Administrative Decisions Tribunal New South Wales Medium Neutral Citation: TU v Vaisman [2013] NSWADT 8 Hearing dates: 29 October 2012 Decision date: 15 January 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The complaint is not summarily dismissed. 2. The matter is listed for a case conference on 23 January 2013 at 3 pm. Catchwords: SUMMARY DISMISSAL - damages awarded against employer for breach of Anti-Discrimination Act - employer in liquidation - whether an abuse of process to commence separate proceedings against other respondents on basis that they are jointly liable for damage - operation of Anshun estoppel - operation of Reichel estoppel Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Australian Postal Commission v Dao (1985) 3 NSWLR 565 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 Brinsmead v Harrison (1972) LR 7 CP 547 Commissioner of Police v Estate of Russell [2002] 55 NSWLR 232 Cooper v Human Rights Commission [1999] FCA 180 Elliott v Nanda (2001) 111 FCR 240 Foodco Group Pty Ltd v Northgan Pty Ltd (1998) 83 FCR 356; 41 IPR 138; (1998) ATPR 41-636 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Harris v 718932 Pty Ltd [2000] NSWSC 784 Henville v Walker (2001) 206 CLR 459 Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1 Moy v Warringah Council [2004 ] NSWCCA 77 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 Reichel v Magrath (1889) 14 App Cas 665 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290 Webb v State of Queensland (Queensland Health) [2005] QADT 26 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Texts Cited: Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press, 2008 Category: Interlocutory applications Parties: TU (Applicant) Jacov Vaisman (First Respondent) Karen Baker (Second Respondent) Representation: HIV/AIDS Legal Centre (Applicant) Bruce Diamond Dimarco Lawyers (First Respondent) Ms Baker (No appearance) File Number(s): 121051 Publication restriction: Orders in terms of section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 have been made in relation to the applicant. REASONS FOR DECISION Introduction 1The Tribunal has previously ordered that Advanced Medical Institute (AMI) pay TU damages of $30,000 for refusing to treat him for erectile dysfunction on the ground that he is HIV positive: TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290. The company that owns AMI, AMI Australia Holdings Pty Ltd, had not paid the $30,000 before it went into liquidation. TU has commenced new proceedings against Dr Vaisman, the former Chief Executive Officer of the company, and Karen Baker, a nurse employed by the company. He says both are jointly liable with the company for any damages under the Anti-Discrimination Act 1977 (AD Act) because they "permitted" the company to discriminate against him. 2The Tribunal initiated an application for summary dismissal so it could decide whether TU should be prevented from bringing new proceedings: AD Act, s 102 and s 92(1)(b). Dr Vaisman submitted that TU should be prevented from doing so because of the doctrine of Anshun estoppel: Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. That principle does not apply because neither Dr Vaisman nor Ms Baker were parties to the original decision. A related principle, Reichel estoppel, does not apply because TU is not seeking to re-litigate an issue which he lost in the original proceedings. 3I do not agree with Dr Vaisman's submission that the Tribunal has power to review the President's decision to accept the complaints even though they were lodged late. The President of the Anti-Discrimination Board may decline a complaint if the discriminatory conduct occurred more than 12 months before the complaint was made: AD Act, s 89B(2)(b). Although TU was refused treatment for erectile dysfunction in December 2008, and lodged the new complaints in August 2011, the President did not decline those complaints. The Tribunal has no jurisdiction to review that decision. 4The second respondent, Ms Baker, did not appear. I am satisfied that she was served with notice of the hearing but chose not to attend. Power to dismiss 5As well as having power to dismiss a complaint because it is frivolous, vexatious, misconceived or lacking in substance, the Tribunal may dismiss a complaint "for any other reason": AD Act, s 102. Dr Vaisman submitted that the complaints should be dismissed as an abuse of process. The doctrines of Anshun estoppel and Reichel estoppel are both examples of an abuse of process: Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [78]. 6Before considering whether the new complaints should be summarily dismissed, I will outline the relevant statutory provisions and explain the nature of the complaints against Dr Vaisman and Ms Baker. Liability for breach of s 49M 7Section 49M(a) of the AD Act makes it "unlawful for a person who provides . . . goods or services to discriminate against a person on the ground of disability by refusing to provide the person with those goods or services." In the first decision, the Tribunal found that the service provider, AMI Australia Holdings Pty Ltd, had breached s 49M(a) because it had refused to treat him for erectile dysfunction on the ground that he is HIV positive. Ms Baker was the employee who told TU that he would not be receiving the service. The Tribunal found that Dr Vaisman, the former CEO of the company, had authorised her to do so and that AMI Australia Holdings Pty Ltd was "vicariously" liable for the conduct of its employees: AD Act, s 53. The Tribunal assessed the damages for pain and suffering at $30,000. 8Some commentators have preferred to use the term "attributed liability" rather than "vicarious liability" for the kind of liability imposed by s 53: Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press, 2008 at 648. One reason for that preference is that, unlike the common law notion of vicarious liability, s 53 does not impose strict liability on employers for the acts of their employees. Under the AD Act, an employer will not be liable if he or she has taken reasonable preventative action: AD Act, s 53(3). 9If an employee is personally liable for the unlawful act, for example in the case of sexual harassment, both the employer and the employee are jointly and severally liable: s 53(2). That means that each is individually and collectively liable to pay the entire amount of damages awarded. 10In this case, it is not alleged that either Dr Vaisman or Ms Baker is personally liable for any act of discrimination. As with attributed liability, any liability they may have comes about because of their relationship with the alleged perpetrator. TU maintains that in addition to the liability of the employer company, both Dr Vaisman and Ms Baker are liable under s 52 of the AD Act for permitting the discriminatory act: 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. 11The liability under s 52 has been referred to as "contributory liability": Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press, 2008 at 657. A person who contributes to the act of unlawful discrimination becomes jointly liable for the conduct of the alleged principal wrongdoer. For example, the Commonwealth Employment Service was found to have contributed to an act of sexual harassment by an employer, Dr Nanda. The CES had referred the applicant, Ms Elliott, to Dr Nanda for work even though it had received several complaints from other clients about Dr Nanda's harassing behaviour: Elliott v Nanda (2001) 111 FCR 240. 12The first step in establishing liability under s 52 is to prove that there has been an unlawful act committed by another person. The second step is to prove that the respondent caused, instructed, induced, aided or permitted the other person to do that unlawful act: Cooper v Human Rights Commission [1999] FCA 180 at [27]. In this case, the first step has been proven because the Tribunal has found in previous proceedings that AMI Australia Holdings Pty Ltd has attributed (vicarious) liability under s 53 of the AD Act for Ms Baker's refusal to treat TU for erectile dysfunction. The remaining issue is whether Dr Vaisman and/or Ms Baker permitted the employer company to do that unlawful act. In this case, TU has submitted that Dr Vaisman and Ms Baker are liable as contributors to the attributed (vicarious) unlawful act of the employer. Summary Dismissal Introduction 13In determining whether to summarily dismiss the applications, I have not considered the merits of the complaints against Dr Vaisman or Ms Baker. I have considered only whether the bringing of those complaints constitutes an abuse of process - in particular whether the doctrines of Anshun estoppel or Reichel estoppel apply. Rule in Brinsmead v Harrison 14There used to be a common law rule that a plaintiff who suffered damage from a tort committed jointly by several defendants had only one cause of action. He or she could not bring further claims against other defendants even if the defendant against whom he obtained judgment was insolvent: Brinsmead v Harrison (1872) LR 7 CP 547; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 604. In Halsbury's Laws of Australia defines "tort" as "a breach of a duty which has been imposed by law and which gives rise to a civil right of action for unliquidated damages." Abolition of rule in Brinsmead v Harrison 15In NSW the Law Reform (Miscellaneous Provisions) Act 1946, s 5 abolished the rule in Brinsmead v Harrison: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448. A plaintiff may now bring separate proceedings against joint tortfeasors. One limitation on that right is that the total amount of damages that can be recovered is restricted to the amount awarded in the first proceedings: s 5(1)(b) and Baxter v Obacelo Pty Limited [2001] HCA 66; (2001) 205 CLR 635. 16Neither party referred to the rule in Brinsmead v Harrison, or to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. While it is not necessary for me to decide whether those principles apply to these proceedings, my view is that they do not. Are complaints under the AD Act torts? 17Spigelman CJ has expressed the view expressed the view in Commissioner of Police v Estate of Russell [2002] 55 NSWLR 232 at [71] (Davies A-JA agreeing) that "it is not accurate to describe proceedings by way of complaint before a Tribunal as a "right of action". That terminology is reserved for proceedings in a court of law." His Honour went on to find at 245-246, that a complaint leading to an order for the payment of damages under the AD Act is not a "tort" within the meaning of s 8 of the Law Reform (Vicarious Liability) Act 1983. His Honour did not need to decide that issue and his view is inconsistent with some other decisions that may be considered binding: eg Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604 per McHugh JA; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65 per Lee J. 18Other judges, both at the State and Federal level, have made decisions consistent with Spigelman CJ's approach and I regard that view as correct: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 264 per French J; Henville v Walker (2001) 206 CLR 459 at 470 per Gleeson CJ; Webb v State of Queensland (Queensland Health) [2005] QADT 26 at [34]. 19While common law rules and statutory provisions applying to "torts" may assist the Tribunal to come to a view about issues that need to be determined under the AD Act, those rules and provisions are not binding. That is because, in my view, proceedings under the AD Act cannot be equated with a "tort" in every case. Anshun estoppel 20Dr Vaisman relied on the principle enunciated by the High Court in Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 as the basis for submitting that TU's new claim against him should be dismissed. 21"Anshun estoppel" is a kind of estoppel by judgement but is wider than cause of action estoppel (res judicata): Moy v Warringah Council [2004] NSWCCA 77 at [41]. Its aim is to ensure that there is finality to proceedings and that a party should not be "twice vexed" in the same matter: Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1, at 31. But, the kind of estoppel described by the High Court in Anshun only applies to the parties to the first decision, or their privies. It cannot prevent a plaintiff from bringing proceedings against a person who was not a party to that decision: Foodco Group Pty Ltd v Northgan Pty Ltd (1998) 83 FCR 356 per Marshall J; Harris v 718932 Pty Ltd [2000] NSWSC 784 at [20]. 22As neither Dr Vaisman nor Ms Baker was party to the original proceedings, Anshun estoppel does not apply. Reichel estoppel 23There are circumstances where it will be an abuse of process for a plaintiff to bring later proceedings against different defendants: Reichel v Magrath (1889) 14 App Cas 665 at 668 per Lord Halsbury LC; R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [89]. Those circumstances are narrower than those applying to Anshun estoppel. 24A person who was not a party to the original proceedings can apply for proceedings against him or her to be dismissed for abuse of process where the plaintiff is attempting to re-litigate an issue which has already been decided: Reichel v Magrath (1889) 14 App Cas 665 at 668 per Lord Halsbury LC. This principle may "be a form of Anshun estoppel, the underlying premise being that success on the reformulated case would contradict the outcome, or determination of an issue, in earlier proceedings." Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [89]. In Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 Hunt CJ held that "[T]he issue to be determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former. . . The principle does not work in reverse to enable the party who won the issue in the earlier case to prevent it being litigated in the later proceedings by someone who was not a party in the former proceedings." 25Reichel estoppel does not apply in this case because TU did not lose on any issue in the original proceedings. His complaint against AMI Australia Holdings Pty Ltd was substantiated and damages were awarded. Orders 1. The complaint is not summary dismissal. 2. The matter is listed for a case conference on 23 January 2013 at 3 pm. ********** 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: 15 January 2013