CITATION: Hanratty -v- Kempsey Shire Council [2002] NSWADT 232 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Linda Hanratty RESPONDENT Kempsey Shire Council FILE NUMBER: 991104; 021023 HEARING DATES: 25/07/2002 SUBMISSIONS CLOSED: 07/25/2002 DATE OF DECISION: 11/06/2002 BEFORE: Britton A - Judicial Member; Alt M - Member; McDonald O - Member APPLICATION: Joinder of parties MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Australian Doctors Trained Overseas Association v The Director-General of New South Wales Department of Health (2000) NSW ADT 11 Bignall v New South Wales Casino Authority(EOD) [2001] NSWADTAP 41 CASES CITED: Grigor v State of Victoria (2000) VCAT 414 Z(No.2) v The University of A[2001] NSWADT 138 Z(No 3) v The University of A [2001] NSWADT 182 APPLICANT In person REPRESENTATION: RESPONDENT P Harvey, solicitor PARTY TO BE JOINED J Gormly ORDERS: Order made on 25 July 2002: Application granted. 1 This decision concerns an application by the applicant, Lindy Denmeade, previously Lindy Hanratty, to join Gary Grant to these proceedings. Mr Grant opposes this application and seeks an order for costs. Mr Grant is a clinical psychologist who provided services to the Kempsey Shire Council (the first respondent) throughout the period relevant to the complaints, the subject of these proceedings. It is common ground that at no time Mr Grant was employed by the council. 2 It is useful at this point to set out the background to these proceedings. By letter dated 6 April 1998, Ms Denmeade, lodged a complaint with the Anti-Discrimination Board alleging discrimination on the grounds of sex and victimisation during her employment with, the respondent council. According to Ms Hanratty, she was the sole outdoor female worker at the council. She alleges that in the course of her employment she was verbally abused by a co-worker and a number of workers refused to work under her supervision. Following the lodgement of her initial complaint, Ms Hanratty provided the Board with additional material and made further detailed complaints to the board. 3 On 1 September 1999, following investigation of Ms Hanratty's complaints, the President of the Board having formed the view that none of those complaints could be conciliated and referred them to the Administrative Decisions Tribunal, which we refer to as "the Tribunal" in this decision. These complaints were referred under section 94(1) of the Anti-Discrimination Act 1977, and a copy of the report of the Board's investigations into those complaints, "the President's report", was provided to the Tribunal. 4 On 21 May 2001 a further complaint was lodged with the Board alleging discrimination on the ground of sex and victimisation. Ms Hanratty complained that the council, in terminating her employment, subjected her to sex discrimination and victimisation. That complaint was referred to the Tribunal by the President on 28 February 2002. 5 The basis for the application before us today is set out in a letter to the Tribunal dated 16 April 2002. In that letter Ms Denmeade asserts that Mr Grant aided and abetted the respondent council, contrary to the provisions of section 52 of the Anti-Discrimination Act 1977. In support of this application, Ms Denmeade referred the Tribunal to her draft points of claim, filed with the Tribunal on 20 December 2000, specifically paragraphs 30(a) and (b), paragraphs 32(a), (b) and (c) and paragraph 33(b). 6 Before moving to look at the details of those allegations, we look briefly at the relevant legislation dealing with joinder. Section 98 of the Anti-Discrimination Act 1977 and section 67 of the Administrative Decisions Tribunal Act 1997 confer discretion on the Tribunal to join a person as a party to proceedings. 7 In summary, the Tribunal Act permits the Tribunal to join a person if it is satisfied that the interests of the person are likely to be affected by the decision, and the Anti-Discrimination Act 1977 permits joinder where the Tribunal is of the opinion that a person ought be joined as a party to an inquiry. As noted in the decision of Australian Doctors Trained Overseas Association v The Director-General of New South Wales Department of Health (2000) NSW ADT 115, for all relevant purposes there is no substantive difference between these two statutory tests. 8 The Act does not specify what factors the Tribunal ought take account of when exercising its discretion to join a party. Recent cases of this Tribunal, importantly Bignall v New South Wales Casino Authority(EOD) [2001] NSWADTAP 41, a decision of the Appeal Panel provide useful guidance as to what issues should be taken into account. In Bignall, the Appeal panel referred with approval to the Victorian case of Grigor v State of Victoria (2000) VCAT 414. There the Tribunal set out the factors it considered appropriate to be taken into account: whether any prejudice might result to any party or to the person sought to be joined from the granting or the refusing of application; whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case against them; and 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. 9 What emerges from an examination of these and the more recent cases of Z(No.2) v The University of A[2001] NSWADT 138 and Z(No 3) v The University of A [2001] NSWADT 182 is that first there must be a clear link between the person sought to be joined and the complaint referred to the Tribunal from the Board; and second that the Tribunal, should avoid a "one size fits all" approach. Each case is be dealt with on its merits. 10 We turn now to examine whether a prima facie case exists against Mr Grant. The approach taken by us in this determination is to ask whether there is any material capable of being converted into evidence, which if accepted could establish, that as alleged, Mr Grant, through his conduct aided and abetted the respondent council and/or its employees. 11 The draft points of claim provide some guidance as to particulars of the allegations. The first allegation is set out at paragraph 30. There Ms Denmeade asserts that, Mr Grant attempted to, in effect, discourage her from bringing her complaint against the council. She sets out in paragraphs (a) and (b) two statements purportedly made by Mr Grant. Those statements, which we are told this morning were said at a meeting held between Ms Hanratty and the council on 28 January 1999, is material that is capable of being converted into evidence. 12 The second allegation concerns a meeting held in late January 2000, allegedly between Mr Grant and Ms Denmeade's male co-workers. The allegation, as we understand it from Ms Denmeade, is that Mr Grant trivialised her complaint in the presence of her colleagues, some of whom, we understand her to allege, subjected her to sexual harassment and unfavourable treatment on the ground of sex. 13 The evidence Ms Denmeade seeks to rely on is set out, she tells us, in the statement of Mr Cooper. This statement has not at this stage been tendered in these proceedings. It was filed in the Tribunal on 20 December 2000. In his statement, Mr Cooper states: "I was present when Gary Grant read Lindy Hanratty's complaints at the end of January 1999 meeting, and he stated, after each complaint read, one of the following: 'That is not true'; 'Not right'; 'That complaint is not valid'." 14 There are a number of other statements contained in Mr Cooper's statement that are relevant to this allegation. 15 This material is clearly capable of being converted into evidence. 16 The third allegation concerns a further meeting that we understand to have been held in late January 1999. It is not altogether clear from a reading of the draft points of claim precisely when this meeting was held, and also it is not altogether clear from reading Mr Cooper's statement which meetings he is referring to. 17 At paragraph 33 of the draft points of claim, Ms Denmeade alleges that in or about January 1999, at a meeting held to investigate her complaints, Andrew Evans, the Resource Manager, attempted to dissuade the Parks and Gardens employees present from supporting her grievances; and at paragraph (b) Mr Evans, in reply to a question from Mr Grant, is purported to have said that Ms Denmeade was motivated by "money, revenge and satisfaction". We note Ms Denmeade was not at that meeting. 18 In submissions this morning, Ms Denmeade argued that this evidence, if accepted, would support a finding that, Mr Grant, in concert with Mr Evans, sought to discourage staff from taking her complaint seriously. 19 Over the luncheon adjournment we have had the benefit of reading Mr Cooper's statement and reviewing the points of claim in respect of that contention. It may be that in oral evidence Mr Cooper can clarify aspects of this allegation, but there is nothing before us at present capable of being converted into evidence, and therefore this allegation cannot be seen as relevant to a determination of the joinder issue. 20 The fourth complaint is a fresh complaint and is not addressed in the points of claim. It was raised for the first time this morning. It concerns a report prepared by Mr Grant headed "Summation of Interview Held with Parks and Gardens Staff 25 January 1999" (Exhibit C). 21 The allegation, as we understand it from Ms Denmeade, is that certain material critical to her claim that she had been subjected to harassment and sex discrimination was omitted from this report. Amongst other things, Ms Denmeade alleges that Mr Grant failed to note a comment she attributes to Mr Fulford, an employee of the council, that, "I told her women shouldn't be working in the council". 22 That statement does not appear in the copy of the report provided to us which does not include the final page. 23 At this point, in our view we can make no determination on that particular issue. 24 In summary looking at all the allegations, it appears that there is some material capable of being converted to evidence. Of course, whether this evidence is accepted, at the end of the day, is another matter. 25 The question then becomes, whether those allegations capable of being converted to evidence, if accepted, would support a finding that Mr Grant, contrary to the provisions of section 52 of the Act, aided and abetted the respondent council in its alleged contraventions of the Act, the subject of our inquiry. 26 Section 52 of the Act provides that it is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of the provisions of this Act. 27 It goes without saying that a finding that Mr Grant, by his conduct, aided and abetted the council, is contingent on a finding that the council and/or its employees who are now respondents in this matter contravened the Act in the manner as alleged by Ms Denmeade. 28 We do not accept the submission, we understand to be put for Mr Grant , that a joinder application cannot be entertained until such time as a finding of unlawful discrimination has been made against the principal respondents. It is clear from section 98 of the Act that it is open to the Tribunal to make a joinder application at any time, at any point in the proceedings. 29 The essence of Ms Denmeade's submission is that, as a result of Mr Grant's conduct in the investigation of her complaints, the unlawful behaviour of some of her colleagues was encouraged and reinforced. We note at this stage we are not looking at the issue in respect of the report. 30 It is the respondent's submission that there is no prima facie case that Mr Grant caused, instructed, induced, aided or permitted the respondent council or its employees to do any act that is unlawful by reason of the provisions of the Act. 31 In our view there is no material before us that would support a finding that Mr Grant instructed, caused or induced the respondent council or the its employees to act in the manner as alleged. However there is some material, if accepted, which may be capable of supporting a finding that Mr Grant, through his actions at various meetings held in January 1999, permitted or aided the council employees to discriminate against Ms Denmeade. Of course, that is contingent on a finding that the council and its employees acted in the manner as alleged. 32 It may be, as asserted by Mr Grant, that he properly conducted an independent investigation into the various complaints made by Ms Denmeade at the request of the council. The fact that the final report prepared by him was not favourable to Ms Denmeade is not determinative. However, if the allegations made by Ms Denmeade as to the manner Mr Grant conducted his investigations and the conduct of council employees are made out, then it may be that that there is at least a prima facie case that Mr Grant acted in contravention of section 52. 33 One of the difficulties we face in considering this application, is that Ms Denmeade is unrepresented, and has failed to particularise her complaint. It is not altogether clear whether it is alleged that Mr Grant aided and abetted the respondents in respect of sex harassment, sex discrimination, or victimisation. That will need to be resolved at some later date. 34 Mr Gormly, for Mr Grant, submits that Ms Denmeade's failure to set out in her points of claim any proposed orders in respect of Mr Grant is fatal to her application. We do not agree. But in any event, as Ms Denmeade indicated today, she proposes to amend her points of claim and seek orders in respect of Mr Grant if this application is successful. 35 The other, and critical issue, that we need to turn our minds to is that, even if there were some prima facie case in respect of Mr Grant, what prejudice would he suffer because of the late notice he has of the respective complaints. This is addressed in some detail in the respondent's submission. 36 The initial complaint of Ms Denmeade to the board, was made in April 1998. The first reference to Mr Grant appears in February and May 1999, in communication between Ms Denmeade and the board, and it is not until May 2001 that Ms Hanratty asks the President of the ADB to join Mr Grant as a party. It would appear that the President declined to join Mr Grant. The joinder application to this Tribunal was not been made until May 2002. 37 There has been a significant passage of time since the first complaint being lodged and this application. It is unfortunate that Mr Grant was not included in any of the conciliations meetings organised by the board. Unlike the respondent council, he has been denied the opportunity to reply to some of the allegations made against and resolving those complaints. 38 However, taking into account all relevant considerations, we are not of the view that that Mr Grant should not be joined on that ground alone. 39 Accordingly the application sought is granted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.