TU v Vaisman (No 2) [2013] NSWADT 97

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: TU v Vaisman (No 2) [2013] NSWADT 97 Hearing dates: 24 April 2013 Decision date: 07 May 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Dr Balafas is joined as a respondent to these proceedings. Catchwords: PRACTICE AND PROCEDURE -application to join respondent on basis that he contributed to the unlawful act of another - meaning of "person whose joinder is necessary to the determination of all matters in dispute in the proceedings" Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290 Roach v James [2013] NSWADTAP 1 Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 Texts Cited: Rees, Lindsay and Rice, Australian Anti-Discrimination Law, Federation Press, 2008 Category: Interlocutory applications Parties: TU (Applicant) Jacov Vaisman (1st Respondent) Karen Baker (2nd Respondent) Representation: HIV/AIDS Legal Centre Inc (Applicant) Bruce and Stewart Lawyers (1st Respondent) No appearance (2nd respondent) Dr Balafas (3rd respondent in person) File Number(s): 121051

REASONS FOR DECISION

Introduction 1In December 2010 the Tribunal ordered AMI Australia Holdings Pty Ltd to pay a man I will refer to as "TU" $30,000 in damages. The Tribunal also ordered AMI to refund the full amount TU had been charged for treatment for erectile dysfunction. Those orders were made following a finding that AMI had breached the Anti-Discrimination Act 1977 (AD Act) by refusing to treat TU on the ground that he is HIV positive: TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290. AMI had not complied with the orders before it went into liquidation. 2TU lodged a fresh complaint with the President of the Anti-Discrimination Board against Dr Vaisman, the former Chief Executive Officer and sole director of AMI, and Karen Baker, a nurse employed by the company. That complaint alleged that Dr Vaisman and Ms Baker are jointly liable to pay the damages awarded to TU because they caused, instructed, induced, aided or permitted AMI to discriminate against him: AD Act s 52. The President of the Anti-Discrimination Board referred that complaint to the Tribunal naming Dr Vaisman and Ms Baker as respondents: AD Act, s 95(3). 3TU now applies to join Dr Balafas, a doctor contracted by AMI, as a third respondent and to amend the Points of Claim accordingly. Dr Balafas opposes the joinder application. On the basis of written submission from TU's lawyers and Dr Balafas I have decided to join Dr Balafas as a third respondent.