Strong v The Hospitals Contribution Fund of Australia Limited (No 2)

[2005] NSWADT 76

CITATION:	Strong v The Hospitals Contribution Fund of Australia Limited (No 2) [2005] NSWADT 76
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Pauline Strong RESPONDENT The Hospitals Contribution Fund of Australia Limited
FILE NUMBER:	031094
HEARING DATES:	14/03/2005
SUBMISSIONS CLOSED:	03/14/2005
DATE OF DECISION:	04/06/2005
BEFORE:	Rice S - Judicial Member; Bolt M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
APPLICATION:	Joinder of parties - set aside order
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Commonwealth of Australia Constitution Act National Health Act 1953 (Cth)
CASES CITED:	Allen John Wilson & Anor v John Francis Taaff [1997] 1304 FCA Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115 Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 Law Society of New South Wales v Boland [2001] ADT 35 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd t/as Café Tiffany’s [2005] NSWADTAP9 Victoria Legal Aid v The County Court of Victoria & Anor [2004] VSCA 113 Whiteford v Commonwealth (1995) 38 NSWLR 100
REPRESENTATION:	APPLICANT K Eastman, barrister RESPONDENT B Cross, barrister MINISTER FOR HEALTH H Burmester, QC
ORDERS:	1.Amendment of file as directed; 2.Timetable as directed

Background

1 On 15 December 2004, the first of the three days that had been set aside for hearing the substantive complaint, the respondent applied to have the Minister for Health joined to the proceedings. It submitted that “the Department (sic) of Health has a vital concern in this application”, that the rules of which the applicant complains were made in response to “a very clear direction from the Minister (which) represented the starting point of the discriminatory effect (complained of)”, and that the Minister “is an interested party both by virtue of the reviews that the Minister conducts on an annual basis and ... because (the health care funds) have ... been ever since 1996 designing their tables and table relativities in response to Ministerial direction”. The respondent said that the Minister “has an interest in seeing whether or not his own policy directive imposed in 1996 still has relevance today”.

2 Because the rules of which the applicant complains appear to have been subject to annual reviews by the Minister under s78(4) of the National Health Act 1953 (Cth), the Tribunal saw that the Minister’s interest in the proceedings may extend to his being liable under the Anti-Discrimination Act 1977 (‘ADA’) for having “aided and abetted” the conduct complained of. On that basis the Tribunal ordered that the Minister be joined as a respondent to the inquiry (ss98, 100 ADA). The applicant said that she did not object to the joinder order being made, although we note that she was not on any notice of the application, and was neither legally represented at the time nor legally advised on the application.

3 The hearing dates were vacated, and the Minister was given written notice of the joinder. The Minister subsequently filed an application to have the joinder order set aside. Whether ‘set aside’ is the correct term for what action the Tribunal can take is unclear, but it will do for the moment.

Arguments

4 The Minister says that the ADA is, in a relevant way, inconsistent with the National Health Act 1953, and so cannot apply to him. In the alternative the Minister says that the Tribunal is not empowered to exercise jurisdiction in relation to the Minister because the Tribunal is not a court and so cannot exercise judicial power against the Minister, but that if it is a court it has not had Commonwealth jurisdiction invested in it such that it can exercise judicial power against the Minister (ss71; 77(iii) Commonwealth of Australia Constitution Act).

5 The respondent neither supports nor contests the Minister’s arguments, but says that the joinder order was properly made.

6 The applicant, who is now legally represented, agrees that the joinder order should be set aside, but for different reasons. She says that the effect of the joinder order was to create a new complaint or cause of action, which under the ADA the Tribunal does not have the power to do. The applicant says that if a further respondent is to be joined then that is a matter for her, and that the effect of the Tribunal’s order is to require her to conduct proceedings against a party when she does not wish to.

7 As well, the applicant says that the Minister’s arguments for setting aside the joinder order are wrong. She says that there is no relevant inconsistency between the ADA and the National Health Act 1953, and that the Tribunal is not purporting to exercise federal jurisdiction.

8 The application is the Minister’s, and is made only on constitutional grounds. The applicant supports the application with her own, different arguments. The applicant has suggested grounds other than a constitutional ground on which the order sought by the Minister might be made. It is preferable, if it is possible, to decide the application on a ground other than a constitutional ground, and so we consider first the applicant’s argument.

Joinder power under the ADA

9 It is not the case, in the circumstances of this matter, that the joinder created a new complaint. The party we ordered to be joined is a party whose involvement is within the compass of the terms of the original complaint (note Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115 at [28] where the Tribunal refers to identification of a party by “necessary deduction”). Indeed, the respondent’s response to the complaint when it was first made was to draw attention to the Minister’s directions with which it was, it said, bound to comply.

10 The effect of the joinder was not to bring in a fresh party to answer a fresh complaint, but to bring in a party whose conduct, the material filed to date suggested to us, may have been intimately connected with the circumstances of the complaint that was made. The party has been joined to face what could be termed secondary liability – aiding and abetting an unlawful discriminatory act – not liability for some other conduct that is itself discriminatory.

11 The effect of the joinder is not to require the applicant to conduct proceedings against a party when she does not wish to. Our view on this is related to the previous argument. The Tribunal cannot create a fresh complaint but can join a party who appears to face liability, under the ADA, relating to the conduct complained of. The Tribunal is empowered to join a party when it is of the opinion that the party ought to be joined (s98 ADA) – it is not a matter in the hands of the applicant.

12 The applicant is not obliged to do more than support her own complaint, which is against the respondent. If any party might have an interest in establishing the liability of a party joined in these circumstances it is the respondent who, if liable for unlawful for discrimination, may want to see that liability shared jointly with an aider and abettor. It is the Tribunal that has joined the party and the Tribunal, with and within its powers, would ensure that the joined party is dealt with fairly; an applicant should be reassured that that is not their responsibility.

13 The applicant can properly apprehend that the Tribunal’s discretionary joinder of an additional party is likely to increase the length of the inquiry and may require more work from the other parties, but they are unavoidable consequences of the Tribunal’s discretionary exercise of its joinder power. There is, on the face of the ADA, a technical possibility that one of the other parties is exposed to a greater costs risk because of the presence of an extra party, but the real possibility is slight in light of the presumption against costs and the conservative approach the Tribunal takes to awarding costs.

14 In summary, we are of the view the joinder power was exercised appropriately having regard to the provisions of the ADA, and so we must consider the constitutional issues raised by the Minister.

Joinder power having regard to the Constitution

15 We agree with the Minster that the Tribunal has not had Commonwealth jurisdiction invested in it such that it can exercise judicial power against the Minister (ss71; 77(iii) Commonwealth of Australia Constitution Act). Accordingly we do not need to consider the argument that the Anti-Discrimination Act 1977 is, in a relevant way, inconsistent with the National Health Act 1953, although we doubt whether any real inconsistency arises in the circumstances.

16 The grounds on which the Minister relies to say that the Tribunal is not a court are only indicative, and not conclusive, of an answer to the question. It is a matter of judgment, on which we differ with the Minister, as to whether the indicators are sufficient to establish the Tribunal as a court. We are of the view that the Tribunal is, for purposes of exercising jurisdiction in relation to the Anti-Discrimination Act 1977, a court exercising judicial power (see eg the discussion in Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd t/as Café Tiffany’s [2005] NSWADTAP 9 at [95] – [116]). We note an observation by Spigelman CJ that the Tribunal is not a “court of law” that exercises jurisdiction in relation to a “right of action” of the type known to common law (Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 at [71-72].

17 In these proceedings the Tribunal would be exercising judicial power. It is clear, however, that the Tribunal has not been invested with federal jurisdiction in relation to the ADA. And even if, as the Minister contends, the Tribunal is not a court, we agree with the Minister that the Tribunal would nevertheless be exercising judicial power, at least in the making of orders to give effect to a finding of liability. This matter is distinguishable from Whiteford v Commonwealth (1995) 38 NSWLR 100; differently from Whiteford, the Minister in this matter would be joined, if it could be, in relation to its performance of a function particular to its character as a governmental entity, and our inquiry would be intrusive upon the Commonwealth’s governmental functions. The Commonwealth did not choose to enter a transaction that anticipated the exercise by this Tribunal of its jurisdiction.

18 In summary, the Minister was not an ordinary party to a transaction that gave rise to these proceedings, the Tribunal is a court that has not been invested with federal jurisdiction in relation to the ADA, and if it is not a court it exercises judicial power which it cannot do in relation to the Minister in the circumstances. The Tribunal had no power, in the circumstances, to join the Minister as a respondent to this inquiry.

19 We now recognise, therefore, that the joinder order of 15 December 2004, although otherwise properly made within the terms of the Anti-Discrimination Act 1977¸ was made without power by reference to the Australian Constitution.

What steps can the Tribunal now take?

20 The Minister sought an order setting aside the joinder order. It is not clear how the fact that an order that was made without power should best be dealt with when it is later subject to challenge. We might have avoided the situation if we had given the Minister notice of our intention to join him and of a hearing for that purpose, rather than doing only what the ADA requires (s.98) and giving notice the Minister of the fact of the joinder order.

21 It seems that the joinder order is not an appealable decision (s112 of the Administrative Decisions TribunalAct 1997). The question is, therefore, can we revisit a decision that was made without power?

22 We approach this question on the basis that the Tribunal in this matter is effectively a court, as we have said above, and is exercising its original jurisdiction, not its administrative review jurisdiction (see Sharp, N., The chameleon tribunal: The Administrative Decisions Tribunal of New South Wales (2003) 10 AJ Admin L 181). Accordingly, the better authorities on the question are those relating to courts’ powers rather than those relating to the power of administrative tribunals.

23 While the Tribunal, having been created by statute, has no inherent jurisdiction, it nevertheless has the powers necessary to enable it to act effectively within its jurisdiction (see Law Society of New South Wales v Boland [2001] ADT 35 at [10-13] citing John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 per McHugh JA at 476). Consistently with this we have, in our view, the power necessary to remedy a situation where we have acted outside our jurisdiction, at least in circumstances where we made only an interlocutory order and not a final decision. A court has power to revisit an interlocutory order as long as it was not intended to finally determine parties rights (see Allars M., Perfected judgements and inherently angelical administrative decisions: the powers of courts and administrators to reopen or reconsider their decisions (2001) 21 Australian Bar Review 50 at 56).

24 The joinder order we made was not a final decision but an interlocutory one; we are not functus (see eg Victoria Legal Aid v The County Court of Victoria & Anor [2004] VSCA 113 at [7]-[11]). The order we made determined no rights and affected no-one, acknowledging however the inconvenience and cost to which the parties and the Minister have been put. If we were to be functus then we have a discretion to revisit an issue when we have proceeded on a misapprehension as to the facts or law (see Allen John Wilson & Anor v John Francis Taaff [1997] 1304 FCA citing Autodesk v Dyason (No. 2) (1993) 176 CLR 300, per Mason CJ at 302-3).

25 If we were to approach the question on the basis that the Tribunal should be treated as an administrative tribunal, then it is enough for us to record our view that we did not have the power to make the order in the first place (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11). In deciding that a decision made in jurisdictional error was no decision at all, Gaudron and Gummow JJ (at [51]) said that that would be so even more clearly if the decision in question exceeds constitutional power or infringes a constitutional prohibition, as in our view it does in this matter.

26 In the preceding paragraphs we are casting about for the correct procedural step to achieve a result that two parties want, although for different reasons, and a third has not opposed. We do so in circumstances where the applicant made her complaint four and a half years ago, and an inquiry into its merits has been pending in this Tribunal for 19 months. Having regard to these circumstances, to the authorities we have noted above, to our (qualified) power to determine our own procedure, and to the Tribunal’s obligation to act as quickly as is practicable with as little formality as possible and without regard to technicalities or legal forms, we proceed on the basis that we are able to revisit an earlier interlocutory order and to decide that it was made without power.

27 We need only record that finding. The joinder order having been made without power was no order at all. No other order need be made. We do not expect the Minister to take part in the inquiry – he has, effectively, never been here.

Finding and consequence

28 Accordingly we record our finding that we had no power to make a joinder order against the Minister, and note the consequence that the Minister is not now and never has been a party to this inquiry. We direct the Registry to amend the file and records accordingly.

Timetable

29 It was agreed by the applicant and respondent at the hearing of the Minister’s application that a timetable would be set by direction. We direct as follows:

1. The applicant will, by 26 April 2005 , file and serve Points of Claim, having regard to the ‘s111’ decision in this matter of 23 August 2004 and the conduct of the matter since, and file and serve any evidence, in addition to the evidence already filed, on which she intends relying at the hearing

2. The respondent will, by 23 May 2005, file and serve Points of Defence and any evidence, in addition to the evidence already filed, on which it intends relying at the hearing

3. The applicant may, by 6 June 2005, file and serve Points in Reply, and any evidence in reply, in addition to the evidence already filed, on which she intends relying at the hearing

4. The matter will be listed for inquiry for three days in Sydney on dates to be fixed by the Registry in consultation with the parties.

5. The parties are at liberty to approach the Tribunal in writing for leave to issue summonses and for further directions.