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

1. 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.

1. 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).

1. 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

1. 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.

1. This provision has been invoked rarely and its scope is uncertain. The case law appears to suggest that a person will not have "permitted" another person to engage in an unlawful act unless that person had the power to prevent that act from occurring: Rees, Lindsay and Rice, Australian Anti-Discrimination Law, Federation Press, 2008, p 657-660.

1. The parties to a complaint under the AD Act are the applicant, the respondent and "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": ADT Act, s 97(1) The Tribunal may make Dr Balafas a party:

. . . 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. The Tribunal discussed the meaning of s 67(4) in Roach v James [2013] NSWADTAP 1 at [12] to [20]. As in that case, it is the second part of the test that is in issue in these proceedings -- whether the person "is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings." I will refer to that test as the "necessary joinder rule".

1. Unlike the Uniform Civil Procedure Rules 2005 (UCPR), there is no provision in the AD Act or the ADT Act for joinder when the proceedings involve common questions of law or fact: UCPR, r 6.19. But Courts have given a broad interpretation to the word "proceedings" in the necessary joinder rule. As the Tribunal noted in Roach v James at [18], the phrase "all matters in dispute in the proceedings" has been held to apply not only to the existing pleadings but to matters which do not arise on the existing pleadings: Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38 per Glass and Samuels JJA.

1. When applying the necessary joinder rule to cases where a plaintiff or applicant is applying to add a defendant or respondent, and a matter in issue between them does not arise on the existing pleadings, the defendant or respondent may be joined if those matters are "subjacent" to or underlie the pleadings: Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38. In that case the brick wall of a building owned by Qantas bulged and was unstable. Qantas sought damages against the architects and the engineers but later applied to amend the Statement of Claim to add the builder as a defendant. The Court (Glass and Samuels JJA) held that the builder should be joined because the phrase "all matters in dispute in the proceedings" includes underlying questions such as "whose default caused the instability of the structure and who is liable to the plaintiff in damages for such instability?"

Allegations against Dr Balafas

1. It is alleged, presumably on the basis of the evidence given in TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290, that Dr Balafas:

(1)   initially prescribed injectable and gel-based medication for TU knowing that he was HIV positive;

(2)   attended a meeting convened by Dr Vaisman;

(3)   agreed to a policy formulated by Dr Vaisman that he would not prescribe injectable medication to people with HIV;

(4)   agreed to reverse his decision to prescribe injectable medication to TU.

1. In a proposed Amended Points of Claim document, TU framed his case against Dr Balafas as follows:

Dr Balafas determined that the Applicant was not suitable for AMI products or services and discontinued the Applicant's prescriptions. As a result he "caused, instructed, induced, aided or permitted" AMI to refuse to provide the Applicant with any other medication".

1. Dr Balafas opposes being joined as a respondent and says he has not been performing any work under contract for AMI for nearly three years. He says that the incident occurred some time ago and he has little recollection of the specific details of the matter. He goes on:

With regard to this matter, my recollection of the events was that AMI made it their policy for HIV patients not to be given Intra-cavernosal injectable treatments for erectile dysfunction. As an employee of AMI I was following the company's policy, essentially conditions of employment, which was instructed to me by medical management of this large organisation.

Consideration

1. TU has applied for Dr Balafas to be joined as a party. In accordance with s 67(4) of the ADT Act, he is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. This case is similar to Qantas Airways v AF Little Pty Ltd [1981] 2 NSWLR 34. The underlying question is who, if anyone, caused, instructed, induced, aided or permitted AMI to discriminate against TU and who, if anyone, is liable to pay damages for that unlawful act? Dr Balafas says that he was following AMI's policy and, impliedly, did not have the power to prevent the change of policy. If that is the test and TU can prove that Dr Balafas did have that power and has contributed to AMI's wrongdoing in a way that is unlawful under s 52 of the AD Act, he will be jointly liable for the damages that the Tribunal has awarded.

1. I appreciate that these events occurred in 2008, some five years ago. But Dr Balafas gave evidence about his involvement in the previous proceedings. TU has requested that the transcript and evidence in the previous proceedings be admitted in these proceedings. That is appropriate because it avoids parties and witnesses having to give evidence about the same events again. But there is a mixed question of law and fact in these proceedings that did not arise in the previous proceedings. That issue is whether any of the respondents caused, instructed, induced, aided or permitted AMI to discriminate against TU. The parties should be given an opportunity to provide further relevant evidence in relation to that issue if they wish to do so.

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Decision last updated: 07 May 2013