VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No.H130/2022	
CATCHWORDS	
Application for the joinder of proposed additional respondents – section 60 Victorian Civil and Administrative Tribunal Act 1998 (Vic) – discretion not exercised in favour of joinder, having regard to all the circumstances of the case.	

APPLICANT	Michael Woodburn	
RESPONDENT 	Austin Health	
WHERE HELD	Melbourne 	
BEFORE	Deputy President G. Nihill	
HEARING TYPE	Hearing	
DATE OF HEARING	31 January 2023	
DATE OF ORDER and WRITTEN REASONS	12 May 2023	
CITATION	Woodburn v Austin Health (Human Rights) [2023] VCAT 507	

OrderS
1	The application for an order joining additional respondents is dismissed.
2	The proceeding will be scheduled for a compulsory conference.

G. Nihill
Deputy President			

APPEARANCES:		
For the applicant: 	In person	
For the respondent: 	Mr R. Catanzariti	

Reasons
Background – the application under the Equal Opportunity Act 2010
1	The applicant Michael Woodburn applied under the Equal Opportunity Act 2010 (Vic) (EO Act) claiming that he had been discriminated against on the basis of his sex, employment activity and industrial activity, and that he had been subjected to sexual harassment. At the time of these alleged events the applicant was a resident doctor employed by the respondent, Austin Health.
2	This application is in its early stages. The next step, as agreed by the parties at the most recent hearing, is for the Tribunal (VCAT) to schedule a compulsory conference, to give the parties an opportunity to resolve the dispute.
3	The claims have not been tested in any sense. Particulars of claim have been filed and served by the applicant. While detailed, these are not in the usual format and may or may not need to be replaced by more formal particulars of claim, should the matter proceed. No defence has been filed or served. No witness statements have been filed or served. There has been no application to strike out or dismiss the proceeding. 
4	The applicant has applied for orders under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act); he is seeking to join five other individuals who are or were also employed by Austin Health at the time. 
Section 60 of the VCAT Act
5	Section 60 of the VCAT Act provides that VCAT may order that a person be joined as a party to the proceeding if:
a)	the person ought to be bound by or have the benefit of an order of VCAT in the proceeding; or
b)	the person’s interests are affected by the proceeding; or
c)	for any other reasonable it is desirable that the person be joined as a party.
6	One of those conditions must be met, but even if so, the power is discretionary, and VCAT may refuse to exercise it. 
7	There are several factors to consider, including: whether VCAT would have jurisdiction to deal with the case against the person or people sought to be joined, the avoidance of duplication of litigation, whether there is a common question of fact or law involved, whether the claims arise from common transactions, whether any of the parties and the person to be joined have separate or the same representation, whether joinder would enable all issues in a dispute to be determined effectively, and where there is uncertainty as to who might be liable, the party or the person sought to be joined.
8	Another factor is that of whether the applicant’s case against the proposed joined person is open and arguable. If the claim against the proposed joined person is clearly misconceived or doomed to fail, then the joinder power will likely not be exercised. The case does not have to be one that is certain to succeed, but neither should it be one that is clearly hopeless.
Who does the applicant seek to have joined, and why does he seek this?
9	The applicant is asking VCAT to make orders joining the following people:
•	Coral McKillop
•	Sue Baker
•	Beatriz Martins
•	Hajar Hasan Kheslat
•	Michael Dorevitch
10	He alleges that each of these people was personally responsible for acts of sexual harassment or discrimination or both. His particulars of claim are long and discursive. They say that over a period of months and years he was discriminated against because he was a man, and victimised about complaints that he made about this, and about being sexually harassed. The complaints related to a large number of employees of the respondent, in various roles, many more than those named in the application for joinder. Among these complaints and allegations were some made with respect to the five people the applicant sought to have joined as parties. What follows is a brief summary of just those allegations that relate to the five people named above, as set out in the particulars of claim filed on 23 September 2022.  
11	The applicant alleged that sometime between February and April 2021 Coral McKillop, a nurse, massaged his neck and shoulders without his consent, and that this was sexual harassment. He also alleged that this was a punishment because of earlier interactions he had had with her. He alleged that subsequent to this, from May to July 2021, Ms McKillop treated him unfavourably and victimised him because he had objected to what he said he experienced as sexual harassment. 
12	Sue Baker was an Employee Relations Manager for the respondent. The applicant alleged that she authorised and assisted discrimination by refusing to accept a formal complaint he made about another staff member in July 2021. Later, in July 2021, Ms Baker told the applicant that his actions in making a Facebook post about a consultant about whom he had alleged bullying was not the action of ‘… of a reasonable man’. The applicant alleged that this was sex discrimination, in that she was, he said in the particulars of claim, fixated on his male gender because she regularly used the word ‘man’ when referring to him, and that his male gender was a substantial reason for what he described as her poor treatment of him. She also, he said, victimised him by treating him poorly because he had made a complaint of sex discrimination. Later, in September 2021, Ms Baker was part of a meeting dealing with further complaints of the applicant, and he alleged that she was critical of him for the way he had dealt with another colleague, Beatrix Martins. He alleged that Ms Baker has engaged in sex discrimination because a substantial reason for why Ms Baker characterised his conduct towards Dr Martins was that he was a man, and that she perceived male sex characteristics as threatening and threatening behaviour as stereotypically male. Further, he had disclosed information Dr Martins had given about a pregnancy, and Ms Baker said that he should not have done so. The applicant alleged that this was further sex discrimination because pregnancy is a female characteristic and the implication from Ms Baker was that he was therefore not allowed to disclose it. The applicant and Ms Baker had further interactions about his complaints during October 2021. He alleged, essentially, that Ms Baker did not take his complaints seriously, that she had a prejudiced view about men crying, that she did not give credence to the possibility of a woman striking a man, she indicated that it was hard for her to be impartial, and that she made what he described as false allegations about him because of her contempt for him for being male. The applicant requested an independent investigation and in late October 2021, Ms Baker notified him that an independent investigator would investigate his complaints, and those of his colleague Dr Martins. In July 2022, Ms Baker made an application for a Personal Safety Intervention Order in the Magistrates’ Court. The applicant alleged that this was victimisation by her to stop him from disclosing discrimination perpetrated against him by her. 
13	Dr Martins was a registrar. In August 2021, the applicant began working under her supervision. He alleged that she began exhibiting abusive and controlling behaviours towards male junior doctors but mainly towards him. He alleged that several days after some comments he made about his girlfriend which she had objected to, Dr Martins slapped him hard on the back of the neck. He complained to others about this, and Dr Martins said he was lying, thereby, he alleged, victimising him. He alleged several more instances of what he described as physical assaults by Dr Martins, including grabbing his forearm and dragging him out of the room, scratching him, jabbing him with her finger to get his attention. It is his allegation that Dr Martins engaged in these actions to control and subordinate him, and to punish him for his perceived lack of interest in her. All of this, he alleged, was because he was male. He said that Dr Martins said at one point that she preferred working with ‘girls’, and that she told him he had ‘mummy issues’. He said that this is a pejorative stereotype applied to men and thus was sex discrimination by Dr Martins. The applicant described a period where, as he perceived it, Dr Martins was unsettled and inconsistent. He alleged that during this time Dr Martins treated him poorly, especially because, he said, he performed well in front of the consultant. His allegation was that Dr Martins engaged in sex discrimination because a substantial reason for her poor treatment of him was her jealousy about being outshone by him, a man. On a later occasion in September 2021, Dr Martins reprimanded the applicant about a clinical decision, and slapped him on the neck and shoulder. He alleged that this occurred because he was male, and she had views about how mothers may treat sons that she had brought to the workplace. He made a comment to another staff member, and Dr Martins said, ‘you will respect me’. There was a further physical confrontation that day; the applicant alleges that this was a punishment for his comment, and because he was male. In the discussion that followed, Dr Martins disclosed that she was pregnant and asked him not to tell anyone. He alleges that she disclosed this to make him vulnerable to later criticism, because he was male. 
14	Hajar Hasan Kheslat was a registrar employed by the respondent. On an occasion in September 2021, she asked him how he was in a queue at the cafe, and he told her he had been assaulted, referring to the allegation about Dr Martins having slapped him on the neck. He asserts that Dr Kheslat, in her response, assumed that he was referring to a man having slapped him, and that this was discrimination based on unconscious bias. He had thought she was encouraging him to make a complaint, but she later indicated that there would be no point in him doing so. He then alleged that later the same month, Dr Kheslat walked up to him from behind in the common room and smacked him on the back of the neck. He alleged that this was victimisation and discrimination, because she had done this to punish him for making a complaint about a female staff member, and also that she had exposed her own prejudice in having assumed the person he had complained about was a man and had noticed that he had perceived this prejudice. 
15	Michael Dorevitch was a consultant employed by the respondent. In September 2021, the applicant contacted him to discuss the alleged incident involving Dr Martins. The applicant alleged that Dr Dorevitch had accepted Dr Martins’ version of events, and that this amounted to discrimination on the basis of sex, because he accepted Dr Martins’ story because she was female. Delays that followed occurred, according to the applicant, because Dr Dorevitch discriminated against him because he was male. At a subsequent meeting, Dr Dorevitch characterised the applicant’s conduct towards Dr Martins as threatening. The applicant alleged that this was discrimination in that Dr Dorevitch perceived threatening behaviour as stereotypically male. 
16	These complaints, as I say, do not comprise a complete list of the applicant’s complaints. They are just those that relate to the proposed joined parties.
What does the respondent say about the joinder application?
17	In summary, the respondent opposed the joinder application on behalf of four out of five of the proposed joined parties.
18	The discretion to join parties to a proceeding without their consent is serious and should not be exercised lightly. The respondent submitted that in Independent Cement & Lime Pty Ltd v Victorian Civil and Administrative Tribunal & Ors Byrne J commented that the exercise of the power to join is at the discretion of the Tribunal, and it must be exercised reasonably in all the circumstances. The respondents further submitted that the discretion should not be exercised in favour of joinder in circumstances where the claim is misconceived or doomed to fail and ought only to be exercised in favour where the points of claim reveal an open and arguable case.
19	Counsel for the respondent said that the individuals would likely all be called as witnesses at the hearing, if the matter proceeds to hearing. 
20	As regards Ms McKillop, the respondent submitted that Ms McKillop denied the allegations as put, but that in any case, the allegations do not amount to sexual harassment or victimisation. Further, the claims should be struck out as an abuse of process, because the same complaints had already been made by the applicant about Ms McKillop to Australian Health Practitioner Regulation Agency (AHPRA), Victoria Police and Independent Broad-based Anti-corruption Commission (IBAC). The claims were found to be unsubstantiated by Victoria Police. It would be an abuse of process for them to be reagitated at the Tribunal. 
21	As regards Dr Martins, the respondent submitted that leaving aside whether the applicant’s version of events would be accepted by the Tribunal, taking them at their highest none of them appear connected with the applicant’s sex or any other protected attribute. An assertion by the applicant that the conduct was because he was male cannot be accepted as an open or arguable case under the EO Act. Nor, submitted the respondent, is there any basis on the pleadings for a claim of victimisation within the meaning of the EO Act. 
22	As regards Dr Kheslat, the respondent submitted that she denies the allegations, but in any case, there is no link between the events said by the applicant to have occurred, and the fact of the applicant’s sex. Further, the claims should be struck out as an abuse of process, because the same complaints had already been made by the applicant about Ms McKillop to AHPRA, Victoria Police and IBAC. The claims were found to be unsubstantiated by Victoria Police. It would be an abuse of process for them to be reagitated at the Tribunal.
23	As regards Dr Dorevitch, the interactions between the applicant and Dr Dorevitch were limited, and nothing that occurred could be said to have amounted to unfavourable treatment or detriment, nor is there any basis upon which it could be said that the minimal contact Dr Dorevitch had with the applicant with respect to these matters was in any way linked to the applicant’s sex. There are no particulars that lay a foundation for such a claim, merely assertions by the applicant that this must be so. 
24	Sue Baker was not represented at the hearing, and did not attend. The applicant notified the Tribunal four days before the hearing to say that he had sent a copy of the notice of hearing to an email address he had recently acquired for her, and had also sent the notice of hearing and the joinder application to Ms Baker care of lawyers whom he understood were acting for her in another, related, matter. 
Discussion and conclusion
25	The Tribunal has a discretion about joining these five individuals as parties to this proceeding. In considering whether to exercise that discretion and join them as parties I must be satisfied that at least one of the criteria in section 60(1) applies, and then must consider all the circumstances of the case. I am satisfied that the interests of each of the five proposed respondents are affected by these proceedings, as allegations have been made about them and their professional conduct. 
26	Considering all the circumstances of the case, I have decided against exercising the discretion in favour of joining the proposed parties. All proposed parties are former or current employees of the respondent. All were employed by the respondent during the time in relation to which the claims are made, and there is no suggestion that the allegations related to events occurring outside the circumstances of the employment of any of them or of the applicant. In relation to some of the proposed joined respondents, for example Dr Dorevitch and Ms Baker, the allegations relate entirely to the exercise of their professional roles and no more; they were simply dealing with complaints made by the applicant and the applicant complains about the way they did so. 
27	The applicant has not articulated what proportion of the alleged harmful effects on him is to be compensated by each proposed joined respondent, or what actual orders he is seeking with respect to each proposed joined respondent. If the orders sought are sought against the current respondent, there is no clear basis on which those who were all employees at the time ought be joined separately as respondents. 
28	There is little to no risk of duplication of litigation if the proposed parties are not joined. Further, each of the proposed parties is likely to be called as a witness, so they will have an opportunity to give their version of events, and the applicant will have an opportunity to cross examine them. 

29	At this stage I consider that it is not fair to the parties to involve the proposed joined respondents in the process of engaging legal representation (if they are not to be represented by the same lawyer as the current respondent) and, whether they are represented by the same lawyer or not, giving separate instructions. Joinder will add to the costs for them or the current respondent and potentially to any costs order made against the applicant should his claim be unsuccessful and a costs order sought. These are matters that will be considered by the parties in trying to resolve the proceeding by alternative dispute resolution. 
30	It is too early to conclusively say whether the applicant’s case against each person is open and arguable. This question has not yet been put before the Tribunal, although there are references in the respondent’s submissions to section 75 of the VCAT Act and the criteria in that section relating to summary dismissal. No application has yet been made under section 75 of the VCAT Act. The next step, as the parties agreed at the last hearing, is for a compulsory conference to be scheduled, that is a process that provides an opportunity for the parties to resolve the dispute on a confidential basis between themselves. I am satisfied that the respondent will be in a position to adequately respond for this purpose and will ensure the attendance of a representative of the respondent who has authority to settle the matter on behalf of the respondent, if that outcome is achieved.
31	If for any reason in the future it becomes necessary for any of the proposed parties to be joined as parties, this can be considered at that time. An application under section 60 may be made at any appropriate point in the proceeding. 

G. Nihill
Deputy President