[2003] VCAT 1252

Pursuant to sections 60, 82 and 149 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') this Tribunal orders and directs-

1. That the Complainant's application to join Wayne Mackay, Michael Hayden, Mark Hayden and Tim Darcy as Respondents to proceeding A176/2002 is dismissed.

2. That proceedings A176/2002 and A309/2002 are consolidated into one proceeding.

3. That the operation of paragraph 2 of this order is stayed for forty-two days. The parties have liberty to apply to extend or lift the stay.

4. The costs of the parties in relation to the application under sections 60 and 82 of the VCAT Act are reserved. The Tribunal notes that the parties have applied for costs. The hearing of those applications is adjourned to a date to be fixed.

1. The decision is that the application by the complainant to join to proceeding A176 of 2002, which I call the "first complaint", the respondents to proceeding A309 of 2002, which I call the "second complaint", is dismissed, but I also order that the first and second complaint proceedings be consolidated into one proceeding. I give my reasons.

2. The first complaint as I have called it is a complaint against a company. The second complaint as I have called it is a complaint against four individuals who are directors of that company ('the individuals"). Originally it also was a complaint against the company too.

3. In the particulars of the first complaint, Ms Cunningham included allegations against the individuals who later became the respondents to the second complaint. Those particulars of complaint are identical in form to the second complaint. Almost immediately after the filing of the particulars of the first complaint, Ms Cunningham asked the company to consent to the joinder of the individuals as respondents to that complaint. The company refused. Ms Cunningham almost immediately thereafter lodged the second complaint with the Equal Opportunity Commission. As I have said, that complaint named the company and four individuals who are directors of the company.

4. Both complaints have been referred to this Tribunal. After that referral the respondents applied to strike out or dismiss both complaints under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). By order dated 6 January 2003 the Tribunal which I constituted on that occasion, dismissed one claim in both complaints. The nature of that claim is not relevant at this stage.

5. I also struck out the first complaint to the extent that the particulars of that complaint alleged that the individual directors were personally liable for the conduct alleged in the complaint, although I did not strike out that complaint to the extent that those allegations claimed that the company was liable. I also struck out of the second complaint, allegations that the company was liable for the conduct therein alleged. I did this because of duplication in the two complaints.

6. This left a situation in which the first complaint only related to the liability of the company and the second complaint only related to the liability of the individual directors. In my order I expressly dismissed one claim which as I have said is not relevant to this particular application, but expressly struck out the other claims I have just mentioned. It appears from my reasons that I contemplated that there would be a subsequent directions hearing at which the complainant might apply for joinder or consolidation or to reinstate the struck out claims.

7. It is convenient that I first deal with a submission made by the respondents that the effect of striking out or dismissing a proceeding under s.75 of the VCAT Act is that the proceeding is terminated and cannot be reinstated. For this argument the respondents relied on the decision of the Victorian Court of Appeal in Rabel v. State Electricity Commission (1998) 1VR. 102, and what was said by Judge Davey, Vice President of this Tribunal in Tran v. Swinburne University & Ors (1999) VCAT AD14.

8. Rabel's decision concerned a power in the then Equal Opportunity Act 1984 to strike out a complaint where the complaint is still before the Equal Opportunity Commission. Section 109 of the Equal Opportunity Act 1995 contains a similar power. In Rabel, the Court of Appeal construed these provisions as a power to summarily terminate a complaint.

9. His Honour Judge Davey followed this interpretation in Tran's case. It is not mentioned by His Honour and I would assume that it had not been argued before him, that s.75 of the VCAT Act is different in form from s.109 of the Equal Opportunity Act 1995 and s.44C of the Equal Opportunity Act 1984 in one critical respect. Section 75 mentions strike out or dismiss a proceeding, while ss.109 and 44C only mention strike out. As I pointed out in Norman v. Australian Red Cross Society (1998) 14 VAR 243. Parliament when it passed the provision which is now s.75 of the VCAT Act must be presumed to have meant what it said. It did not include words which were mere surplusage. It must be presumed to have meant something different when it speaks of strike out or dismiss. This led me to conclude that dismiss when it is used in s.75 refers to the bringing of the proceeding to an end without any possibility of reinstatement, while the word strike out means the bringing of the proceeding to an end with the possibility of reinstatement. I would add that in Tran's case, His Honour Judge Davey's views were in my view clearly obiter because in that case the application under s.75 was dismissed.

10. My orders on the strike out application made in respect of complaints one and two in this case make it clear that I was speaking of striking out certain claims in complaints one and two and in my view this meant that there was a possibility of reinstatement.

11. After the decision on the strike out application was handed down, the complaints were referred to mediation. Mediation was unsuccessful.

12. Ms Cunningham now applies under s.60 of the VCAT Act to join as respondents to the first complaint, the individuals who are respondents to the second complaint.

13. It is clear to me that the complainant's representative regarded this application as one for joinder and for consolidation of the two complaints, and that both applications were regarded as having, in effect, the same consequence. It is clear that the intention was to apply both for joinder and consolidation. It is rightly submitted for the respondents that these applications are in fact quite different in nature, and indeed are made under different provisions of the VCAT Act. Section 60 deals with joinder of parties. Section 82 deals with the consolidation or hearing together of proceedings.

14. However this maybe, the issue of joinder and consolidation was clearly raised at the hearing before me and submissions were made to me about both. I address both in these reasons. I first deal with the joinder application.

15. A number of authorities were referred to me by the legal representatives for the parties. I do not need to review these authorities in detail here. They turn on their individual circumstances as does this case. It is sufficient for me to say some things however about s.60.

16. That section permits the Tribunal to join a party (here, a respondent) if it considers among other things that the person ought to be bound by an order of the Tribunal in the proceeding, or that the person's interests are affected by the proceeding, or that for any other reason it is desirable that the person be joined. This power is wide, at least as wide and arguably even wider, than that given to the Supreme Court to join parties.

17. Even when the criteria in s.60 are met, the power is still discretionary. But the Tribunal can, in determining whether or not to exercise it, take into account such factors as delay in applying for the joinder.

18. Here for the purposes of deciding this matter, I assume without deciding that the criteria in s.60 are met. However the respondents argue that on a number of grounds I should refuse to join these individuals as respondents to the complaint against the company. The complainant pursues the joinder application and makes submissions in support of it.

19. I agree with the respondents that the individuals should not be joined as respondents to the complaint against the company.

20. Ms Cunningham has not undertaken to withdraw the second complaint (that is, the complaint against the individuals) if they are joined to the first complaint. Joinder would therefore in my view be a futile exercise unless it were accompanied by the withdrawal or striking out of the second complaint. Otherwise the Tribunal would be left with a complaint which covered both the company and the individuals, and another identical complaint which only covered the individuals. Such a result is not in my view, in the interest of efficient case management or ultimately in the interests of the effective administration of justice.

21. Moreover there is in my view no adequate explanation why Ms Cunningham did not join the individuals or apply to join the individuals as respondents to the complaint against the company at an earlier stage. That application could easily have been made after the respondent company had refused a request to join the individuals to the first complaint shortly after the particulars of the first complaint had been filed. This would have seemed to have been a preferable course to what in fact happened. What in fact happened was that a second complaint was lodged with the Equal Opportunity Commission against the individual directors of the company.

22. I therefore decide that joinder under s.60 should be refused. Having done that however I am still left with two complaints, essentially identical in form covering the same facts but with one exception which I shall come to shortly. One of these complaints involves the company and one involves individual directors.

23. It seems to me that the appropriate course is to consolidate these two complaints into one proceeding under s.82 of the VCAT Act. That section among other things, permits the Tribunal to direct the consolidation of proceedings if they concern the same or related facts and circumstances.

24. The respondents oppose consolidation on the basis that the complaint against the individuals has one crucial difference from the complaint against the company. That difference is that the complaint against the individuals raises the issue, which the respondents argue is not raised in the complaint against the company, as to whether the individuals acted as directors of the company or as agents or employees of the company.

25. In my view, first it is not correct to say that this is an issue not raised in the complaint against the company. In my view the complaint against the company raises two bases on which the company might be liable for the conduct set out in the complaint. One basis is that there might be a finding against the company under s.102 of the Equal Opportunity Act which concerns vicarious liability of the company where its agents or employees have committed certain breaches of the Act.

26. The other basis on which a possible finding might be made is under s.14 of the Equal Opportunity Act directly and that concerns the company in its capacity as employer. The actions of persons who are directors of the company might be relevant as evidence of the actions of the company itself.

27. Second, in my view, s.82 does not require there to be identical facts before proceedings can be consolidated. The facts in both proceedings need to be either the same or related to each other. I am satisfied that these two complaints concern related facts or circumstances.

28. There are clearly advantages in a prompt and efficient resolution of both these complaints and in my view consolidation is appropriate in this case. The parties' costs will be lessened. Duplication of particulars, witness statements and hearings and of evidence will be avoided. Nor can I see any prejudice or unfairness for any party in this course.

29. The legal and factual issues can be argued in exactly the same way as they would have been if there had been two separate hearings. Any danger that two separate hearings might result in inconsistent findings will be avoided.

30. I do not accept the respondents' submission that to consolidate these proceedings will be an indirect way of reinstating what the Tribunal struck out. The Tribunal essentially struck out those claims where there was duplication. What is consolidated is only the surviving claims. The consolidation should not be viewed as amending or adding parties to either of the former proceedings. The former proceedings merge and become one.

31. The respondents urge me to take into account what they say is the unreasonable way in which Ms Cunningham has conducted this proceeding and unnecessarily prolonged it. These submissions might be raised on a cost application. They should not in my view lead me to refuse a consolidation where in my view consolidation would be appropriate in the interests of justice and in the interests of prompt, effective and cost effective resolution of these matters.