Spence v Roberts

[2006] NSWADT 105

CITATION:	Spence v Roberts [2006] NSWADT 105
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Allan Spence RESPONDENT Wendy Roberts
FILE NUMBER:	051110
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	03/02/2006
DATE OF DECISION:	04/10/2006
BEFORE:	Britton A - Judicial Member
CATCHWORDS:	Joinder of parties
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115 Z (No. 2) v University of A [2001] NSWADT 138 Z (No. 3) v University of A [2001] NSWADT 182 Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd & anor [2002] NSWADT 154 Bignell v NSW Casino Control Authority. (EOD) [2001] NSWADTAP 41 Gregor v State of Victoria [2000] VCAT 414
REPRESENTATION:	APPLICANT In person RESPONDENT D Mockler, solicitor
ORDERS:	1. The request that Mr Cooper and Allianz Australia Insurance Limited Insurance be joined as parties to these proceedings is dismissed. 2. Matter to proceed to scheduled case conference set down for 11 April 2006 at 9.15am.

1 Alan Spence, the applicant in these proceedings, seeks an order that solicitor David Cooper and Allianz Australia Insurance Limited be joined to these proceedings. These proceedings concern a complaint made by Mr Spence to the President of the Anti-Discrimination Board (respectively ‘the President’ and ‘the Board’) alleging discrimination on the grounds of disability in the area of services. Mr Spence alleges that he was assaulted and harassed by Dr Wendy Roberts, in the course of a medico-legal examination which he had been instructed to attend by Mr Cooper and Allianz. Dr Roberts is the respondent in these proceedings.

Relevant statutory provisions

2 Section 97(1) of the Anti-Discrimination Act 1977 (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.

3 Section 67(4) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) confers discretion on the Tribunal to join a person who is not a party to proceedings if it is satisfied that the interests of the person are likely to be affected by the original decision. Section 67(4) gives neither an applicant or respondent a right to apply to have a person joined but it is open to the Tribunal to entertain a joinder request.

4 The issue of joinder has been considered in some detail by the Equal Opportunity Division of the Tribunal. See for example Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115; Z (No. 2) v University of A [2001] NSWADT 138; Z (No. 3) v University of A [2001] NSWADT 182; Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd & anor [2002] NSWADT 154; and Bignell v NSW Casino Control Authority. (EOD) [2001] NSWADTAP 41. It is to be noted that these cases were decided before the Act was amended by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. Those amendments, which came into effect on 2 May 2005, repealed s 98(1) of the Act which provided that the Tribunal could join a person in proceedings relating to a complaint under the Act where it ‘is of the opinion that a person ought be joined as party to an inquiry’. As a consequence the power to join a person is now derived solely from s 67(4) of the Tribunal Act. It is arguable that the repeal of s 98 will not result in any material change to the approach taken by the Tribunal to joinder ‘applications’. As Judicial Member Rees observed in Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health at [24] ‘[t]here is no meaningful difference between the two tests [s 67(4) of the Tribunal Act and s 98 of the Act] …the two provisions can exist in harmony’.

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’”.

6 The Appeal Panel concluded that the Tribunal below had misdirected itself as to the test to be applied under s 67(4) by failing to address whether the person the subject of the joinder application, namely the Director of Casino Surveillance, was a person whose interests could be affected against the background of “the subject, scope and purpose of the AD Act 1977”. The Panel said 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. Against this background, what interests, if any, of the Director are capable of being affected by a determination of the complaint?

7 The Appeal Panel went on to comment at [12] that “the exercise of the Tribunal’s discretion to join a party to an inquiry is dependent upon a finding by the Tribunal that the interests of the person sought to be joined are likely to be affected by the determination of the substantive complaint referred by the President of the Anti-Discrimination Board to the Tribunal”. However, the Panel took the view that where such a finding is made, joinder is not automatic:

[t]here is no compulsion on the Tribunal to exercise its discretion in favour of the joinder: see Gregor v State of Victoria [2000] VCAT 414. In Gregor, the Tribunal reviewed the factors relevant to the exercise of the discretion under s 60 (1)(b) of the Victorian Civil and Administrative Tribunal Act 1998. Section 67(4) of the ADT Act, whilst not in identical terms, is to the same effect as the Victorian provision. 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.

8 Messrs Spence and Cooper and Allianz made written submissions. Dr Roberts opposed the request for joinder but did not elaborate on the reasons for doing so.. To put these submissions in context, it is useful to set out the background to Mr Spence’s complaint to the President.

9 The substance of Mr Spence’s complaint is that he was mistreated by psychologist, Dr Roberts, in the course of a medico-legal examination. Among other things, he alleges that Dr Roberts refused to allow him to take his medication; assaulted him; subjected him to testing after being informed he was unwell; took no steps to assist him when he eventually became ill, vomited and collapsed in her rooms. These allegations are denied.

10 Mr Cooper acted for the Proprietors of Strata Plan 7730 in a personal injury action bought by Mr Spence in the District Court of New South Wales. The basis of those proceedings is Mr Spence’s claim that he sustained injuries as a result of being struck by a motor vehicle on the premises of the Proprietors, the Defendant in the District Court proceedings. Mr Cooper had been appointed by Allianz, the Proprietors’ Insurer, to represent its interests and those of the insured.

11 Mr Cooper arranged for Mr Spence to be assessed by Dr Roberts. It is not in issue that Mr Cooper had no direct dealings with Mr Spence.

Submissions

12 As I understand Mr Spence’s case, he argues that both Allianz and Mr Cooper ought to be joined as each discriminated against him on the ground of his disability and instructed Dr Roberts to conduct the assessment in the manner she did, which he contended constituted “barbaric torture”. He also contends that in the course of the assessment, Mr Cooper gave express permission to Dr Roberts to continue to mistreat him.

13 In addition, he alleges that Mr Cooper and Allianz were aware of Dr Roberts’ long history of using “Gestapo tactics” on “NSW disabled” and it was for this reason that she was chosen to carry out the assessment. He further asserts that they also knew that the assessment could not reasonably be undertaken in four hours.

14 Mr Cooper and Allianz oppose the joinder request. Mr Cooper argues that there will be no evidence before the Tribunal which would warrant his involvement in these proceedings. He points to the lack of any evidence to support Mr Spence’s allegation about what was said in the course of the conversations between himself and Dr Roberts to which Mr Spence was not a party. He also points out that he and Dr Roberts have expressly refuted Mr Spence’s account.

15 He submits that there is no basis on which the Tribunal could be satisfied that his interests are likely to be affected by the decision, given that there was nothing he did or failed to do which could possibly constitute discrimination on the grounds of disability. Mr Cooper asserts that he provided no instruction, advice, suggestion or threat to Mr Spence, his solicitor or Dr Roberts which could possibly constitute any conduct which would give rise to a finding that he had contravened the Act.

16 Allianz adopts Mr Cooper’s submissions.

Issues

17 Two key issues arise for determination. First, whether the interests of Mr Cooper and\or Allianz are likely to be affected by the Tribunal’s decision and, if so, whether the Tribunal ought to exercise its discretion to join them to these proceedings.

18 In making that decision, it is first necessary to decide whether the Tribunal would have the jurisdiction to deal with Mr Spence’s ‘complaint’ against Mr Cooper or Allianz. This turns on whether their alleged conduct falls within the scope of one of the statutory prohibitions provided within the Act. If the answer to that question is yes, it would then be necessary to determine whether the complaint against the two fell within the parameters of the complaint referred by the President to the Tribunal on 30 August 2005.

19 From my understanding of Mr Spence’s case, he contends that Mr Cooper and Allianz discriminated against him on the grounds of his disability and also ‘aided and abetted’ Dr Roberts to discriminate against him. While not addressed, Mr Spence seems to suggest that at all material times Mr Cooper acted under the instruction of Allianz.

Liability under s 49M?

20 Section 49M of the Act makes it unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

21 The term ‘services’ is defined in s 4 of the Act to include services relating to insurance and services of any profession or trade. At the relevant time, Allianz provided insurance services and Mr Cooper provided legal services. There can be no argument that these fall within the defintion of services.4. However, to attract the operation of s 49M it is not enough to simply establish that each provided services. It must also be established that each provided Mr Spence with services or refused to do so. Mr Spence has not identified the nature of services that Mr Cooper and Allianz are alleged to have provided or refused to provide him.

22 Mr Cooper was not instructed by Mr Spence in the District Court proceedings and nor is that alleged. From first to last, Mr Cooper has acted for the Proprietors, against whom Mr Spence’s personal injury claim was brought. Nor did Mr Spence have any direct dealings with Mr Cooper. It is therefore unclear how it could be claimed that he provided or refused to provide Mr Spence with legal or any other service.

23 Nor has Mr Spence identified the nature of the service which Allianz is alleged to have provided or refused to provide him.

24 As I have been unable to identify the service provided or not provided by Mr Cooper or Allianz to Mr Cooper, it follows that the conduct about which Mr Spence complains in relation to the two is not capable of falling within s 49 M of the Act.

Liability under s 52

25 Section 52 makes it 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’. To trigger the liability of Mr Cooper and/or Allianz under this secondary liability provision, it would first need to be established that Dr Roberts had contravened the Act. While this is yet to be determined, I proceed in these reasons on the basis that Dr Roberts’ alleged conduct, if proven, is capable of falling within s 49 M of the Act.

26 As I understand Mr Spence’s case, he alleges that Mr Cooper and Allianz ‘aided and abetted’ Dr Roberts in contravening s 49M, by first, making the referral to her for a medico-legal assessment when each had knowledge of her reputation as an unethical and unfair assessor; and second, by expressly directing her to continue with the assessment despite knowing, through Mr Cooper, that he became ill because of the manner she had conducted the assessment.

27 To determine whether these allegations could ground a contravention of s 52, it is necessary to examine the evidence on which Mr Spence intends to rely. In these proceedings Mr Spence has filed a great deal of material, much of it in the form of submissions. Included in these documents is a two-page, unsigned statement which apparently sets out Mr Spence’s account of the assessment. In addition, I have had regard to the material provided by Mr Spence to the President. For the purpose of this exercise, consistent with the longstanding practice of this Tribunal, the evidence of Mr Spence, the party requesting the joinder, will be taken at its highest. (see Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd & anor at [23] ).

28 Claim 1 Mr Spence has made a number of wide-ranging allegations about Dr Roberts. Among other things, he alleged that she has a reputation for conducting medico-legal assessments in an unethical, unprofessional and unfair manner. In addition, he alleged that Mr Cooper and Allianz each knew this and accordingly, in effect, approved of her alleged use of ‘Gestapo style’ techniques.

29 The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit (s 73(2) of the Tribunal Act). However, it must have before it some cogent and probative evidence on which to base any finding of fact about an issue in dispute.

30 In support of the contention that Dr Roberts’ tarnished history was ‘widely known’, Mr Spence relies on the following passage from the extract of a judgement of Grove J, in Walker v Jones Matter No 20647/97 (22 August 1997).

It should be observed that the initial reports of Dr Wendy Roberts were simply academic analyses conducted by her, as she had not seen the plaintiff at all, or administered any tests to him. When she finally did see him, she administered tests which she claimed substantiated her previous theorizing. As I have indicated, I prefer other opinion.

31 It is clear from that passage that His Honour was critical of aspects of the method of assessment employed by Dr Roberts and that he preferred the opinion of the plaintiff’s expert. However, it cannot be extrapolated from this extract or the judgement as a whole that Dr Roberts had a reputation of the type Mr Spence asserted she held.

32 Mr Spence has not otherwise disclosed the basis on which his assertions about Dr Roberts’ reputation are based and how Allianz or Mr Cooper came to possess knowledge of it. Without such evidence, it would not be open to the Tribunal to make a finding that by referring Mr Spence to Dr Roberts, Mr Cooper and/or Allianz expressly or impliedly ‘instructed, induced, aided, or permitted’ her to subject Mr Spence to the type of assessment about which he complained to the President.

33 Claim 2 Mr Spence asserts that in the course of the offending assessment Mr Cooper spoke to Dr Roberts and expressly authorised her to continue after being told that he was ill and was unable to continue.

34 In his initiating complaint to the Board, Mr Spence alleged, “I informed Roberts I could not see and was dizzy. Asked for help and medical attention. Refused medical attention. Informed that the lawyer said I must continue. Roberts read the questions to me”. In an undated letter received by the President on 25 May 2005, Mr Spence stated “OLSC confirmed that 2 lawyers had been phoned by Dr Wendy Roberts in the medical examination with Alan Spence. Talking more than 7 times. One lawyer produced Dr Wendy Roberts report indicating that Alan Spence was very sick and claimed for more than three hours of requiring medical attention”.

35 In an unsigned statement filed in these proceedings on 6 December 2005, Mr Spence stated that during a break in the assessment at about 12.40 pm [theassessment started at 8.30am] he rang his lawyer, Tony Dyer, who was apparently unavailable and was told by Mr Dyer’s secretary to “go home”. He claimed that when the assessment recommenced at 1 pm, Dr Roberts “told me that she had talked to Allianz Lawyer David Cooper who talked to my lawyer Tony Dyer. She clearly stated that a secretary can’t instruct you to go home. It has to be solicitor.” He went on to state that apparently after the break, “My health was getting worse…I repeatedly told Dr Roberts of me being sick…Roberts phone lawyer and told me I must continue or no court date…”

36 Mr Spence’s account, if accepted, would support a finding that in the course of the assessment he became distressed and ill and advised Dr Roberts of this. It is not in issue that in the course of the assessment that Dr Roberts spoke to Mr Cooper at least twice. (It is to be noted that in the initiating complaint, Mr Spence claimed that Dr Roberts rang “two lawyers rung seven times” but that this is not repeated in his statement filed in these proceedings.)

37 To place Mr Spence’s evidence about the conversation between Mr Cooper and Dr Roberts, it is useful to turn to Mr Cooper’s statement and the account given by Dr Roberts included in the President’s Report. In a statement dated 31 October 2005, filed on 14 February 2006, Mr Cooper claimed that he had two conversations with Dr Roberts on 19 July 2004. He claimed that during the first, Dr Roberts told him that Mr Spence, on the advice of his solicitor, had refused to hand back a questionnaire and that he then rang Mr Spence’s solicitor who told him he had not spoken to his client that day. In the second conversation, Dr Roberts told him that Mr Spence had wanted to break up the session and that she had agreed. On Mr Cooper’s account, it was simply a call to advise that Mr Spence would be attending for further assessment.

38 In a letter to the Board dated 28 June 2005, Dr Roberts provides her account of the assessment. The only reference in that letter to Dr Roberts speaking to ‘lawyers’, was a reference to arranging a time for a further assessment at the end of the assessment.

39 It is noteworthy that Mr Spence was not a party to any of the phone conversations between Dr Roberts and Mr Cooper. His knowledge of what was said between the two is based entirely on what Dr Roberts told him. This is first- hand hearsay. Mr Spence’s account of what Mr Cooper is alleged to have said to Dr Roberts constitutes second-hand hearsay. While the Tribunal has a discretion to admit that evidence, it is difficult to see how it could be given any great weight particularly as it conflicts with the account provided by the parties to the conversation.

40 Even if the question of admissibility is put to one side, it is not entirely clear how it could be maintained on the basis of Mr Spence’s account that Mr Cooper ‘caused, instructed, induced, aided, or permitted’ Dr Roberts to press on with her “Gestapo style” tactics.

41 Mr Spence’s account of the first phone call is simply that Mr Cooper had told Dr Roberts that he had spoken to his solicitor. Although far from clear, to whom Mr Spence attributes the words “[a] secretary can’t instruct you to go home. It has to be solicitor”, it is possible that he intended to convey that they were spoken by Mr Cooper. Mr Spence’s account of the second phone call is equally limited. He simply states that Mr Cooper said to Dr Roberts that he “[m]ust continue or no court date…” Mr Spence makes no mention of Dr Roberts telling Mr Cooper that the reason he was unable to continue was because of her use of “Gestapo style” tactics.

42 In the interest of completeness, I note that there is a reference in the President’s Report to Mr Spence being told he might not “get a court date”. In a document provided by Mr Spence to the President are copies of what he contends to be two emails received from his solicitor, Mr Dyer. Both predate the disputed assessment by Dr Roberts by 10 days. Mr Dyer wrote, “[I]f you do not go to the medical you will not be given a court date… the Insurer is entitled to the medical exam and you MUST attend otherwise you will be liable for the cost of non attendance”. (President’s Report p 81)

43 Taken at its highest, there is no direct or indirect evidence that Mr Cooper or through him, Allianz, had knowledge that Mr Spence had become unwell in the course of the assessment or that she had used brutal or unfair tactics. Accordingly, in my view, the facts on which Mr Spence relies would not support an allegation that Mr Cooper or through him, Allianz had contravened s 52 of the Act.

Conclusion

44 Without evidence that could support a finding that Mr Cooper and\or Allianz ‘caused, instructed, induced, aided, or permitted’ the alleged unlawful conduct of Dr Roberts, it follows that there is no prima facie case that they either separately or in concert contravened s 52. Nor could the evidence support a finding that either Mr Cooper or Allianz contravened s 49 M of the Act as the conduct about which Mr Spence relies is not capable of falling within that provision. It follows that the Tribunal has no jurisdiction to deal with the claim brought against either party and, accordingly, I could not be satisfied that this is an appropriate case to exercise my discretion to join a party to these proceedings.

Orders/Directions

1. The request that Mr Cooper and Allianz Australia Insurance Limited be joined as parties to these proceedings is dismissed.

2. Matter to proceed to scheduled case conference set down for 11 April 2006 at 9.15am.