Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate [2005] NSWADT 253

CITATION: Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate [2005] NSWADT 253 DIVISION: Equal Opportunity Division APPLICANT PARTIES: David Gardiner RESPONDENT Aquasun Pty Ltd t/as Asher Coastwide Real Estate FILE NUMBER: 041124 HEARING DATES: On the papers SUBMISSIONS CLOSED: 09/21/2005 DATE OF DECISION: 11/11/2005

BEFORE: Britton A - Judicial Member APPLICATION: Joinder of parties MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Allan v Transurban City Link Ltd [2001] HCA 58 CASES CITED: Bignell v NSW Casino Control Authority. (EOD) [2001] NSWADTAP 41 Z (No. 2) v University of A [2001] NSWADT 138 Z (No. 3) v University of A [2001] NSWADT 182 APPLICANT REPRESENTATION: J Goldstone, solicitor RESPONDENT No appearance ORDERS: ORDERS MADE 19/10/2005; Mr Chris Nounnis is joined as a party to these proceedings

REASONS FOR DECISION 1 On 19 October 2005, orders were made joining Chris Nounnis as a party to these proceedings. Mr Nounnis seeks written reasons for that decision. These are the reasons in answer to that request. 2 On 29 September 2002 David Gardiner, the Applicant in these proceedings, lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") alleging discrimination on the grounds of disability in the area of accommodation. That complaint concerned a residential property rented by Mr Gardiner through the Respondent, Aquasun Pty Ltd, a real estate agent operating on the NSW Central Coast. In that complaint he alleged that Mr Nounnis: harassed him and interfered with his quiet enjoyment of the rental property in which he lived. prevented him from attending the final inspection of the property. made it difficult for him to carry out repairs to the property as ordered by the Consumer Trader and Tenancy Tribunal. 3 On 7 September 2004, the President referred Mr Gardiner's complaint to the Tribunal under s 95(1) of the Anti-Discrimination Act 1977 (the Act) having formed the view that the complaint could not be conciliated. 4 In the course of its investigations, the Board provided Aquasun with a copy of Mr Gardiner's complaint and invited it to respond. No response was received. 5 The President's Summary of Complaint and the documents attached to it indicate that Mr Nounnis was the main, if not sole, person with whom Mr Gardiner dealt with at Aquasun. The documents do not disclose the nature of the relationship between Acquasun and Mr Nounnis, although it appears from Mr Nounnis' statement filed on 3 March 2005 that throughout the disputed period he was an employee of Aquasun. 6 Mr Gardiner asserts that the conduct of Aquasun and Mr Nounnis was unlawful pursuant to ss 49M and 49N of the Act. Relevant legislation 7 Section 97 of the Act and s 67 of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act") confer discretion on the Tribunal to join a person as a party to proceedings. Section 97(1)(c) of the Act provides that the parties to proceedings before the Tribunal relating to a complaint include any other person who has been made a party to the proceedings in accordance with section 67 (4) of the Tribunal Act. Section 67(4) provides that the Tribunal may, by order, make a person who is not a party to proceedings a party to the proceedings, either of its own motion or on the written application of the person, "if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision". 8 Neither the Act nor the Tribunal Act provide guidance as to the factors the Tribunal ought take account when determining whether the interests of the person, who is the subject of the joinder application "are likely to be affected by the decision". This issue has been considered in some detail in the decisions of Z (No. 2) v University of A [2001] NSWADT 138; Z (No. 3) v University of A [2001] NSWADT 182 and Bignell v NSW Casino Control Authority. (EOD) [2001] NSWADTAP 41. While these decisions looked at the provisions relating to joinder that existed before the amendment inserting s 97 of the Act came into effect on 2 May 2005 (Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004), nevertheless they provide useful guidance as to the issues to be considered in a joinder application. 9 In Z (No. 2), the Tribunal refused an application for joinder as it was considered that substantial prejudice would be occasioned if the application was granted given that two and half years had elapsed since the alleged discrimination and the joinder application. The Tribunal said at [32] that there must be a clear link between the person sought to be joined and the existing complaint: 10 In Bignell v New South Wales Casino Control Authority, the Appeal Panel considered in some detail the statutory test set out in s 67(4), in particular the meaning of the words "the interests of the person" and the term "affected". The Appeal Panel noted [at 19] that the High Court in Allan v Transurban City Link Ltd [2001] HCA 58 had endorsed a movement away from a consideration of the "interests affected" in terms of the common law rules of standing and towards a close analysis of the requirements of the legislation in question. The Panel observed [at 19] that the majority judgment (and Kirby J in a separate judgment) confirmed that the question whether interests are affected must be answered "by reference to the subject, scope and purpose of [the] statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as 'standing'". 11 In that case, the Appeal Panel found that the Tribunal below had misdirected itself as to the test to be applied under s 67(4) by failing to address whether the person the subject of the joinder application, namely the Director of Casino Surveillance, was a person whose interests could be affected against the background of "the subject, scope and purpose of the AD Act 1977". The Panel said [at 22]: The subject, scope and purpose of the AD Act 1977 and equivalent legislation in other jurisdictions has been explored in the course of numerous decisions. The statutory objects include the promotion of equality of opportunity and rendering unlawful certain types of discrimination. Against this background, what interests, if any, of the Director are capable of being affected by a determination of the complaint? 12 The Appeal Panel commented [at 12] that "the exercise of the Tribunal's discretion to join a party to an inquiry is dependent upon a finding by the Tribunal that the interests of the person sought to be joined are likely to be affected by the determination of the substantive complaint referred by the President of the Anti Discrimination Board to the Tribunal". However, the Panel took the view that where such finding is made, joinder is not automatic: [t]here is no compulsion on the Tribunal to exercise its discretion in favour of the joinder: see Gregor v State of Victoria [2000] VCAT 414 . In Gregor , the Tribunal reviewed the factors relevant to the exercise of the discretion under s 60 (1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 . Section 67(4) of the ADT Act, whilst not in identical terms, is to the same effect as the Victorian provision. Those factors include whether there was any delay in making the application, whether there is any prejudice to any party or to the person to be joined that might result from the granting or the refusing of the application, whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case for or against that person, and whether, where the person is to be joined as a respondent, the complainant's case against that person is not strongly arguable on a prima facie basis. 13 It is apparent from these decisions that the factors to be taken into account by the Tribunal in exercising its discretion to join a party will vary. A 'one size fits all' approach is to be avoided. Each case must be considered on its merits. See for example Z (No 3) [at 36]. Approach to the evidence 14 In determining this application, I have taken the evidence of Mr Gardiner, the party who has applied for the joinder at its highest. Submissions 15 Mr Gardiner applied in writing to join Mr Nounnis to these proceedings on 9 September 2005. On 15 September 2005, at my direction, the Registrar wrote to Mr Nounnis and invited him to respond that application. 16 In submissions dated 21 September 2005, Mr Nounnis advised that he opposed the application because he would find attending the hearing difficult on account of the fact that he was obese and, in addition, was responsible for the care of his daughter who has an intellectual and physical disability. In addition he claims that he has responsibilities for the care of his mother who also suffers a number of disabilities. 17 Aquasun elected not to make submissions about this application. Decision 18 On Mr Gardiner's evidence thus far, there seems to be a link between his complaint of discrimination and the alleged conduct of Mr Nounnis. Mr Gardiner alleges that becoming aware that he suffered from a disability Mr Nounnis harassed him and interfered with his quiet enjoyment of the property he rented through Aquason. 19 Whether those untested allegations are ultimately accepted by the Tribunal is not the issue here. What must be determined having regard to "the subject, scope and purpose of the Act" is, whether Mr Nounnis is a person whose interests are likely to be affected by the decision. 20 Section 49M makes it unlawful for a person who provides services, for payment or not, to discriminate against a person on the ground of disability. In contrast to s 49N, this provision makes the person "who provides the good or service" liable for the discriminatory conduct not the principal or agent. Whether Mr Nounnis is a person who "provided a service" is a question of fact and law, however if it is found that he is, his alleged conduct might be caught by s 49 M of the Act. 21 In determining whether a person who is alleged to have contravened the Act ought to be joined to proceedings, one of the issues to be considered is whether the Respondent accepts liability for their employee's conduct. In Points of Defence filed on 28 February 2005, Aquasun denied that it or its agents or employees discriminated against Mr Gardiner. At paragraphs [9] and [10], however, it foreshadows that if a finding is made that any of its employees or agents did contravene the Act, it intends to rely on the s 53 'defence'. Section 53(1) provides that an employer is not liable for the conduct of its employee if it did not, either before or after the doing of the act, authorise the employee, either expressly or by implication, to do the act. 22 A finding that Mr Nounnis might potentially be liable under the Act does not automatically mean an order for joinder will follow. While the following factors were not raised by Mr Nounnis in his submissions, I have had regard to them in reaching my decision: Over three years have passed since Mr Gardiner first made a complaint to the Board. Mr Gardiner apparently failed to ask the Board to join Mr Nounnis as a respondent. The Board did not join Mr Nounnis as a respondent of its own volition. Mr Nounnis was not contacted by the Board in the course of its investigation and conciliation processes. The timing of Mr Gardiner's application to join Mr Nounnis. 23 Taking Mr Gardiner's case at its highest and having carefully considered all the relevant material, it seems that Mr Nounnis' alleged conduct could be capable of contravening s 49M. His employer has indicated it will not accept liability for his conduct if a finding of unlawful discrimination is made. Had that not been the case, it would be necessary to ask whether any useful purpose would be served in joining Mr Nounnis to these proceedings. 24 While the late timing of this joinder application is unfortunate, it is noteworthy that a grant of legal aid was only recently made to Mr Gardiner and before then he had represented himself. In my view, any prejudice which Mr Nounnis might suffer from his late participation in these proceedings can largely be cured by providing him with an opportunity to put on any material he seeks to rely on. Directions have been made to that effect. I note that Mr Nounnis has already prepared a statement which has been filed by the Respondent. 25 In reaching my decision, I have taken into account Mr Nounnis' submission that it will be difficult for him to participate in these proceedings. Irrespective of whether he is joined as a party, he would be required to be available for cross-examination on his statement. While it is regrettable that Mr Nounnis will be inconvenienced, that of itself is not a reason the joinder application should be refused. 26 For these reasons, Mr Nounnis is joined to these proceedings.