Bernard v Manly Lawn Tennis Club Ltd

[2006] NSWADT 174

CITATION:	Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Margaret Bernard RESPONDENT Manly Lawn Tennis Club Ltd
FILE NUMBER:	051116
HEARING DATES:	16/05/2006
SUBMISSIONS CLOSED:	05/16/2006
DATE OF DECISION:	06/08/2006
BEFORE:	Smyth M - Judicial Member
CATCHWORDS:	Joinder of parties
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Legal Profession Act 2004
CASES CITED:	Bignell v NSW Casino Control Authority. (EOD) [2001] NSWADTAP 41. Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998) Margan v University of Technology, Sydney [2003] NSWADTAP 65 Moxon (No. 2) -v- Westbus Pty Ltd (EOD) [2002] NSWADTAP 24 NSW Teachers Federation v President Anti-Discrimination Board & Anor [2005] NSWADT 153 Spence v Roberts [2006] NSWADT 105 Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 Z (No. 3) v University of A ([2001] NSWADT 138 at [45]
REPRESENTATION:	APPLICANT A Dawson, Barrister RESPONDENT R Reitano, Barrister
ORDERS:	1. Harvey Romeike is joined as a party to the complaint and becomes the Second Respondent; 2. The complaint is amended to include the allegations that the Second Respondent victimised the Applicant by threatening to bring defamation proceedings against her in letters dated on or about 10 May, 17 May and 30 May 2005. The amendment is made on condition that the Applicant’s legal representatives file a certificate in accordance with s 347 of the Legal Profession Act 2004 within seven days; Directions; 1. The Applicant to file and serve Amended Points of Claim and any further statements or submissions on which they intend to rely by 16 June 2006; 2. The First and Second Respondents to file and serve Points of Defence and any further statements or submissions on which they intend to rely on by 14 July 2006; 3. A hearing date is to be fixed by the Registry in consultation with the Tribunal and the parties for 4 days in August 2006

1 The President of the Anti-Discrimination Board (the Board) received a written complaint from Ms Bernard, the Applicant in these proceedings, on 16 May 2005. On 19 September 2005 the Tribunal received the Board President’s referral of that complaint as a complaint of victimisation naming the Respondent as the Manly Lawn Tennis Club Ltd (the Club).

2 The Applicant’s letter of complaint alleged victimisation. In essence her complaint is that she has been victimised on the basis that she raised allegations that the President of the Club had engaged in sexual harassment against her and one other woman. Among a number of incidents she alleged that she received a letter threatening termination of her membership and on 10 May 2005 her membership was terminated.

3 The Applicant seeks an order that Mr Harvey Romeike, the President of the Club, be joined as a respondent to her complaint. She contends that she was systematically victimised by him from December 2003 culminating in the termination of her Club membership. She further contends that this victimisation also included threatening defamation proceedings against her and demanding a retraction and apology on three occasions.

4 The Applicant seeks to amend her complaint to include these allegations. In addition she seeks to amend her complaint to include an allegation that the President of the Club sexually harassed her in 2003.

5 Both parties were represented. Mr Reitano, who represented the Club, also appeared for Mr Romeike. The Club and Mr Romeike opposed the applications.

6 There are two matters for the Tribunal to deal with – the application to amend the complaint and the application for joinder.

Amendment of the complaint

7 A new power to amend complaints was introduced by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 and came into effect on 2 May 2005.

8 Section 103 of the Anti-Discrimination Act 1977 (the Act) states

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

9 When interpreting legislation a purposive approach is required: s 33 Interpretation Act 1987. [NSW Teachers Federation v President Anti-Discrimination Board & Anor [2005] NSWADT 153 at 9]. The Act is remedial legislation and the objects include the promotion of equality of opportunity and rendering unlawful certain kinds of conduct.

10 Section 103 is drafted broadly and gives the Tribunal a wide discretion to amend a complaint referred by the Board President to deal with extra matters that were not investigated by the Board President as part of that complaint. The words “additional complaints” allow for extra complaints to be added even though those complaints have not been lodged with the Board President, investigated by the Board President or been conciliated by the Board President. This Tribunal offers mediation so that where complaints are amended the parties have the opportunity to go to mediation if they both consent.

11 The section appears to have been introduced to assist in the efficiency of proceedings. Prior to the amendment the Tribunal could only deal with the complaint that was referred by the Board President. If additional complaints or new matters were raised that were not within the complaint as referred, the Tribunal could not deal with those matters unless the Applicant had lodged a complaint about them with the Board President and that complaint was referred by the Board President. That situation led to delay and increased costs for parties. That was particularly so when the facts connected with any additional matter or complaint were closely linked to the complaint already before the Tribunal.

12 The section is not restricted in time and is applicable to complaints or allegations of unlawful conduct arising at any time either before or after lodgement of complaints with the Board President. Accordingly an Applicant can seek to add an additional complaint regarding conduct that post dates the lodgement of the complaint that is before the Tribunal.

13 Section 103(3) of the Act gives the Tribunal a power to make amendments subject to conditions the Tribunal thinks fit.

14 Relevant factors to consider when determining whether to exercise the discretion to amend a complaint include:

the relationship between the amendment sought and the complaint that has already been referred to the Tribunal;

the prospects of the complaint being substantiated;

whether the same or a similar complaint has been made in another jurisdiction;

how long ago the alleged unlawful conduct is said to have taken place;

whether the application was brought in a timely manner after it arose; and

prejudice to any party.

15 The second factor, the prospects of the complaint being substantiated, requires further explanation.

16 It is relevant for the Tribunal to be satisfied that the alleged conduct, if proven, is capable of falling within the Act. Under the Act the Tribunal has a power to dismiss the whole or part of a complaint at any stage of the proceedings if satisfied that the complaint or part of the complaint is frivolous, vexatious, misconceived or lacking in substance. In addition, the Tribunal may dismiss a complaint if satisfied that the alleged conduct or part of the alleged conduct, if proven, would not disclose a contravention or that for any other reason no further action should be taken in respect of part or all of the complaint. [s 102].

17 In Margan v University of Technology, Sydney [2003] NSWADTAP 65 the Appeal Panel of this Tribunal considered the meaning of the previous s 111 of the Act. Following the commencement of the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 that section is similar to s 102 of the Act. In that case the Appeal Panel stated [at 10]

The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff’s case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie’s Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that “The test to be applied has variously been described as whether the matter is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’, ‘so manifestly faulty that it does not admit of argument’, one which ‘the court is satisfied cannot succeed’, one where under no possibility can there be a good cause of action’”, or one which ‘would involve useless expense’ ( General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.

18 There is little sense in a Tribunal amending a complaint, for example to add a new ground of discrimination, when the amendment sought is so obviously untenable that it could not succeed. Similarly, if the amendment sought, even if it were proved, does not identify conduct that is unlawful under the Act an amendment should not be made. To do so would involve useless expense, delay and potentially a successful application for dismissal under s 102.

19 In Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 the Tribunal referred to the approach adopted by the Tribunal to the discretion to dismiss a complaint summarily as one of “exceptional caution and only if the circumstances clearly warrant such action. ...” [at 12].

20 The principle has been to take the Applicant’s evidence at its highest. Even then the Tribunal has sounded caution in summarily dismissing matters and said that this principle has to be taken in context. In Margan the Appeal Panel stated that that it is not appropriate to summarily dismiss a matter [at 11]

... where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1)….

21 The Act is remedial legislation and in many instances parties will be unrepresented. In some instances there is no direct evidence of discrimination and a case may be proved by inference. The source of material that inferences can be drawn from may be in the possession of the respondent to a complaint. Z (No. 3) v University of A ([2001] NSWADT 138 at [45].

22 The Appeal Panel in Margan adopted the approach of Ormiston JA in the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 stating at [14]

In that case Ormiston JA said that “there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end.” We agree with and adopt Ormiston JA’s approach.

23 Amendment applications will often be made before the substantive hearing, as is the case with this application. The cautious approach taken to s 102 dismissal applications is relevant when dealing with applications for amendment under s 103. While the Tribunal can take into account the prospects of the complaint being substantiated when deciding whether to amend a complaint under s 103, the Tribunal is not determining the merits of the complaint. That is for the substantive hearing.

24 Under s 347 of the Legal Profession Act 2004 a solicitor claiming damages on behalf of his or her client, must certify that there are reasonable grounds for believing that the claim has reasonable prospects of success. Because proceedings under the Act are initiated by a referral from the President of the Board, rather than directly by an applicant, it is arguable that s 347 does not apply to such complaints. However, when an applicant applies for an amendment of the complaint under s 103, including adding a fresh complaint, then I am of the view that s 347 requires a solicitor acting on behalf of that applicant to certify as to the matters set out in that section.

25 Section 347 of the Legal Profession Act 2004 states that:

(1) The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.

(2) A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(3) Court documentation on a claim or defence of a claim for damages is not to be accepted for lodgment unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.

26 The allegation of sexual harassment is closely linked to the complaint of victimisation. In essence the victimisation complaint is that the Applicant has been subjected to a detriment on the grounds that she has alleged that the President of the Club sexually harassed her and another woman.

27 At this stage of the proceedings it is not a matter of determining the substantive merits of the complaint, but rather the prospects of the complaint being substantiated. It is arguable that the allegation, if proved, could amount to engaging in unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated [s22 A] in the provision of goods and services.

28 The complainant will not be entitled to any remedy for the alleged harassment if the complaint is not amended.

Factors against amending the complaint

29 It is not in dispute that the Applicant lodged a complaint of sexual harassment regarding the same facts to the Human Rights and Equal Opportunity Commission (HREOC) in March 2004. The Applicant acknowledges in her letter of complaint to the Board of 13 May 2005 that she attended a hearing with HREOC in December 2004 regarding the sexual harassment issue that occurred in 2003. It is not in dispute that the complaint before HREOC was not conciliated and was terminated on 17 January 2005. At that point the Applicant had the option of pursuing the matter in the Federal Court but did not do so. In her letter of complaint the Applicant says “however because I was the only woman involved in the matter to attend, no resolution was achieved, I did not pusue (sic) the matter in Court because of this, the fact that I would have been a minor witness and the potential costs.”

30 Section 88B of the Act deals with the making of complaints in more than one jurisdiction. The section makes it clear that a person is not prevented from making a complaint only because the person has made a complaint or taken proceedings regarding the same facts in another jurisdiction. However s 88B(2) states

The Tribunal must have regard to any such proceedings, and to the outcome of any such proceedings, in dealing with or determining the complaint.

31 Although that section only says the Tribunal must have regard to any such proceedings in dealing with or determining the complaint, it is also relevant to take such proceedings into account when deciding whether to amend a complaint.

32 The allegations of sexual harassment are now over two and a half years old. The Applicant’s complaint was received by this Tribunal on 19 September 2005 and despite a case conference and a previous interlocutory determination in relation to a contested summons, the application to amend the complaint was filed in April 2006. The Applicant says this was because she recently briefed counsel. She also states that when she first contacted the Board before making her complaint in May 2005, she was advised by the Board that generally complaints needed to be made within 12 months of conduct occurring. She said the Board told her that it would not investigate the sexual harassment allegations from 2003.

33 The Club and Mr Romeike have already been a party to a complaint against them before the HREOC. For the reasons already outlined, when the HREOC terminated that complaint the Applicant chose not to proceed in the Federal Court. If the amendment was granted, the Club and Mr Romeike would have to answer the same complaint. This would result in prejudice to them by again exposing them to potential orders for damages and other remedies.

Conclusion

34 The most significant factor against amending the complaint to include the sexual harassment allegations is the fact that the Applicant had previously lodged the identical complaint with HREOC. She chose not to proceed. There is a public interest in finality to proceedings. That factor together with the lengthy period of time since the alleged conduct occurred outweighs the factors in favour of granting the amendment. Consequently the application to amend the complaint to include sexual harassment is refused.

Amendment of complaint to include allegations regarding defamation proceedings

35 The letter of complaint lodged on 16 May 2005 alleged that the “President and the Committee of Manly Lawn Tennis Club Ltd” subjected the Applicant to victimisation by threatening to terminate, and subsequently terminating, her membership.”

36 The Applicant contends that Mr Romeike’s repeated threats of defamation proceedings against her regarding her allegations of sexual harassment constitute victimisation under the Act. The Applicant referred to correspondence from Mr Romeike’s solicitors dated 10 May 2005, 17 May 2005 and 30 May 2005 threatening to bring proceedings for defamation and demanding an apology. She alleged that the letter of 30 May 2005 included an unsealed Statement of Claim pleading defamation of the Club President against her.

37 The Applicant’s complaint, lodged on 16 May 2005, did not mention any allegation that the President of the Club had victimised her by threatening defamation proceedings. As Ms Bernard’s complaint was lodged on 16 May 2005 the last two pieces of correspondence post date her complaint. The Applicant now seeks to amend the complaint to include those allegations.

38 Section 87A sets out who is able to make a complaint. Section 87A(1) commences with the words

A complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations (other than a provision for which a specific penalty is imposed) may be made by …”

39 There is a strong line of authority that it is not necessary for a complaint to particularise the relevant facts of the complaint. In Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP the Appeal Panel stated at [14]

The authorities make it clear that while a complaint lodged pursuant to s. 88 of the AD Act must allege the commission of a contravention of that Act, “it need not allege the relevant facts with the particularity of an indictment or a pleading”: Langley v Niland [1981] 2 NSWLR at 107-108. In Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR at 93 –94 Merkel J took the view that s.50 of the Sex Discrimination Act 1984 (Cth) (broadly comparable to s. 88 of the AD Act) did not require the complaint to include any details of the allegedly unlawful act.

40 The Anti-Discrimination Amendment (Miscellaneous Provisions) Act2004 amended the previous s 88 and brought in a number of new provisions regarding complaints. The previous section 88(1) specified who was able to lodge “a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person ...” That aspect of the wording is in similar terms to the wording of s 87A set out above. Section 89, inserted as part of those amendments, makes it clear that a complaint does not have to take any particular form and need not demonstrate a prima facie case.

41 Accordingly the complaint need not particularise the relevant facts. As noted in Orr “A failure to provide particulars of a complaint made in writing to the Board does not invalidate that complaint, nor does it deprive the Tribunal of jurisdiction if that complaint is referred for an inquiry.” [at 16].

42 I am satisfied the Applicant did lodge a complaint of victimisation against the Club President. As the Tribunal already has a complaint of victimisation against the Club President there is nothing to prevent the Applicant from making additional allegations relating to that victimisation complaint. The fact that the complaint lodged on 16 May 2005 did not specifically mention the letter dated 10 May 2005 does not preclude the Applicant from including allegations relating to that letter as part of her complaint, as long as the Respondent is afforded procedural fairness.

43 The allegations regarding the letters the Applicant alleges she received from Mr Romeike’s solicitors dated 17 and 30 May 2005 post date her complaint to the President of the Board. It is well settled that a complaint cannot include conduct that post dates the complaint. MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998); Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26; Moxon (No. 2) -v- Westbus Pty Ltd (EOD) [2002] NSWADTAP 24. Those cases were decided before the introduction of s 103. Section 103 expressly permits the Tribunal to amend a complaint to include additional complaints and anything else not included in the complaint as investigated by the President. That wording is broad enough to include allegations of conduct that post date the complaint to the President of the Board.

Factors in favour of amending the complaint to include the defamation allegations

44 The allegations concerning threats of defamation action and demands for an apology are closely linked to the Applicant’s existing complaint of victimisation. Indeed she alleges that the first letter threatening defamation proceedings was sent on or about 10 May 2005, that is prior to the lodgement of her complaint.

45 At this stage it is not a matter of determining the substantive merits of the case, but rather the prospects of the complaint being substantiated. It is arguable if proved, the Applicant’s allegations could amount to a contravention of s 50(1)(c) of the Act on the following basis. The Club President has done something to the Applicant, that is instructed his solicitors to write to her demanding an apology from her and threatening defamation proceedings against her. Receiving those letters is arguably a detriment. It is also arguable that she has been subjected to that detriment on the ground that she has made allegations that the President of the Club engaged in sexual harassment. Although no points of defence have been filed as yet the respondent has indicated that their defence is likely to be that the allegations of sexual harassment were not made in good faith. If that occurs then it is a matter that will need to be determined on the evidence at a final hearing.

46 The complainant will not be entitled to any remedy for this alleged victimisation if the complaint is not amended.

47 There is no evidence to indicate that a complaint has been made about these particular allegations in any other jurisdiction.

48 The application to amend the complaint to include the allegations was filed with this Tribunal in April 2006. Under the Act I note that the President’s discretion under s 89B(2)(b) to decline complaints in whole or in part on the basis that they are out of time, only arises when the whole or part of the conduct complaint occurred more than 12 months before the making of the complaint. This application for amendment has been made within 12 months of the conduct.

Factors against the amending the complaint

49 As stated previously, the complaint was referred to the Tribunal and despite a case conference and a previous interlocutory determination the application to amend was filed with this Tribunal in April this year.

50 If the amendment is granted the Club President would have to answer the complaint and that exposes him to potential orders for damages and other remedies.

Conclusion

51 The first letter threatening defamation was alleged to have been sent on or about the 10th of May, six days before the victimisation complaint was lodged and forms part of that complaint before the Tribunal. The subsequent threats of defamation proceedings are alleged to have occurred very soon after and are closely linked to the subject matter of the victimisation complaint before the Tribunal. It is arguable that the Applicant’s allegations, if proved, could amount to a contravention of s 50(1)(c) of the Act. Although there has been some delay in making the application; it is within the time frame normally allowed for discrimination complaints to be lodged with the Board President and is not significant. These factors, and the prejudice to the Applicant if the amendment is not made, outweigh the factors against the grant of the amendment.

52 The Application for amendment of the complaint to include the allegations that the Club President instructed his solicitors to write to the Applicant demanding an apology and threatening defamation on or about 17 May 2005 and 30 May 2005 is granted. As stated previously, the allegations regarding the letter sent on 10 May 2005 already form part of the complaint. If that is not correct, then for the same reasons the complaint is also amended to include those allegations.

53 The Applicant in this matter is legally represented and her points of claim include a claim for damages. Section 103(2) of the Act allows for amendments to be subject to conditions. The grant of the amendment in this matter is subject to the condition that the Applicant’s legal representatives file a certificate in accordance with section 347(2) of the Legal Profession Act 2004 within 7 days of this decision.

Joinder

Relevant statutory provisions.

54 Section 97(1) of the Act provides that the parties to a proceeding before the Tribunal relating to a complaint are:

(a) the complainant who, for the purposes of the Administrative Decisions Tribunal Act 1997, is taken to be the applicant, and

(b) the respondent, and

(c) 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, and

(d) if the Attorney General intervenes in the proceedings under section 69 of the Administrative Decisions Tribunal Act 1997, the Attorney General.

55 Section 67(4) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) provides this Tribunal with a discretion to join a person who is not a party to the proceedings if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision.

56 That provision has been considered on a number of occasions. In Spence v Roberts [2006] NSWADT 105 the Tribunal referred to Bignell v NSW Casino Control Authority. (EOD) [2001] NSWADTAP 41 and stated at [5]:

In Bignell v New South Wales Casino Control Authority , the Appeal Panel considered s 67(4) in some detail. The Appeal Panel noted at [19] that the High Court in Allan v Transurban City Link Ltd [2001] HCA 58 had endorsed a movement away from a consideration of the “interests affected” in terms of the common law rules of standing and towards a close analysis of the requirements of the legislation in question. The Panel observed at [19] that the majority judgment (and Kirby J in a separate judgment) confirmed that the question whether interests are affected must be answered “by reference to the subject, scope and purpose of [the] statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’”.

57 As I have decided not to amend the complaint to include the sexual harassment allegations of 2003, there is no need to join the Club President as there is no complaint for him to answer regarding those allegations.

Victimisation allegations.

58 It is arguable that the President of the Club is already a party to the complaint referred by the Board President and that a joinder application is unnecessary. That is because the letter of complaint commenced with the words “The purpose of my letter is to lodge a camplaint (sic) against the President and Committee of the Manly Lawn Tennis Club LTD.” The letter then set out a number of allegations before the Applicant stated “I believe that there is no doubt I have been subjected to victimisation.”. However, when the Board President referred the complaint to the Tribunal, the Club President was not named as a respondent. Despite the fact that the Board President did not nominate the Club President as a respondent to the complaint, it is clear that the Applicant did name him as a respondent and as the complaint has been referred to the Tribunal, the Club President is a party to that complaint. In case that is not correct, the joinder application needs to be determined.

59 The referred complaint did not include any of the allegations that post date that complaint. Consequently the joinder of the President of the Club in relation to those allegations needs to be determined.

60 The issue before this Tribunal is whether the Club President is a person whose interests could be affected by the determination of the complaint, as amended under s 103, against the background of the subject, scope and purpose of the Anti-Discrimination Act 1977 [the Act]. In Bignell the Appeal Panel stated at [22]:

The subject, scope and purpose of the AD Act 1977 and equivalent legislation in other jurisdictions has been explored in the course of numerous decisions. The statutory objects include the promotion of equality of opportunity and rendering unlawful certain types of discrimination.

61 If the Applicant’s complaint can be made out then any person who is alleged to have victimised her, or aided or abetted the Club to victimise her, would have an interest. In this instance the complaint concerns Mr Romeike’s actions. If the Applicant’s complaint can be made out his interests are likely to be affected by any determination of her complaint. A finding that the Club President’s interests are affected does not make joinder automatic. The Tribunal retains a discretion to join or not to join the person as a party to the proceedings. Spence v Roberts at [7]; Bignell v New South Wales Crown Casino Control Authority at [12]. In Bignell v New South Wales Crown Casino Control Authority at [12] the Appeal Panel referred to the following factors identified in Gregor v State of Victoria [2000] VCAT 414 as relevant to the exercise of discretion in favour of joinder:

Those factors include whether there was any delay in making the application, whether there is any prejudice to any party or to the person to be joined that might result from the granting or the refusing of the application, whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case for or against that person, and whether, where the person is to be joined as a respondent, the complainant’s case against that person is not strongly arguable on a prima facie basis.

62 The Applicant’s complaint to the Board President clearly stated that she wished to lodge a complaint against the Club President. The allegations regarding defamation are now approximately one year old. Her other victimisation allegations go back to late 2003. As stated above, the Applicant’s complaint has been before this Tribunal since September last year and there has been an interlocutory determination since that time. The application for joinder and amendment of the complaint was made in April this year. The Applicant says this was because she recently briefed counsel.

63 If the joinder application is refused the Applicant will suffer prejudice as she would not be able to obtain a remedy for the alleged victimisation if it can be proved.

64 If the joinder application is granted the Club President would have to answer the complaint and that will expose him to potential orders for damages and other remedies.

65 For the reasons outlined above in regard to the amendment of the complaint to include the allegations regarding defamation, the Tribunal has jurisdiction to deal with the amended complaint of victimisation. At this point the Tribunal is not determining the merits of the substantive complaint however the preceding discussion regarding the amendment of the complaint indicates that the complaint is arguable.

66 Arguably there is already a victimisation complaint against the Club President in regard to the Applicant’s other allegations of victimisation. It is clear from her letter of complaint of 13 May 2005 that she wanted to lodge a complaint of victimisation against the Club President.

Conclusion

67 In regard to the defamation allegations, the application was made within 12 months of the alleged threats of defamation complained of and within the time frame allowed for complaints to be made to the President of the Board. The delay is not significant, the Tribunal has the jurisdiction to deal with the case and it is arguable that the Applicant’s allegations, if proved, could amount to a contravention of s 50(1)(c) of the Act. These factors and the prejudice that would occur for the Applicant if the Club President is not joined, outweigh any factors against granting the application.

68 In regard to her other allegations of victimisation against the Club President the Applicant’s complaint to the Board President clearly named the Club President. The Tribunal has jurisdiction to deal with the complaint and the Applicant’s allegations if proved could amount to a contravention of the Act. The Applicant will suffer prejudice if the Club President is not joined. These factors outweigh the prejudice to the Club President.

69 The application to join the Club President to the complaint as amended is granted.

Time Period of the complaint

70 As mentioned earlier, the Applicant lodged a complaint with HREOC against the Club and Mr Romeike in March 2004. That complaint included some identical facts to those alleged in her victimisation complaint before this Tribunal. For example, the allegation that the Applicant received a letter from the Club dated 10 January 2004 stating that she was to withdraw her unsubstantiated allegations within 14 days or have her membership terminated is a matter that was included in her complaint to the HREOC. It is also a matter included in her letter of complaint to the Board President.

71 That does not preclude the Applicant from bringing that allegation as part of her complaint before this Tribunal. However this Tribunal is required by s 88B(2) of the Act to have regard to any such proceedings and their outcome in dealing with the complaint.

72 Given that the President does not appear to have exercised his discretion to decline part of the complaint that is more than 12 months old that conduct forms part of the complaint referred to the Tribunal. The regard this Tribunal should have to the proceedings before the HREOC and their outcome is a matter that the parties will be able to raise in submissions at the final hearing.

Orders

1. Harvey Romeike is joined as a party to the complaint and becomes the Second Respondent.

2. The complaint is amended to include the allegations that the Second Respondent victimised the Applicant by threatening to bring defamation proceedings against her in letters dated on or about 10 May, 17 May and 30 May 2005. The amendment is made on condition that the Applicant’s legal representatives file a certificate in accordance with s 347 of the Legal Profession Act 2004 within seven days.

Directions

1. The Applicant to file and serve Amended Points of Claim and any further statements or submissions on which they intend to rely by 16 June 2006.

2. The First and Second Respondents to file and serve Amended Points of Defence and any further statements or submissions on which they intend to rely on by 14 July 2006

3. A hearing date is to be fixed by the Registry in consultation with the Tribunal and the parties for 4 days in August.