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

1. 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).

1. 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).

1. 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.

1. 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.

1. 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 way of further background the Tribunal was advised at the hearing of the current application that the first respondent, Wild Foods Highlands Pty Ltd, is in receivership and the applicant needs to approach the Supreme Court under the Corporations Code to seek permission to continue legal proceedings against the first respondent.

1. At the time of making the application to the Anti-Discrimination Board the applicant was represented by her current solicitors. The cover letter from solicitors to Ms James's handwritten application to the Board, noted the reliance of the applicant on section 53 of the Anti-Discrimination Act 1997 (vicarious liability of employer). The cover letter by the applicant's solicitors did not mention reliance on section 52 of the AD Act, (the aid and abet provisions). In the applicant's handwritten application to the Board she stated, in answer to the question "who do you think has discriminated against you?" - "Robert Tracz and Debbie and Peter Roach". In answer to a question about those persons relationship to her, she answered "executive chef/employer/boss". In an answer to a question about who the head of the organisation was, she stated "Debbie and Peter Roach" and gave their position as "employers". The details in the handwritten application to the Board are further discussed below. It is noted that the only reference to Ms Debbie Roach, in descriptive body of the handwritten application, was the following :

"I felt I could not say anything as he is my direct boss and he works very closely with the owners, Debbie and Peter Roach."

Legal Considerations

1. Section 67(1) of the Administrative Tribunal Decisions Act 1997 (the ADT Act) provides that a party to the proceedings for an original decision, as in the present case, includes any person who has been made a party by the Tribunal in accordance with s67(4):

67 (4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings.

1. Section 67(1) also provides that a party to a proceeding includes a person for whom an order is sought:

67 Parties to proceedings before Tribunal

(1) The parties to proceedings before the Tribunal for an original decision are:

(a) any person who, being entitled to do so, has duly applied to the Tribunal for an original decision, and

(a1) if an order or other decision is sought from the Tribunal in respect of a person (other than the applicant)-the person in respect of whom the order or other decision is sought, and

(b) if the Attorney General intervenes in the proceedings under section 69-the Attorney General, and

(c) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and

(d) any person specified by or under any enactment as a party to the proceedings.

1. The applicant maintains that Ms Roach has liability in the substantive proceedings (and is therefore a person who ought to have been joined or whose joinder is necessary) such liability arising from the facts of the case and the provisions of s52 of the AD Act. Section 52 provides:

52 Aiding and abetting etc

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

1. The respondent maintains that any extension of liability arising from the complaint as made by the applicant is limited to a consideration of liability under s53 of the Act (vicarious liability of employer). Section 53 provides:

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

The parties' submissions and evidence

1. Both the applicant and the respondent provided detailed written submissions to the Tribunal, and made oral submissions at the hearing of the application. The Tribunal in these Reasons for Decision will not refer to all of the material in the written submissions, but has considered the submissions carefully. The Tribunal was also referred by the parties various legal authorities in relation to interpretation of the provisions of section 67 of the ADT Act and section 52 of the AD Act, and relevant authorities will be discussed below in these Reasons for Decision.

1. It was noted in the parties submissions that section 67 of the ADT Act was amended (such amendments commencing in January 2009) and now contains different wording and so cases dealing with the former section, pre-amendment, should be viewed in that context. The applicant submitted that the wording of the amended section 67 (4) was wider than previous wording. The respondent maintained that the Tribunal should give a careful construction to the provisions of section 67 (4) in the context of the AD Act. These submissions will be further discussed below.

1. The applicant submits that Ms Roach should be joined as a party, pursuant to section 67 of the ADT Act, because she is a person in respect of whom an order is sought, and further, she is whose joinder is necessary to the determination of all matters in dispute.

The applicant submits that Ms Roach was perceived to be the "boss" of the cafe where the sexual harassment occurred, she had actual control and she is liable for permitting the sexual harassment to occur. The applicant submits that the evidence supports a conclusion that Ms Roach was responsible for hiring and firing employees, ran the cafe on a day-to-day basis, and was thereby responsible for the conduct of the employees in the workplace. It is submitted that the evidence filed by the applicant supports a conclusion that the applicant was sexually harassed by the second respondent in the presence of Ms Roach, who thereby, being the person in authority, permitted the sexual harassment. The applicant submits that Ms Roach had responsibility to ensure that the provisions of the Ant-Discrimination Act were complied with and she failed to ensure lawful conduct in the workplace.

1. The Applicant further submits that there was no delay by the applicant in making an application to join Ms Roach as a party, when the applicant filed the Points of Claim the applicant made the current application. It is necesssary to join Ms Roach, in the applicant's submission, to enable all matters in dispute to be determined by the Tribunal. The applicant maintains that the object of the AD Act is to prevent, as well as remedy, sexual harassment in the workplace, to create a safe working environment, and section 52 of the Act addresses the prevention of sexual harassment in the workplace by providing for liability.

1. The Respondent submitted that the Tribunal should have regard to the structure of the complaints mechanism provided by the Anti-Discrimination Act and in particular the role of the Anti-Discrimination Board as the first and necessary step before a complaint is referred to the Tribunal. The respondent submits that the process before the Board cannot be treated as a distinct and separate process, and the Tribunal cannot join a party without requiring the party to go through the process at the Board. Further, the respondent submits that at no previous stage in her complaint/application has the applicant made a reference to Ms Debbie Roach as a respondent in the manner which is now alleged. It has not previously been asserted that Ms Debbie Roach had personal responsibility. The respondent notes that at the first case conference the Judicial Member accepted that the claim had not been sufficiently particularised and directed that the applicant file a Points of Claim document by 4 April 2012. The respondent notes that on 12 April 2012, Wild Foods Highlands Pty Ltd (WFH), the first respondent, was placed into liquidation pursuant to section 491 of the Corporations Act 2001(Cth) which stays the applicant's proceedings against the first respondent (s500(2) of Corporations Act 2001 (Cth)). The respondent notes that on 12 April 2012 the applicant filed the Points of Claim document. The respondent makes objections to the form of that document because it identifies Ms Roach as the third respondent. The respondent states that on 12 April 2012 the applicant filed an application to join Ms Roach as a party.

1. The respondent notes that a reading of the Points of Claim in the applicant's case, would lead to a conclusion that the applicant was relying on the word "permit" in section 52 of the AD Act on the basis that Ms Roach did not take certain preventative or disciplinary steps to prevent sexual harassment.

1. The respondent submits in respect of section 67 (4) of the ADT Act that the provision is not a reproduction of joinder powers found elsewhere; and the Tribunal's power to join a party is strictly confined by the words of section 67(4) which are to be construed according to the provisions of the ADT Act as a whole. The respondent submits that the applicant's case is that joinder is necessary to the determination of all matters in dispute in the proceedings and does not rely on the proposition that Ms Roach should previously have been a respondent to her complaint. The respondent submits that this is so having regard to the fact that the applicant's complaint has been in existence for over 12 months and it was not until 12 April 2012 that there was a claim by the applicant that she believed Ms Roach to be liable for what she alleged the second respondent to have done.

1. The respondent submits that the matters in dispute are the liability of the second respondent for sexual harassment, and the vicarious liability of the first respondent, the employer. The joining of Ms Roach as a party will not assist the Tribunal in determining the question of whether the second respondent, Mr Tracz, breached the AD Act and therefore the joinder of Ms Roach is not necessary for determination of that question or the matters in dispute. The respondent maintains that it is not a ground of the applicant's joinder application that she should have made a complaint against Ms Roach prior to April 2012. The respondent thereby submits that it is not open for the applicant to say that Ms Roach's alleged breach of the Act, or her liability for what allegedly occurred between the applicant and Mr Tracz, are genuinely matters in dispute.

1. The respondent further submits that the applicant's proposed expansion of the proceedings to cover not only the second respondent, Mr Tracz, and the employer, WFH, but also Ms Roach, does not involve any expansion of the alleged facts. The respondent maintains that this is because the complaint against the employer, WFH, was apparently always founded in part, on WFH's vicarious liability for Ms Roach's alleged breach of section 52 of the AD Act - the respondent refers to paragraphs 13 and 16 of the applicant's Points of Claim. The respondent submits that the applicant's proposed expansion of the application would, on one view, offset the automatic stay that the Corporations Act has imposed on the applicant's claim against WFH. The respondent submits that this is not a reason to accede to the joinder application. the liability of Ms Roach was not, and is not, genuinely a matter in dispute. If the applicant wishes to make allegations about Ms Roach's conduct she should only be permitted to do so in the context of what has to date been in dispute, namely the liability of WFH or Mr Tracz. The respondent submits the applicant should make an application to a superior court for leave to proceed against WFH pursuant to section 500(2) of the Corporations Act 2001.

1. The respondent also makes submissions that the applicant's documents do not establish Ms Roach's liability under section 52 of the AD Act and it is therefore not possible to conclude that such liability is a matter in dispute in terms of the joinder application. The respondent submits that in order to permit conduct a person must have authority to prevent it. The applicant's documents do not, in the respondent's view, explain why or how Ms Roach had the authority to prohibit any conduct of Mr Tracz, much less discipline him. The respondent notes the applicant's case is that Ms Roach was the effective manager of the premises. The respondent submits that there is no basis for assuming that someone who is not in fact a manager has any particular actual authority within an organisation. The respondent submits, in the alternative, that even if the conclusion was drawn that there was a case that Ms Roach had authority to prevent or prohibit Mr Tracz's alleged actions, or to discipline him, this case is contradicted by the affidavits filed by the applicant: being the applicant's own affidavit and the affidavit of Bianca McCulloch. The respondent refers to the statements of the applicant in her affidavit that WFH was run by Debbie, and that Robert Tracz was the applicant's supervisor, and Deborah Roach was the supervisor of the shop, and Deborah Roach was the person with the most authority. The respondent also notes that in the affidavit of Jessie Street it is alleged Deborah Roach was the employer, and in the affidavit of Bianca McCulloch it is stated that Deborah Roach was the owner of WFH. The respondent draws a distinction between management of the shop and management of the restaurant where Mr Tracz was supervisor.

1. The respondent states that were the joinder application successful, Ms Roach would lead evidence that she was never employed by WFH but rather was occasionally rostered as one of the front of house staff and was never paid for the work.

1. The respondent notes that the applicant is making serious allegations against a private individual and she should not be able to proceed unless she can state a case or provide material to the Tribunal that could found a determination in her favour. This means, in the respondent's submission, articulating a case that meets the relevant statutory tests in section 52 of the AD Act. The respondent submits that the applicant must have proof of Ms Roach's employment with the first respondent WFH.

1. In the alternative the respondent submits that the Tribunal has a discretion, pursuant to section 67(4) and the Tribunal should exercise its discretion and not join Ms Roach as a party.

1. Both parties noted that that section 67(4) of the ADT Act was amended by the Administrative Decisions Tribunal Amendment Act 2008 No 77 and commenced on 1 January 2009. The applicant notes that in the second reading speech of the then Attorney General stated in relation to section 67(4):

"Section 67(4) will be amended to give the Tribunal a broader power to join a person as a party to the proceedings".

1. The applicant made detailed submissions in reply. The applicant submits that Ms Roach was the only person in the workplace who had responsibility for the overall management of the staff and the premises. This is clear from the affidavits of Ms James, Jessie Street and Bianca McCulloch (namely the references in those affidavits to Ms Roach as employer and owner). The evidence reflects the understanding of the employees that Ms Roach had considerable authority and responsibility. The applicant submits that the evidence supports a conclusion that Ms Roach was "in charge". The applicant notes documents, obtained under summons, where Ms Roach is recorded as naming herself "Retail General Manager" of WFH (in the workers compensation claim form lodged in relation to the applicant) and as "General Manager" in her e-mail to Dr Bridge. These were documents of Ms Roach, and Ms Roach's own description of her role reflects the applicant's understanding of the nature of Ms Roach's position. For those reasons the applicant uses the term "effective manager" to indicate that, whatever the formal title of her position and whatever the payment arrangements, she was effectively "in charge" of the workplace.

1. The applicant further submits that the question of the role Ms Roach is an issue which would go to the apportionment of liability in the matter and does not need to be conclusively determined on the current application. The applicant submits there is sufficient evidence of Ms Roach's central involvement in the work place for her to be joined. The references to Ms Roach in the affidavits of Jessie Street and Bianca McCulloch, in the context of the evidence in the affidavit of the applicant, is sufficient evidence to indicate there is a strongly arguable case that Ms Roach had the authority to regulate conduct in the workplace and that she should therefore be joined.

1. The applicant noted the reliance of the respondent on the case of Shellharbour Gold Club v Wheeler 46 NSWLR 253 and that it was a case concerning the operation of section 53 of the AD Act, rather than section 52. However the applicant maintains the way in which the word "authorise" in section 53 has been interpreted may also assist the Tribunal in relation to section 52, in that "authorised" is given a broad meaning (the applicant refers to paragraph 263 and states that the findings of the Tribunal were not overturned in the Supreme Court proceedings).

1. The applicant submits that the word "permit" in section 52 has been accorded a reasonably expansive meaning in the cases: Dixon v RNJ Sicame Pty Ltd [2002] NSW ADT 154 and Hollingworth v Commissioner of Police, NSW Police [2004] NSWADT 17. In the Federal sphere, the case, Elliott v Nanda (2001) 111 FCR 240 takes a similar approach to the word "permit", in the applicant's view. It is noted that the respondent also referred the Tribunal to this case.

1. The applicant submits that on the evidence filed by the applicant, there is a case established that Ms Roach "permitted" the conduct contravening the AD Act to occur, within the meaning of section 52, given that it appears that: she was aware of such conduct occurring; she had received complaints from other workers about the same person, namely the second respondent, sexually harassing others; she had the authority in the workplace to impose discipline and to regulate conduct in the workplace; she failed to take any action to stop the sexual harassment from occurring.

1. The applicant also submits that the application comes at the commencement of the proceedings in the ADT and that the ADT has a discretion to join a party at any time. Further, the fact that the employer WFH has changed its name (to WFH123 Pty Ltd) and gone into liquidation is a factor that can be taken into account in deciding whether to join Ms Roach in these proceedings. The applicant will have to determine whether to continue the proceedings against the first respondent by making an application to the Supreme Court for reinstatement to the register for the purposes of these proceedings. Whether this is a worthwhile step is a matter for the applicant, but it does not prevent the applicant from seeking to join Ms Roach. The applicant may still decide to proceed against the first respondent. It is submitted that there is no evidence before the Tribunal that the applicant was aware that the first respondent was going into liquidation at the time that the Points of Claim and application to join a party were filed on 12 April 2012 being the same day as an administrator was appointed on creditors voluntary winding up.

1. As detailed above, the evidence referred to and relied on by the parties included the affidavit of the Applicant, Ms James, the affidavit of Bianca McCulloch, the affidavit of Jessie Street, documents obtained under summons from the respondent including the employer injury claim report and e-mail correspondence of 12 April 2011 from Ms Roach to Dr Bridge. The applicants Points of Claim were referred to, and the application to the Anti-Discrimination Board (in particular the handwritten application form submitted to the Board by the applicant dated 27 April 2011). The cover letter from the applicant's solicitors attached to the application form of 27 April 2011 was referred to, as was the President's summary of complaint.

Discussion of law and evidence and findings

1. The Tribunal makes the following findings of fact for the purposes of these proceedings. The applicant named Ms Roach in her initial application, in the complaint to the Anti-Discrimination Board - refer to the statements in her handwritten application form as set out in paragraph 6 above. In added to a question "who do you think has discriminates against you?" The cover letter by the applicant's solicitors to the complaint to the Board states that the complainant relies on section 53 of the Act and considers that the employer is also responsible for the sexual harassment. The Tribunal finds that the employer, as named in the complaint to the Board at the time it was made was "Debbie and Peter Roach". The Tribunal considers that in the complaint the applicant indicated her view that her employer Debbie Roach was responsible. The Tribunal also finds that in the summary of complaint by the President of the Board, referred to the Tribunal, Ms Roach was not named as a respondent, however the Board indicated that the complaint was of sexual harassment in employment under various sections of the AD Act, including sections 52 and 53 and that liability was "primary and secondary".

1. The Tribunal finds on the evidence - and in particular the applicant's affidavit and the affidavits of other employees - that those employees, and the applicant, considered Ms Roach to be in charge of the workplace.

1. As noted above it is not in dispute in these proceedings that Peter Roach was director of WFH, that WFH was the employer, or that Mr Robert Tracz was a supervisor, or that Ms James, the applicant, was employed by WFH during the period of the complaint. The nature of Ms Roach's employment is in dispute.

1. The Tribunal indicated during the hearing of the current application that it was not for the Tribunal to determine, on a joinder application, whether liability of the party who was proposed to be joined is established - findings of liability are a matter for the hearing of the substantive application. However the Tribunal considers that there must be some basis established by the applicant for joining a party given that the party, once joined, is exposed to the stress and expense of legal proceedings, and potential liability. As such the Tribunal considers that some examination of the basis of potential liability of Ms Roach was warranted. The Tribunal notes the approach of the Tribunal in the case of Hanratty v Kempsey Shire Council [2002] NSWADT 232, referred to below, to consider in a joinder application whether there was a prima facie case established on the evidence.

1. Accordingly the Tribunal has considered the provisions of section 52 of the AD Act.

1. An extensive review of the authorities was undertaken by the Tribunal in the case of Dixon v RNJ Sicame Pty Ltd [2002] NSW ADT 154 (Dixon). The Tribunal reviewed the authorities in relation to s52 and in particular in relation to the meaning of the word "permit". In that case the Tribunal stated:

Ground 4: Section 52 of the Act

40 The respondents contend that the applicant parties unlawfully aided or abetted (s 52 of the Act) the second respondent to do an act, which is unlawful by reason of s 22 of the Act. Specifically it is argued that the union, through Ms Dixon, "permitted" that unlawful conduct to continue. It is asserted that the evidence will show that the union, through Ms Dixon, had actual (or alternatively ostensible) knowledge of the alleged complaints of sexual harassment of Ms Sims (and herself) but delayed bringing these allegations to the attention of the first respondent for four months. The respondent argues that Ms Dixon, as union delegate, acted as the agent of the union and as such the union as principal is liable for her conduct.

41 Section 52 makes it is unlawful for a person "to cause, instruct, induce, aid, or permit another person to do an act that is unlawful by reason of a provision of this Act". Section 53(1) relevantly provides that an act done by an agent is taken to have been done by the principal unless the principal did not either expressly or by implication authorise its agent to do the act. Section 53(2) provides that a principal and its agent, may be jointly and severally liable when both are subject to liability under the Act.

42 As Madgwick J commented in Cooper v Human Rights Commission [1999] FCA 180 [at 27] the first step in establishing liability under s 122 of the Disability Discrimination Act 1992 (Clth) ("DD Act") (which is in substantially similar terms to s 52 of the Act) is to establish that there was an unlawful contravention of the Act. It is this contravention, or to put it another way, the "primary" complaint, which triggers the liability of third parties under the accessorial provisions of s 52 of the Act.

43 What then is the meaning of the word "permit" for the purpose of the s 52 of the Act? The Macquarie Dictionary defines permit to mean:

-v.t. 1. to allow (a person, etc.) to do something: permit me to explain. 2. to let (something) be done or occur: the law permits the sale of such drugs. 3. to tolerate; agree to. 4. to afford opportunity for, or admit of: vents permitting the escape of gases. -v.i. 5. to grant permission; allow liberty to do something. 6. to afford opportunity or possibility: write when time permits. 7. to allow or admit (fol. by of): statements that permit of no denial. -n. 8. a written order granting leave to do something. 9. an authoritative or official certificate of permission; a licence. 10. permission...

44 Two recent decisions of the Federal Court provide guidance on the meaning of the word "permit". In Cooper v Human Rights and Equal Opportunity Commission considered the proper construction of s 122 of the DD Act. That decision concerned a review of a decision of the Human Rights and Equal Opportunity Commission (the Commission). The Commission decided that Coffs Harbour City Council (the Council) was not in breach of the DD Act by allowing the redevelopment of a cinema complex without requiring wheelchair access to be incorporated as part of that redevelopment. Section 23 of the DD Act makes it unlawful to discriminate against a person on the grounds of disability by, limiting or denying access to premises used by the public unless, to provide access would impose unjustifiable hardship on the person who would have to provided it.

45 His Honour identified the possible approaches to the construction of s 122 of the DD Act [at 34]:

The degree of knowledge, if any, required to establish liability as a supposed "permitter" under s 122 is unclear on the face of the legislation. There are several possibilities: (1) on the analogy of the criminal law, see Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, it might be that, in the absence of any material that could affirmatively satisfy the Commission that an alleged permitter knew or believed that unjustifiable hardship would not be involved, the alleged auxiliary could not be found to have permitted an unlawful act constituted by failure to provide means of access; (2) if there were some material before the Commissioner that could point to unjustifiable hardship, it might be that before a person could be said to have permitted an unlawful discriminatory act by another, the Commission would need to be affirmatively satisfied that that person knew or believed that unjustifiable hardship to that other would not be involved; (3) on the analogy of Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, if the Commission was in fact satisfied that the alleged permitter knew or believed that unjustifiable hardship would be involved, liability under s 122 would not have been established; (4) such last mentioned knowledge or belief is quite irrelevant, and all that need be shown is that permission was given to discriminatory provision of access.

46 In dismissing the argument that the meaning given to the term "aid and abet" by the criminal law provided an appropriate analogy for the purpose of s 122 of the DD Act, His Honour said [at 37]:

There are several reasons why it is inappropriate in this instance to adopt the high standard of knowledge required to attribute to accessories in criminal cases. The Sex Discrimination Act 1984 (Cth) has a provision in similar terms to s122 (s105 thereof) whilst the Racial Discrimination Act 1975 (Cth) does not. Section 122 has, it seems to me, been carefully drafted. Care has, in my view, been taken not to employ the traditional formula of the criminal law, "aids, abets counsels or procures", to define accessory liability. Instead the phrase used in s 122 is "causes, instructs, induces, aids or permits". It is clear that the s122 concepts are wider than the traditional criminal law concepts; one might certainly "permit" an act without aiding, abetting, counselling or procuring it. There seems little doubt that the departure from the traditional criminal law phraseology was deliberate. The civil and compensatory nature of the remedies for breach of the duties established by the Act, and its broad purposes (as to which, see below), would furnish an adequate reason why such a departure would likely have been intended. The significance of that, it seems to me, is that it puts this case outside the reasoning in Yorke v Lucas."

47 His Honour noted with approval [at 41] the following passage from the decision of Isaacs J in Adelaide City Corporation v Australasian Performing Rights Association Ltd [1928] HCA 10; (1928) 40 CLR 481 at 490-491:

...the word "permits" is of very extensive connotation... the primary [dictionary] meaning of "permit" is: "to allow, suffer, give leave; not to prevent ..." As an illustration, a person "permits" his hall to be used for the public performance of a play ... if he knows or has reason to know or believe that the particular play ... will or may be performed and, having the legal power to prevent it, nevertheless disregards that power and allows his property to be used for the purpose. For example, ... McCardie J held that [a claim that copyright in a musical work had been infringed by the hall proprietors] was rightly abandoned. But that was because the hall proprietors "had no reasonable ground for suspecting that there would be an infringement of copyright by the band" (Emphasis added.)

48 Madgwick J characterised the approach taken by Issacs J as "turning on the necessary degree of the power to control the allegedly permitted infringement and not the degree of knowledge of it".

49 The more recent decision of Elliott v Nanda & Commonwealth [2001] FCA 418 endorsed this approach. That case concerned the operation of s 105 of the Sex Discrimination Act 1984 (Cth) ("SD Act"), which like s 122 of the DD Act is in relevantly similar terms to s 52 of the Act.

50 That case involved an allegation of sexual harassment against a doctor. The applicant was referred by an employment agency, the Commonwealth Employment Service (CES), to the respondent doctor to fill a position as receptionist. Justice Moore found that the CES had reasonable grounds for believing that there was a material chance that the applicant was at risk of being sexually harassed by the respondent doctor. His Honour concluded that the Commonwealth (through the CES) permitted the respondent to discriminate against the Commonwealth on the grounds of sex, pursuant to s 105 of the SD Act.

51 Justice Moore considered in some detail [at 161] the decision of a Full Court of the Australian Industrial Court in Young v Australian Workers' Union (1974) 5 ALR 347. There the issue was whether employers (a partnership) had breached an industrial award, which made it unlawful to permit a shearer to use an oversized comb. The Full Court quoted with approval the following passage of the judgment of Knox CJ in Adelaide City Corporation v Australasian Performing Rights Association Ltd (at 487):

I agree with learned judges of the Supreme Court in thinking that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this Court.

52 As noted by Justice Moore [at 161] "Their Honours found that the employers anticipated or expected that the shearers would or would be likely to use the oversized comb and the employers had the power to take whatever steps were reasonably necessary to prevent the contravention" (our emphasis)

53 Justice Moore concluded:

Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue. In my opinion, a person can, for the purposes of s 105, permit another person to do an act which is unlawful, such as discriminate against a woman on the grounds of her sex, if, before the unlawful act occurs, the permitter knowingly places the victim of the unlawful conduct in a situation where there is a real, and something more than a remote, possibility that the unlawful conduct will occur. That is certainly so in circumstances where the permitter can require the person to put in place measures designed to influence, if not control, the person's conduct or the conduct of that person's employees.

54 In these reasons we adopt the broad approach taken in Cooper and Elliott to the meaning of the word "permit". Accordingly the issue to be determined is whether a prima facie case is disclosed that Ms Dixon "permitted" the respondents to sexually harass and/or or unlawfully discriminate against Ms Sims and/or herself. If the answer to the question is in the affirmative it will be necessary to then determine whether, as submitted by the respondents (and disputed by the applicants and the Additional Parties), that Ms Dixon in her role as union delegate acted as the agent of the union, triggering (potentially) the operation of s 53 of the Act

1. The Tribunal approved the same approach, endorsed by the Tribunal in Dixon , in the case Hollingworth v Commissioner of Police NSW Police Force [2004] NSWADT 17:

73 Did the respondent "permit" the unlawful acts to occur? In order to be liable under s 52 for a breach of s 22F, the respondent must have caused, instructed, induced, aided or permitted a student or staff member of CSU to contravene the AD Act. There was no evidence that the respondent caused, instructed, induced or aided such a person to contravene the Act. The only possibility is that the respondent "permitted" such a person to contravene the Act. Counsel for the respondent submitted that the Commissioner of Police did not permit any contravention and that the proper construction of s 52 of the AD Act requires a party to a contravention to be an intentional participant. (Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 670.)

74 In Cooper v Human Rights and Equal Opportunity Commission, [1999] FCA 180 Madgwick J rejected the argument that the equivalent provision to s 52 in the Sex Discrimination Act 1984 (Cth) required the applicant to prove intention on the part of the respondent. Madgwick J distinguished Yorke v Lucas (supra) on the basis that the legislation under consideration in that case used the phrase "aids, abets, counsels or procures". While that phrase is used in the criminal law, s 105 of the Sex Discrimination Act 1984 does not use those words and accordingly should not be interpreted as requiring intention to be proved. Similarly, s 52 does not use concepts drawn from the criminal law and should not be interpreted as requiring intent.

75 In Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd & anor [2002] NSWADT 154 revised - 11-Sep-2002 this Tribunal undertook a comprehensive analysis of the authorities dealing with s 52 and its equivalent in federal human rights legislation. We agree with and adopt the Tribunal's analysis. In particular, the Tribunal accepted the reasoning of Knox CJ in The Corporation of the City of Adelaide v Australasian Performing Rights Association Ltd [1928] HCA 10; (1928) 40 CLR 481 at 487) as to the meaning of "permits".

1. This Tribunal agrees with the review of the authorities and analysis of the Tribunal in Dixon. On the basis of the authorities the Tribunal is satisfied that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it". Therefore s52 liability includes permitting sexual harassment by not acting to prevent it, through omission or indifference. The applicant alleges that Ms Roach was aware of the sexual harassment occurring and took no action to prevent it. If proved such behaviour would come within the meaning of "permits" in s52. The applicant's evidence is that Ms Roach had authority to prevent the behaviour as the effective manager with authority in the workplace and that she failed to take such action.

1. The respondent disputes such authority. The Tribunal is satisfied, as explained above, that Ms Roach was perceived by employees as the manager or boss and that she also represented herself as manager in correspondence and official paperwork such as a workers compensation form. The Tribunal finds that the applicant's evidence establishes a case that Ms Roach was the person with control in the workplace, on the evidence for the purpose of these proceedings, and the Tribunal therefore finds the applicant has established an arguable case that Ms Roach permitted the sexual harassment.

1. The Tribunal considers that section 67(4) of the ADT Act must be construed firstly according to its plain words. The respondent referred the Tribunal to the case of Legal Services Commissioner v Keddie& Ors [2111] NSWADT 114. The Tribunal notes that that case primarily dealt with the issue of whether there should be joinder under section 554 of the Legal Profession Act 2004 (LPA) which permits the Tribunal to order the joinder of more than one disciplinary application against the same or different Australian legal practitioners. The provision allows for applications to be joined so as to permit joint hearings, allowing for the evidence in each matter to be evidence in the matters joined. Passing reference was made by the Tribunal to the alternative to join parties under section 67(4) of the ADT Act. The Tribunal contrasted the provisions of s 67(4) of the ADT Act and s554 of the LPA. The Tribunal noted (at paragraph 23) that section 67(4) of the ADT Act can be seen as dealing with the joinder of parties and the making of an order whereby non-parties are joined as parties to existing proceedings before the Tribunal. The Tribunal referred to the wording of subsection 67(4) and stated "Section 67(4) appears, therefore, to proceed on the basis of adding a non-party to existing proceedings if certain requirements are met. The provision does not appear to encompass the various forms of joinder dealt with under the previous rules of the Supreme Court and now dealt with by the UCPA". The Tribunal's reference to the requirement that "certain conditions are met" is to the wording of s67(4). The case may be seen as authority for the proposition that section 67(4) does require the conditions set out to be met before joining a party - namely, " the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder was necessary to the determination of all matters in dispute in the proceedings."

1. Other cases relied upon in the proceedings by the applicant, in relation to the joinder provisions of the ADT Act were decided before the amendment to s 67(4). Those cases Grogan and Ors v First Rate Leisure Pty Ltd and Ors [2007] NSW ADT 294; and West & Ors v Commissioner of Police, New South Wales Police [2007] NSWADT 240 were; and Hanratty v Kempsey Shire Council [2002] NSWADT 232. A useful summary of some issues to be weighed by the Tribunal in the exercise of its discretion to join a party, was provided in the case of Hanratty v Kempsey Shire Council [2002] NSWADT 232:

The basis for the application before us today is set out in a letter to the Tribunal dated 16 April 2002. In that letter Ms Denmeade asserts that Mr Grant aided and abetted the respondent council, contrary to the provisions of section 52 of the Anti-Discrimination Act 1977. In support of this application, Ms Denmeade referred the Tribunal to her draft points of claim, filed with the Tribunal on 20 December 2000, specifically paragraphs 30(a) and (b), paragraphs 32(a), (b) and (c) and paragraph 33(b).

6 Before moving to look at the details of those allegations, we look briefly at the relevant legislation dealing with joinder. Section 98 of the Anti-Discrimination Act 1977 and section 67 of the Administrative Decisions Tribunal Act 1997 confer discretion on the Tribunal to join a person as a party to proceedings.

7 In summary, the Tribunal Act permits the Tribunal to join a person if it is satisfied that the interests of the person are likely to be affected by the decision, and the Anti-Discrimination Act 1977 permits joinder where the Tribunal is of the opinion that a person ought be joined as a party to an inquiry. As noted in the decision of Australian Doctors Trained Overseas Association v The Director-General of New South Wales Department of Health (2000) NSW ADT 115, for all relevant purposes there is no substantive difference between these two statutory tests.

8 The Act does not specify what factors the Tribunal ought take account of when exercising its discretion to join a party. Recent cases of this Tribunal, importantly Bignall v New South Wales Casino Authority(EOD) [2001] NSWADTAP 41, a decision of the Appeal Panel provide useful guidance as to what issues should be taken into account. In Bignall, the Appeal panel referred with approval to the Victorian case of Grigor v State of Victoria (2000) VCAT 414. There the Tribunal set out the factors it considered appropriate to be taken into account: whether any prejudice might result to any party or to the person sought to be joined from the granting or the refusing of application; whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case against them; and 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.

9 What emerges from an examination of these and the more recent cases of Z(No.2) v The University of A[2001] NSWADT 138 and Z(No 3) v The University of A [2001] NSWADT 182 is that first there must be a clear link between the person sought to be joined and the complaint referred to the Tribunal from the Board; and second that the Tribunal, should avoid a "one size fits all" approach. Each case is be dealt with on its merits.

10 We turn now to examine whether a prima facie case exists against Mr Grant. The approach taken by us in this determination is to ask whether there is any material capable of being converted into evidence, which if accepted could establish, that as alleged, Mr Grant, through his conduct aided and abetted the respondent council and/or its employees.

1. In the case of Grogan and ors v First Rate Leisure Pty Ltd and Ors [2007] NSW ADT 294 the Tribunal noted:

11 As referred to in the opening comments to these reasons, neither Mr Halpin nor Mr O'Reilly, the second and third respondents, were included by the Board as parties against whom the Board had referred to the Tribunal, the complaints of racial discrimination. The first occasion on which these two parties were encaptured in the proceedings was in the applicants' Points of Claim filed with the Tribunal on 20 June 2006. The mere inclusion in this manner of additional parties is not appropriate. Additional parties can only be added as respondents to a complaint through the processes prescribed in either the Act or in the ADT Act. At the time these complaints were brought to the Tribunal by the Board, the appropriate process for the joinder of a party was through the mechanism provided in s 67(4) of the ADT Act. That sub-section empowers the Tribunal, either on its own motion or on the written application of a person, to make a person who was not a party to the proceedings, an additional party, if it is satisfied that the interests of the person is likely to be affected by the Tribunal's decision. No such application was made to the Tribunal under this provision for the inclusion of either Mr Halpin or Mr O'Reilly as additional parties to the proceedings. Again, it is curious that at no stage in the hearing have any party raised the issue of the lack of jurisdiction in the Tribunal to make findings or orders against Mr Halpin or Mr O'Reilly, as a result of the failure to make an application for their joinder to the proceedings.

12 Section s 67(4) of the ADT Act is silent as to the stage in the proceedings at which the Tribunal, on its own motion, may add additional parties. This provision can be compared with s 103 of the Act which expressly provides that the Tribunal may add additional complaints 'at any stage of the proceedings.' There are good reasons, even at this late stage in these proceedings, for the proper joinder as parties of Mr Halpin and Mr O'Reilly. Serious allegations are made against both Mr Halpin and Mr O'Reilly, claiming that they each aided and abetted, in terms of s 52 of the Act, the unlawful acts of racial discrimination against the applicants, that are alleged in the complaints. The applicants seek orders for compensation and other remedies against both Mr Halpin and Mr O'Reilly. It is important that both Mr Halpin and Mr O'Reilly be given every opportunity to defend those claims and to have their evidence and submissions on their behalf duly considered by the Tribunal. In fact, in the events that have occurred, that evidence and those submissions have been put to the Tribunal, and will subsequently, in this decision, be duly considered. In addition, it is important in the interests of Mr Halpin and Mr O'Reilly, that the Tribunal be in a position to make a determination on the merits or otherwise of the allegations against them.

13 It is for these reasons that the Tribunal has determined that this is an appropriate occasion on which the Tribunal should exercise its discretion under s 67(4) of the ADT Act and order, formally, that Mr Hugh Halpin and Mr Damian Terrence O'Reilly, be added as parties as the second and third respondents respectively in these proceedings.

1. Whilst these cases were decided before the amendment to section 67(4) of the ADT Act, they remain useful guidance as to applicable considerations, particularly in regard to the exercise of discretion. However that guidance must be considered within the framework of the amended subsection - that is, the Tribunal must have regard to the words of section 67(4) of the ADT Act as it now reads. This means that the primary issue for me to determine is whether Ms Roach is a person who ought to have been joined, or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings.

1. In determining this central question I have had regard to the evidence as to the applicant's case against Ms Roach under section 52 of the AD Act, and I have also had regard to the evidence about the history of the complaint/application and the timing of this application to join Ms Roach as a party. I am satisfied that at the time of making her complaint to the Board the applicant indicated her view that Ms Roach was responsible for the discrimination by stating this in her answers to questions on the application form. It was clear that she understood Ms Roach to be her employer and I find that this understanding is credible, on the evidence before me for the purpose of these proceedings, given the affidavits of other witnesses who shared that understanding and who were also employees of the first respondent (those witnesses also perceived Ms Roach to be the owner or employer). The applicant's affidavit indicates that she will give evidence that Ms Roach was aware of the sexual harassment by the second respondent, and took no action to prevent such harassment. If this is established at the substantive hearing, then this would be evidence indicating a failure by Ms Roach to prevent sexual harassment in the workplace. In the Tribunal's view, having regard to the authorities set out above in relation to section 52 of the AD Act, this would be evidence which could establish, at a hearing of the substantive application, that Ms Roach permitted the sexual harassment and the breach of the Anti-Discrimination Act. There is therefore an arguable case that Ms Roach is liable.

1. The AD Act does not restrict liability for unlawful conduct in the workplace to the vicarious liability of an employer - the employee who conducts him/herself in a sexually harassing way is individually liable, and section 52 of the AD Act provides liability for individuals who aid and abet such unlawful conduct. There is no basis, in considering the AD Act as a whole, to require the applicant to restrict her claim in relation to workplace sexual harassment to the alleged individual wrongdoer (the second respondent Mr Tracz) and the employer. Separate liability clearly attaches under the AD Act to individuals who aid and abet. There is also a clear link between the applicant's complaint of sexual harassment in the workplace and the alleged conduct/responsibility of the party whose joinder is proposed, Ms Roach. The link is that the applicant's case is that Ms Roach permitted the unlawful conduct which is in issue, and as such attracts legal liability for the alleged unlawful conduct which is in issue in the proceedings, under s52 of the Act.

1. Having regard to the statements made by the applicant in her initial complaint to the Board, naming Ms Debbie Roach as a person who discriminated against her, and who was her employer; having regard to the initial reliance by the applicant's solicitors on the responsibility and liability of the applicant's employer (who was considered to include Ms Debbie Roach at that time); having regard to the President's summary of complaint which refers to primary and secondary liability and to liability under section 52 and section 53 of the Act; and having regard to the evidence referred to in these proceedings, indicating that other employees considered Ms Roach to be their employer; and given that Ms Roach signed workers compensation forms and e-mail correspondence naming herself as manager; and considering the evidence filed by the applicant which presents a case that Ms Roach permitted the sexual harassment in the workplace, then the Tribunal considers that Ms Roach should be joined as a party to the proceedings. The joinder of Ms Roach is necessary to the determination of all matters in dispute. Ms Roach's conduct as the perceived manager of the premises is in issue in the proceedings, and she should therefore be joined as a party in the Tribunal's view.

1. Accordingly the Tribunal makes an order, pursuant to section 67(4) of the ADT Act, joining Ms Roach as a party to the proceedings. Accordingly, Ms Roach is joined by the Tribunal as respondent to the proceedings.

1. In so finding I have also considered the respondent's submission that s67(4) should be interpreted in light of the provisions of the AD Act, and the requirement for complaints to first go the Board. I do not accept this construction. When one considers the AD Act as a whole, one must also consider sections 97 and 103 of the AD Act. These sections provide that the parties include anyone who the Tribunal has joined under s67(4) of the ADT Act (s97 AD Act); and s103 empowers the Tribunal to amend a complaint "to include additional complaints and anything else not included in the complaint as investigated by the President". Clearly, a reading of the AD Act as a whole does not preclude the Tribunal from joining a party, under s67(4) of the ADT Act, after referral by the Board.

Directions

The Tribunal makes the following directions:

(1) The Applicant is to notify the Registrar of the Tribunal on or before 20 June 2012 of the following:

(a) that the Applicant has sought leave of the Supreme Court to continue the proceedings (the Tribunal notes the applicable provisions of s500(2) of the Corporations Act 2001 (Cth) in this regard); or

(b) that the Applicant withdraws it proceedings against the First Respondent, Wild Foods Highlands Pty Ltd.

(2) This matter is listed for further case conference on 4 July 2012 at 2:15pm.

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Decision last updated: 07 June 2012