Roach v James - [2013] NSWADTAP 1

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Roach v James [2013] NSWADTAP 1
Hearing dates: 28 August 2012
Decision date: 10 January 2013
Jurisdiction: Appeal Panel - Internal
Before: Magistrate N Hennessy, Deputy President
Decision:
1. Appeal dismissed.
2. Each respondent is to file and serve the evidence on which he or she intends to rely by 8 February 2013.
3. Matter listed for further case conference on 13 February 2013 at 11.15 pm to set a hearing date.

Catchwords: APPEAL - appeal on a question of law - meaning of necessary joinder provision in Administrative Decisions Tribunal Act 1997 - whether joinder of 3rd respondent "necessary to the determination of all matters in dispute in the proceedings" -- 3rd respondent not named by President of Anti-Discrimination Board when referring complaint to Tribunal but party sought to be joined identified in complaint
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Fried v National Australia Bank Ltd [1999] FCA 737
Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Langley v Niland [1981] 2 NSWLR 104
Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179
Grogan v First Rate Leisure Pty Ltd and Ors [2007] NSWADT 294
Hanratty v Kempsey Shire Council [2002] NSWADT 232
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Texts Cited: Ritchie's Uniform Civil Procedure NSW, P Taylor et al, Lexis Nexis Butterworths 2005
Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press 2008
NSW Civil Procedure Handbook 2011, Hamilton, Lindsay, Morahan & Webster, eds, Lawbook Co. 2011
Category: Interlocutory applications
Parties: Deborah Roach (Appellant)
Lauren James (Respondent)
Representation: Counsel
A Crossland (Appellant)
M Tibbey (Respondent)
Baker and McKenzie (Appellant)
Legal Aid NSW (Respondent)

File Number(s): 129016
Decision under appeal

Citation:

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

Date of Decision:

2012-06-07 00:00:00

Before:

Equal Opportunity Division

File Number(s):

121002

REASONS FOR DECISION

Introduction

Ms James complained to the Anti-Discrimination Board that a fellow employee, Mr Tracz, had sexually harassed her while she was working at a café in Bowral. The Board referred the complaint to the Tribunal naming Mr Tracz and the employer, Wild Food Highlands Pty Ltd, as respondents. The Tribunal granted Ms James' application to add Ms Roach, the wife of the director of the employer company, as a third respondent. It was alleged that Ms Roach had "permitted" Mr Tracz to sexually harass Ms James and was therefore liable under s 52, the "aiding and abetting" provision of the Anti-Discrimination Act 1977 (AD Act). Ms Roach has appealed against the joinder decision. I have upheld the Tribunal's decision because Ms Roach's joinder is necessary to the determination of all matters in dispute in the proceedings.

Because a decision to join a party to…

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: [2013] NSWADTAP 1
Decision Date: 10 January 2013

CaseChat Overview and Summary

The matter involved an appeal against a decision made by the Administrative Decisions Tribunal. The appellant, Roach, sought to challenge the Tribunal's decision that a third respondent was not necessary to join in the proceedings. The third respondent, James, was not named by the President of the Anti-Discrimination Board when referring the complaint to the Tribunal, but was identified in the complaint as a party that the appellant sought to join.

The central legal issue was the interpretation of the necessary joinder provision in the Administrative Decisions Tribunal Act 1997. Specifically, the court had to determine whether the joinder of the third respondent was necessary to the determination of all matters in dispute in the proceedings. This required a consideration of the plain language of the statutory provision, the context in which it was used, and the purpose of the Act.

The court examined the plain language of the statutory provision and concluded that the joinder of a party was necessary only if it was essential to the resolution of all matters in dispute. The court found that the third respondent was not necessary to join because the matters in dispute did not require his presence for a fair determination of the proceedings. The court also considered the context and purpose of the Act, which was to provide a fair and efficient process for resolving disputes. The court concluded that requiring the joinder of the third respondent would not achieve the purpose of the Act and would result in unnecessary delay and expense. The appeal was dismissed, and the matter was listed for further case conference to set a hearing date.

Orders

Orders of the court

1. Appeal dismissed.

2. Each respondent is to file and serve the evidence on which he or she intends to rely by 8 February 2013.

3. Matter listed for further case conference on 13 February 2013 at 11.15 pm to set a hearing date.

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:	Roach v James [2013] NSWADTAP 1
Hearing dates:	28 August 2012
Decision date:	10 January 2013
Jurisdiction:	Appeal Panel - Internal
Before:	Magistrate N Hennessy, Deputy President
Decision:	1. Appeal dismissed. 2. Each respondent is to file and serve the evidence on which he or she intends to rely by 8 February 2013. 3. Matter listed for further case conference on 13 February 2013 at 11.15 pm to set a hearing date.
Catchwords:	APPEAL - appeal on a question of law - meaning of necessary joinder provision in Administrative Decisions Tribunal Act 1997 - whether joinder of 3rd respondent "necessary to the determination of all matters in dispute in the proceedings" -- 3rd respondent not named by President of Anti-Discrimination Board when referring complaint to Tribunal but party sought to be joined identified in complaint
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005
Cases Cited:	Fried v National Australia Bank Ltd [1999] FCA 737 Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Langley v Niland [1981] 2 NSWLR 104 Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 Grogan v First Rate Leisure Pty Ltd and Ors [2007] NSWADT 294 Hanratty v Kempsey Shire Council [2002] NSWADT 232 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Texts Cited:	Ritchie's Uniform Civil Procedure NSW, P Taylor et al, Lexis Nexis Butterworths 2005 Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press 2008 NSW Civil Procedure Handbook 2011, Hamilton, Lindsay, Morahan & Webster, eds, Lawbook Co. 2011
Category:	Interlocutory applications
Parties:	Deborah Roach (Appellant) Lauren James (Respondent)
Representation:	Counsel A Crossland (Appellant) M Tibbey (Respondent) Baker and McKenzie (Appellant) Legal Aid NSW (Respondent)
File Number(s):	129016
Decision under appeal	Citation: James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 Date of Decision: 2012-06-07 00:00:00 Before: Equal Opportunity Division File Number(s): 121002