. These documents are emails from work colleagues and/or supervisors which Mr Deva says contain racial slurs against him. I have examined those documents but it is not necessary to make any findings about them in the context of these proceedings. 9. Finally, Mr Deva said that he was not able, or not permitted, to call all relevant witnesses in the proceedings before the AIRC. I do not need to take that submission any further. If Mr Deva is suggesting that the AIRC made an error of law in the way it conducted the hearing, then his remedy was to appeal against that decision. Approach to determining whether to grant leave: 10. In deciding whether to grant leave, I am not conducting a merits review of the President's decision to decline the complaint. Nevertheless it is relevant to decide what the words "the subject-matter of the complaint" in s 92(1) (a)(v) mean. There was no dispute that Mr Deva's unfair dismissal application was "dealt with" by the AIRC or that the AIRC is a relevant body." 8 After referring to authority concerning the meaning of the phrase, "the subject matter of the complaint", the learned Deputy President continued:- "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 92 (1) (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. In a previous decision, Xu v Sydney West Area Health Service (2006) NSWADT 3 (9 January 2006), I set out some general principles relating to the circumstances in which the Tribunal should grant leave for a complaint to proceed. That case related to a decision of the President of the ADB to decline a complaint as lacking in substance. Similar principles apply where the President exercises his discretion to decline a complaint because the subject matter has been dealt with by another body. In particular, there should be a substantial reason for leave to be granted. There was no such reason in this case. The subject matter of the complaint has been dealt with by the AIRC and public policy considerations militate against Mr Deva being given another opportunity to seek relief for the termination of his employment. The University submitted, in the alternative, that the Tribunal should refuse leave because the complaint is frivolous, vexatious, misconceived or lacking in substance. Having decided not to grant leave on another basis, I do not need to consider that submission." 9 Of course, it is not entirely easy to discern what the Plaintiff was complaining about in his letter to the ADB of 29 August 2005. He alleges discrimination but neither identifies the nature of it nor provide any particulars. The complaint makes no mention of the determination of his employment. 10 The President of the ADB may have had material, which was not in evidence before me, but, in any event, he seems to have concluded that the burden of the Plaintiff's complaint was that his employment had been determined by an act of unlawful discrimination. As he 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". In any event, there is no suggestion in the judgment of Hennessy DP, which followed a hearing and submissions, that the complaint related otherwise than to the determination of the Plaintiff's employment. 11 As appears from s 96 of the Act quoted above, there is no appeal to an Appeal Panel of the Tribunal from the decision of Hennessy DP. However, s 122 of the Administrative Decisions Tribunal Act is relevant to the rights of the Plaintiff: "122 Effect of Act Nothing in this Act (except section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal . "

12 Section 123 of the Administrative Decisions Tribunal Act has no relevance to this case as it relates to situations where there are alternative methods of review, which were not available in this matter. The relevant power of the Supreme Court in its original jurisdiction is now governed by s69 of the Supreme Court Act. The court has express power to quash the ultimate determination of a court or tribunal on the basis of an error of law, which appears on the face of the record. The "record" includes the reasons expressed by the tribunal (s 69(4)). 13 The "error of law" identified by the Plaintiff in his summons needs, I think, to be gleaned from the following rather confusing paragraphs of the summons: "The NSW ADB/ADT (Anti-Discrimination Board / Administrative Decision Tribunal) alleges the subject matter of unlawful discrimination has already been dealt (sic) by another body - AIRC - (Australian Industrial Relation (sic) Commission). This is incorrect. The ADT "Question of Law": 1. Only the unfair dismissal, i.e. "Form 25 - Rule 45 option 1, 170 CFA (1) - was pursued at the AIRC. Ref. Attached document "Sup31". 2. The ADT / Hennessy alleges the subject "mentioned EEO" to the AIRC/Lawson. This is incorrect. The subject did not "mention EEO" or pursue unlawful discrimination in the forum of unfair dismissal, only focussing and ironing out the work related issue and successfully exposing a covert issue. Ref. Attached AIRC transcript. On the contrary, when asked what has the one off work issue 3 years before has to do with the termination, with the well advise of the ADB to counsel and conciliate with the unlawful racist / aggressor, the subject replied "who knows", focussing only on the work issue, abilities and skills, e.g. attached AIRC transcript, PN118, 127, 158, 161, etc. 3. Citing / sighting the respondent's examples of past cases and based on incorrect allegation, ADT/Hennessy misconstrues the AIRC/Lawson addressed unlawful / discrimination issues. This is incorrect. 4. So Hennessy / ADT is contravening its own "question of law", i.e. "making a finding of fact where there is no evidence to support that finding":- In other words, where does one see the subject pursued unlawful discrimination at the AIRC hearing??? More specifically where does one see the word "EEO / unlawful" in the AIRC transcript as ADT/Hennessy states? 5. Instead of addressing whether the unlawful matter was addressed at the AIRC hearing, the respondent began to argue whether document "SUP 47 /16" is racist. When the subject began to defend and put the matter into context, such as with document "SUP 44/15", the ADT Hennessy cut short the subject. So again, Hennessy/ADT is contravening its 'own question of law', i.e. not giving the subject adequate opportunity to respond to any relative information which is against them. 6. The subject disagrees with the decision. Given the outcome so far, there may also be an issue of the meaning of the word as "dysfunctional" in context." 14 What the Plaintiff says appears to be based on a misunderstanding of what Hennessy DP actually decided. She did not conclude that Commissioner Lawson had determined the issue of unlawful discrimination, plainly he did not. However, as Hennessy DP pointed out, unlawful discrimination was a basis upon which the Plaintiff could have sought relief from the AIRC. Sections 170 CE(1)(b) and 170 CK(2)(f) of the Workplace Relations Act 1996 expressly so provide. It may be that the Plaintiff, in any event, should be prevented from litigating a claim that his employment was determined as a consequence of unlawful discrimination by the authority of Port of Melbourne Authority v Anshun Pty Ltd (1981) 55 ALJR 621.

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 Plaintiff's employment. 16 The conclusion of Hennessy DP that the Plaintiff'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. Hennessy DP applied herself to it and referred to authority, namely Military Superannuation and Benefits Board of Trustees v Drake (2003) FCA78. 18 Drake was a case in the Federal Court concerning the provisions of the Superannuation (Resolution of Complaints) Act (Cwth), (the Act). Merkel J was called upon to decide whether the Superannuation Complaints Tribunal had jurisdiction to make a determination having regard to s 19(1) of the Act: "19 (1) The Tribunal cannot deal with a complaint under s14 or s14A unless the complainant satisfies the Tribunal that: (a) a complaint about the same subject matter was previously made to an appropriate person under arrangements for dealing with such complaints made under s101 of the Supervision Act; and (b) the complaint so made was not settled to the satisfaction of the complainant within 90 days or such longer period as the Tribunal allows." 19 Mr Drake had been retrenced in December 1993 from the Australian Army. At his election he received a lump sum superannuation payment and a pension. In June 1995 he reinlisted in the Defence Force. Some time later he was told that he was not entitled to the pension as a consequence of his reinlistment and was called upon to refund pension payments wrongly received. He complained that he was not, at any relevant time, informed that he would lose his pension if he reinlisted and lost the opportunity when he elected to take part of his entitlement as a pension, of rolling it over or transferring it to another fund. The trustee regarded his complaint as a complaint about the cessation of his pension and about the repayment of alleged overpayments. 20 The trustee declined to give any relief other than invite Mr Drake to offer to repay the overpayments by instalments. He then appealed to the Tribuanl which had before it three issues:- "(i) The decision of the Trustee to suspend [the complainant's] pension pursuant to r35 of the MSB Rules upon his re-entry into the Defence Force on 28 June 1995. (ii) The decision of a delegate of the Trustee taken under s43(3) of the MSB Act to recover pension entitlements which were overpaid to the complainant. (iii) The conduct of the Trustee in failing to inform [the complainant] of the MSB Act or Rules, or of the status of his MSB pension upon discharge from or re-entry into the Defence Force in 1995 or during a telephone enquiry which he allegedly made prior to his re-enlistment."

21 What occurred before the Tribunal is explained by Merkel J: "The Tribunal concluded that, with the benefit of hindsight, it was unclear as to which of the available options the complainant would have taken had he been aware that the pension would have been suspended if he had returned to employment with the Defence Force. The Tribunal stated: "The Tribunal is of the view that a fair and reasonable Trustee would have considered that the decision made by the Complainant appears to have been made without all necessary information. The Tribunal therefore considers that the Trustee should give the Complainant the opportunity to cancel the election to take the pension (without any obligation on the Complainant so to do) in accordance with r64(5) of the Fund's Rules." The determination of the Tribunal is expressed in the following terms: "Pursuant to subs37(1)(a) of the Complaints Act, the Tribunal has all the powers, obligations and discretions of the Trustee. Subs37(6) of the Complaints Act provides that the Tribunal must affirm the Trustee's decision if it is satisfied that its operation, in relation to the Complainant, was fair and reasonable in the circumstances. The Tribunal is not so satisfied. Consequently, in accordance with the requirements of subs37(3)(d), subs37(4) and subs37(5) of the Complaints Act, the Tribunal determines to set aside the decision of the Trustee to not offer the Complainant an opportunity to revoke his earlier election to take a pension and substitutes its own decision that, in accordance with r64(5) of the Rules the Trustee is to permit the Complainant to make a new election in respect of the benefit payable at the time he exited the Fund."

22 The issue before Merkel J is identified in these paragraphs of his judgment:- "The trustee contends that the complaint made to and considered by the trustee was a complaint that, as the complainant had never been informed of the right of the trustee to suspend his pension upon his re-enlistment in the Defence Force, his pension should be reinstated from the date upon which it was suspended. The trustee claimed that the complainant's complaint did not in fact raise the issue of the cancellation of his election under r64(5). Accordingly, so it was argued, s19(1)(a) prevented the Tribunal from dealing with any alleged failure by the trustee to permit the complainant to cancel his election as it was not "a complaint about the same subject matter". It is clear that the complainant had not applied to the trustee under r64(5) to cancel his election to convert his employer benefit into a pension and, as a consequence, the trustee did not make a decision concerning that matter. S19(1)(a) 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 s19(1)(a) is not that the complaint to the Tribunal and to 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." 23 Later His Honour observed:

"The purpose of s19(1) is to ensure that the Tribunal does not deal with the complaint unless the trustee has had an opportunity to consider and settle that complaint: see cl29 of the Explanatory Memorandum to the Superannuation (Resolution of Complaints) Bill 1993 (Cth). Thus, provided the trustee is fully apprised of the subject matter of a complaint, the trustee will be well placed to consider and endeavour to settle the complaint in a manner that is authorised by the Rules of the Trust Fund. 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" (see Crocker at [132] per Allsop J).

In the present case the subject matter of the complaint made by the complainant to the trustee and to the Tribunal was that at the time of his election to convert his pension, and at the time he was re-employed in the Defence Force, he ought to have been, but was not, informed that his pension entitlement would be suspended if he was re-employed in the Defence Force. In substance, the complainant was claiming that the trustee, and later the Tribunal, should take steps to rectify his situation by re-instating his pension, not claiming any overpayments and compensating him for the harm he was suffering as a result of the suspension of his pension. When the complaint was before the Tribunal and it became apparent that r35 of the Trust Deed required suspension of his pension, the complainant claimed he was entitled to "compensation". 24 In my opinion, Hennessy DP correctly regarded the judgment of Merkel J in Drake as helpful in resolving the matter before her. In my opinion, as already indicated, she was also entitled to conclude that the subject matter of the Plaintiff's complaint to the ADB was the termination of his employment with the Defendant 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) (v) of the Anti Discrimination Act and the President had been entitled to decline it. 25 Of course Hennessy DP was exercising a judicial discretion in accordance with s 90 of the Anti Discrimination Act. It was not necessary to the exercise of such 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. However, the fact that the Plaintiff could have litigated his claim of discrimination in the proceedings before the AIRC was clearly enough a relevant, if not decisive, factor. 26 Apart from Hennessy DP 's asserted error in holding that the Plaintiff's complaint to the ADB concerned the same subject matter as the proceedings in the AIRC, no other error of law was identified by the Plaintiff. Certainly nothing of the kind mentioned by the High Court in House v The King (1936) 55CLR 499, where principles applicable to the review of the exercise of a judicial discretion are discussed. 27 Although I am mindful that what I am hearing is an application for summary judgment, there is, in my opinion, no reason why that application should not succeed. I am of the view that this case meets the various tests listed by Barwick CJ in General Steel Industries Ltd v Commissioner for Railways (NSW) (1964) 112 CCR 125, including "so obviously untenable that it cannot possibly succeed"; "manifestly groundless….. "; "discloses a case which the court is satisfied cannot possibly succeed". 28 In my view, there is no real question to be determined either of fact or law and the Defendant should be saved from further unnecessary expense. 29 I make the following orders upon the Defendant's motion:

1. Summons dismissed.
2. Plaintiff to pay Defendant's costs.

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