Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health - [2000] NSWADT 115

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CITATION: Australian Doctors Trained Overseas Association Inc -v- Director General, NSW Department of Health [2000] NSWADT 115

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Australian Doctors Trained Overseas Association Inc
RESPONDENT
Director General, NSW Department of Health

FILE NUMBER: 991070

HEARING DATES: 09/06/2000

SUBMISSIONS CLOSED: 06/09/2000

DATE OF DECISION:
08/24/2000

BEFORE: Rees N - Judicial Member

APPLICATION: Joinder of parties

MATTER FOR DECISION: Application to join two persons as respondents to the complaints

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Abbott Australasia Pty Ltd v Human Rights and Equal Opportunity Commission [1999] FCA 427
Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179
NSW Corporal Punishment in Schools Case (1986) EOC 92-160

REPRESENTATION:
APPLICANT
A Razaghi
C Baxter
RESPONDENT
C Ronalds, barrister
Australian Medical Council
J Topfer
Medical Board of NSW
J McDonnell

ORDERS: 1. Application that the Australian Medical Council Inc and the Medical Board of NSW be joined as respondents to the complaints refused; 2. Application by the Australian Medical Council Inc for costs to be determined at the conclusion of these proceedings.

Introduction

1 On 9 June 2000 the Tribunal refused an application by the complainant that two organisations, the Medical Board of NSW and the Australian Medical Council Inc (AMC), be joined as respondents to complaints of discrimination on the ground of race and victimisation which have been made against the respondent, the Director-General, NSW Department of Health.

2 At the hearing of this application by the complainant, Dr Razaghi appeared as the representative of the complainant organisation. He was assisted by Mr Baxter, who had been granted leave to provide assistance to Dr Razaghi at two earlier directions hearings. Ms Ronalds appeared for the respondent. Mr McDonnell appeared for the Medical Board of NSW and Mr Topfer appeared for the AMC.

3 In the paragraphs which follow I set out the history of these proceedings, the submissions made by the parties and the organisations sought to be joined, together with my reasons for refusing the complainant’s application.

History of the proceedings

4 This history is drawn from the report of the President of the Anti-Discrimination Board (the President), which was forwarded to the Tribunal in accordance with section 94(1) of the Anti-Discrimination Act 1977 (the Act) when the President referred the complaints which are the subject of this inquiry to the Tribunal, and the transcripts of the various directions hearings which have been conducted since this matter has been before the Tribunal.

5 The Acting President of the ADB stated in her letter referring these complaints to the Tribunal, dated 9 July 1999:

Anti-Discrimination Act 1977

The President’s report reveals that he experienced difficulties in determining the identity of the complainant and in identifying those parts of the Act which the complainant alleged had been breached by the respondent. Ultimately the President cast the complaints as ones lodged by a representative body on behalf of a named person pursuant to section 88(1A) of the Act. The complainant was identified as Australian Doctors Trained Overseas Association Inc, which had lodged a complaint on behalf of one named and consenting member of that organisation, Dr Asaad Razaghi.

6 The President’s understanding of the initial complaint of discrimination on the ground of race is set out in his letter to the respondent dated 13 May 1999:

The President went on, in this letter, to identify the complaints as falling within sections 7,8 and 50 of the Act. Section 7 defines discrimination on the ground of race, section 8 is a substantive provision which deals with racial discrimination by employers and section 50 renders it unlawful to victimise any person who has brought proceedings under the Act or who has made an allegation that another person has breached the Act.

7 The President’s report is a lengthy document comprised largely of material provided by the complainant concerning the difficulties encountered by some people, with medical qualifications from some countries outside Australia, in obtaining registration to practise medicine in NSW and in securing employment as medical practitioners. The report reveals that the campaign by the complainant has been long and extensive. In the letter which the President has cast as the original complaint under the Act, signed by Dr Razaghi as ADTOA National President on 26 March 1999, the claim is made that “we are on the fortieth day of our hunger strike for a public hearing to expose institutionalised racism which is in direct opposition to the aims and objects of your Board”. In this letter the complainant alleged that “we have been denied employment by NSW Health and the Medical Board…” No direct allegation is made against the AMC.

8 On 4 June 1999 Ms Karen Crawshaw, Manager Legal, NSW Department of Health, responded to the President’s letter. Ms Crawshaw stated:

By letter dated 13 May 1999 you advised me that on 26 March 1999 you received a complaint from the Australian Doctors Trained Overseas Association Inc (ADTOA). You state that details of the complaint are in the complainant’s documents attached to your letter. With respect, it is not clear from those documents what are the alleged unlawful acts of discrimination and victimisation by the Department of Health (“the Department”) and when they are said to have occurred…

9 The President’s report indicated that on 11 June 1999 he determined, pursuant to section 94(1) of the Act, that the matter was not amenable to resolution through conciliation and should be referred to the Tribunal. Whilst the decision to refer a matter to the Tribunal pursuant to section 94(1) is a matter for the President, it is surprising that these complaints were referred to the Tribunal at such an early stage of the President’s investigations in view of the lack of clarity about the identity of the complainant and the lack of specificity in the complaints of discrimination on the ground of race and victimisation.

10 Following the President’s referral the complaints were listed before the Tribunal for directions. Her Honour Judge Murrell made the usual directions that the parties file and serve points of claim and points of defence, together with statements of witnesses. When this matter first came before me on 24 January 2000 it was apparent that the complainant had not complied with these directions. Consequently, the respondent was not in a position to file points of defence, as it had received no clear statement of allegations of breaches of the Act to which it could respond.

11 On 24 January 2000 I directed that the complainant file and serve points of claim in proper form by 21 February 2000. This direction was not complied with but on 20 March 2000 the complainant filed and served a document headed ‘Points of Claim’ which extended over 31 pages and 232 paragraphs. The respondent responded to this document by filing a document headed ‘Points of Defence’ and a document headed ‘Outline of respondents submissions and tables’. In paragraphs 29 and 30 of the ‘Points of Defence’ the respondent claims:

Anti-Discrimination Act 1

(30) The Anti-Discrimination Act 1977 does not provide for any general enquiry powers in relation to a complaint of unlawful discrimination on the ground of race. There is no other power in relation to this Tribunal to enable it to conduct an enquiry into the allegations of the general nature which the complainant seeks to put before it.

12 On 20 March 2000 the complainant wrote to the Tribunal with the request that the AMC and the Medical Board of NSW be joined as respondents to these proceedings. Relevant parts of that letter are as follows:

2. We desire to join in our action also as third respondent the Medical Board of New South Wales ….

19. Our need for our joining of the second and third respondents in this action before the Tribunal is because the three parties have engaged mutually in unlawful conduct that offends the New South Wales Anti-Discrimination Act and has deprived the complainant and co-aggrieved associates of the right to work, the right to work experience and training and the right to advancement in our chosen profession in our chosen permanent homeland and have acted in consort and individually to frustrate our rights, thus causing us great pain and suffering.

20. The Australian Medical Council is joined as second respondent because although it is not a training body it applies a special discriminatory screening test solely upon permanently resident overseas trained migrant and refugee medical practitioners such as the complainant and his co-aggrieved and exempts local graduates, those who are overseas qualified Temporary Resident Doctors, those who are from Five Preferred Countries and it applies unlawful, selective quota standards and tests upon a minority, that is those not from a Preferred Country, Preferred Race or Preferred Residency Status and this constitutes unfair and unlawful conduct prohibited by the NSW Anti-Discrimination Act 1977 and such actions are recorded in the report that observes (p.157) is based on deficiencies, it is procedurally unfair and, given the racial composition of the two groups may be racially discriminatory and further that while failure in final year is unusual for university students, only about half of AMC candidates eventually pass the clinical exam (The Report p.153).

21. The Medical Board of New South Wales is joined as third respondent because although it is not constituted for the purposes of training it has refused to consider for registration Permanently Resident overseas trained medical practitioners such as the complainant unless they have passed the Australian Medical Council examination and has refused to grant them and the complainant conditional registration at the discretion of the Board under 7(1) of the Medical Practice Act 1992 such discretion being reserved for medical practitioners from South Africa and the United Kingdom and/or the Five Preferred Countries and the use of such discrimination in the exercise of discretion on the basis of race, country of origin or residency status is unlawful conduct within the meaning of the NSW Anti-Discrimination Act 1977.

13 This matter came before me for directions again on 7 April 2000. This directions hearing was conducted via telephone and I did not have before me the ‘Points of Defence’ nor the ‘Outline of Respondent’s submissions and tables’ which had been prepared by Ms Ronalds. On that date I directed the Registrar of the Tribunal to inform the Registrar of the Medical Board of NSW and the Executive Officer of the AMC that an application had been made to join them as respondents to the complaints. I also directed the Registrar to forward copies of the complainant’s letter of 20 March 2000 and the ‘Outline of respondent’s submission and tables’ to the Registrar of the Medical Board of NSW and the Executive Officer of the AMC.

Submissions in relation to joinder application

14 On 9 June 2000 the matter was listed before me for directions. I heard submissions from Ms Ronalds, Mr McDonnell, Mr Topfer, Dr Razaghi and Mr Baxter in relation to the complainant’s joinder application.

15 Ms Ronalds submitted that the application should be refused because there were no allegations in the original complaint to the President that either the Medical Board of NSW or the AMC had committed any breaches of the Act in relation to the complainant. She cited Abbott Australasia Pty Ltd v Human Rights and Equal Opportunity Commission [1999] FCA 427 as authority for the proposition that the parameters of the original complaint determine the identity of the persons who may properly become respondents to any complaint. Consequently, Ms Ronalds submitted, as there was no allegation in the complainant’s original complaint to the President that either the Medical Board of NSW or the AMC had committed a relevant breach of the Act it would be beyond power for the Tribunal to join either or both organisations as respondents to the proceedings.

16 Mr McDonnell for the Medical Board of New South Wales opposed the joinder application. He supported the broad thrust of the submissions made by Ms Ronalds and stated that the Medical Board of NSW was a registration authority established by the Medical Practice Act 1992. He informed the Tribunal that a search of the Board’s records revealed that it had never received an application by Dr Razaghi for registration.

17 Mr Topfer for the AMC also opposed the joinder application. Mr Topfer informed the Tribunal that the AMC is an incorporated association under the ACT Associations Incorporation Act. Under section 4 of the Medical Practice Act 1992 an applicant for general registration as a medical practitioner in NSW must have either graduated from an accredited medical school or have successfully completed examinations held by the AMC. Mr Topfer stated that the AMC has no role in any other categories of registration under the Medical Practice Act.

18 Mr Topfer also supported the broad thrust of Ms Ronalds’ submissions. In his written submissions he stated that “the Tribunal cannot join the AMC to answer allegations made against it outside of the complaint, and the AMC should only be joined if its interests are likely to be affected by a decision in relation to the complaint”. When determining whether the interests of the AMC were likely to be effected by a decision in relation to the complaint Mr Topfer submitted that the relevant considerations for the Tribunal were the unwillingness of the AMC to be joined, the absence of any reference to the AMC or conduct by it in the complaint and the fact that the material filed by the complainant does not suggest an arguable case against the Health Department which may involve the AMC.

19 In their submissions to the Tribunal Dr Razaghi and Mr Baxter did not advance any reasons in support of the joinder application which had not been referred to in the letter of 20 March 2000, which is reproduced at paragraph 12. Dr Razaghi informed the Tribunal that he had made an application for registration to the Medical Board in 1987. He did not dispute Mr Topfer’s contention that he had not sat any AMC examinations for many years.

Relevant statutory provisions

20 Both section 98 of the Act and section 67 of the Administrative Decisions Tribunal Act 1997 (ADT Act) permit the Tribunal to join parties to proceedings before the Tribunal.

21 Section 98 of the Act states:

(2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purpose of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned.

22 Section 67(1) and (4) of the ADT Act are of relevance in this case. Those subsections provide:

23 It is somewhat unusual that the Tribunal is faced with overlapping provisions, in two statutes, which permit it to join parties to proceedings before it. Fortunately, whilst the wording in the two statutes is different, the provisions appear to be to the same effect. Under section 98 of the Act it appears that the Tribunal has the power to order that the Medical Board of NSW and the AMC be joined as respondents, or as parties to the inquiry without the status of respondent. The same two options are available under section 67(1) and (4) of the ADT Act.

24 The effect of an order made pursuant to section 67(1)(a1) would be to join a person as a respondent; the effect of an order made pursuant to section 67(4) would be to join a person as a party to the proceedings. Under section 67(4) of the ADT Act the test for the Tribunal to consider when determining whether a person ought to be joined as a party is that the Tribunal be “satisfied that the interests of the person are likely to be affected by the original decision”. Under section 98 of the Act the relevant test is whether “the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry”. My consideration of the relevant authorities leads to the conclusion that, in this case at least, there is no meaningful difference between these two tests. Thus, it appears that, in this case, the two statutory provisions can co-exist in harmony.

25 The authorities lead me to the conclusion that a person may only be joined as respondent if the original complaint to the President contains an allegation that that person, whether properly identified or not, has breached the Act. The word “respondent” is defined in section 87 of the Act to mean “… the person or each of the persons against whom that complaint is lodged”. The similar statutory scheme found in the Sex Discrimination Act 1984 was considered by the Full Court of the Federal Court in Abbott Australasia Pty Ltd v Human Rights and Equal Opportunity Commission [1999] FCA 427. In that case the Full Court held that a person may only be made a respondent to proceedings under the Sex Discrimination Act if the original complaint contained an allegation against that person. I note that the Full Court suggested that it is open to an Inquiry Commissioner to permit an amendment to the complaint so as to allow allegations to be made against additional persons. It is unclear whether this Tribunal possesses that power. In this case it is unnecessary to decide that point for no application was made to amend the original complaint in order to include allegations of breaches of the Act against the Medical Board of NSW and the AMC.

26 A similar approach to the operation of the relevant provisions in the Sex Discrimination Act 1984 was taken by Branson J in Commonwealthv Sex Discrimination Commissioner (1998) 90 FCR 179. Her Honour stated (at p.188):

NSW Corporal Punishment in Schools Case (

27 Thus the circumstances in which the Tribunal may join a person as a respondent to proceedings are ultimately determined by its characterisation of the terms of the original complaint to the President. If it may be rightly said that the original complaint contains an allegation that the person sought to be joined as a respondent, whether named in the original complaint or not, committed a breach of the Act then it is open to the Tribunal to join that person as a respondent. This appears to be a discretionary power and the considerations which bear upon the exercise of that discretion need be determined on a case by case basis.

28 The broader power to join a person as a party, but not as a respondent, does not directly arise in this case for the complainant’s application was that the Medical Board of NSW and the AMC be joined as respondents rather than as parties. Nevertheless, in fairness to the complainant which is not legally represented, I should also consider whether either organisation should be joined as a party. I take this step in the knowledge that the distinction between being joined as respondent and as a party was apparent to both Mr McDonnell and Mr Topfer who made submissions on this point. The discretion granted by section 67(4) of the ADT Act and section 98 of the Act is broad. I stated earlier that, in my opinion, both provisions were to the same effect because in determining pursuant to section 98 of the Act whether a person ought to be joined as a party it appears that, even in the absence of section 67(4) of the ADT Act, the Tribunal would be constrained by the requirement that it be satisfied that the interests of the person are likely to be affected by any decision of the Tribunal. This is a decision which may only be made by looking at the facts in each particular case.

The facts

29 In setting out the history of these proceedings, the submissions made in relation to the joinder application and when discussing the relevant statutory provisions I have made certain assumptions about the facts in this case for no evidence has been lead and, as a consequence, no factual findings have been made. All of the assumptions which I set out below are to the benefit of the complainant. It is appropriate, in my opinion, to make these assumptions because of the provisions of section 73 of the ADT Act and because they are in keeping with the objects set out in section 3 of that Act. It is more efficient and cost effective to proceed in this manner and no unfairness is caused by making these assumptions.

30 The assumptions of fact which I make in order to determine this application are as follows:

(a) the proper complainant in these proceedings is the Australian Doctors Trained Overseas Association Inc

Conclusions

31 In my opinion it is a question of law whether the original complaint contains allegations that the Medical Board of NSW and AMC, whether properly identified or not in that complaint, have committed breaches of the Act. There are, in my opinion, no such allegations against either organisation in the original complaint. Thus, bearing in mind my discussion of the applicable law at paragraphs 25 to 27, it is not open to me to order that either organisation be joined as a respondent to these complaints.

32 I believe it is a question of law whether the interests of the Medical Board of NSW and the AMC are likely to be affected by any decision in this case because in order to determine this matter it is necessary to consider the parameters of the complaints currently before the Tribunal. On the basis of the original complaint lodged with the President, and the material which has been filed with the Tribunal by the complainant, I believe it highly unlikely that either the Medical Board of NSW or the AMC will be affected by any decision made by the Tribunal. It is relevant that both of these organisations resisted the application that they be joined as parties after having had the opportunity to consider the lengthy materials which had been prepared by Ms Ronalds for the respondent. Having read these materials they would have become aware of the issues in contention in this case. Thus, they were in a strong position to determine whether their interests are likely to be affected by any decision in this case. Consequently, I am not satisfied that there are any good reasons why either organisation should be joined as a party to these proceedings.

33 Mr Topfer made an application for costs. In the circumstances of this case I believe it appropriate to determine that application at the conclusion of proceedings. It will be unnecessary for Mr Topfer to return to the Tribunal to pursue this application unless he wishes to do so.

34 The orders which I make are as follows:

(2) Application by the Australian Medical Council Inc for costs to be determined at the conclusion of these proceedings.

Citations

Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115

Most Recent Citation

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7

Razaghi v Director General, New South Wales Department of Health [2003] NSWADTAP 42

Bignell v New South Wales Casino Control Authority (EOD) [2001] NSWADTAP 41

Spence v Roberts [2006] NSWADT 105

Cases Cited

3

Statutory Material Cited

1

Abbott Australasia Pty Ltd v Human Rights and Equal Opportunity Commission [1999] FCA 427

Brown v Rezitis [1970] HCA 56

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CITATION:	Australian Doctors Trained Overseas Association Inc -v- Director General, NSW Department of Health [2000] NSWADT 115
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Australian Doctors Trained Overseas Association Inc RESPONDENT Director General, NSW Department of Health
FILE NUMBER:	991070
HEARING DATES:	09/06/2000
SUBMISSIONS CLOSED:	06/09/2000
DATE OF DECISION:	08/24/2000
BEFORE:	Rees N - Judicial Member
APPLICATION:	Joinder of parties
MATTER FOR DECISION:	Application to join two persons as respondents to the complaints
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Abbott Australasia Pty Ltd v Human Rights and Equal Opportunity Commission [1999] FCA 427 Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 NSW Corporal Punishment in Schools Case (1986) EOC 92-160
REPRESENTATION:	APPLICANT A Razaghi C Baxter RESPONDENT C Ronalds, barrister Australian Medical Council J Topfer Medical Board of NSW J McDonnell
ORDERS:	1. Application that the Australian Medical Council Inc and the Medical Board of NSW be joined as respondents to the complaints refused; 2. Application by the Australian Medical Council Inc for costs to be determined at the conclusion of these proceedings.