Deva v University of Western Sydney

The appeal concerned a judicial review application brought by the appellant, Mr. Deva, against the University of Western Sydney. Mr. Deva had lodged complaints with both the Australian Industrial Relations Commission (AIRC) and the Anti-Discrimination Board, alleging his termination from employment was unlawful and discriminatory. The Administrative Decisions Tribunal (ADT) had refused to consider the complaint that Mr. Deva was terminated for reasons of race. The Supreme Court of New South Wales, Court of Appeal, comprised of Tobias JA, Campbell JA, and Bell JA, considered whether the ADT's refusal disclosed an error of law on the face of the record.

The primary legal issues before the Court of Appeal were whether the ADT erred in law by refusing to consider the appellant's complaint of racial discrimination, and whether the subject matter of the complaints to the AIRC and the Anti-Discrimination Board were the same. The court also had to determine the construction of the phrase "subject matter" in this context, and whether the refusal was "so obviously untenable" as to warrant judicial review. Furthermore, the court considered the requirement to give notice under section 78B of the Judiciary Act 1903 (Cth) in relation to a question arising under section 109 of the Constitution, and the discretion to refuse relief if it would be futile to remit the summons.

The Court of Appeal reasoned that the ADT had erred in law by failing to consider the appellant's complaint of racial discrimination. The court distinguished between an unfair termination claim and an unlawful termination claim based on race, finding that the ADT had conflated these issues. The court applied the principles established in *General Steel Properties Pty Ltd v Commissioner for Railways (NSW)* regarding the test for whether a claim is "so obviously untenable." The court also found that the subject matter of the complaints to the AIRC and the Anti-Discrimination Board were not the same, as the former concerned unfair dismissal and the latter concerned racial discrimination. The court determined that the refusal to consider the racial discrimination complaint was not futile and that the matter should be remitted.

The Court of Appeal allowed the appeal, set aside the orders made by Patten AJ, and dismissed the respondent's Notice of Motion. The decision of Deputy President Hennessy of the ADT was quashed. The hearing of the appellant's summons was remitted to a judge of the Administrative Law List for determination, subject to the respondent complying with section 78B of the Judiciary Act 1903 (Cth) regarding the effect of section 170HB of the Workplace Relations Act 1996 (Cth) on the appellant's complaint to the Anti-Discrimination Board. The respondent was ordered to pay the appellant's court fees for the summons for leave to appeal and the Notice of Appeal.