Tu v Vaisman (No 2) - [2013] NSWADT 97

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: TU v Vaisman (No 2) [2013] NSWADT 97
Hearing dates: 24 April 2013
Decision date: 07 May 2013
Jurisdiction: Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Decision:
Dr Balafas is joined as a respondent to these proceedings.

Catchwords: PRACTICE AND PROCEDURE -application to join respondent on basis that he contributed to the unlawful act of another - meaning of "person whose joinder is necessary to the determination of all matters in dispute in the proceedings"
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Cases Cited: TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290
Roach v James [2013] NSWADTAP 1
Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34
Texts Cited: Rees, Lindsay and Rice, Australian Anti-Discrimination Law, Federation Press, 2008
Category: Interlocutory applications
Parties: TU (Applicant)
Jacov Vaisman (1st Respondent)
Karen Baker (2nd Respondent)
Representation: HIV/AIDS Legal Centre Inc (Applicant)
Bruce and Stewart Lawyers (1st Respondent)
No appearance (2nd respondent)
Dr Balafas (3rd respondent in person)

File Number(s): 121051

REASONS FOR DECISION

Introduction

In December 2010 the Tribunal ordered AMI Australia Holdings Pty Ltd to pay a man I will refer to as "TU" $30,000 in damages. The Tribunal also ordered AMI to refund the full amount TU had been charged for treatment for erectile dysfunction. Those orders were made following a finding that AMI had breached the Anti-Discrimination Act 1977 (AD Act) by refusing to treat TU on the ground that he is HIV positive: TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290. AMI had not complied with the orders before it went into liquidation.

TU lodged a fresh complaint with the President of the Anti-Discrimination Board against Dr Vaisman, the former Chief Executive Officer and sole director of AMI, and Karen Baker, a nurse employed by the company. That complaint alleged that Dr Vaisman and Ms Baker are jointly liable to pay the damages awarded to TU because they caused, instructed, induced, aided or permitted AMI to discriminate against him: AD Act s 52. The President of the Anti-Discrimination Board referred that complaint to the Tribunal naming Dr Vaisman and Ms Baker as respondents: AD Act, s 95(3).

TU now applies to join Dr Balafas, a doctor contracted by AMI, as a third respondent and to amend the Points of Claim accordingly. Dr Balafas opposes the joinder application. On the basis of written submission from TU's lawyers and Dr Balafas I have decided to join Dr Balafas as a third respondent.

Legal principles

A person who contributes to the wrongdoing of another may be jointly liable under the AD Act. Section 52 states that:

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.

This provision has been invoked rarely and its scope is uncertain. The…

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] NSWADT 97
Decision Date: 07 May 2013

CaseChat Overview and Summary

The matter before the court involved a dispute between Tu, the plaintiff, and Vaisman, the first defendant, with a subsequent application for Dr Balafas, the second defendant, to be joined in the proceedings. The dispute centred around the plaintiff's claim for damages arising from an alleged unlawful act. The court was tasked with determining whether Dr Balafas's joinder was necessary to resolve all matters in dispute.

The central legal issue before the court was whether Dr Balafas, as a potential contributor to the alleged unlawful act, was a person whose inclusion was necessary for the complete determination of the proceedings, as per the relevant procedural rules. The court had to assess whether the plaintiff's claims against Vaisman could be fully adjudicated without Dr Balafas's involvement and whether there were overlapping issues or shared liability that necessitated his participation.

The court, after considering the evidence and submissions, found that Dr Balafas's involvement in the alleged unlawful act and his potential liability meant that his joinder was indeed necessary for the full determination of the dispute. The court reasoned that without Dr Balafas's participation, the plaintiff's claims against Vaisman could not be fully resolved, as there were significant issues of shared liability and potential contribution that needed to be addressed. Consequently, the court granted the application to join Dr Balafas as a respondent, thereby ensuring that all relevant parties were before the court to address the claims comprehensively.

The final orders of the court included the joinder of Dr Balafas as a respondent in the proceedings, allowing for a complete and fair determination of the issues at hand.

Orders

Orders of the court

Dr Balafas is joined as a respondent to these proceedings.

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:	TU v Vaisman (No 2) [2013] NSWADT 97
Hearing dates:	24 April 2013
Decision date:	07 May 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Dr Balafas is joined as a respondent to these proceedings.
Catchwords:	PRACTICE AND PROCEDURE -application to join respondent on basis that he contributed to the unlawful act of another - meaning of "person whose joinder is necessary to the determination of all matters in dispute in the proceedings"
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290 Roach v James [2013] NSWADTAP 1 Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34
Texts Cited:	Rees, Lindsay and Rice, Australian Anti-Discrimination Law, Federation Press, 2008
Category:	Interlocutory applications
Parties:	TU (Applicant) Jacov Vaisman (1st Respondent) Karen Baker (2nd Respondent)
Representation:	HIV/AIDS Legal Centre Inc (Applicant) Bruce and Stewart Lawyers (1st Respondent) No appearance (2nd respondent) Dr Balafas (3rd respondent in person)
File Number(s):	121051