Vale v State of Queensland[2018] QCAT 265

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   A complaint made under the Anti-Discrimination Act (Qld) 1991 (the AD Act) by John Anthony Vale was referred by the Anti-Discrimination Commission Queensland (ADCQ) to the Tribunal on 22 August 2016.
2. [2]
   The complaint alleges discrimination and (consequent upon subsequent grant of leave from the Tribunal to amend the complaint),^[1] victimisation against Mr Vale by Disability Services Queensland and its named employees. The allegations made concern Mr Vale’s suspension from performing normal duties as a residential care worker on the basis of his ongoing dialysis treatment, and later delays in providing him with an award for service respectively.
3. [3]
   On Mr Vale’s application filed on 22 May 2018, I made orders on 29 June 2018 joining Debbie-Ann Broome as the fourth respondent to the proceeding.
4. [4]
   The State of Queensland has requested reasons for my decision. They are set out below.

The application for joinder and submissions of the parties

5. [5]
   Mr Vale submitted that Ms Broome should be joined, in essence, because he alleges her affidavit filed on 8 May 2018 by the State of Queensland discloses that she is a person who took certain steps he considers relevant to his victimisation complaint.  The application was opposed by the other respondents.
6. [6]
   In particular, Mr Vale submits that consequent upon the filing of Ms Broome’s affidavit, he consented to removal as a party of Mr Wadeson (previously named as the fourth respondent)^[2] whom he had understood was the person responsible for actions relating to the victimisation claim. In response to the respondents’ submission that joining Ms Broome may cause further complexity and delay in the proceedings, Mr Vale submitted that it may expedite the process. The basis for that submission is unclear. 
7. [7]
   The respondents submitted that the exercise of the discretion to join a party is not enlivened unless one or more of the criteria in s 42(1) of the QCAT Act is satisfied. They argued that to establish victimisation, Mr Vale must establish that the respondents, and in particular, Ms Broome if she was to be joined, did an act, or threatened to do an act, to his detriment. They say that the events deposed to by Ms Broome do not establish any such act or threat. That said, they appear to acknowledge that one of the criteria set out in s 42(1) is satisfied, namely, that her interests may be affected by the outcome.^[3] Further, at a directions hearing on 30 May 2018 when directions were made for the disposition of the joinder application, Counsel for the respondents properly conceded that if an order was made joining Ms Broome, no additional witness statements from the respondents were necessary to prepare the proceeding for hearing.

Should Ms Broome be joined as a respondent?

8. [8]
   The AD Act provides that, without limiting s 42 of the QCAT Act, the tribunal may join a person as a party to a proceeding whether or not, relevantly, the person was a respondent to the complaint related to the proceeding.^[4] The Tribunal may, in the exercise of its discretion, make an order joining a person as a party, if the tribunal considers, among other things, that the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or the person’s interests may be affected.

Exercising the discretion to join a party involves a balancing exercise^[5]

9. [9]
   In this case, I accept the delay^[6] in seeking to join Ms Broome as a party was occasioned because Mr Vale did not know of at least some of the matters she deposes to in her affidavit until it was filed in the Tribunal. As a consequence of her affidavit, he now considers she should be joined as a party, instead of Mr Wadeson, against whom he no longer proceeds. This is a reasonable explanation for the delay in applying to join her as a party.
10. [10]
    In light of the respondents’ concession that no further steps were required if she was joined in order to prepare the matter for hearing, it appears most unlikely that her joinder as a party would result in additional complexity, delay or lengthen the duration of the proceedings,^[7] to any significant degree, if at all. Crown Law already represents not only the State of Queensland but all other existing respondents who are employees of the department. Ms Broome’s affidavit has already been filed.
11. [11]
    The existing respondents submitted that it would be oppressive and prejudicial to join Ms Broome at this late stage. However, it seems apparent that she would have likely be named as a party to the complaint earlier had Mr Vale been aware of her actions earlier. Further, she is already involved in the proceeding as a witness and would likely have been required for cross-examination, occasioning her appearance at the hearing in any event. Joining her as a party would entitle her to be represented and to make submissions at the hearing as she sees fit.
12. [12]
    The respondents submitted that victimisation could only be established if Ms Broome did an act, or threatened to do an act, to Mr Vale’s detriment, asserting that her affidavit does not establish any such act or threat. Whether or not the allegation of victimisation is established is a matter for the tribunal as constituted for the final hearing of the proceeding. However, it became apparent to Mr Vale only when the affidavit of Ms Broome was filed that she did certain acts relied upon by him as forming part of the events relied upon by him in his claim of victimisation. Without commenting upon the merits of the victimisation complaint in respect of which the Tribunal previously granted leave for Mr Vale to amend his complaint, and although she was not the subject of the original complaint, I am satisfied that Ms Broome should be bound by, or have the benefit of, as the case may be, the decision of the tribunal in the proceeding in the circumstances.  Further, as the other respondents appear to concede, it is apparent that her interests may be affected by the outcome.  

Orders

13. [13]
    Ms Broome is joined as the fourth respondent to the proceeding.