FRASER v PRESIDENT, ANTI-DISCRIMINATION BOARD & ANOR [1999] NSWSC 1229

New South Wales Supreme Court CITATION : FRASER v PRESIDENT, ANTI-DISCRIMINATION BOARD & ANOR [1999] NSWSC 1229 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 30059/99 HEARING DATE(S) : 08/12/99, 09/12/99 JUDGMENT DATE : 9 December 1999

Courtney Jane Fraser (Plaintiff)

v PARTIES : President of the Anti-Discrimination Board (First Defendant) The University of Sydney (Second Defendant) Stephen Morris (Applicant) JUDGMENT OF : Adams J at 1

Ms S Winters (Plaintiff) COUNSEL : Mr G Bartley (First Defendant) Mr G Turner (Applicant) Turner Freeman, Solicitors (Plaintiff) SOLICITORS : I V Knight (First Defendant) Graham Molloy & Associates (Applicant) CATCHWORDS : Anti-discrimination Act s31A, s53 - complaint out of time - parties - proceedings for review - application to be joined - Pt8r8 Supreme Court Rules ACTS CITED : Anti-Discrimination Act 1997 Administrative Decisions Tribunal Act 1997 DECISION : Application granted to join applicant as party to the proceedings

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THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION ADAMS J

THURSDAY 9 DECEMBER 1999 030059/99 - COURTNEY JANE FRASER v PRESIDENT OF THE ANTI-DISCRIMINATION BOARD & ANOR

E04343/99 - STEPHEN MORRIS v COURTNEY JANE FRASER JUDGMENT

1 HIS HONOUR: This is an application, by Notice of Motion, by one Stephen Morris, to be joined as a party under Pt8r8 of the Rules of the Supreme Court, to proceedings commenced by Ms Courtney Fraser for review of the decision of the President of the Anti-discrimination Board, declining to extend time under s88(4) of the Anti-Discrimination Act 1997 (the Act), to a complaint made by Ms Fraser. The proceedings for review instituted by Ms Fraser name as respondents the President of the Anti-discrimination Board and the University of Sydney. The University was, at the relevant time, Dr Morris' employer and is hence necessarily a respondent in the Board proceedings and, accordingly, the review and this application. 2 By combination of s31A and s53 of the Act, together with perhaps, the principles of the general law relating to ancillary liability for unlawful acts, it is obvious from the material tendered before me, that although complaints are made by Ms Fraser, in respect to the behaviour of a number of the University's employees, her principal allegations concern the applicant in this proceeding. These allegations are extremely serious and involve moral and professional culpability of a grave order. Her complaint to the Anti-discrimination Board was, however, made out of time. When the President declined to extend time, the effect, so far as the University was concerned, was that the matter was at an end. In a subsidiary sense, this was also true of the applicant. To use neutral language, I hope, the applicant had a great deal at stake in relation to the complaint and its investigation, or otherwise. Adverse findings against him could be extremely injurious to his reputation and have other substantial consequences. The extent to which those consequences may be visited on him, by virtue of any particular provisions of the ADA, is perhaps uncertain, although it is the subject of debate before me. It was submitted for Ms Fraser, however, that he was not a party to the Board proceedings and was rightly, indeed, necessarily omitted from the review proceedings and thus should fail in this application. 3 I am far from satisfied that there is no risk that the applicant might be subjected to an adverse decision, should the matter proceed to be heard by the Administrative Decisions Tribunal, under the Administrative Decisions Tribunal Act 1997 (ADTA). It might be that he, if he were not by then formally a party to the proceedings, would be made a party to them pursuant to s67 of that Act, which requires a person to be a party "if the Tribunal is satisfied that the interests of the person are likely to be affected by the ... decision": s67(4). 4 These proceedings, however, do not directly concern the interpretation of s67 of ADTA, although the argument that if the matter got so far, the Tribunal would be so satisfied, strikes me as being a strong one. However, for present purposes, I need say no more about this aspect of the case. It is clear that he might well be such a party. 5 The crucial provisions, as I mentioned at the outset, are the terms of Pt8 r8(1)(a) and (b) of the Rules, which relevantly state - "(1) Where a person who is not a party - (a) ought to have been joined as a party; or (b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be ineffectual and completely determined and adjudicated upon the Court, on application by him, or by any party, or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings."