24. After his dismissal on 30 August 1991, the complainant made an allegation to the Commissioner of wrongful dismissal and requested that his complaints be referred to the Board. At this point, it appears that the Commissioner relented and in compliance with the complainant's request she referred all his complaints to the Board. Despite inquiry during this appeal, the document of referral could not be produced to us; nor was it in evidence below. Fortunately, then, it was common ground before us (as apparently it was below too) that the referral occurred on 26 May 1993 and was effected under s.45(5) of the Act. (Although s.45(1A) also makes provision for referral, and in particular in cases when the Commissioner declines to entertain a compliant, sub-s.(1A) came into force only on 1 March 1994 and therefore was not relevant.)

25. In saying that the Commissioner referred all the complaints to the Board, I have passed by a considerable difficulty. Again it was common ground that what was referred to the Board was the very large correspondence emanating principally from the complainant himself and containing a litany of complaints. This bundle of documents was thereafter treated as containing "the complaint" which had been referred to the Board, though, as became quickly apparent on this appeal, this correspondence was by now so voluminous - it made up three appeal books - as to make it difficult to disentangle the essence of the complaint itself from the material which was apparently being proffered in support of the complaint. This led the Board, at a directions hearing on 3 September 1993, to request the complainant to bring his complaint into more orderly form. The result was a very formal set of Particulars dated 1 October 1993 which (it was finally common ground before us) was intended to encapsulate and to particularise the complaint which by then was before the Board.

26. On 12 October 1993, in a written submission to the Board, the S.E.C. raised the argument that the Board lacked jurisdiction in respect of the complaint. many months later, on 12 July 1994, Dr. Conron, who earlier had supplied a medical report concerning the complainant, provided a further report which the complainant later made available to the Board and to the S.E.C. On 27 October 1994, the S.E.C. filed with the Board a formal application for an order under s.44C. Although, in terms, this application sought an order that "the particulars of complaint dated 1 October 1994 [sic] ... be struck out pursuant to s.44C", the application appears to have been treated as relating to "the complaint", wherever located.

27. On 27 October 1994, a further directions hearing was held by the Board with a view to setting a timetable for the determination of the S.E.C.'s contention about jurisdiction and its application under s.44C. Conformably with s.44C(3)(a), a time was set for the filing and service of written submissions and a date was fixed for the hearing of oral submissions. But the complainant was seeking to call witnesses and this exchange took place:- "Counsel: Madam President, my client seeks some clarification on one matter. He wants to know about his entitlements to call witnesses on 1 and 2 December as part of those oral submissions. President: The board does not regard this matter as, in effect, a hearing, but that would turn it into a full hearing. Counsel: Yes, that --- President: The board regards this as a matter for submissions only and, of course, attached to those submissions there can be any affidavit or documentary evidence that the parties wish to attach, but the board would regard these as oral submissions only and, of course, in relation to those submissions, the complainant may make them or they may be made on his behalf by his representative. Counsel: Thank you." I mention this because on the appeal from the Board, there was argument about whether the complainant had been denied by the Board the opportunity of calling oral evidence. I should have thought that the foregoing exchange makes it plain enough that the Board was not prepared to entertain evidence viva voce, although allowing any affidavit or documentary evidence in support of the submissions to be made.

Determination by the Board 28. In accordance with the timetable, the Board then heard argument on 1 December 1994 about jurisdiction and the application for striking out under s.44C. The Board considered each in turn. In relation to jurisdiction, the Board accepted that, in order to come within the Board's jurisdiction, a complaint "must assert with sufficient clarity facts that will attract that jurisdiction". It also said:- "... while a complaint is not to be construed in the same technical way as a formal pleading, and need not refer in technical detail to the specific provisions of the Act contravened or use the language of the Act in describing the discrimination complained of, it must contain the elements necessary to found the jurisdiction. One reason for this requirement is simply that a complaint must fall within the terms of the Act to be dealt with under the Act. ..."

29. Thus far, there can be no difficulty. But the Board then sought to define the documents to which it might refer when determining the question of jurisdiction. It held that the Board "must look to the complaint and the documents annexed to it and referred by the Commission to the Board, but must not look to documents subsequently filed with the Board". This opened for the Board's consideration in this case the vast array of material which had been put before the Commissioner by the complainant and which had been passed on by the Commissioner to the Board.

30. The Board noted in particular paragraph 3 of the Particulars filed with the Board on 1 October 1993:- "At all relevant times, the Complainant has suffered from an impairment pursuant to the Act ('the impairment'). Particulars The impairment is a personality disorder characterised by anxiety and paranoid ideation, which constitutes a psychological disease or disorder." The submission of the S.E.C. was that, on the face of the complaint, "there was no evidence that Mr. Rabel had a personality disorder". The Board agreed. In this respect the Board said:- "The [S.E.C.] submits that the medical reports included in the complaint documentation ... do not state clearly that Mr. Rabel had an impairment. The Board agrees. Those reports simply state that Mr. Rabel is sometimes depressed and has a somewhat paranoid view of the world but these statements are not, in the Board's view, clear statements of impairment. In the light of these reports, the Board does not consider that it is reasonable to infer from the fact that on a number of occasions Mr. Rabel saw a doctor as a patient, Mr. Rabel must have had an impairment of a specific kind. The Board finds that the complaint documentation does not disclose that Mr. Rabel suffered from an impairment within the meaning of the Act, and the complaint fails on this jurisdiction issue."

31. In so determining, the Board said that it was not prepared to act upon the medical report of Dr. Conron dated 12 July 1994 as "that report is not part of the complaint documentation referred to the Board by the Commissioner", it having been filed with the Board after the referral. Yet that medical report, which the Board quoted in its reasons, referred to the complainant's showing "clinical features of Generalised Anxiety Disorder ... and also Paranoid Personality disorder" back in 1983, and contained the opinion expressed in July 1994) that he had "clinical evidence of a longstanding psychological disorder which has been associated with difficulties in relationships with people, and anxiety".

32. Moreover, the Board expressly declined to hold that anxiety could never amount to an "impairment" within the meaning of the Act; the Board considered that such a claim would require medical evidence and would be more appropriately dealt with at a full hearing of the complaint. The Board than added:- "Because of the Board's earlier finding, it is unnecessary to deal with this matter further." This can only have meant that the Board was disallowing the possibility of the complainant's establishing an impairment by reference to anxiety, because anxiety was mentioned only in the report of Dr. Conron dated 12 July 1994 and, for the reason earlier given by the Board, that report was considered to be not relevant on the question of jurisdiction.

33. This was not the end, however, of the Board's consideration of that question. Having found that "the complaint documentation does not disclose that Mr. Rabel suffered from an impairment within the meaning of the Act", the Board went on to uphold also the S.E.C.'s submission that the Board lacked jurisdiction because that documentation "did not clearly show that Mr. Rabel's impairment (if indeed there were one) was a substantial ground for his treatment by his employer". On this aspect, the Board appears to have taken account of all of the material by then before it; for in its reasons, the Board said:- "The work reports and other material included in the documentation referred to the Board by the Commissioner refers constantly to Mr. Rabel's poor work performance. It refers nowhere to Mr. Rabel's impairment. It is clear from Mr. Rabel's complaint that he believed that his treatment by his employer was due to his impairment, but this is not borne out by any other documents included in the complaint documentation." On that basis, the Board considered that "the complaint discloses no substantial link between the impairment (if it existed) and the treatment of Mr. Rabel by the employer." Here the Board expressly excluded from consideration a report from Dr. Conron dated 9 October 1991 "because this report was prepared after Mr. Rabel's dismissal" and - apparently - could therefore have played no part in motivating the S.E.C..

34. Thus, the Board found that it lacked jurisdiction, not only for want of any "impairment" afflicting the complainant, but also for want of the necessary causal link between any impairment and the treatment of which complaint was made. It was, then, not strictly necessary for the Board to consider the application under s.44C at all. While acknowledging this, the Board nonetheless went on to deal with the application, albeit briefly, on the ground that the complaint was "lacking in substance" (to use the words of s.44C). The Board said simply:- "As the Board has already indicated, the complaint lacks substance in relation to the issues of whether the complainant suffered from an impairment and whether that impairment (if it existed) was a substantial ground for the complainant's alleged unequal treatment by the employer." For this reason, the Board granted the application under s.44C. At the same time the Board rejected the submission by the S.E.C. that the complaint was "vexatious" or "misconceived" because it accepted, "after looking at all the complaint documentation, that the complainant has a genuine belief that he was discriminated against".

35. Thus, the S.E.C. succeeded before the Board on both the jurisdictional issue and under s.44C. On appeal, it may be said quite shortly, the Judge accepted the complainant's submission that the Board had misdirected itself in relation to jurisdiction by seeking, in the material put forward in support of the complaint, some confirmation of the allegations made by the complainant, concerning "impairment" and the nexus between that "impairment" and his treatment by his employer; and secondly that the Board had also misdirected itself when considering the application under s.44C by unduly confining itself to some only of the material upon which the complainant was seeking to rely in that regard, thereby excluding at least one, if not two, of the medical reports on which he sought to rely. His Honour therefore remitted the matter to the Board "for the s.44C application to be further considered according to law, and this judgment". We are now invited by the S.E.C., as appellant, to set aside his Honour's orders and to restore the Board's, whereas the complainant invites us simply to dismiss the appeal, allowing the Board to reconsider the application under s.44C as his Honour directed.

Jurisdiction 36. It is necessary now to say something more about the statute which governed this proceeding. Under s.21(2) of the Act, it is unlawful for an employer "to discriminate against an employee on the ground of status" by denying the employee opportunities for promotion, transfer or training or by dismissing the employee or subjecting him to any other detriment. By virtue of s.17(1), a person "discriminates against another person" if "on the ground of the status ... of the other person" he treats him or her less favourably than he treats, or would treat, a person of a different status. The word "status" is defined in s.4 to include having an "impairment" which (by virtue of another definition) includes "a mental or psychological disease or disorder".

37. Thus the complainant's case was that he suffered from an "impairment" within the meaning of the Act; that by reason of or on the ground of that impairment he had been treated by his employer "less favourably" than a person without that impairment; and that as that treatment involved denying him or limiting his access to training or other benefits connected with employment and included dismissal, his employer had discriminated against him unlawfully, contrary to s.21(2). That was the genesis of his complaint of discrimination and it was, in substance, what the complainant would be seeking to establish before the Board when it became time for the complaint to be heard and determined on its merits.

38. It is in that context that we are concerned with the provisions of Part VI of the Act, headed "Enforcement". (In referring to these provisions I am using the Act as it stood before the amendments on 1 March 1994 when inter alia the Commissioner was replaced by a Commission). Sections 41, 42 and 43 are not germane; it is s.44 under which the complainant laid the complaint in this instance. By s.44(1), so far as relevant - "A person who claims that some other person has discriminated against [him] ... on the ground of status ... in contravention of a provision of this Act ... may lodge a written complaint setting out details of the alleged act of discrimination ... with the Commissioner ...". Under s.45(1) where, in the opinion of the Commissioner, a complaint is lodged which is "frivolous, vexatious, misconceived or lacking in substance", the Commissioner may, by notice to the complainant, decline to entertain the complaint. On the other hand, under s.45(5) in certain circumstances the Commissioner "must refer the complaint to the Board" - and it was common ground, as I have said, that that is what happened here. Under s.46(1) (so far as relevant) - "Where a complaint has been referred by the Commissioner to the Board under section 45 the Board shall proceed to hear and determine tie complaint." For the purpose of such proceedings before the Board, Div.3 has effect (s.50). Division 3 includes s.51 which imposes upon the Board the duty to act fairly and according to the substantial merits of the case, s.55 which empowers the Board to take evidence on oath, and so on.

39. Thus far it would appear, in a case like the present, that there having been complaint made to the Commissioner under s.44 and the Commissioner's having referred it under s.45 to the Board, the Board was bound to proceed to hear and determine the complaint under s.46. It may be that the Board's "jurisdiction" to act under s.46(1) necessarily depends upon the existence of a "complaint", properly so called, within the meaning of s.44(1) of the Act, just as it does upon that complaint's having been referred by the Commissioner (later the Commission) to the Board under s.45; see, for example, R. v. Gray, ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351. It may be, therefore, that it would be appropriate for the Board to satisfy itself that there was such a "complaint" within the meaning of s.44(1) before proceeding to act under s.46(1); for if in a given case the Board was satisfied that there was no such complaint within the meaning of s.44, the Board should surely decline to act any further (as indeed it purported to do in the case under appeal). The Board's conclusion that there was no "complaint" within the meaning of the Act may make it amenable to correction if it were wrong, perhaps by mandamus or the like; it may be doubted that an appeal would lie under s.49(4) which refers only to "an order under this Part". But if there was in truth no complaint under s.44, it is difficult to see how the Board could have any statutory authority to proceed to hear and determine the "complaint" under s.46.

40. But on that view of the statute, the area for preliminary inquiry by the Board is relatively narrow. All that s.44(1) requires is that a person, who claims that some other has discriminated against him in contravention of some provision of the Act, lodge a written complaint "setting out details of the alleged act of discrimination". Section 44 (1) requires only the allegation of an act of discrimination contrary to the Act: it does not require that the act of discrimination be established by evidence, even prima facie: R. v. Gray at 380-2 per Brennan, J It cannot be said that s.44(1) was not satisfied in this case. Although what the complainant put forward far exceeded the requirements of s.44(1) in that he did not limit himself to "a written complaint setting out details of the alleged act of discrimination", it was not at any stage suggested, either before the Board or before the Judge, that what had been proffered, in quite voluminous detail, could not be said to be a complaint within the meaning of s.44. Moreover, whatever else could be said for or against the voluminous material that was submitted, the particulars of complaint dated 1 October 1993 served to satisfy s.44, on any view.

41. In my opinion, that was enough to meet the challenge to the Board's jurisdiction to act under s.46. If the Board had any responsibility in the matter, it was only to see that what purported to be the complaint answered the requirements of s.44(1), which were pretty basic, and to see that that complaint had indeed been referred to the Board by the Commissioner under s.45. Once those things were established, no doubt could remain of the Board's jurisdiction to act under s.46. Indeed, the Board was, in my view, then bound to "proceed to hear and determine the complaint" according to s.46(1). But that is not how the Board saw it. The Board did not simply examine the allegations made by the complainant to see if they satisfied the fairly limited requirements of s.44(1); rather the Board examined the material lodged by the complainant apparently in support of the complaint to see if that material bore out the complaint and, finding that it did not, held that the Board lacked "jurisdiction" to proceed any further. In this respect the Board both misunderstood its function in relation to the issue and erred in its conclusion. That was the decision of the Judge below ant with respect I agree.

42. Accordingly, any argument on this appeal that the learned Judge erred in overturning the Board's decision on jurisdiction could be quickly despatched. Although the notice of appeal, as also the outline of argument on behalf of the S.E.C., disputed the learned Judge's view on this issue of jurisdiction, that issue was abandoned by counsel for the S.E.C. (very properly in my view) when this appeal came on for argument. That was done in deference to the recent decision of the Court of Appeal in Schwerin v. City of Sale (29 October, 1996 as yet unreported) where Tadgell, JA (with whom Charles, JA agreed), while allowing that a challenge to jurisdiction might be mounted "on the pleadings" as it were, otherwise criticised the Board's attempting to "decline jurisdiction" by reference only to the facts of the case. It may be observed that in the case now under appeal the Board was apparently persuaded to examine all the documentation lodged by the complainant because of the decision in Nestle Aust. Ltd. v. Equal Opportunity Board [1990] VicRp 71; [1990] VR 805; but if so, the Board erred, I think, in its understanding of that case.

43. In Nestle, Vincent, J prohibited the Board from proceeding on a complaint alleging discrimination when, in his Honour's view, what was alleged by way of complaint was incapable in law of amounting to discrimination in contravention of the Act. I say nothing about the correctness or otherwise of that view; for it does not fall for consideration. As was pointed out below, that case is very different from this. Vincent, J may be regarded as having determined that there was no jurisdiction in the Board to deal with the complaint in that case, simply by reference to the allegations contained within the complaint - and that is not inconsistent with what I have so far said. Any complaint, if it is to found the Board's "jurisdiction" to act under s.46, must satisfy the requirements of s.44; and so it must complain of discrimination within the meaning of the Act and set out details of "the alleged act of discrimination". If what is alleged is incapable of amounting to discrimination within the meaning of the Act, then it may perhaps be appropriate (and I do not need to decide it) to conclude that the complaint does not satisfy the requirements of s.44(1). If it does not, then (as was held to be the case in R. v. Gray) it is not a "complaint" within the meaning of the section.

44. As I understand it, that is all that was decided in Nestle and that did not justify the Board's going in this instance beyond the allegations made by the complainant in order to see if those allegations were or were not borne out by the supporting material. That was to confuse the question whether the complaint set out "the alleged act of discrimination" as required by s.44(1), with the question whether the alleged act of discrimination would be established by the complainant. In Nestle, Vincent, J looked at the supporting material, not to see if the alleged act of discrimination could be established, but (in line with the approach taken in Gray) to ascertain with particularity just what was being alleged as an act of unlawful discrimination. Prohibition went to the Board only because in his Honour's view the complainant's allegations, even if established in due course, did not amount to an allegation of anything that was contrary to the Act. That is not this case.

Section 44C 45. Thus far I have said that ss.44, 45 and 46 would justify the conclusion in this instance that the Board was bound to "proceed to hear and determine the complaint" in accordance with s.46(1). That must, however, be subject to the provisions of s.44C which, as I have said, was applied by consent. Section 44C is as follows:- "44C. Application to strike out a complaint (1) A respondent may apply in writing to the Board to have a complaint struck out on the grounds that it is frivolous, vexatious, misconceived or lacking in substance at any time between the lodging of the complaint and the commencement of the hearing of the complaint by the Board, other than at a time when the matter is in the process of being conciliated. (2) The Board must begin to hear the application within 1 week of receiving it, and must determine the application as expeditiously as possible. (3) In determining an application under this section - (a) the Board must allow both the complainant and the respondent the opportunity to make both oral and written submissions; and (b) in all other respects the procedure of the Board is at its own discretion; and (c) the procedures of the Board in conducting an inquiry or proceedings before the Board set out in Division 3 of this Part do not apply." Perhaps this section was intended to empower the Board expressly to dispatch at an early stage cases such as that considered in Nestle. Be that as it may, it is again possible to deal quite shortly with the S.E.C.'s application.

46. Under this section, a respondent to a complaint may apply to have the complaint struck out, but it is evident from the provisions of s.44C that the application is to be made at an interlocutory stage and that it is to be heard and determined expeditiously. The procedure upon such an application is limited by sub-s.(3) and, although the procedure of the Board is in its discretion, express reference is made only to "oral and written submissions" on behalf of the parties. Certainly sub-s.(3)(c) excludes "the procedures of the Board" when conducting "an inquiry or proceedings before the Board", as those procedures are set out in Div.3. The reference to "an inquiry or proceedings" may be a reference to an inquiry by the Board under s.43 or proceedings before the Board under s.46. At all events, the procedures appropriate to a full scale hearing are regarded as inappropriate.

47. It is important for present purposes that s.44C authorises an application and the applicant must be the person against whom the complaint has been made. In this instance that was the S.E.C. and the S.E.C. did apply. But it then behoved the S.E.C., as the applicant under the section, to make out its case that the complaint should be struck out, whether on the ground that it was frivolous or vexatious or misconceived or lacking in substance. It was accepted by the Board that there was an onus upon the applicant under s.44C to establish its case, and it is difficult to see how it could be otherwise. How the onus is to be discharged in a given case must depend upon the circumstances and the grounds of the application. Drawing by analogy upon a summary application by the defendant in a civil proceeding, the application might be supported by argument "on the pleadings" (as it were), the applicant under s.44C arguing, simply by reference to the allegations made in the complaint, that the complaint should be struck out under s.44C(1) - after the fashion of the argument in Nestle. Alternatively, an applicant under s.44C might seek to rely upon some evidence in support, in which case it might choose to put forward an affidavit if the Board allowed that procedure in its discretion (under sub-s.(3)(b)). As I say, the procedure to be followed in any given case will depend upon the circumstances and, to the extent that it goes beyond oral and written submissions, upon the discretion of the Board.

48. what happened in this instance was, however, altogether different. The S.E.C. sought to sustain its application under s.44C by demonstrating that in certain critical aspects (those of "impairment" and the nexus between the alleged impairment and the treatment of the complainant) the complaint was not borne out in the voluminous material which had reached the Board from the complainant. It was in the context of establishing the relevant nexus that the Board excluded the doctor's report of 9 October 1991 on the ground that it was prepared after the complainant's dismissal and therefore was irrelevant to that dismissal. And in relation to "impairment", because the Board simply adopted for the purposes of the s.44C application its conclusions in respect of jurisdiction, the Board arguably thereby excluded Dr Conron's report of 12 July 1994 (though it plainly related to possible impairment). But to my mind the exclusion of that report or those reports is relatively incidental: what matters is that the Board went to the supporting material in order to see the extent to which, if at all, it supported the allegations being made in the complaint. I do not say that that course must always be error; but it was error on this occasion.

49. It was error because there was no basis whatsoever for the apparent assumption that the complainant was in some way confined to "the complaint documentation" (as the Board described it) to sustain his allegations of discrimination. Perhaps, if a complainant did concede, at some preliminary and interlocutory stage, that the whole of his material was already before the Board, a respondent might seek by reference thereto to have the complaint struck out under s.44C if that material plainly demonstrated that the complaint was lacking in substance. But that was far from this case. On 27 October 1994, the complainant had raised the possibility of calling further evidence and had, in effect, been denied that opportunity. I do not say that the Board was wrong in denying the opportunity. It seems to me to have been correct because the application under s.44C was not a full-scale hearing; it was in the nature of an interlocutory application and fell to be determined accordingly. But the complainant was nonetheless plainly indicating that his case was by no means limited to the documents already before the Board in connection with his complaint (and that position cannot itself be characterised as unreasonable or "misconceived", given the nature of the allegations being made). In those circumstances, there was simply no basis for regarding the complainant as confined by that material for the purpose of establishing his allegations and, in the absence of his being so confined, there was no basis for the Board's determining to strike out the complaint under s.44C as "lacking in substance" because that documentation did not, in its view, bear out the allegations in the complaint.

50. What I have just said about s.44C may mean that the position under that section is significantly different from the position under like legislation elsewhere. For instance, the phrase "frivolous, vexatious, misconceived or lacking in substance" appears to be a common one in the statutes of New South Wales; see for example the Commercial Tribunal Act 1984 s.31(1) (as inserted in that Act by the Commercial Tribunal Legislation Amendment Act 1995 (No.40) Schedule 1 para.25), the Community Land Management Act 1989 (No.202) s.87(6), the Consumer Claims Tribunals Act 1987 (No.206) s.27, the Dust Diseases Tribunal Act 1989 (No.63) s.27(1) and the Residential Tenancies Act 1987 (No.26), to name a few. That phrase appears too in the Sex Discrimination Act 1984 (Cth) s.79 and the Racial Discrimination Act 1975 (Cth) s.25X. There was much reference accordingly in argument to what was said by the president of the Human Rights and Equal Opportunity Commission (Sir Ronald Wilson) in Assal v. Department of Health, Housing and Community Services (1992) EOC 92-409, where Sir Ronald expressed a view about the meaning of "lacking in substance" when used in s.25X of the Racial Discrimination Act; and see also G.V.R. v. Department of Health, Housing and Community Services (unreported, 23 August 1993), Nagasinghe v. Worthington [1994] FCA 1387; (1994) 53 FCR 175, Ebber v. Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455. In G.V.R. the learned president had said (to quote from the judgment of Von Doussa, J in Nagasinghe at 178):- "The meaning of the term 'lacking in substance' has been considered in a number of decisions of this Commission. My view, which is one I have expressed previously in Assal v. Department of Health, Housing and Community Services, is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance." In Assal, the president had said this in rejecting a submission to the contrary based upon a dictum of Einfeld, J in Ellenbogen v. Municipal and Shire council Employees Union of Australia [1989] EOC para.92-252. Both sides sought in argument to have us apply the view of Sir Ronald Wilson in Assal as reflecting the test that should be applied here.

51. But that is by no means all that the learned president said in Assal. As his Honour observed below:- "[The president] also rejected a formulation of the test in terms that it must be clear that the complainant has no reasonable prospect of success. Instead, the appropriate test, Sir Ronald Wilson held, was whether the evidence was capable of establishing each of the elements which was required to be established if the offence was to be proved. He concluded, at p.78,903, that the evidence in that case 'falls fir short of demonstrating a capacity to establish racial discrimination. It holds out no real possibility of success for the complainant in these proceedings'." [emphasis added] That reference to "the evidence" points up what I think is the very real difference between this case and cases like Assal which arise under s.25X of the Racial Discrimination Act 1975. Section 25X confers a power on the relevant Commission to "dismiss a complaint" which may be exercised "at any stage of an inquiry", that is, the inquiry into the substance of the complaint. Nagasinghe illustrates the difference. In that case an Indian dentist was complaining of racial discrimination when she failed to obtain a job at a Medical Centre. Upon the inquiry into her complaint, she gave her evidence on oath and was followed by the principal witness for the Medical Centre, who was cross-examined, before the Commissioner considered the respondent's application under s.25X. In contrast, s.44C confers a power which is plainly to be exercised only at an interlocutory stage, before the commencement of any full-scale hearing by the Board and thus quite possibly (in the discretion of the Board) before the taking of any evidence at all - a possibility which is confirmed, I think, by the provisions of s.44C(3)(b) and (c). I should have thought that on that account the application, authorised by s.44C, could not be approached along similar lines to an application under s.25X of the Racial Discrimination Act, which makes it altogether improbable that a test devised in relation to s.25X would be useful on an application under s.44C.

52. In my opinion, an application under s.44C is closer to the type of application that may be made in a civil proceeding in this Court (for instance under order 23) for summary dismissal of the proceeding or for summary judgment in favour of the defendant. Indeed, in view of his Honour's references to General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 at 128-130 and Dey v. Victoria Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 at 91-92, the learned Judge below may well have been proceeding upon similar lines, notwithstanding earlier references by him to Assal. Nevertheless it seems unnecessary on this appeal to state finally what test should be applied when it is claimed that a complaint is "lacking in substance" under s.44C. Suffice it to say that there was no warrant in this case for the Board's looking through the supporting documentation to see if it bore out (to whatever extent was thought relevant) the complaint that was being made. The Board's view that that supporting documentation did not bear out the complaint provided no foundation, in my opinion, for the Board's concluding that the complaint was "lacking in substance" within the meaning of s.44C, whatever the proper meaning of that phrase may he in that section.

53. I would however observe, by way of caution, that what is appropriate under s.44C(1) may not be appropriate under s.45(1)(a), where the Commissioner is specifically empowered to decline to entertain a complaint if, in the opinion of the Commissioner, the complaint is "frivolous, vexatious, misconceived or lacking in substance". It is not to be expected that under s.45(1)(a), a Commissioner could arrive at that opinion only after following the procedure to be followed by the Board in determining an application under s.44C: the role of the Commissioner under this now repealed legislation was quite different from that of the Board. But nothing further need be said about that because this case does not involve a consideration of the Commissioner's acting under s.45(1)(a).

Conclusion 54. Below, the Judge was clear in his view that on the question of jurisdiction it was altogether inappropriate for the Board to consider whether the documentation now before it bore out the allegations in the complaint. I agree. But I think that in the circumstances of the present case, where the complainant was far from conceding that the documentation thus far submitted contained the whole of his case, the Board was wrong, too, to rule upon the application under s.44C(1) by reference only to what it called "the complaint documentation". That being so, the question is whether there was any basis upon which the application under s.44C might succeed and in my view there was not. That section is intended to be used, in my opinion, only in a clear case. The Board itself considered that the test of whether a complaint was lacking in substance was this: does it raise issues of real substance fit to go to a full hearing of the Board? That may perhaps be a satisfactory test, but it is not to be determined upon the complainant's material, at all events in a case where the complainant does not concede that that contains the whole of his case. It was the submission of the S.E.C. that the Board could decide its application under s.44C by reference to "the complaint documentation" and in my view the Board should have rejected that submission. The S.E.C. put nothing else before the Board, on its own account, to persuade the Board that the complaint should be struck out under s.44C and as it was not to be struck out, simply "on the pleadings" as it were, there was no basis for the application's succeeding under s.44C.

55. For these reasons, I would go further than did the Judge below. His Honour held that the Board wrongly concluded that it had no jurisdiction. In that, I agree. That was to be considered by reference to ss.44, 45 and 46 and, the conditions for the exercise of jurisdiction under s.46(1) having been satisfied in this instance, the Board had "jurisdiction" - and indeed was bound - to proceed to hear and determine the complaint. The only qualification on that Lay in s.44C and as the S.E.C. put no material before the Board in support of its application and could not establish that the material put before the Board by the complainant contained the whole of the complainant's case, there was no basis, in my view, for the Board's acceding to the application under s.44C. Accordingly, that application should have been dismissed and, in the absence of anything else, the Board should now proceed to hear and determine the complaint under s.46(1).

56. To that end, I would allow the appeal in order to set aside the order made by the Judge whereby the application under s.44C was to be remitted to the Board for further hearing and determination. In lieu I would substitute an order declaring, in substance, that the Board did have jurisdiction under s.46(1) to proceed to hear and determine the complaint and dismissing the application of the S.E.C. under s.44C.