Z (No. 2) -v- University of A [2001] NSWADT 138

BEFORE: Goode P - Judicial Member; Clayton S - Member; McDonald O - Member APPLICATION: Joinder of parties MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Hughes -v- Bowral Co-operative Trading Ltd & Ors [1997] NSW EOT 30 Borg -v- Commissioner, Department of Corrective Services [2000] NSW ADT 118 APPLICANT In Person REPRESENTATION: RESPONDENT K Grime, barrister JOINDER PARTY J Oakley, barrister ORDERS: The Application is dismissed.

Introduction 1 This is an application by the Applicant to join the University of New South Wales ("UNSW") as a respondent to the proceedings. The application is opposed. 2 In addition to the UNSW, the Applicant has also sought to join a large number of individual persons as respondents to the proceedings. The Tribunal proposes to deliver a separate decision in relation to the joinder of those persons in the near future. In our view, the issues associated with the present application are somewhat different and warrant separate treatment. Background to the Complaint 3 The Applicant lodged a complaint with the Anti-Discrimination Board ("the Board") on 30 December 1997 alleging that between September 1995 and April 1997 the Respondent had unlawfully discriminated him on the ground that he was presumed to be homosexual. He also alleged that the Respondent had subsequently victimised him and that as a consequence of both the Respondent's discrimination and victimisation, he was awarded a second class honours degree rather than a first class honours degree. 4 We do not propose to discuss in any detail the large number of wide ranging allegations made by the Applicant in his voluminous correspondence to the Board. Although the precise nature of the Applicant's case has yet to be defined, for present purposes we have endeavoured to outline some of the primary allegations (as we currently understand them based on the President's Report and the material filed thus far) in paragraphs 5 - 15 below. 5 On 30 October 1996, a fellow economics student named Ms C allegedly said to the Applicant during a private conversation between them in a corridor in the F Facility that he was "in love" with Dr D (a lecturer in the Faculty) and that "everyone knew" this. In making this comment, it is alleged that Ms C presumed the Applicant was homosexual. 6 It is also alleged that Ms C repeated the comment that the Applicant was in love with Dr D during a discussion with the Applicant (in the presence of witnesses) at the University of New South Wales in late April 1997 and that Ms C said this was known by all members of the Respondent's F Faculty. 7 Based on alleged unfavourable treatment afforded to him by the Respondent, and Dr D, the Applicant alleges that Ms C told Dr D of her belief that the Applicant was in love with him and further, that she also told various staff members. 8 Consequent upon the allegations in paragraph 5, it is alleged that Dr D and other staff members of the F Facility thought the Applicant was homosexual. 9 During an F class taught by Dr D on 6 September, 1995, Dr D allegedly told the class (while discussing the concepts of hetroskedasticity and homoskedasticity) that he hated homosexuals and did not want anyone who was "gay" near him or touching him. Dr D also allegedly asked whether anyone in the class was "gay" and while doing so, looked at the Applicant "on a continual basis" . 10 When the Applicant attempted to obtain tutorial work at the University of New South Wales in 1997, it is alleged that the members of the Respondent's staff who gave "negative" references on his behalf were influenced by their belief that the Applicant was homosexual, thereby precluding the Applicant from obtaining work. 11 During the discussion with Ms C in late April 1997 (referred to in paragraph 6 above), Ms C allegedly attempted to dissuade the Applicant from making a discrimination complaint to the Respondent by telling him that both the Head of the F Faculty, Professor E, and the Dean of the Faculty, Professor G, would suppress the complaint. 12 In August 1998, Ms B allegedly victimised the Applicant by releasing correspondence to a psychiatrist named Dr Leon which the Applicant had written and provided to Ms B in confidence. Ms B allegedly said to the Applicant, inter alia, that he had been given a psychiatric evaluation of "paranoid schizophrenic with delusions of grandeur" and that he had been sexually abusing his own son. She allegedly threatened to reveal these accusations publicly if the Applicant pursued his complaint against the Respondent. 13 Ms B also allegedly told the Applicant that Dr D would make a counter claim of sexual harassment against the Applicant if he pursued his complaint against the Respondent. 14 It is alleged that as a consequence of the Respondent's discrimination and victimisation, the Applicant suffered great loss. Inter alia he: was awarded a second class honours degree instead of a first class honours degree missed out on scholarship and teaching opportunities was alienated by various staff members and students was unable to get anyone within the Respondent university to act on his complaints. 15 As the corollary of the above mentioned loss, Ms C allegedly obtained a first class honours degree in F, the University Medal for F, a scholarship and admission to the Australian Graduate School of Management (at the University of New South Wales) by unlawful means. Background to the Joinder Application 16 When the Applicant lodged his initial compliant with the Board on 30 December 1997, he alleged that he had been discriminated against and victimised by both the Respondent and the UNSW. In the course of outlining the nature of these allegations to the Board, he specifically referred to certain remarks made by John Lodewijks, an Associate Professor at the UNSW School of F, and the failure of the UNSW to offer him employment as a tutor allegedly because of information supplied by the Respondent. He also made reference in his allegations to Ms C's comment to him at the UNSW that he was in love with Dr D; the failure of the UNSW to act on his complaint about Ms C; and the failure of the UNSW to stop the victimisation which had first started at the University of A and continued at the UNSW. 17 Before the Board had commenced its investigation into the allegations against the UNSW, the Applicant advised the Board by letter dated 16 February 1998 that he no longer wished to pursue his complaint against the UNSW and John Lodewijks. 18 Subsequently by letter dated 10 August 1998, the Applicant also advised the Board that for various personal reasons, he wished to discontinue his complaint against the Respondent. However, he subsequently withdrew this advice on 23 August 1998 and confirmed by letter dated 5 October 1998 that he had been "tricked" by Ms B into withdrawing his complaint and that he wished to have it reinstated. In this letter, he also alleged that he had been victimised by Ms B. 19 After obtaining clarification of the details of the allegations against the Respondent from the Application, the Board ultimately wrote to the Respondent on 19 August 1999 seeking its views on the wide ranging matters alleged against it. The Respondent's lengthy reply dated 22 September 1999 was received by the Board on 1 October 1999. 20 It is significant that after notifying the Board on 16 February 1998 that he no longer wished to pursue his complaint against the UNSW, at no stage did the Applicant seek to withdraw this advice or amend it any way. Importantly too, at no stage did he allege that he had been "tricked" into withdrawing his complaint against the UNSW. 21 In its letter of 19 August 1999 to the Respondent, the Board made reference to two allegations which involved the UNSW as well as the Respondent. It summarised them:- "Allegation Number 5 He was subsequently victimised by not being offered employment as a tutor at the University of NSW (UNSW). He alleges that he was not offered employment because of poor references supplied by staff at the University of A. Allegation Number 6 In April 1997, Ms C victimised him by making comments to him regarding his presumed homosexuality. In addition she tried to dissuade him from making a complaint to A University." 22 At no stage did the Board advise the UNSW of the above allegations. Given the Applicant's letter of 16 February 1998 withdrawing his complaint against the UNSW, we see no reason why it should have. 23 The Applicant submits that when he withdrew his complaint against the UNSW, he was only withdrawing the allegations concerning Associate Professor Lodewijks and the failure of the UNSW to offer him employment as a tutor. However, he did not state this in his correspondence to the Board. In his letter to the Board dated 16 February 1998, he clearly stated that he did not wish to pursue his complaint against "the UNSW and Associate Professor Lodewijks". This was confirmed by the Board on 12 March 1998. Importantly too, despite having every opportunity to do so, at no stage did the Applicant advise the Board that he wished the other alleged matters involving the UNSW (set out in para 16 and hereinafter referred to as "the UNSW complaint") to be investigated. 24 Pursuant to s 94(1) of the Anti Discrimination Act 1997 ("the Act"), the Applicant's complaint to the Board was subsequently referred to the Tribunal on 19 January 2000. The only respondent named by the Board in the letter of referral was the University of A. In the "Complaint Summary" attached to the letter of referral, the Board indicated that it had also received a complaint from the Applicant against the UNSW but that this had been withdrawn. 25 Together with various other joinder applications, the Applicant filed the present application in the Tribunal on 22 May 2000. His detailed written reasons for seeking to join the UNSW as a respondent to the proceedings are set out in the application. They were canvassed before the Tribunal during the course of oral argument on 23 June 2000. Reasons for Joinder 26 In summary form, the Applicant's reasons for the present joinder application are: · As of April 1997 when Ms C allegedly said to the Applicant at the UNSW (in the presence of witnesses) that he was in love with Dr D, Ms C was an employee of the UNSW. Accordingly it is alleged that the UNSW is vicariously liable for Ms C's remarks and that the University unlawfully vilified him on the ground of his presumed homosexuality. · The UNSW allegedly victimised the Applicant by failing to act on either oral complaints made by him to both the Registrar and the Equity Officer of the University or a written complaint made by him to Professor Dodds (Dean of the Australian Graduate School of Management) in a letter dated 20 September 1998. Those complaints related to Ms C and alleged inter alia that her conduct was unlawful. The complaints also raised questions about the appropriateness of Ms C being awarded a scholarship by the UNSW. Reasons for Opposing Joinder 27 Ms Oakley, counsel for the UNSW, submitted that the Tribunal should refuse to join the UNSW as a respondent to the proceedings. She advanced the following reasons: · No complaint concerning the matters relied on in support of the joinder application was ever lodged with the Board. · The only complaint made against the UNSW was withdrawn. · In these circumstances, the Tribunal has no power to conduct an inquiry into the matters relied on in support of the application. · The Applicant is de facto seeking to make a fresh complaint against a new party out of time. · The Tribunal has no power to receive such complaints. · The matters relied on in support of the application do not amount to a contravention of the Act. · The UNSW would suffer obvious prejudice if the application were to be granted because of the substantial lapse of time since December 1997, (when the Applicant ceased being a student at the UNSW), the fact that the present inquiry relates to the period that the Applicant was a student at the University of A, and the vagueness of the allegations against it. Relevant Legislation 28 The Tribunal's power to join a person as a party to any proceedings before it is set out in both s 98 of the Act and s 67 of the Administrative Decisions Tribunal Act, 1997 ("Tribunal Act"). 29 Section 98 of the Act Section 98 of the Act provides: (1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry. (2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned. 30 If the UNSW is joined pursuant to s 98 of the Act, it is deemed to be a party to the proceedings under s 67(1)(d) of the Tribunal Act. In accordance with that provision, a party to the Tribunal's proceedings is deemed to be any person specified by or under any enactment as a party to the proceedings. Pursuant to s 98 of the Act, the Tribunal can therefore join a person as a respondent after a complaint has been referred to it by the Board and without the need for a person to have been a respondent during the processes of investigation and conciliation conducted by the Board. 31 Significantly by making provision for a person to be joined in this way by the Tribunal, the Act does not require the Applicant to lodge a fresh complaint. This is because a person joined by the Tribunal as a respondent becomes a respondent to the existing complaint: see Hughes v Bowral Co-operative Trading Ltd & Ors [1997] NSW EOT 30; Borg v Commissioner, Department of Corrective Services [2000] NSW ADT 118. 32 Section 98 of the Act confers a discretion on the Tribunal to join a person as a party to any proceedings, provided the Tribunal is satisfied that it is appropriate to do so. Although the Act does not specify what factors should be taken into account in the exercise of this discretion, clearly the Tribunal must be satisfied that there is some link between the person sought to be joined and the existing complaint. Indeed, in both Hughes and Borg the persons who were subsequently joined as respondents were considered to be an integral part of the existing complaints. 33 Section 67 of the Tribunal Act provides: "The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision)." 34 Section 67(4) of the Tribunal Act clearly confers a discretion on the Tribunal to make a person a party to any proceedings provided it is satisfied that the interests of the person are likely to be affected by the original decision. "Original decision" is defined in s 7 of the Tribunal Act as a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker. An example of the original jurisdiction of the Tribunal is that which it exercises under Part 7A of the Act. 35 The scope of s 67(4) is not entirely clear since the expression, "interests likely to be affected", is not defined anywhere in the Tribunal Act. 36 Given that the UNSW is not wishing to be made a party to the proceedings, any order made by the Tribunal under s 67(4) must be made of the Tribunal's own motion (albeit in response to Mr Z's application). 37 Before considering whether it is appropriate to join the UNSW as a respondent to the proceedings pursuant to s 98 of the Act or s 67 (4) of the Tribunal Act, it is first necessary to determine whether in the circumstances of the present case the Tribunal has power to do so. Does the UNSW complaint validly form part of the complaint referred by the Board? 38 We understand Ms Oakley to be submitting that the matters relied on by the Applicant in support of his joinder application (see para 26 above) amount to a fresh complaint and that because no complaint concerning these matters was ever lodged with the President, the Tribunal has no power to inquire into them. We also understand her to be submitting that the UNSW complaint cannot form part of the complaint referred by the Board in circumstances where it has been withdrawn by the Applicant. 39 In relation to Ms Oakley's first submission, a close examination of the initial complaint lodged with the Board on 30 December 1997 reveals that the Applicant did make reference to these matters (see para 16 above), albeit not in the detail set out in para 26 above. Had the Applicant not notified the Board on 16 February 1998 that he wished to discontinue his complaint against the UNSW, it is reasonable to assume that the various allegations would have been investigated by the Board and a response sought from the UNSW. (In the circumstances, the failure to investigate the allegations cannot be attributed to the Board.) 40 Given that the matters relied on in support of the present application were referred to by the Applicant in his original complaint to the Board, we are not satisfied that it is correct to characterise the UNSW complaint as a fresh complaint. Nonetheless, given the Applicant's express advice to the Board withdrawing his complaint against the UNSW, his subsequent failure to withdraw or amend this advice (despite having every opportunity to do so), and the fact that the NSW complaint was never investigated by the Board or referred to the Tribunal, we are not satisfied that the NSW complaint forms part of the complaint referred by the Board. (See Jones & Anor v Western Aboriginal Legal Services Ltd [2000] NSWADTAP 28 where it was held that the complaint referred to the Tribunal was not a valid complaint.) 41 Accordingly, since we have no power to conduct an inquiry into the NSW complaint, it follows that we have no power to join the UNSW as a respondent to the proceedings and that the present application must be dismissed. Joinder 42 If, contrary to the above view, the UNSW complaint does validly form part of the complaint referred by the Board, we are not satisfied that it is appropriate to join the UNSW as a respondent to the proceedings. In reaching this view, we have taken into account the following matters: · The history of the UNSW complaint before the Board. · The circumstances of the withdrawal of the UNSW complaint. · The time lapse of 2½ years between December 1997 (when the Applicant ceased being a student at the UNSW) and 23 June 2000 (when the joinder application first came before the Tribunal) and the substantial prejudice that would be occasioned by the UNSW as a result of this. Orders The application is dismissed. Revised 14/10/02 - decision anonomysed

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