Deva v University of Western Sydney [2008] NSWCA 137

New South Wales Court of Appeal

CITATION: Deva v University of Western Sydney [2008] NSWCA 137

HEARING DATE(S): 1 February 2008

JUDGMENT DATE: 17 June 2008

JUDGMENT OF: Tobias JA at 1; Campbell JA at 83; Bell JA at 84

(a) Appeal allowed. (b) Set aside the orders made by Patten AJ on 17 April 2007. DECISION: (c) Order that the Notice of Motion filed by the respondent on 1 February 2007 in the Administrative Law List of the Common Law Division of the Supreme Court be dismissed. (d) Order that the decision of Deputy President Hennessy of the Administrative Decisions Tribunal on 12 December 2006 in Matter No: 061096 be quashed. (e) Remit the hearing of the appellant's summons filed on 7 January 2007 in the Administrative Law List of the Common Law Division of the Supreme Court to a judge of that List for determination, subject to the respondent complying with s 78B of the Judiciary Act 1903 (Cth), of the effect of s 170HB of the Workplace Relations Act 1996 (Cth) upon the appellant's complaint to the Anti-Discrimination Board made on 1 September 2005. (f) Order that the respondent pay to the appellant the court fees incurred by him with respect to the filing of the summons for leave to appeal and the Notice of Appeal pursuant to the grant of leave.

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