Fraser v President, Anti-Discrimination Board and Anor [1999] NSWSC 1229 (9 December 1999)

Last Updated: 14 December 1999

NEW SOUTH WALES SUPREME COURT

CITATION: FRASER v PRESIDENT, ANTI-DISCRIMINATION BOARD & ANOR [1999] NSWSC 1229

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 30059/99

HEARING DATE{S): 08/12/99, 09/12/99

JUDGMENT DATE: 09/12/1999

PARTIES:

Courtney Jane Fraser (Plaintiff)

v

President of the Anti-Discrimination Board (First Defendant)

The University of Sydney (Second Defendant)

Stephen Morris (Applicant)

JUDGMENT OF: Adams J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Ms S Winters (Plaintiff)

Mr G Bartley (First Defendant)

Mr G Turner (Applicant)

SOLICITORS:

Turner Freeman, Solicitors (Plaintiff)

I V Knight (First Defendant)

Graham Molloy & Associates (Applicant)

CATCHWORDS:

Anti-discrimination Act s31A, s53 - complaint out of time - parties - proceedings for review - application to be joined - Pt8r8 Supreme Court Rules

ACTS CITED:

Anti-Discrimination Act 1997

Administrative Decisions Tribunal Act 1997

DECISION:

Application granted to join applicant as party to the proceedings

JUDGMENT:

Transcript checked

THE SUPREME COURT

OF NEW SOUTH WALES

ADMINISTRATIVE LAW DIVISION

ADAMS J

THURSDAY 9 DECEMBER 1999

030059/99 - COURTNEY JANE FRASER v PRESIDENT OF THE ANTI-DISCRIMINATION BOARD & ANOR

E04343/99 - STEPHEN MORRIS v COURTNEY JANE FRASER

JUDGMENT

1 HIS HONOUR: This is an application, by Notice of Motion, by one Stephen Morris, to be joined as a party under Pt8r8 of the Rules of the Supreme Court, to proceedings commenced by Ms Courtney Fraser for review of the decision of the President of the Anti-discrimination Board, declining to extend time under s88(4) of the Anti-Discrimination Act 1997 (the Act), to a complaint made by Ms Fraser. The proceedings for review instituted by Ms Fraser name as respondents the President of the Anti-discrimination Board and the University of Sydney. The University was, at the relevant time, Dr Morris' employer and is hence necessarily a respondent in the Board proceedings and, accordingly, the review and this application.

2 By combination of s31A and s53 of the Act, together with perhaps, the principles of the general law relating to ancillary liability for unlawful acts, it is obvious from the material tendered before me, that although complaints are made by Ms Fraser, in respect to the behaviour of a number of the University's employees, her principal allegations concern the applicant in this proceeding. These allegations are extremely serious and involve moral and professional culpability of a grave order. Her complaint to the Anti-discrimination Board was, however, made out of time. When the President declined to extend time, the effect, so far as the University was concerned, was that the matter was at an end. In a subsidiary sense, this was also true of the applicant. To use neutral language, I hope, the applicant had a great deal at stake in relation to the complaint and its investigation, or otherwise. Adverse findings against him could be extremely injurious to his reputation and have other substantial consequences. The extent to which those consequences may be visited on him, by virtue of any particular provisions of the ADA, is perhaps uncertain, although it is the subject of debate before me. It was submitted for Ms Fraser, however, that he was not a party to the Board proceedings and was rightly, indeed, necessarily omitted from the review proceedings and thus should fail in this application.

3 I am far from satisfied that there is no risk that the applicant might be subjected to an adverse decision, should the matter proceed to be heard by the Administrative Decisions Tribunal, under the Administrative Decisions Tribunal Act 1997 (ADTA). It might be that he, if he were not by then formally a party to the proceedings, would be made a party to them pursuant to s67 of that Act, which requires a person to be a party "if the Tribunal is satisfied that the interests of the person are likely to be affected by the ... decision": s67(4).

4 These proceedings, however, do not directly concern the interpretation of s67 of ADTA, although the argument that if the matter got so far, the Tribunal would be so satisfied, strikes me as being a strong one. However, for present purposes, I need say no more about this aspect of the case. It is clear that he might well be such a party.

5 The crucial provisions, as I mentioned at the outset, are the terms of Pt8 r8(1)(a) and (b) of the Rules, which relevantly state -

"(1) Where a person who is not a party -

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be ineffectual and completely determined and adjudicated upon the Court, on application by him, or by any party, or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings."

Were the matter simply to be determined on the material which I have thus far mentioned, I think that I must refuse the application for joinder. However, s52 of the Act states -

"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"

The view of the President, as notified to the applicant here, is that Ms Fraser had not only alleged discrimination on the ground of sex, in the area of education, against the University of Sydney but also -

" ... made a complaint against you, as an individual, on the basis that she alleges that you aided and abetted the University of Sydney to discriminate against her ... because she states that you sexually harassed her and subjected her to sexist and demeaning comments and behaviour ... in 1996".

Ms Fraser's complaint has been tendered and it comprises, amongst other things, a lengthy narrative alleging serious misbehaviour by the applicant directed to her. Although, in terms, it does not allege an aiding and abetting, in substance, such an allegation is raised in the complaint and I consider that the President has rightly considered that this is so and appropriately informed the applicant of his interest in the matter.

6 If the present position were to subsist, the applicant is freed from involvement in proceedings in which he is, in substance, a respondent and indeed, was formally identified as such by Ms Fraser's own complaint.

7 Ms Winters, appearing here for Ms Fraser, and whose submissions I have found very helpful, suggested that the terms of the complaint naming the applicant should not be given any weight, since it was the mere expression of a layperson's understanding of the position. Even so, Ms Fraser has been legally represented throughout and there was no hint before me that she would not seek to maintain the position, apparently expressed in the documents under her hand, to which I have referred and which have engendered both the proceedings before the President and in this Court.

8 It is obvious, from what I have said, that the interests of the applicant and that of the President, are not identical. The University has entered a submitting appearance, both to this and the substantive application for review of the President's decision. The President has taken the same course in relation to this proceeding but I am informed proposes to defend the substantive application.

9 There is much to be said for the argument that the applicant should have been joined as a party in the review proceedings under Pt8r8(1)(a), in light of his identification in the Board proceedings as a person aiding and abetting the employer. Ms Winters points out, however, that there is some doubt, in the circumstances alleged here, whether an employee, such as the applicant, could be an aider and abetter, by virtue of s52 of the Act. However, I am of the view that there might well be liability under that provision, quite apart from the general law, and that the applicant must have the opportunity to resist the applicant's claim, which presently subsists, that he has a personal responsibility under the Act as being both implicitly (so far as the complaint is concerned) and explicitly (as the President alleged) an aider and abetter of the University's behaviour.

10 Even if, however, Pt8r9(1)(a) does not apply, I have no doubt that the applicant's joinder as a party, is necessary for the purposes set out in r8(1)(b). Indeed, having regard to the present state of the proceedings, I consider that to exclude the applicant from the proceedings, would be to subject him to grave injustice, as he, to my mind, has a direct and not merely an indirect interest, in their outcome.

11 Accordingly, although I have wavered somewhat during the helpful debate of counsel, I have concluded that this application must be granted.

12 I order costs, in favour of the applicant, against Courtney Jane Fraser, in respect of the Notice of Motion.

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LAST UPDATED: 14/12/1999