Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Roach v James [2013] NSWADTAP 1 Hearing dates: 28 August 2012 Decision date: 10 January 2013 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President Decision: 1. Appeal dismissed. 2. Each respondent is to file and serve the evidence on which he or she intends to rely by 8 February 2013. 3. Matter listed for further case conference on 13 February 2013 at 11.15 pm to set a hearing date. Catchwords: APPEAL - appeal on a question of law - meaning of necessary joinder provision in Administrative Decisions Tribunal Act 1997 - whether joinder of 3rd respondent "necessary to the determination of all matters in dispute in the proceedings" -- 3rd respondent not named by President of Anti-Discrimination Board when referring complaint to Tribunal but party sought to be joined identified in complaint Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Fried v National Australia Bank Ltd [1999] FCA 737 Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Langley v Niland [1981] 2 NSWLR 104 Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 Grogan v First Rate Leisure Pty Ltd and Ors [2007] NSWADT 294 Hanratty v Kempsey Shire Council [2002] NSWADT 232 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Texts Cited: Ritchie's Uniform Civil Procedure NSW, P Taylor et al, Lexis Nexis Butterworths 2005 Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press 2008 NSW Civil Procedure Handbook 2011, Hamilton, Lindsay, Morahan & Webster, eds, Lawbook Co. 2011 Category: Interlocutory applications Parties: Deborah Roach (Appellant) Lauren James (Respondent) Representation: Counsel A Crossland (Appellant) M Tibbey (Respondent) Baker and McKenzie (Appellant) Legal Aid NSW (Respondent) File Number(s): 129016 Decision under appeal Citation: James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 Date of Decision: 2012-06-07 00:00:00 Before: Equal Opportunity Division File Number(s): 121002 REASONS FOR DECISION Introduction 1Ms James complained to the Anti-Discrimination Board that a fellow employee, Mr Tracz, had sexually harassed her while she was working at a café in Bowral. The Board referred the complaint to the Tribunal naming Mr Tracz and the employer, Wild Food Highlands Pty Ltd, as respondents. The Tribunal granted Ms James' application to add Ms Roach, the wife of the director of the employer company, as a third respondent. It was alleged that Ms Roach had "permitted" Mr Tracz to sexually harass Ms James and was therefore liable under s 52, the "aiding and abetting" provision of the Anti-Discrimination Act 1977 (AD Act). Ms Roach has appealed against the joinder decision. I have upheld the Tribunal's decision because Ms Roach's joinder is necessary to the determination of all matters in dispute in the proceedings. 2Because a decision to join a party to proceedings is the exercise of an interlocutory function, leave is necessary before an appeal can proceed: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2A) and s 24A. I grant leave for the appeal to proceed because it is in all the parties' interests to have the joinder issue resolved before the complaint is heard. 3At the hearing Ms Roach's lawyer relied on four questions of law as the grounds of appeal: ADT Act, s 113(2). He did not seek leave for the appeal to extend to the merits of the Tribunal's decision unless the Tribunal found a legal error. I have found no error. 4Before addressing the grounds of appeal I will summarise the factual background to the appeal and describe the relevant legal principles. Background 5Ms James began working for Wild Food Highlands Pty Ltd as an apprentice chef in 2007. Mr Tracz was the executive chef. Ms James alleges that Mr Tracz engaged in sexually harassing conduct towards her in breach of the AD Act. Mr Tracz denies those allegations. Ms James complained about Mr Tracz's conduct to the Anti-Discrimination Board. In the covering letter she also named her employer, Wild Food Highlands Pty Ltd, as being vicariously liable for Mr Tracz's conduct: AD Act, s 53. 6In the complaint form, Ms James identified "Debbie and Peter Roach" as the "Employer/boss" and as the "head of the organisation". The Tribunal found that Ms Roach was perceived by employees to be the manager or boss of the workplace. 7When referring the complaint to the Tribunal the Board named Mr Tracz and Wild Food Highlands Pty Ltd as respondents but did not name Ms Roach as a party. The Board identified s 52, the "aiding and abetting" provision, as one of the sections that allegedly had been breached. That provision states 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 a provision of this Act. 8In compliance with directions given by the Tribunal, Ms James filed Points of Claim and her evidence on 12 April 2012. She named Ms Debbie Roach as a 3rd respondent and, at the same time, formally applied to join Ms Roach as a party. On the same day Wild Foods Highlands Pty Ltd was voluntarily wound up: Corporations Act 2001 (Cth), s 491. Ms James cannot proceed against that company without first obtaining permission from the Supreme Court. 9The Tribunal joined Ms Roach as a respondent. It is that decision that is the subject of this appeal. Test for joinder 10Proceedings alleging a breach of the AD Act are commenced in the Tribunal when the President of the Anti-Discrimination Board refers a complaint to the Tribunal: AD Act, s 95(3). The parties to such a proceeding are the applicant, the respondent and "any other person who has been made a party to the proceedings in accordance with section 67 (4) of the Administrative Decisions Tribunal Act 1997": AD Act, s 97(1). 11Section 67(4) of the ADT Act is the focus of these proceedings: The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 12The second part of the test is in issue: whether the person seeking to be joined "is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings." 13Section s 67(4) is virtually identical to r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR). Rule 6.24 states that: If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. 14The UCPR does not apply to proceedings in the Tribunal but it governs most civil cases heard in NSW courts. Part 6 Division 5 contains the rules relating to the joinder of causes of action and parties. Many of the predecessors to those rules were first enacted as part of the Judicature Act reforms in 1873: Supreme Court of Judicature Act 1873 (UK). One purpose of those reforms was to remove arcane restrictions at law and in equity, on the rights of parties to have several claims and/or claims against more than one defendant determined in the same proceeding. 15There are eleven rules in Part 6 Division 5 but only one has been reproduced in the ADT Act. I will refer to s 67(4), r 6.24 and any older equivalent rule as the "necessary joinder rule." One of the other rules in the UCPR, r 6.19, provides for joinder when the proceedings involve common questions of law or fact. It states that: (1) Two or more persons may be joined as plaintiffs or defendants in any originating process if: (a) separate proceedings by or against each of them would give rise to a common question of law or fact, and (b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process is filed. 16I will refer to r 6.19 and any older equivalent rule as the "common questions joinder rule." While there is no equivalent to that rule in the ADT Act, s 100 of the AD Act allows the Tribunal to deal with more than one complaint in the same proceedings if they arise out of the same or substantially the same circumstances or subject-matter. Ms James did not rely on that provision. 17Commentators have noted that the necessary joinder rule and the common questions joinder rule are closely related: Ritchie's Uniform Civil Procedure NSW, P Taylor et al, Lexis Nexis Butterworths 2005 at [6.24.40]. Some fact situations will justify joinder under either of those rules: Fried v National Australia Bank Ltd [1999] FCA 737 at [9] to [13] per Weinberg J. 18The overlap between the necessary joinder rule and the common questions joinder rule is due, in part, to the broad interpretation courts have given to the word "proceedings" in the necessary joinder rule. The phrase "all matters in dispute in the proceedings" has been held to apply not only to the existing pleadings but to matters which do not arise on the existing pleadings: Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38 per Glass and Samuels JJA. 19When applying the necessary joinder rule to a proposal to join a new party on the basis of existing pleadings, the question is: will the new party's "rights against or liabilities to any party to the action be directly affected by any order which may be made in the action?": Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 56 per Lord Diplock. That test was applied in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 to join football players and coaches to an action against the League. It arises most commonly when an existing or potential defendant applies for another party to be joined. 20When applying the necessary joinder rule to cases where a plaintiff is applying to add a defendant, and a matter in issue between them does not arise on the existing pleadings, the defendant may be joined if those matters are "subjacent" to or underlie the pleadings: Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38. The brick wall of a building owned by Qantas bulged and was unstable. Qantas sought damages against the architects and the engineers but later applied to amend the Statement of Claim to add the builder as a defendant. The Court (Glass and Samuels JJA) held that the builder should be joined because the phrase "all matters in dispute in the proceedings" includes underlying questions such as "whose default caused the instability of the structure and who is liable to the plaintiff in damages for such instability?" Tribunal's decision 21The Tribunal decided to join Ms Roach as a respondent to the proceedings on the basis that: (1)Ms James named Ms Roach as a person who was responsible for the alleged harassment in her initial complaint to the Anti-Discrimination Board; (2)there was a clear link between Ms James' complaint of sexual harassment and Ms Roach's alleged conduct in permitting the harassment to occur; and (3)the claim against Ms Roach has a tenable or arguable basis because Ms James and other employees considered Ms Roach to be in charge of the workplace. 22In those circumstances, the Tribunal concluded that Ms Roach's joinder was necessary to the determination of all matters in dispute in the proceedings. Appeal Ground 1 -the Tribunal did not correctly interpret and apply the necessary joinder rule Submissions 23According to Ms Roach's lawyer, when determining whether his client is a person whose joinder is "necessary to the determination of all matters in dispute in the proceedings" the Tribunal was required to: (1)identify the proceedings; (2)identify the matters in dispute in those proceedings; and (3)determine whether joinder is necessary to determine those matters. 24Ms Roach's lawyer said that his client's alleged conduct in "permitting" the harassment to take place, is not a matter in dispute in the proceedings. Ms Roach was not a respondent to the complaint before the Anti-Discrimination Board, nor was she a party to the proceedings in the Tribunal. 25Ms Roach's lawyer relied on the following evidence to support his submission that no complaint had been made about Ms Roach's conduct: (4)the covering letter from Ms James' solicitors to the Board dated 27 April 2011 does not mention Ms Roach or s 52; (5)the complaint itself only names Ms Roach in her capacity as employer and Ms Roach was not the employer; and (6)the President of the Board wrote to the employer company about the complaint not to Ms Roach as an individual. Identifying the proceedings 26In most civil cases, the originating process, normally a Statement of Claim, defines the proceedings. In relation to complaints under the AD Act, proceedings cannot be commenced directly by the filing of such a document. Proceedings are commenced by the referral of a complaint to the Tribunal by the President of the Anti-Discrimination Board or the Minister: AD Act, s 95(3). Such a referral is deemed to be an application for an original decision under the ADT Act. Parties may or may not be directed to file pleadings depending on the complexity of the complaint and whether a lawyer is representing them. 27While a complaint to the Board must be in writing, it does not have to take any particular form and need not demonstrate a prima facie case: AD Act, s 89. A complaint need not allege the relevant facts with the particularity of an indictment or of a pleading: Langley v Niland [1981] 2 NSWLR 104 at 108. 28The complaint, which becomes the application to the Tribunal, comprises the original complaint lodged with the President, any amendments made to the complaint and "any other documents or information obtained or recorded by the President that . . . help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations": AD Act, s 94A. 29The complaint referred to the Tribunal is to be accompanied by "a report relating to any investigation by the President of the complaint": AD Act, s 94A(2). 30The parties to proceedings before the Tribunal include "the respondent": AD Act, s 97(1)(b). The respondent is defined to mean, "a person about whose conduct a complaint has been made": AD Act, s 87. A complainant must identify the parties to the complaint "by name, description or necessary deduction from the details of the allegedly unlawful act": Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 184 per Branson J. 31The Tribunal found that Ms James had named Ms Roach in the complaint as a person who had discriminated against her. That finding was supported by the following evidence: (7)in the complaint form, Ms James identified "Debbie and Peter Roach" as the "Employer/boss" and as the "head of the organisation"; (8)the covering letter from Ms James' solicitor to the Board identifies s 53, the vicarious liability provision, as a provision, which had been breached; and (9)when referring the complaint to the Tribunal, the President of the Anti-Discrimination Board identified both s 52 and s 53 as provisions that had allegedly been breached. 32The existence of other evidence which tends to support Ms Roach's submission that Ms James had not made a complaint against her, does not raise a question of law. 33The Tribunal also impliedly found that the "proceedings" in this case included a complaint against Ms Roach even though the President had not named her as a party when referring the complaint to the Tribunal. 34The Tribunal was correct to conclude that the "proceedings" are the subject matter of the complaint filed with the Board. The way the Board characterises the complaint when referring it to the Tribunal is not determinative. 35Even if the Tribunal was wrong and the proceedings do not include a complaint against Ms Roach, it could have joined her on the basis that a respondent may be joined if the matters in issue are 'subjacent' to or underlie the proceedings: Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38. Qantas' dispute against the builder was related to its claim against the architects and the engineers in the same way as Ms James' dispute against Ms Roach is related to her claim against Mr Tracz and the employer. 36Liability under s 52 has been referred to as "contributory liability": Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press, 2008 at p 657. A person who contributes to the act of unlawful discrimination becomes jointly liable for the conduct of the alleged principal wrongdoer, in this case Mr Tracz. In Qantas v AF Little Pty Ltd, the builder was alleged to be alternatively or severally liable for the damage to the building. Even though the kind of liability at issue in these proceedings is joint liability rather than alternative or several liability, that difference is not material. When the question is which of a number of defendants is liable to the plaintiff for damages, each person who is potentially liable can be joined under the necessary joinder rule. Matters "in dispute" and whether joinder "necessary" 37Once the Tribunal had defined the "proceedings" as including a complaint against Ms Roach, her liability was in dispute and it was "necessary" to join her to determine the disputed matters. Ground 2 - the Tribunal wrongly relied on cases that were decided prior to the amendment of s 67(4) in 2009 38Section 67(4) was amended with effect from 1 January 2009: Administrative Decisions Tribunal Amendment Act 2008, Schedule 1 [18]. Prior to that amendment the test for joinder was whether the interests of the person sought to be joined were likely to be affected by the Tribunal's decision. Ms Roach's lawyer submitted that the Tribunal had wrongly relied on cases such as Grogan v First Rate Leisure Pty Ltd and Ors [2007] NSWADT 294 and Hanratty v Kempsey Shire Council [2002] NSWADT 232. 39One aspect of the decision in Hanratty v Kempsey Shire Council on which the Tribunal relied was the observation at [9] that "there must be a clear link between the person sought to be joined and the complaint referred to the Tribunal from the Board". The Tribunal applied that test at [46]: There is also a clear link between the applicant's complaint of sexual harassment in the workplace and the alleged conduct/responsibility of the party whose joinder is proposed, Ms Roach. The link is that the applicant's case is that Ms Roach permitted the unlawful conduct which is in issue, and as such attracts legal liability for the alleged unlawful conduct which is in issue in the proceedings, under s52 of the Act. 40We agree that the Tribunal wrongly relied on the "clear link" test. That test is not the law in relation to joinder under s 67(4) or any other necessary joinder rule. The rule is that set out in Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38. But the Tribunal did not need to that rule because it had found that Ms James named Ms Roach as a person who was responsible for the alleged harassment in her initial complaint to the Board and, by implication, that the "proceedings" included a complaint against Ms Roach. The Tribunal did not need to make a finding about the relationship between the complaint of sexual harassment in the workplace and Ms Roach's responsibility for that conduct. Ground 3 - the Tribunal identified a discretion that does not exist and saw itself as having that discretion 41This ground of appeal challenges the Tribunal's comment at [44] referring to Tribunal decisions prior to the 2009 amendment and to the existence of the discretion in s 67(4): Whilst these cases were decided before the amendment to section 67(4) of the ADT Act, they remain useful guidance as to applicable considerations, particularly in regard to the exercise of discretion. However that guidance must be considered within the framework of the amended subsection - that is, the Tribunal must have regard to the words of section 67(4) of the ADT Act as it now reads. This means that the primary issue for me to determine is whether Ms Roach is a person who ought to have been joined, or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 42The Tribunal decided that it had power to join Ms Roach and that it should exercise its discretion to do so because there is an arguable case that she is liable. Ms Roach's lawyer did not challenge that part of the Tribunal's decision that there was an arguable case against Ms Roach under s 52 of the AD Act. 43The Tribunal made no error. The test in s 67(4) has two steps. First the Tribunal must determine whether it has power to join the party. Secondly the Tribunal must decide whether, despite the fact that it has that power, it should exercise its discretion not to do so because, for example, the applicant's claim is untenable: Qantas Airways Pty Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 41; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The Tribunal undertook that process. Ground 4 - the Tribunal erred by having regard to s 103 when that provision is irrelevant to the question of whether s 67(4) applies 44This ground concerns observations at [49], the last paragraph of the Tribunal's decision. In so finding I have also considered the respondent's submission that s67(4) should be interpreted in light of the provisions of the AD Act, and the requirement for complaints to first go the Board. I do not accept this construction. When one considers the AD Act as a whole, one must also consider sections 97 and 103 of the AD Act. These sections provide that the parties include anyone who the Tribunal has joined under s67(4) of the ADT Act (s97 AD Act); and s103 empowers the Tribunal to amend a complaint "to include additional complaints and anything else not included in the complaint as investigated by the President". Clearly, a reading of the AD Act as a whole does not preclude the Tribunal from joining a party, under s67(4) of the ADT Act, after referral by the Board. 45The reference to s 103 was made in response to a submission by Ms Roach's lawyer that s 67(4) should be interpreted in light of the provisions in the AD Act and the requirement for complaints to first go to the Board. The Tribunal's conclusion was that given s 103 (which allows a complaint to be amended) and s 97 (which allows parties to be joined under s 67(4)) there is nothing to preclude a party from being joined after the Board had referred the complaint to the Tribunal. That conclusion is correct. Orders and Directions 1. Appeal dismissed. 2. Each respondent is to file and serve the evidence on which he or she intends to rely by 8 February 2013. 3. Matter listed for further case conference on 13 February 2013 at 11.15 am to set a hearing date. ********** 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. Decision last updated: 10 January 2013