Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate

[2005] NSWADT 298

CITATION:	Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate and anor [2005] NSWADT 298
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT David Gardiner FIRST RESPONDENT Aquasun Pty Ltd t/as Asher Coastwide Real Estate SECOND RESPONDENT Chris Nounnis
FILE NUMBER:	041124
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11/16/2005
DATE OF DECISION:	12/16/2005
BEFORE:	Britton A - Judicial Member
APPLICATION:	Joinder of parties
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate [2005] NSWADT 253 Murtagh & anor v Taylor (EOD) [2005] NSWADTAP 18
REPRESENTATION:	APPLICANT J Gouldstone, solicitor FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance
ORDERS:	The application to join Gregory Molloy is refused

1 By letter dated 7 November 2005, David Gardiner, the Applicant in these proceedings applied to have Gregory Molloy, joined as a party to these proceedings. It is asserted that Mr Molloy was the owner of the rental property the subject of a complaint by the Applicant to the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) made on 29 September 2002. Mr Gardiner rented that property through the First Respondent, Aquasun Pty Ltd.

2 On 19 October 2005 at the application of Mr Gardiner, Chris Nounnis, an employee of the first Respondent, was joined as a party to the proceedings. At the request of Mr Nounnis written reasons were given for that decision. (Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate [2005] NSWADT 253).

3 On 9 November 2005 the Tribunal directed the Applicant to serve on all parties a copy of his application to join Mr Molloy and submissions in support of that application. All parties were invited to make written submissions.

4 The Applicant filed submissions in support of his application on 16 November 2005. The Tribunal has not received submissions from other parties, including Mr Molloy.

5 The background to this matter and the principles that govern the joining of parties to proceedings in the equal opportunity division of the Administrative Decisions Tribunal are set out in Gardiner v Aquasun Pty Ltd t/as Asher Coastwise Real Estate [2005] NSWADT 253.

Submissions

6 It is asserted for the Applicant that the First Respondent apparently acted as the principal of Mr Molloy. He asserts that there is “clear evidence” that there is a link between Mr Molloy and the existing complaint and relies on the following allegations:

First, that Mr Molloy made an application to retain the Applicant’s bond money; and

Second, Mr Molloy, through his father, refused to carry out repairs to the property rented by the Applicant.

7 It is submitted that, as Mr Molloy’s interests are likely to be affected by the decision in these proceedings, the Tribunal ought exercise its discretion under s 67(4) of the Administrative Decisions Tribunal Act 1997 to join Mr Molloy as a party to these proceedings.

8 The Applicant explained that the reason for the delay in making this application was because it was only in early November that he was able to obtain a mailing address for Mr Molloy. It is asserted that his efforts to locate Mr Molloy before then had been hampered as he sustained broken ribs in October 2005.

Decision

9 For the reasons that follow, the application to join Mr Molloy is refused. First, it is not immediately apparent from a fair reading of the initiating complaint that the scope of the complaint extends to any conduct by Mr Molloy. It is clear from that complaint that it is the conduct of the First Respondent, through the second respondent that is the subject of the complaint. I note however that through the operation of s 53 of the Anti-Discrimination Act 1977, Mr Molloy could potentially be found liable for the conduct of his agent (See Murtagh & anor v Taylor (EOD) [2005] NSWADTAP 18).

10 Second, if the application were granted, the hearing listed for February 2006 is likely to be delayed. The later joinder application made in respect of Mr Nounnis has already resulted in a two-month adjournment. This matter has now been before the Tribunal since October 2004 and has been the subject of numerous case conferences. The Applicant has represented himself until relatively recently and, while some indulgence ought be granted on account of that, any further delay in my view would be unreasonable. Section 73(5)(a) directs the Tribunal to act as quickly as is practicable.

11 For these reasons the application to join Mr Molloy is refused.