Deva v University of Western Sydney [2009] NSWSC 280

[2009] ALMD 5042 Reported Decision : 229 FLR 380 182 IR 75

New South Wales Supreme Court

CITATION : Deva v University of Western Sydney [2009] NSWSC 280

HEARING DATE(S) : 30 October 2008

JUDGMENT DATE : 17 April 2009

JUDGMENT OF : Smart AJ

DECISION : Summons dismissed.

CATCHWORDS : ADMINISTRATIVE LAW - employment - s 170HB of the Workplace Relations Act 1996 (Cth) precludes proceedings under a law of a State (Anti-Discrimination Act 1977 (NSW)) - alleging termination of employment was harsh, unjust or unreasonable (however described) or unlawful when application was made under s 170CE(1)(a) of the Commonwealth Act - Commonwealth Constitution s 109

Anti-Discrimination Act 1977 (NSW) LEGISLATION CITED : Judiciary Act 1903 (Cth) Workplace Relations Act 1996 (Cth)

CATEGORY : Principal judgment

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

PARTIES : Pradeep Deva (Plaintiff) University of Western Sydney (Defendant)

FILE NUMBER(S) : SC 30003/07

COUNSEL : Self represented (Plaintiff) S Prince (Defendant)

SOLICITORS : Self represented (Plaintiff) Lander & Rogers (Defendant)

LOWER COURT JURISDICTION : Administrative Decisions Tribunal

LOWER COURT FILE NUMBER(S) : 061096

LOWER COURT DATE OF DECISION : 12 December 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Smart AJ

Friday 17 April 2009

30003/07 Pradeep Deva v University of Western Sydney

JUDGMENT 1 HIS HONOUR: By his Summons dated 7 January 2007 and filed 8 January 2007, Mr Deva sought Judicial Review of the decision of a Deputy President of the Administrative Decisions Tribunal on 12 December 2006 in Matter No 061096. On 17 June 2008 the Court of Appeal, [2008] NSWCA 137, quashed that decision and remitted the hearing of Mr Deva's Summons to a judge of the Administrative Law List of this Court for determination, subject to the University complying with s 78B of the Judiciary Act 1903 (Cth), of the effect of s 170HB of the Workplace Relations Act 1996 (Cth) upon Mr Deva's complaint to the Anti-Discrimination Board ("the ADB") made on 1 September 2005. 2 The University gave the requisite notices to the Commonwealth, State and Territory Authorities and complied with s 78B of the Judiciary Act 1903 (Cth). The background, circumstances and legislation are summarised in the judgment of Tobias JA, with whom Campbell and Bell JJA agreed. The Court of Appeal held that the Deputy President had erred in law in the construction of the expression " the subject matter of the complaint" in s 92(1)(a)(v) of the Anti-Discrimination Act 1977 (NSW) ("AD Act"), by holding that the subject matter of Mr Deva's complaint to the ADB was the same as the subject of his application to the Australian Industrial Relations Commission ("the AIRC"). The former was based on unlawful termination and the latter on unfair termination. They should not be equated. The Court of Appeal held that to the extent to which the Deputy President and the primary judge held that the subject matter of Mr Deva's complaint to the ADB was the termination of his employment by the University, they were in error as they approached the construction s of s 92(1)(a)(v) of the AD Act at too high a level of generality. The Deputy President refused leave to Mr Deva to proceed with his complaint that the University had unlawfully discriminated against him by dismissing him by reason of his race: "… 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 Mr Deva being given another opportunity to seek relief for the termination of his employment." (per Tobias JA at [5]) 3 Both parties tendered boxes containing bundles of documents but, as I understand the remitter from the Court of Appeal, I am required to address the legal issue remitted now that the Notices under the Judiciary Act have been given. Mr Deva felt deeply about his dismissal and wanted a hearing on the merits and restoration of his employment. I have no jurisdiction to conduct such a hearing. 4 The provisions of the Workplace Relations Act 1996 (Cth) ("WR Act") are somewhat complex. Section 170CE of the WR Act relevantly provides: "(1) … an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or