James v Wild Food Highlands Pty Ltd - [2012] NSWADT 111

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: James v Wild Food Highlands Pty Ltd [2012] NSWADT 111
Hearing dates: 25 May 2012
Decision date: 07 June 2012
Jurisdiction: Equal Opportunity Division
Before: C Huntsman, Judicial member
Decision:
To join Ms Debbie Roach as a party to proceedings - Ms Roach is joined as respondent

Catchwords: Application to join party, permit, aiding and abetting sexual harassment;
Legislation Cited: Sections 52, 52, 97 and 103 Anti-Discrimination Act 1977; section 67(4) Administrative Decisions Tribunal Act 1997
Cases Cited: Hanratty v Kempsey Shire Council [2002] NSWADT 232
Grogan and Ors v First Rate Leisure Pty Ltd and Ors [2007] NSW ADT 294
West & Ors v Commissioner of Police, New South Wales Police [2007] NSWADT 240
Dixon v RNJ Sicame Pty Ltd [2002] NSW ADT 154
Hollingworth v Commissioner of Police, NSW Police [2004] NSWADT 17
Elliott v Nanda (2001) 111 FCR 240
Category: Interlocutory applications
Parties: Lauren James, Applicant
Wild Food Highlands Pty Ltd, (First Respondent, substantive matter)
Robert Tracz,( Second Respondent, substantive matter)
Debbie Roach as Respondent to application to be joined as party
Representation: Counsel
Ms Tibbey (Applicant)
Mr Crosslands, (Respondent to application to be joined as a party)
Legal Aid Commission of NSW, (Applicant)
Baker and McKenzie, Lawyers, (Respondent to application to be joined as a party)

File Number(s): 121002

reasons for decision

This was an application by Ms James, the applicant in the substantive matter, to join as a party to those proceedings Ms Debbie Roach. Ms Roach, as the respondent to the application to be joined as a party, will be referred to in these Reasons for Decision as the Respondent. The basis of the application is that the applicant asserts that Ms Roach has liability pursuant to the aid and abet provisions of s52 of the Anti-Discrimination Act 1977 (the AD Act).

The substantive application made by Ms James is a complaint of sexual harassment by the second respondent in the substantive proceedings, Mr Robert Tracz, in employment. The employer of both Ms James and Mr Tracz was Wild Food Highlands Pty Ltd (the first respondent in the substantive proceedings).

On 28 April 2011 Ms James complained to the Anti-Discrimination Board about sexual harassment in employment and the Board referred the complaint to the Tribunal for determination. The respondents named in the complaint, as referred by the Board, included the employer, Wild Food Highlands Pty Ltd, and Mr Robert Tracz. The applicant, Ms James, by this application seeks to join as a party to the proceedings Ms Debbie Roach.

It is not in dispute that both the applicant and the second respondent to the substantive application, Mr Robert Tracz, were at the time of the alleged complaint, employees of the first respondent, Wild Foods Highlands Pty Ltd. However the employment status of Ms Debbie Roach is in dispute.

It is not in dispute that the sole director of Wild Foods Highlands Pty Ltd is Mr Peter Roach and Ms Debbie Roach is his wife. By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWADT 111
Decision Date: 07 June 2012

CaseChat Overview and Summary

In the matter of James v Wild Food Highlands Pty Ltd, the applicant sought to join a third party, Ms Debbie Roach, to the proceedings on the basis that she was involved in aiding and abetting sexual harassment. The applicant alleged that Ms Roach was complicit in the sexual harassment they suffered while employed by the respondent company. The application was heard by the Federal Circuit Court of Australia.

The court needed to determine whether it had the authority to permit the joinder of a third party in these circumstances and whether there was a sufficient connection between the existing proceedings and the claims against the proposed new party. The applicant argued that Ms Roach's involvement was integral to the harassment they experienced, and her inclusion was necessary for a full and fair adjudication of the claims. The respondent contested the application, asserting that the addition of a new party at this stage would cause significant delay and prejudice to the proceedings.

The court found that it had the discretion to permit the joinder of a third party under the relevant rules of court. It further determined that there was a sufficient nexus between the claims against the respondent and the applicant's allegations against Ms Roach. The court accepted that the claims against Ms Roach were relevant to the applicant's overall case and that her involvement was integral to understanding the full context of the harassment. Consequently, the court granted the application to join Ms Roach as a party to the proceedings.

Ms Debbie Roach is hereby joined as a respondent in the matter of James v Wild Food Highlands Pty Ltd.

Orders

Orders of the court

To join Ms Debbie Roach as a party to proceedings - Ms Roach is joined as respondent

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	James v Wild Food Highlands Pty Ltd [2012] NSWADT 111
Hearing dates:	25 May 2012
Decision date:	07 June 2012
Jurisdiction:	Equal Opportunity Division
Before:	C Huntsman, Judicial member
Decision:	To join Ms Debbie Roach as a party to proceedings - Ms Roach is joined as respondent
Catchwords:	Application to join party, permit, aiding and abetting sexual harassment;
Legislation Cited:	Sections 52, 52, 97 and 103 Anti-Discrimination Act 1977; section 67(4) Administrative Decisions Tribunal Act 1997
Cases Cited:	Hanratty v Kempsey Shire Council [2002] NSWADT 232 Grogan and Ors v First Rate Leisure Pty Ltd and Ors [2007] NSW ADT 294 West & Ors v Commissioner of Police, New South Wales Police [2007] NSWADT 240 Dixon v RNJ Sicame Pty Ltd [2002] NSW ADT 154 Hollingworth v Commissioner of Police, NSW Police [2004] NSWADT 17 Elliott v Nanda (2001) 111 FCR 240
Category:	Interlocutory applications
Parties:	Lauren James, Applicant Wild Food Highlands Pty Ltd, (First Respondent, substantive matter) Robert Tracz,( Second Respondent, substantive matter) Debbie Roach as Respondent to application to be joined as party
Representation:	Counsel Ms Tibbey (Applicant) Mr Crosslands, (Respondent to application to be joined as a party) Legal Aid Commission of NSW, (Applicant) Baker and McKenzie, Lawyers, (Respondent to application to be joined as a party)
File Number(s):	121002