Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 (1 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4

PARTIES: APPLICANT

Asaad Razaghi

FIRST RESPONDENT

Director-General, NSW Department of Health

SECOND RESPONDENT

New South Wales Medical Board

FILE NUMBERS: 991070

HEARING DATES: 08/08/2001

SUBMISSIONS CLOSED: 08/08/2001

DECISION DATE: 01/02/2002

BEFORE: Rees N - Judicial MemberClayton S - MemberSilva A - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Anti-Discrimination Act 1977

Medical Practice Act 1992

CASES CITED: Australian Doctors Trained Overseas Inc v Director-General, NSW Department of Health [2000] NSWADT 115

Australian Trained Doctors Trained Overseas v Director-General, Department of Health and President, NSW Medical Board [2001] NSWADTAP)

Commissioner of Police v Orr [2001] NSWADTAP 16

Langley v Niland [1981] 2 NSWLR 104

Simplot Australia Pty Ltd v HREOC (1996) 69 FCR 90

Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179

Commissioner of Police v Orr [2001] NSWADTAP 16

McGlade v HREOC [2000] FCA 1477

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Khan v Macquarie University [1999] NSWADT 100

Maylor (No 1) v Mid North Coast Area Health Service [2001]

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 NSWADT 117

Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26

Australian Medical Council v Wilson (1996) 137 ALR 653

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: FIRST RESPONDENT

C Ronalds, barrister

SECOND RESPONDENT

G Furness, barrister

ORDERS: 1. Applications by both respondents for orders pursuant to s111 of the Anti-Discrimination Act 1977 refused.

2. Complaints to be dealt with as individual complaints by Asaad Razaghi.

3. Matter to be listed on a date to be determined by the Registrar for further orders and directions in accordance with these reasons.

Reasons for Decision:

Introduction

1 In this case both the first respondent, the Director-General of the NSW Department of Health, and the second respondent, the New South Wales Medical Board, have applied for orders pursuant to s111 of the Anti-Discrimination Act 1977 (the Act) that the four complaints before the Tribunal be dismissed. There are complaints of discrimination on the ground of race and victimisation against each respondent.

2 The applications by the respondents were heard on 8 August 2001. Both respondents were represented by counsel: the first respondent by Ms Ronalds, and the second respondent by Ms Furness. The complainant, the applicant in the proceedings before the Tribunal, was not legally represented. There was disagreement between the parties concerning the proper identity of the applicant. When referring these complaints to the Tribunal, the Acting President of the Anti-Discrimination Board (the ADB) described the complainant as Australian Doctors Trained Overseas Association Inc (ADTOA). In the case conferences, directions hearings and interlocutory applications which have previously taken place in this case, the applicant has always been described as ADTOA. On each occasion, Dr Asaad Razaghi appeared as the representative of ADTOA. Dr Razaghi also appeared as the representative of the applicant at the hearing of the s111 applications on 8 August 2001. The legal and factual issues concerning the proper identity of the applicant are discussed, and determined, at paragraphs 29 to 32, below. We have determined that the complaints before the Tribunal are individual complaints and that the proper complainant (applicant) is Dr Razaghi.

3 In the paragraphs which follow we have set out the background to these complaints, the submissions made in support of, and in opposition to, the s111 applications, and our reasons for refusing those applications. In addition, we have made various findings and observations about the future conduct of this inquiry. We will make further orders and directions once the parties have had the opportunity to consider this document and to make further submissions.

History of the proceedings

4 This case has a long and complex history which need not be recorded in full in this document. Relevant parts of the history were set out in an earlier decision of the Tribunal which dealt with an application to join additional parties to the complaints (see Australian Doctors Trained Overseas Inc v Director-General, NSW Department of Health [2000] NSWADT 115 at paragraphs 4 to 13). Whilst an Appeal Panel of the Tribunal set aside part of the earlier decision concerning the joinder application (see Australian Trained Doctors Trained Overseas v Director-General, Department of Health and President, NSW Medical Board [2001] NSWADTAP), no criticism was made of the initial account of the history of the complaints.

5 It is of benefit, however, to provide a brief summary of the events to date:

(a) on 26 March 1999 the President received complaints under the Act in a letter signed by Dr Asaad Razaghi (Exhibit 1). The letterhead of this document was `Australian Doctors Trained Overseas Association Inc'. In this document Dr Asaad Razaghi is recorded as `National President'. In this letter Dr Razaghi made complaints of racial discrimination. He alleged that, "We have been denied employment by NSW Health and the Medical Board...". Dr Razaghi went on to claim that, "We are discriminated against to apply for those temporary medical positions which are now being advertised because we are either Australian permanent residents or citizens of this country". It is not clear from the original letter, or the attachments to it (which included copies of correspondence and press releases), what are "those temporary medical positions" and who is alleged to have advertised them.

(b) The summary attached to the President's report (Exhibit 4) reveals that further "general information" was provided to the ADB by Dr Razaghi on various dates subsequent to 26 March 1999. The President's report does not reveal, however, which document is said to constitute the complaint of victimisation. In the summary attached to his report, the President has stated:

In a telephone conversation between an officer of the Anti-Discrimination Board and Dr Razaghi of the ADTOA on 7 May 1999, Dr Razaghi stated that the complaints of race discrimination and victimisation had been lodged with the Anti-Discrimination Board by the ADTOA on behalf of its members, including himself and his wife. However, despite written and verbal requests from the Anti-Discrimination Board, Dr Razaghi did not provide any information to the Board about any other named members of the ADTOA, nor evidence of their consent to the ADTOA lodging complaints on their behalf. As a result, the Anti-Discrimination Board decided to proceed with the complaints under section 88(1A) of the Anti-Discrimination Act as complaints of the ADTOA on behalf of one named and consenting member, that being Dr Asaad Razaghi.

(c) By letter dated 9 July 1999 the Acting President of the ADB referred what she described as complaints of "discrimination on the ground of race and victimisation" to the Tribunal, pursuant to s 94(1) of the Act. The complainant was described as "Australian Doctors Trained Overseas Association Inc on behalf of Dr Asaad Razaghi" and the respondent was named as "the Director-General of the NSW Department of Health".

(d) This matter has been before the Tribunal on numerous occasions since the referral of the complaints by the President. Significant dates and occurrences are as follows:

i. On 22 September 1999 the Tribunal directed the applicant to file and serve Points of Claim within 28 days.

ii. On 24 January 2000 the Tribunal determined that the applicant had not complied with this direction and directed the applicant to file and serve Points of Claim by 21 February 2000. On 20 March 2000 the applicant filed a document headed `Points of Claim' which extended over 31 pages and 232 unnumbered paragraphs.

iii. On 20 March 2000 the applicant wrote to the Tribunal with the request that the Australian Medical Council and the NSW Medical Board be joined as respondents to the proceedings.

iv. On 30 March 2000 the first respondent filed a document headed `Points of Defence' and a further document headed `Outline of respondent's submissions and tables'.

v. On 9 June 2000 the Tribunal heard and dismissed the application that the Australian Medical Council and the NSW Medical Board be joined as respondents to the proceedings.

vi. The applicant appealed against that decision. That appeal was upheld in part and, on 16 February 2001, an Appeal Panel ordered that the NSW Medical Board be joined as a respondent to the proceedings

vii. On 6 July 2000 the first respondent filed an application that the complaints against it be dismissed pursuant to s111 of the Act.

viii. On 7 May 2001 the Tribunal, at the request of the second respondent, directed the applicant to file and serve Points of Claim in relation to the second respondent by 21 May 2001. The second respondent was directed to file Points of Defence, and its foreshadowed application to dismiss the complaints pursuant to s 111 of the Act, by 4 June 2001. The s 111 application by the first respondent, and the foreshadowed similar application by the second respondent, were set down for hearing on 12 June 2001. The second respondent filed an application, on 4 June 2001, that the complaints against it be dismissed pursuant to s111 of the Act.

ix. On 12 June 2001 the respondents' s111 applications were adjourned to 8 August 2001, at the request of the applicant, in order to permit the applicant further time in which to secure legal representation. On that occasion the applicant was represented, briefly, by Mr Fleming of Counsel who withdrew before the day's proceedings had concluded

The applications by the respondents

6 Both respondents have made applications to the Tribunal that the complaints in this case be dismissed pursuant to s111 of the Act. Both respondents filed written applications and made oral submissions on 8 August 2001. Ms Ronalds, for the first respondent, tendered some documentary evidence, as did Ms Furness, for the second respondent. Ms Furness also lead evidence from one witness, Mr Andrew Dix, the Registrar of the NSW Medical Board, who was cross-examined by Dr Razaghi. Dr Razaghi made submissions in response to those made by Ms Ronalds and Ms Furness. He did not call any witnesses or tender any documents.

7 Ms Ronalds submitted that the complaints of discrimination on the ground of race and victimisation made against the first respondent should be summarily dismissed because they were "misconceived", "lacking in substance" and fell within the ambit of the words "or for any other reason the complaint should not be entertained", found in s111 of the Act. In the alternative, Ms Ronalds submitted that the complaints should not be permitted to proceed to hearing in their current form; those parts of the Points of Claim which were irrelevant should be struck out and the proceedings should continue with any parts still remaining.

8 In making these submissions Ms Ronalds accepted that a valid complaint of discrimination on the ground of race, against the first respondent, was lodged with the President of the ADB on 26 March 1999 (Exhibit 1). The nature and validity of the initial complaint of victimisation against the first respondent was not addressed by Ms Ronalds. She challenged, however, the characterisation of both complaints as complaints made by a representative body on behalf of a named person. It is clear from the Acting President's letter of referral to the Tribunal, as well as the summary attached to the President's report (Exhibit 4), that the President had cast the complaints as having been made by a representative body (ADTOA) on behalf of one named person (Dr Razaghi). Ms Ronalds submitted that the complaints before the Tribunal were in fact individual complaints made by Dr Razaghi. The details of Ms Ronalds' submissions concerning this issue, and our findings, are set out at paragraphs 29 to 32, below.

9 Ms Ronalds' applications that the complaints be dismissed, or in the alternative, refined, focussed upon the allegations set out in the Points of Claim filed by the applicant on 20 March 2000. This document is 31 pages in length and contains 232 paragraphs. When filed, the document did not have sequentially numbered paragraphs. In order to assist the applicant, and the Tribunal, Ms Ronalds numbered the paragraphs in an appropriate fashion and filed a document of her own titled, "Outline of Respondent's Submissions and Tables in response to Complainant's Points of Claim". In this document Ms Ronalds sought to characterise, very fairly, the allegations made by the applicant in terms which reflect the relevant substantive provisions in the Act.

10 Ms Ronalds submitted, quite correctly in our opinion, that, when determining the s111 application, the Tribunal must proceed on the basis that all of the allegations in the applicant's Points of Claim can be proved. In other words, the applicant's allegations must be taken at their highest.

11 In essence, Ms Ronalds advanced four arguments in support of the application that the complaints be dismissed. First, it was argued that there were no allegations that the first respondent had discriminated against the applicant "on the ground of race", as that concept has been defined in the Act and explained in various cases to which we were referred. Consequently, the complaint of discrimination on the ground of race was "misconceived". Secondly, Ms Ronalds submitted that the applicant must allege a contravention of the Act within the relevant time period. Those provisions of the Act which prohibit discrimination on the ground of race are found in Division 2 of Part 2. The relevant time period is six months prior to the date upon which the complaint was lodged with the President of the ADB. In the absence of evidence that the President has exercised the discretion granted by s88(4) of the Act to accept a complaint out of time, there is an effective six month limitation period created by the operation of s88(3). According to Ms Ronalds, the Points of Claim contained no allegations that the first respondent had contravened any of the provisions in Division 2 of Part 2 of the Act within the six month period prior to the date of the lodgement of the initial complaint with the President of the ADB, which was 26 March 1999. Thus, it was submitted, the complaint of discrimination on the ground of race was "lacking in substance". The same submission was made in relation to the complaint of victimisation. There was no allegation in the Points of Claim that the first respondent did anything to the applicant which contravened s50 of the Act (the victimisation provision) in the six months prior to the date upon which the complaint was lodged.

12 The third submission, as we understood it, was put in the alternative, in part, to the second submission. Instead of characterising a complaint which makes no allegation that the respondent contravened a substantive provision of the Act during the relevant six month period as one which is "lacking in substance", it may be preferable, according to Ms Ronalds, to characterise such a complaint as having no substance at all. In these circumstances it would be appropriate, Ms Ronalds submitted, for the Tribunal to dismiss the complaint pursuant to the words "for any other reason the complaint should not be entertained", found in s111.

13 The fourth submission was put in the alternative to the first three submissions. In the event that the Tribunal ruled that the applicant had made timely allegations against the first respondent of discrimination on the ground of race in contravention of Division 2 of Part 2 of the Act, and timely allegations of victimisation, Ms Ronalds submitted that the complaints should be summarily dismissed "for any other reason" because, despite repeated opportunities and assistance from the Tribunal, the applicant had failed to refine his complaint in such a fashion that it could be properly understood and answered by the first respondent. The first respondent would be denied procedural fairness were the complaints permitted to proceed to hearing in their current form. In her written submissions Ms Ronalds stated that, "[t]he nature of the allegations which are alleged by the complainant to form the acts of discrimination of which he complains remain opaque to the respondent". Ms Ronalds argued that, on the basis of the steps taken by the applicant in these proceedings to date, there was no reasonable likelihood that the applicant would present his allegations with sufficient and reasonable clarity.

14 Ms Ronalds also submitted, in the alternative, that in the event the Tribunal refused the s111 application, that those parts of the Points of Claim which do not allege timely contraventions of the Act should be struck out and directions should be given which clarify the issues in dispute between the applicant and the first respondent. In her written submissions, dated 30 March 2000, Ms Ronalds stated:

"...the respondent submits that the complainant be given a short period of say 14 days to file and serve amended points of claim in the usual way which set out the actual claims being relied upon and the particulars of each claim with the requisite facts alleged such as time, place, manner, actions. Without these essential particulars the proceedings cannot continue in any orderly or efficient manner".

15 The second respondent also made an application pursuant to s111. The submissions in support of this application by Ms Furness were directed to the applicant's Points of Claim against the second respondent, which was filed on 23 May 2001. This is a 10 page document which does not contain sequentially numbered paragraphs. The document contains three sub-headings - "Summary of Points of Claim", "Particulars" and "Further Particularisation" - under which the paragraphs are separately numbered, but not always sequentially. There are three annexures to this document: the preamble to the Racial Discrimination Act 1975, the International Convention on the Elimination of all forms of Racial Discrimination and the Universal Declaration of Human Rights. The second respondent, in its Points of Defence, responded to the claims made by the applicant and made submissions about those claims.

16 Like the first respondent, the second respondent submitted that the complaints against it should be summarily dismissed because they were "misconceived", "lacking in substance", or fell within the ambit of the words "for any other reason the complaint should not be entertained", found in s111 of the Act. The second respondent also submitted, adopting the arguments of the first respondent, that the complaints before the Tribunal were individual complaints and that the proper complainant was Asaad Razaghi.

17 The first submission by Ms Furness was that the applicant had made no supportable allegation that the second respondent had contravened the Act during the period of time covered by the complaints. In relation to the complaint of discrimination on the ground of race, Ms Furness submitted that the only substantive provision in the Act which could be applicable in this case was s12, which is directed to the activities of qualifying bodies. Even though the applicant, in his Points of Claim, had made allegations of breaches of sections 8, 10, 13 and 17 of the Act, there was, according to Ms Furness, no material in that document which provided any factual basis for those allegations. In support of that submission, Ms Furness referred to the evidence given by Mr Dix, which was that the NSW Medical Board was not, at any material time, an employment agency, a principal of contract workers in any relevant sense, an educational authority, or an employer or prospective employer of the applicant. Whilst it was conceded that the second respondent was a qualifying body within the meaning of s12, Ms Furness submitted that the applicant had not made any allegations in his Points of Claim that the second respondent had breached s12 during the period of time covered by his complaint to the President of the ADB. Thus, according to Ms Furness, all of the applicant's allegations of breaches of the substantive race discrimination provisions of the Act were either "misconceived" or "lacking in substance".

18 Ms Furness also submitted that the only allegation that the applicant had ever made about being denied registration as a medical practitioner by the second respondent was at an earlier directions hearing when the applicant informed the Tribunal that he had unsuccessfully applied for registration in 1987. It was beyond the jurisdiction of the Tribunal, Ms Furness submitted, to conduct an inquiry into this allegation because it fell outside the six month period preceding the applicant's complaint to the President of the ADB. In addition, Ms Furness argued that, pursuant to s4 of the Medical Practice Act 1992 (and, presumably, equivalent provisions in earlier legislation), the Medical Board had no relevant discretionary powers when dealing with applications for general registration as a medical practitioner. Accordingly, anything done pursuant to s4 could not be unlawful because of the operation of s54 of the Anti-Discrimination Act, which provides a general exception from liability for any actions which are mandated by another statute.

19 In the event that the Tribunal did not find in favour of these arguments, Ms Furness submitted that we should dismiss the complaints on procedural fairness grounds under the rubric "for any other reason" in s111. This step should be taken because, despite considerable opportunity, the applicant had not made allegations of contraventions of the Act, in his Points of Claim, in a manner which could be understood and answered by the second respondent. Ms Furness made similar submissions in relation to the victimisation complaint against the second respondent; the Points of Claim contained no allegations of any breach of s50 of the Act during the period of time covered by the complaint.

20 The applicant opposed the s111 applications made by both respondents. He also opposed the applications that the complaints be dealt with as individual complaints, rather than as complaints by a representative body of behalf of a named individual. The applicant did not respond to the substance of the submissions made by Ms Ronalds and Ms Furness.

The relevant law

21 The Tribunal's grant of jurisdiction in this case is found in s96 of the Act, which requires it to conduct an inquiry into each complaint referred to it by the President of the ADB pursuant to s94(1). A complaint must first be made to the President pursuant to s88. That section stipulates, amongst other things, that a complaint must be in writing and that it must be "in respect of any contravention of this Act". Section 88(3) provides that a complaint must be lodged with the President within six months of the date of the alleged contravention of the Act. The President has a discretion, granted by s88(4), to accept a complaint out of time. There is ample authority for the proposition that, in the absence of evidence that the President of the ADB has exercised his/her powers to accept a complaint lodged out of time, the Tribunal must proceed on the basis that the ambit of the complaint, in terms of time, is limited to the six month period preceding the lodgement of the complaint with the President (see, eg Commissioner of Police v Orr [2001] NSWADTAP 16). The Tribunal would be acting beyond jurisdiction were it to investigate and find any contravention of the Act which fell outside of the ambit of the complaint referred to it by the President of the ADB.

22 The authorities make it clear that, whilst the initial complaint to the President of the ADB must allege a contravention of the Act by another person, "it need not allege the relevant facts with the particularity of an indictment or a pleading "(Langley v Niland [1981] 2 NSWLR 104 at 107, per Hunt J). More recent cases have taken a particularly liberal view of the required minimum content of the initial complaint. The Federal Court, when dealing with similar provisions in Commonwealth anti-discrimination statutes concerning complaints to the Human Rights and Equal Opportunity Commission, has determined, on a number of occasions, that a complaint is valid if it contains nothing more than a broad allegation that another person has contravened the relevant Act (see, eg Simplot Australia Pty Ltd v HREOC (1996) 69 FCR 90 (per Merkel J) and Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 (per Branson J)). An Appeal Panel of this Tribunal took a similar view in Commissioner of Police v Orr [2001] NSWADTAP 16 at paragraphs 14 to 16.

23 As many complaints which contain few, or no, details of the alleged contravention of the Act are referred to the Tribunal by the President of the ADB for the purposes of an inquiry, and in order to ensure fairness to the parties and an efficient use of the Tribunal's time, it is common practice in complex cases (see Practice Note No 2) for the Tribunal to direct the applicant to file Points of Claim. This step was taken in this case in relation to the claims against both respondents. This document is intended to provide the respondent with sufficient details of the allegations made against it in order to comply with the statutory dictates of procedural fairness (see, ss73(2) and 73(4) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act)). It is also common practice, as happened in this case, for the respondents to be directed to file Points of Defence. Together, these documents are intended to identify the factual disputes which the Tribunal must determine and the questions of law which it must resolve.

24 As with civil litigation generally, the `pleadings' often fall well short of the ideal. This results, as has happened in this case, in the respondents not being properly informed of the claims against them, and in the Tribunal not being apprised of the questions which it must resolve and the disputes which it must determine. The governing legislation, the Tribunal Act, makes it clear that the Tribunal should not permit form to prevail over substance (see s73(3). At the same time, the Tribunal Act stipulates that we should strive to ensure that the respondents understand the allegations against them, so that the respondents may choose whether to admit those allegations or defend them (see s73(4)(a)). It sometimes becomes necessary to strike a balance between the overlapping objectives of informality, procedural fairness and efficiency. That balance can be particularly difficult to achieve in cases such as the present where the applicant is unrepresented, the allegations are both grave and voluminous, the stakes are high and the claims made against the respondents are expressed at a level of generality not usually associated with legal proceedings. Striking that balance and determining the extent to which the Tribunal can and should go to assist an unrepresented applicant to frame his/her case have been particularly difficult issues to resolve in this instance.

25 Section 111 of the Act, by implication, permits a respondent to apply to the Tribunal at any stage of proceedings for an order that the complaint before it be dismissed. That section permits the Tribunal to dismiss a complaint if satisfied that it is "frivolous", "vexatious", "misconceived", "lacking in substance", or "for any other reason should not be entertained". There is nothing which prevents a s111 application being made prior to the commencement of the hearing, as has happened in this case. Such an application is akin to an application for summary dismissal in civil proceedings. The Tribunal is also given power to dismiss proceedings, at any stage, by s73(5) of the Tribunal Act. As s111 of the Anti-Discrimination Act is worded a little more broadly than s73(5) of the Tribunal Act, and as the powers granted by the Tribunal Act are designed to complement rather than derogate from those given by the Anti-Discrimination Act (see s111(3)), dismissal applications are usually made pursuant to s111, as has happened in this case.

26 There is a considerable body of authority concerning the circumstances in which a complaint should be summarily dismissed pursuant to s111. The relevant cases are usefully summarised in Commissioner of Police v Orr [2001] NSWADTAP 16 at paragraphs 34 to 36. There is no reason to depart from the view expressed in that case that the power to summarily dismiss a complaint pursuant to s111 should be exercised with exceptional caution. Similar comments were recently made in the Federal Court about the summary dismissal of complaints under Commonwealth anti-discrimination statutes (see McGlade v HREOC [2000] FCA 1477 (per Carr J)). Thus, we must approach the s111 applications before us on the basis that the applicant must be given every reasonable opportunity to set out the content of his complaints and to produce evidence in support of them.

27 This approach mirrors that taken by courts when dealing with summary dismissal applications in civil proceedings. After discussing the cases which deal with summary dismissal applications pursuant to Part 13 rule 5 of the Supreme Court Rules 1970, and analogous provisions in other jurisdictions, Professor Bernard Cairns (Australian Civil Procedure, 4th ed, Sydney: LBC Information Services, 1996 at page 242) has summarised the law as follows:

So the general principle is that a pleading is liable to be struck out if it is plain and obvious that if all the alleged facts are proved it is still insufficient as a claim or defence. The formulae applied to bring an individual case within the general principle are that the case, whether a claim or defence, is unsustainable or unarguable, worse than demurrable, so manifestly faulty that it does not admit of argument, cannot be amended or is incontestably bad. These defects must relate to matters of substance, not just to the form of the pleading. If the court can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated.

28 The respondents have submitted that the complaints against them should be dismissed on the grounds that they are "misconceived", "lacking in substance" or fall within the words "that for any other reason the complaint should not be entertained". There are numerous cases in which the meaning of these terms have been discussed (see, eg Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; Khan v Macquarie University [1999] NSWADT 100; Maylor (No 1) v Mid North Coast Area Health Service [2001] NSWADT 117 and Commissioner of Police v Orr [2001] NSWADTAP 16). In keeping with the statements made in these earlier cases, we propose to proceed on the basis that, in broad terms, "misconceived" means a "misunderstanding of legal principle", and "lacking in substance" means "an untenable proposition of law or fact". These meanings are drawn from the Victorian Court of Appeal decision in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 (per Ormiston JA). We are of the opinion that, in some circumstances, persistent failure by an applicant to provide sufficient details of a complaint may justify dismissing a complaint "for any other reason" because of denial of procedural fairness to the respondent.

29 The respondents' submissions also require us to determine the type of complaints which are before the Tribunal and the proper identity of the applicant. Three types of complaints may be lodged with the President of the ADB pursuant to s88 of the Act: individual complaints, representative complaints and complaints by a representative body on behalf of named individuals. Section 103 of the Act stipulates that the Tribunal must not permit a complaint to be dealt with as a representative complaint unless the Tribunal is satisfied of the matters set out in s103(2). It is unnecessary to give any further consideration to the provisions dealing with representative complaints for the complaints in this case have not been so characterised by the President of the ADB, or the applicant, and we have not been asked by any of the parties to make a determination pursuant to s103(2). The complaints in this case have been characterised by the President of the ADB as complaints made pursuant to s88(1A) of the Act by a representative body, ADTOA, on behalf of one named individual, Dr Razaghi. It appears that Dr Razaghi supports this characterisation, with the rider that he asserts that ADTOA represents more than one named individual in these proceedings.

30 As there is nothing in the Act which suggests that we are bound by the President's characterisation of the complaints, we must determine for ourselves the true nature of the complaints which are the subject of this inquiry. In the absence of any statutory provision to the contrary, the Tribunal has the power to determine its own procedure (see s73(1) of the Tribunal Act). Whilst the Tribunal is directed to act without regard to unnecessary formalities and to concentrate on the merits of the case before it (see s73(2) of the Tribunal Act), the Tribunal must act according to law (see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26). In the courts, the rules of procedure generally stipulate the manner in which a corporation may participate in civil proceedings (see eg Part 11 rules 1A and 2 of the Supreme Court Rules 1970). Despite the absence of any analogous provisions in the Tribunal Act, or the Rules made pursuant to that Act, the Tribunal must be satisfied that any proceedings commenced or defended by a corporation have been properly authorised by the corporation and that any person who purports to act as the representative of a corporation has been authorised to act in that capacity.

Conclusions

31 It is appropriate that we first determine the type of complaints which are before the Tribunal and the proper identity of the complainant (applicant). We have concluded that all four complaints are individual complaints and that the proper complainant in each instance is Dr Razaghi. There is no material before the Tribunal which could permit us to conclude that ADTOA has authorised these proceedings and appointed Dr Razaghi to represent it. There is evidence to the contrary. Ms Ronalds tendered a faxed letter, dated 6 August 2001, to the Deputy Registrar of the Tribunal from "Ron Pepper CEO" on stationery headed "Australian Doctors Trained Overseas Association Inc" (Exhibit 3). In this letter Mr Pepper states that ADTOA has not authorised the current proceedings and that Dr Razaghi has no right to represent ADTOA or use its name. The authenticity of this letter was not challenged by Dr Razaghi. Ms Ronalds also tendered a company extract from the Australian Securities and Investments Commission, dated 15 August 2000 (Exhibit 2). This extract indicates that "Australian Doctors Trained Overseas Association Incorporated" is a "registered Australian body" of the subclass "registrable Australian corporation - association". The document also contains the names of current and previous directors; Dr Razaghi is not recorded amongst them. The authenticity of this document was not challenged by Dr Razaghi.

32 On the basis of this evidence we must conclude that ADTOA has not authorised these proceedings or appointed Dr Razaghi to represent its interests. Consequently, the complaints cannot be characterised as complaints by a representative body on behalf of a named individual. It appears that the President of the ADB did not inquire about appropriate authorisation by ADTOA. He appears to have accepted, without inquiry, Dr Razaghi's claim that the complaints were lodged by ADTOA. If the complaints are to proceed, they may only do so as individual complaints lodged by Dr Razaghi.

33 In this case the initial complaint to the President of the ADB of discrimination on the ground of race is worded broadly. As the authorities discussed at paragraph 22, above, indicate, this lack of detail does not affect the validity of the complaint. The only specific allegation in the initial complaint is that Dr Razaghi, and others, are not eligible to apply for advertised temporary medical positions because of their status as Australian citizens or permanent residents. It is claimed that "the jobs advertised are open only to the British doctors". No claims of victimisation are made in the initial complaint. This issue was not addressed by counsel for the respondents, or the applicant, during the course of the s111 applications. We believe that the parties should be invited to make further submissions concerning the identity of the initial complaints of victimisation, as the identification of any documents which answer this description may have considerable bearing upon any evidence which the applicant is directed to file with the Tribunal.

34 The applicant has filed Points of Claim against each respondent. The Points of Claim filed in relation to the first respondent is, in large part, a detailed narrative of attempts by the applicant, and other persons who have obtained medical qualifications in other countries, to obtain registration and employment as medical practitioners in NSW. It is alleged that the applicant is of Iranian national origin and that he obtained medical qualifications in Bangladesh, before travelling to Australia in 1986. He is now an Australian citizen. The Points of Claim filed in relation to the second respondent is in similar form to the first document. It is apparent from reading these documents as a whole, and from various comments made to the Tribunal, that the applicant wishes the Tribunal to conduct a broad ranging inquiry into the reasons why he and others have found it difficult to obtain registration and employment as medical practitioners in NSW. The Tribunal does not have the power to conduct such an inquiry. Our jurisdiction does not extend to determining whether the policies and practices about which the applicant complains are fair and just. The Tribunal's jurisdiction is limited to determining whether complaints which allege contraventions of the Anti-Discrimination Act have been made out.

35 The Anti-Discrimination Act does not render all acts of racial discrimination unlawful. It prohibits discrimination on the ground of race, as that concept is defined in the Act, in some areas of public life. The areas of public life within which it is unlawful to discriminate on the ground of race are set out in sections 8 to 20A of the Act. Any discrimination on the ground of race which falls outside of these sections of the Act is not unlawful. Discrimination on the ground of race is defined in section 7 of the Act. Any racial discrimination which does not fall within the section 7 definition is not unlawful. These broad statements must be read subject to other laws which regulate racial discrimination, such as the Commonwealth Racial Discrimination Act 1975. This Tribunal does not exercise any jurisdiction under that legislation.

36 Whilst the Tribunal must be slow to exercise its powers under s111 of the Act to dismiss complaints without first giving the applicant every reasonable opportunity to produce evidence in support of his claims, we should not permit complaints to proceed to hearing when they are doomed to failure. We have concluded that much of the material in both Points of Claim is misconceived in the sense that it demonstrates a misunderstanding by the applicant of both the activities which are regulated by the Act and the extent of the jurisdiction of this Tribunal. For instance, it is not a contravention of the Act for either or both respondents to fail to implement the recommendations in what has been referred to in these proceedings as The Race to Qualify report. Further, it is not a contravention of the Act for the first respondent to object to the production of some parts of that document. Whether those objections are sustainable has not yet been determined. Many of the allegations in both Points of Claim are misconceived in the sense that they appear to rely upon contentions which were rejected by the Full Court of the Federal Court in Australian Medical Council v Wilson (1996) 137 ALR 653. In that case, which involved a challenge to the examination system conducted by the Australian Medical Council for people with medical qualifications obtained outside of Australia, the Full Court determined that it did not constitute discrimination on the ground of race, under the Commonwealth Racial Discrimination Act, to distinguish between people on the basis of the university from which they obtained their medical qualifications. Whilst there are differences between the Commonwealth Act and the NSW Anti-Discrimination Act, the reasoning in Australian Medical Council v Wilson appears to govern any claim of direct discrimination under the NSW Act concerning distinctions between people on the basis of the institution from which they gained their medical qualifications. It may be theoretically possible, under the NSW Act, to present a claim of indirect racial discrimination which challenges the imposition of a condition or requirement that a person possess medical qualifications from certain named universities in order to gain some advantage associated with registration, training or employment. There would appear, however, to be significant problems of proof associated with such a claim, especially in terms of compliance rates and in challenging the reasonableness of any condition or requirement. As we construe the Points of Claim filed against both respondents, the applicant has made one such claim.

37 Much of the material in both Points of Claim is lacking in substance, in the sense that many allegations are expressed with such a degree of generality that they are essentially meaningless for the purpose of determining whether they comprise claims that either or both respondents have contravened any of the provisions in the Act. It is not appropriate to permit these allegations to proceed to hearing in this case, for the respondents would have no reasonable idea of the allegations against them and the Tribunal would be unaware of the issues which it has to determine. The applicant has already filed thousands of pages of documents with the Tribunal, without in any way indicating their relevance or the claims they support. If the applicant were given the opportunity to proceed directly to hearing, without refining his claims, it is highly likely that the time and expense associated with sifting through this material and determining its relevance would be extraordinary.

38 The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us. It has been difficult to determine the extent to which the Tribunal should assist the applicant to identify an arguable case by presenting some of his allegations in such a way that they constitute allegations of contraventions of the Act which can be understood and answered by the respondents, as well as fairly tried by the Tribunal. It is of relevance that despite considerable endeavours on his behalf, the applicant is not legally represented. We are also mindful of the fact that the allegations made by the applicant are complex, grave and important, for they concern attempts on his behalf to practise his chosen profession, which he is qualified to do in another country.

39 We have concluded that there are some allegations made by the applicant, in both sets of Points of Claim, which may be arguable. Insufficient details have been provided, especially concerning the dates upon which particular events are alleged to have occurred, to permit us to determine, at this stage, whether the applicant has any triable claims against either or both respondents. The matters referred to in paragraphs 9, 13, 47, 50, 51, 60, 61, 62, 64, 68, 71, 105, 106, 107, 108, 122, 124, and 231 in the first Points of Claim may involve allegations of discrimination on the ground of race by the first respondent which should be tried. The matters referred to in paragraphs 6 and 7 (page 7), 1 and 2 (page 9) and 3 and 4 (page 10) in the Points of Claim against the second respondent may involve allegations of discrimination on the ground of race by the second respondent which should be tried. If any of these allegations fall within the periods of time covered by the complaints to the President of the ADB, the applicant should be given the opportunity to present his evidence in support of those claims.

40 In the circumstances we believe it appropriate to attempt to express what we have identified as the applicant's potentially triable claims in terms which may be understood and answered by the respondents. It is appropriate to present these claims together, for some involve allegations that the first and second respondent acted in concert to contravene the Act. There appear to be four separate allegations against the first respondent, and two allegations against the second respondent. The allegations which we have identified are as follows:

(a) the first respondent discriminated against the applicant on the ground of race when it advertised "area of need" medical practitioner positions and informed the applicant that he was not an eligible applicant because, as an Australian permanent resident, he lacked credentials, being a pass in Australian Medical Council examinations, which were not required of applicants who were not permanent residents. This appears to be an allegation that the first respondent contravened s8(1)(b) of the Act, either as a principal, or as someone who aided and abetted another to do an unlawful act contrary to s52. It appears to be a claim of direct discrimination on the ground of race, in that the applicant was treated less favourably on the ground of his Australian nationality than other similarly placed people who did not have Australian nationality

(b) the first respondent and the second respondent discriminated against the applicant on the ground of race by requiring him, because he is an Australian citizen with medical qualifications obtained outside Australia, to pass an examination conducted by the Australian Medical Council before he could obtain temporary registration in NSW as a medical practitioner. People with medical qualifications obtained outside Australia who are not Australian citizens or permanent residents are not required to pass this examination in order to obtain temporary registration in NSW as a medical practitioner. This appears to be an allegation that the second respondent contravened s12(b) of the Act as a principal, and that the first respondent caused, induced or aided the second respondent to do an unlawful act contrary to s52. It appears to be a claim of direct discrimination on the ground of race, in that the applicant was treated less favourably on the ground of his nationality than other similarly placed people who did not have Australian nationality.

(c) despite the existence of the temporary registration policy referred to in paragraph (b), the first respondent and the second respondent discriminated against the applicant on the ground of race by allowing the temporary registration of two people with medical qualifications from Wales (Dr Robin Williams) and South Africa (Dr Harry van Rensberg) in circumstances where the applicant would not be permitted temporary registration. Those circumstances were that, even though they were Australian permanent residents with medical qualifications obtained outside Australia, Drs Williams and van Rensberg were not required to pass the Australian Medical Council examination, which the applicant was required to pass, before being granted temporary registration as a medical practitioner. This appears to be an allegation that the first respondent, contrary to s52, caused, aided or induced the second respondent to contravene s12(b) of the Act. The applicant appears to be alleging indirect discrimination on the ground of race, in this instance, on the ground of national origin. The allegation appears to be that the second respondent imposed a condition or requirement in order to be granted temporary registration. That condition or requirement was that in order for an Australian permanent resident with medical qualifications obtained outside Australia to be granted temporary registration without having passed the Australian Medical Council examination, it was necessary to possess medical qualifications obtained in one of five preferred countries. This condition or requirement could be complied with more easily by people whose national origin was one of the five preferred countries, rather than by people with the same national origin as the applicant, which is Iranian. It is further alleged that this condition or requirement was not reasonable and that it could not be complied with by the applicant.

(d) the first respondent discriminated against the applicant on the ground of race by denying him access to educational programs and work experience programs which have been provided to people with medical qualifications obtained outside Australia who are not Australian citizens or permanent residents. This appears to be an allegation that the first respondent has contravened s19(a) of the Act as a principal, and that it has, contrary to s52, aided, induced or permitted others to contravene s8(1)(a). The allegation appears to be one of direct discrimination on the ground of race, in that the applicant was treated less favourably on the ground of his Australian nationality than other similarly placed people who did not have Australian nationality.

41 In both sets of Points of Claim the applicant has made allegations of victimisation. As we have noted, neither Ms Ronalds nor Ms Furness made submissions to us concerning the identity of the initial complaints of victimisation to the President of the ADB. We cannot identify anything in the initial complaint of discrimination on the ground of race (Exhibit 1) which could be characterised as a complaint of victimisation against either respondent. We invite further submissions from the parties about this matter.

42 Subject to those submissions, we propose to deal with the victimisation allegations in the Points of Claim in a similar way to the manner in which we have dealt with the claims of discrimination on the ground of race. There is an allegation of victimisation by the first respondent in paragraph 115 of the first Points of Claim. This appears to be an allegation that the first respondent contravened s50(1)(a) of the Act by reducing the amount of work which it offered the applicant as a medical interpreter, because he lodged a complaint under the Act against the first respondent. There is an allegation of victimisation by the second respondent in paragraph 4 (page 4) of the Points of Claim directed to the second respondent. It is alleged that members of the second respondent have caused medical schools in NSW not to admit the applicant as a student because he has made allegations of discrimination on the ground of race. This appears to be an allegation that the second respondent has contravened s50(1)(c) of the Act.

43 We do not know whether the applicant has any evidence to present in support of the allegations which we have identified as being possibly triable, or whether the incidents fall within the period of time covered by his initial complaint, or complaints, to the President of the ADB. If any of the alleged incidents of discrimination on the ground of race occurred outside of the period 26 September 1998 to 26 March 1999, the Tribunal would have no jurisdiction to inquire into those matters, regardless of the strength of the evidence which the applicant is able to present in support of his allegations. As we are not in a position to make a determination about the date of the initial complaint, or complaints, of victimisation it is not possible, at this stage, to delineate the relevant time period for any victimisation allegations.

44 Subject to our comments about the relevant time periods, the applicant should be given an opportunity to lead evidence in support of the allegations which have been identified in paragraphs 40 and 42, above. That evidence should be limited to those allegations. Once that evidence has been filed the respondents will be in a position to determine whether to contest the allegations, to admit them or to make fresh applications under s111.

45 There are issues to be addressed concerning the orders which should be made to give effect to our conclusions. Fairness dictates that the parties should be afforded the opportunity to make submissions about these matters, as well as the related issue concerning the identity of the initial complaint, or complaints, of victimisation. We have identified three possible options. First, we could order that all paragraphs in the two Points of Claim, other than those which we have identified, be struck out. The applicant could be directed to file and serve written statements from all witnesses he proposes to call, and copies of all documents he proposes to tender, in support of the allegations set out in those parts of the Points of Claim which remain. Secondly, we could order that both Points of Claim be struck out in their entirety and direct the applicant to file and serve fresh Points of Claim which are limited to the allegations we have identified. The applicant would also be directed to file and serve evidence in support of his claims. Thirdly, we could order that the substance of the complaints before the Tribunal be the allegations set out in paragraphs 40 and 42, above. In effect, the Tribunal's description of the potentially triable allegations would stand in place of the Points of Claim. The applicant would be directed to file and serve evidence in support of these claims.

46 The matter will be re-listed on a date to be determined by the Registrar following consultation with the parties. On the return date the parties will be invited to make submissions about the issues outlined in the previous paragraph.

Orders

47 The Tribunal makes the following orders:

1. Applications by both respondents for orders pursuant to s111 of the Anti-Discrimination Act 1977 refused.

2. Complaints to be dealt with as individual complaints by Asaad Razaghi.

3. Matter to be listed on a date to be determined by the Registrar for further orders and directions in accordance with these reasons.