JM v QFG and KG

[1998] QCA 228

IN THE COURT OF APPEAL	[1998] QCA 228
SUPREME COURT OF QUEENSLAND
Appeal No. 10523 of 1997
Brisbane
[JM v. QFG & GK]
BETWEEN:

JM

(Respondent) Appellant

AND:

QFG

(First Appellant) First Respondent

AND:

GK

(Second Appellant) Second Respondent

Davies J.A. Pincus J.A. Thomas J.A.

Judgment delivered 18 August 1998

Separate reasons by each member of the Court, each concurring as to the orders made.

1.          APPELLANT’S APPEAL AGAINST AMBROSE J.'S ORDERS 1, 2, 3 AND 4 DISMISSED.

2.          APPELLANT'S APPEAL AGAINST AMBROSE J.'S ORDERS 5, 6 AND 7 ALLOWED AND IN LIEU:

(A) ORDERS MADE BY THE TRIBUNAL SET ASIDE.

(B) ISSUE OF INDIRECT DISCRIMINATION BY THE SECOND RESPONDENT GK REMITTED TO THE TRIBUNAL FOR REHEARING ON THE EVIDENCE ALREADY CALLED AND SUCH FURTHER EVIDENCE AS MAY BE PERMITTED BY THE TRIBUNAL; AND TO BE DETERMINED IN ACCORDANCE WITH THESE REASONS.

(C) ISSUE OF WELFARE MEASURES UNDER S.104 OF THE ANTI- DISCRIMINATION ACT 1991 TO BE HEARD ON THE EVIDENCE ALREADY CALLED AND SUCH FURTHER EVIDENCE AS MAY BE PERMITTED BY THE TRIBUNAL AND DETERMINED ACCORDING TO LAW.

3.          NO ORDER AS TO THE COSTS OF THIS APPEAL.

CATCHWORDS:

DISCRIMINATION LAW - appeal from Anti-Discrimination Tribunal - whether respondents unlawfully discriminated against appellant by failing to supply a service of artificial insemination - interpretation of Anti-Discrimination Act 1991 - what was the real reason for the second respondent’s refusal of treatment - meaning of "lawful sexual activity" in s.7(1)(l) - whether the refusal of treatment constituted direct discrimination pursuant to s.10 - whether the decision of the Tribunal was an error of law or fact - whether discrimination on the basis of absence of a certain sort of sexual activity can be held to be discrimination on the basis of sexual activity - whether the refusal of treatment constituted indirect discrimination pursuant to s.11 - whether Tribunal considered all the relevant circumstances of the case - factors relevant to determining whether requirement that a form be signed by a male partner was reasonable - whether first respondent vicariously liable - whether second respondent was the agent of the first respondent - whether appropriate to permit the respondents to raise the applicability of s.104, the welfare measures exception, on the further hearing before the Tribunal - factors relevant to decision whether to remit matter to Tribunal pursuant to s.218.

Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 Donnelly v. Victims’ Compensation Fund (1995) 82 A.Crim.R. 55 Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 A.L.R.

666

Acts Interpretation Act 1954, s.14
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Anti-Discrimination Act 1991, ss.4, 7, 8, 10, 11, 46, 103, 104, 133, 206,

209, 213, 217, 218

Equal Opportunity Act 1995 (Vic)

Counsel:	Mrs. D. J. Richards for the appellant Mr. P. L. O'Shea for the first and second respondents
Solicitors:	Nall Payne for the appellant Corrs Chambers Westgarth for the first and second respondents
Hearing Date:	19 May 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10523 of 1997

Brisbane

Before Davies J.A. Pincus J.A. Thomas J.A.

[JM v. QFG & GK]

BETWEEN:

JM

(Respondent) Appellant

AND:

QFG

(First Appellant) First Respondent

AND:

GK

(Second Appellant) Second Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 18 August 1998

1.         The appeal to this Court

This is an appeal from a decision of a single judge of the Supreme Court on appeal

from the Anti-Discrimination Tribunal. The appellant JM is an unmarried woman involved

in a lawful sexual relationship with another woman; that is, a lesbian relationship. The first

respondent, QFG, is a company servicing a group of obstetricians and gynaecologists.

The second respondent, GK, is a practising obstetrician and gynaecologist, a member

of that group, practising in, amongst other things, infertility and reproductive medicine.

The appellant complained to the Anti-Discrimination Commissioner pursuant to the

Anti-Discrimination Act 1991 ("the Act") that the respondents unlawfully discriminated

against her by failing to supply a service of artificial insemination on the basis of her

attribute of lawful sexual activity. That complaint was, in turn, referred to and heard by the

Anti-Discrimination Tribunal under the Act which found that the respondents had

discriminated against the appellant directly and indirectly in the supply of services (ss.10,

11 and 46 of the Act) and ordered them to pay certain sums to the appellant.

In an appeal to the Supreme Court by the respondents on a question of law under

s.217 of the Act a judge of the Court allowed the first respondent's appeal and ordered that

the order made by the Tribunal against it be set aside, allowed the second respondent's

appeal to the extent of setting aside a finding of direct discrimination against him and of

setting aside a finding that his requirement that the appellant have completed the consent

form referred to in the proceedings constituted indirect discrimination and remitted the

matter to the Tribunal to determine certain matters with respect to indirect discrimination.

His Honour also remitted to the Tribunal the question whether the exemption from the

unlawfulness of discrimination referred to in s.104 of the Act applied to the facts of this

case notwithstanding that the respondents, upon whom the onus of proof lay in this respect,

had not adequately raised the exemption before the Tribunal. The appellant has appealed

to this Court against those orders, seeking reinstatement of the orders made by the

Tribunal.

As will appear, the appeal to this Court concerns the meaning of certain sections

of the Act and their application to the facts of this case which are, to some extent, disputed.

It does not involve this Court in making any decision or expressing any opinion on whether

services of artificial insemination should be made available to lesbian couples. That is a matter of policy for Parliament. The role of this Court is to decide what the Act, which

reflects that policy, means in the context of those facts. In doing so it is confined to a

question of law, being bound by the findings of fact by the Tribunal except to the extent that

those findings may be wrong in law.

2.         The relevant facts

The appellant is a 24 year old woman who has been living in a lesbian relationship

with an older woman for the past five years. That relationship was described by the

President of the Anti-Discrimination Tribunal in her judgment as "stable and exclusive".

Her partner has a 12 year old daughter whom she conceived by private donor

insemination. The couple moved to Brisbane in 1994. Before that, the appellant had

participated in an artificial donor insemination programme in Canberra but had found the

experience emotionally and financially draining and had not returned for further treatment.

On 19 May 1994 the appellant contacted a group identified as QFG. QFG was in

fact a service company of a number of doctors including the second respondent. She

spoke to a person whom she described as a co-ordinator and received some written

information attached to a letter from that person which identified on the letterhead a number

of doctors including the second respondent. Two of them, including the second

respondent, were identified by the co-ordinator as doctors who would perform the service

for the Medicare fee. As a result she made an appointment to see the second respondent.

There was a conflict in testimony between the appellant and the second respondent

as to what was said during a consultation which took place on 27 May 1994 and during a

later telephone conversation, a conflict which was not resolved by the President of the

Tribunal before whom they gave evidence. The reason why it was not resolved, the President explained in her judgment, was that, as she concluded, there was no real conflict

as to the reason for the eventual decision by the second respondent to refuse treatment to

the appellant. That reason, she said, was that the appellant was a lesbian in a stable and

exclusive relationship with another woman; that he would treat a lesbian who was married

or in a de facto relationship with a man but not one who was in a stable and exclusive

lesbian relationship.

The President's conclusion derives from the following passage in the evidence of

the second respondent:

"Right. In paragraph 8 you say, 'I advised her that participation was not possible', that is when she phoned later, 'because she did not satisfy the guidelines which I had explained to her'. And what did you mean by that? ... That the program was available to people with a medical problem causing infertility and by being in a lesbian relationship with no medical problem affecting either partner causing infertility, then they wouldn't have qualified.

THE PRESIDENT: But it is quite clear that even if either of them had had a medical problem causing infertility, that would not have made any difference? ... No, it wouldn't have.

So what made the difference was that they were a lesbian couple? ... What made the difference was that it was physiologically impossible for them to conceive even if they were entirely normal medically.

But you said it would not have made any difference if it was not? ... No, but - right. But even if they were it wouldn't have made any difference. If they were or weren't, it wouldn't have made any difference.

So what was - what was crucial was that they were lesbian? ... Yes."

The second respondent had pleaded in his points of defence:

"(i)	that as a medical practitioner he only provides treatment to persons suffering from recognised medical conditions;
(ii)	that in his practice as a specialist obstetrician and gynaecologist he provides, inter alia, treatment to persons who are infertile;
(iii)	that infertility is defined in medicine as the inability of a couple to conceive after 12 months of intercourse without contraception;
(iv)	that the complainant did not establish that she was infertile in that sense and therefore had no medical condition requiring treatment;
(v)	that the complainant was denied entry to the AID programme on the basis that she was not infertile;
(vi)	that he denies that the complainant was treated less favourably on the basis either:
(a) that she was unmarried; or
(b) that she was in a relationship with a person of the same sex; that he denies that the requirement that a person suffer from infertility in order to be admitted to the AID programme is an unreasonable condition and contrary to the Anti-Discrimination Act ('the Act')."
(vi)

The second respondent gave evidence generally in accordance with those

contentions. For example before the passage referred to above he gave evidence to the

following effect:

"I mean that being in a same sex relationship, she indicated that there was no medical cause for the infertility and the policy of the Group is to treat medical conditions resulting in infertility, but not otherwise, it meant that in this circumstance there was no medical condition causing the infertility. Both partners were as far as we knew both independently fertile.

...
... people enter the program if they have a medical condition such as that
they're unable to conceive naturally with their partner.
... Medical infertility would be a condition affecting one or even both partners
such that, through normal intercourse, they're unable to achieve a pregnancy.

THE PRESIDENT: Why does that not apply to a lesbian couple? ... Because there is no medical problem affecting either partner.

I did not think you used 'medical problem' in that definition? ... Sorry, I - if I didn't, I meant to include that if there's a medical problem affecting one or even both partners such that, through normal intercourse, they're unable to achieve a pregnancy. With a lesbian couple, there may be no medical problem affecting either of them.

Or there may, but that is ... ? ... There may, but it's ...

But it is irrelevant whether there is or is not? ... Yes. The same as if there were a heterosexual couple came to see us and requested AID because they didn't like some particular characteristic of the husband they wouldn't qualify, for the same reason: that there is no medical condition affecting either of the partners and making them infertile.

...

Well, do you see the service you offer in any way akin to a sperm bank? ... No, which is what I was trying to explain, that we do not provide sperm for couples unless there is a medical problem affecting one of the couples so that they're unable to achieve a pregnancy otherwise so that it's not provided on request; it's only if there's a medical problem."

And, after the passage first referred to, the second respondent, referring to the

definition of infertility in para.(iii) of his points of defence, described it as a generally

accepted medical definition of infertility. And later in his evidence he said:

"So it's not based on the fact that she's in a lesbian relationship; it's based on the fact that one of the partners has to have a medical condition rendering them infertile as a couple."

So the President's conclusion as to the reason why, on the second respondent's

evidence, he refused treatment to the appellant was inconsistent with the totality of the

second respondent's evidence with respect to that reason which was that she did not have

the medical condition of infertility as he, and it appears others, would define it. It was also

inconsistent with the evidence of the appellant as to the second respondent's reason for

refusal.

The appellant's version of the conversations was quite different. On her version the

second respondent was unconcerned as to her real situation or sexual proclivity provided

that she would furnish him with a form, referred to in more detail below, signed by a person

claiming to be her male partner. I shall return later to whether it is necessary to resolve this

conflict.

What the President described as the second respondent's reason for refusal of

treatment was not, on the second respondent's evidence, the reason for that refusal but

rather a description of one of the categories of persons who would be unable to comply

with the reason for treatment, namely a medical condition of infertility evidenced by

engagement in intercourse with the same partner, without contraception, for 12 months

without conception. The second respondent in the evidence to which I have referred,

instanced another such category of persons who would be unable to prove infertility as defined by the second respondent, namely a heterosexual couple who were unwilling to

engage in unprotected intercourse for such period because they did not wish to reproduce

a child having a particular characteristic of the male partner. But other categories which

readily come to mind are heterosexual sexually active women not in a stable relationship

with one man and heterosexual women who, for whatever reason, remain celibate.

3.         The attribute of lawful sexual activity

Both below and in this Court the appellant claimed that the respondents

discriminated against her on the basis of the "attribute" described as "lawful sexual

activity": s.7(1)(l).[1] The attribute of lawful sexual activity must in this case be homosexual

[1] The appellant did not, either before the Tribunal or on appeal, rely on s.7(1)(m); and

activity. The President of the Tribunal said that "Dr. GK has refused JM service because

of her lawful sexual activity of being engaged in an exclusive lesbian relationship". But

being engaged in a relationship is not an activity; it is a state. The activity is the sexual

activity which may or may not be carried on in that relationship. It was accepted by the

appellant in this Court that the President was incorrect in describing that relationship as

lawful sexual activity and that the activity must be lesbian sexual activity.[2]

[2] I do not think that the lawful sexual activity can be described, in applying s.7(1)(l), as

By s.8 discrimination on the basis of that attribute may include discrimination on the

basis of a characteristic that a person with that attribute generally has or a characteristic

that is often imputed to a person with that attribute. It is possible that a person with the

attribute of lesbian sexual activity generally has the characteristic of being exclusively lesbian. Whether that is a probability or not, and it may very well be, was not a question on

which any evidence was adduced. I do not think that this, or any other court, can reach the

conclusion, as if it were a notorious fact, that a person who engages in lesbian sexual

activity is generally exclusively lesbian.

On the other hand I think it may be accepted as a notorious fact that the

characteristic of being exclusively lesbian is often imputed to a person who has the

attribute of lesbian sexual activity. Consequently it may be assumed, for the purpose of this

appeal, that the discrimination relied on in this case includes discrimination on the basis

of the characteristic of being exclusively lesbian.

4.         Direct discrimination

By s.10(1) direct discrimination on the basis of an attribute happens if a person

treats or proposes to treat a person with an attribute less favourably than another person

without the attribute is or would be treated in circumstances that are the same or not

materially different. By subs.(4) if there are two or more reasons why a person treats or

proposes to treat, another person with an attribute less favourably, the person treats the

other person less favourably on the basis of the attribute if the attribute is a substantial

reason for the treatment. The effect of the application of subss.(1) and (4) to the present

facts, in my view, is that the second respondent directly discriminated against the appellant

if and only if a substantial reason for his refusal of treatment was either her lesbian sexual

activity or her exclusive lesbianism.[3]

[3]            The examples given in the section also support that construction: Acts Interpretation Act

The conclusion of the President as to the reason why the second respondent
refused the appellant treatment - that she was a lesbian in a stable and exclusive

relationship with another woman - does not accurately identify either a relevant attribute

(s.7) or a relevant characteristic (s.8). The closest which either a relevant attribute or a

relevant characteristic comes to that conclusion is exclusive lesbianism (s.8(b)). But that

was not a reason given either expressly or impliedly by the second respondent, either on

his own evidence or on that of the appellant.

The President reached the conclusion referred to in the previous paragraph, in my

opinion, not because she misconstrued what the second respondent was saying or

because she took the passage to which I just referred out of context, but because she

misapplied s.10. What the President appears to have done is to conclude that, because

it was exclusive lesbianism which, on the evidence of the second respondent, prevented

the appellant from complying with the reason for treatment, exclusive lesbianism was the

reason or a substantial reason, for refusal of treatment. That is neither logically nor legally

correct. On the second respondent's evidence the reason why she was refused treatment

was that she did not comply with the second respondent's definition of infertility. The

reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first,

not the second, which is the reason, and the only reason, for refusal. The second is not a

reason for refusal as, in other cases, celibacy or the engaging in exclusively protected

intercourse or the failure to maintain a relationship for 12 months would not be a reason for

refusal. Each is merely one of the categories of persons who do not comply with the

reason for treatment, the sole reason for refusal being non-compliance with that reason,

namely infertility as defined by the second respondent and others.

The error made by the President is one of law. It is not merely a misapprehension of the facts. It is a misapplication of s.10 to the facts. One of a number of reasons (exclusive lesbianism) why a person may be unable to comply with the reason for treatment

(infertility as defined by the second respondent) does not, because of that, become a

substantial reason for refusal of treatment. That remains failure, for whatever reason, to

comply with the second respondent's definition of infertility.

The appellant's version of her conversations with the second respondent was even

less likely to constitute direct discrimination. On that version the second respondent was

seeking only to pay lip service to the policy of treating only infertility as he defined it.

According to her, provided she had the form signed by someone purporting to be her male

partner, that was all that he required. On neither version of the relevant conversations

therefore did the second respondent directly discriminate against the appellant. It is

therefore unnecessary to resolve the conflict which, contrary to the President's conclusion,

plainly existed between the appellant's and the second respondent's versions of their two

conversations.

5.         Indirect discrimination

Indirect discrimination on the basis of an attribute is said by s.11(1) to happen if a

person imposes or proposes to impose a term -

(a)       with which a person with an attribute does not or is not able to comply; and

(b)       with which a higher proportion of people without the attribute comply or are able to

comply; and

(c)        that is not reasonable.

Whether a term is reasonable is said, by subs.(2) to depend on all the relevant

circumstances of the case including, for example -

(a)       the consequences of failure to comply with the term; and

(b)       the cost of alternative terms; and

(c)        the financial circumstances of the person who imposes, or proposes to impose, the

term.

I would construe the phrase "does not" in subs.(1)(a) as referring to the possession

of a precluding objective attribute such as race or age or height and the phrase "is not

able" to include an attribute of choice such as religion or political belief or trade union

activity or lawful sexual activity which precludes a person while he or she maintains it.

Whether that is correct or not it is plain that the possession of attributes of choice of the

kind I have mentioned may relevantly preclude a person from complying with a term.[4] It

[4] See also Example 2 under s.11.

follows that the term that the appellant have the form signed by her male partner was one

with which she was relevantly precluded from complying while she possessed the

characteristic of exclusive lesbianism.

It is also plain that a higher proportion of people without that characteristic of being

exclusively lesbian were able to comply with that term. The more difficult question under

s.11 is whether the term was reasonable, the onus of proving which was on the

respondents: s.205.

The President decided that it was not reasonable because, she said, the second

respondent adopted a definition of infertility which was discriminatory and there were

definitions of infertility which did not require discrimination against persons involved in

lawful sexual activity; that is, definitions of infertility which also embraced lesbian couples. It is unnecessary to consider whether that is correct for, even if it is, that alone, cannot

determine the issue whether the imposition of that term was reasonable.

The test of reasonableness is an objective one, requiring the weighing of the nature

and extent of the discriminatory effect, on the one hand, against the reasons advanced in

favour of the term on the other and all the circumstances, including those specified in

s.11(2), must be taken into account.[5] In taking those circumstances into account it is

[5]          Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 F.C.R. 251 at 263,

necessary to consider what reasonableness requires of a medical practitioner in this

situation, having regard to his responsibilities including the treatment of medical

conditions.[6] It was therefore necessary to consider, in this case, the second respondent's

[6]          Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 F.C.R. 251 at 264.

decision to treat only what he defined, in accordance with an accepted definition, the

medical condition of infertility. It was also necessary to consider the requirement of the

Queensland Department of Health, who had power with respect to the licensing of clinics

such as those operated by the second respondent and other doctors, that the guidelines

for treatment set out in the Demack Report be followed. Those guidelines, as the

President accepted, restricted the service to married couples or heterosexual couples in

a stable de facto relationship in which the male partner consented to the treatment. The

Tribunal, as I have indicated, did not consider any of these matters and its failure to do so

meant that its conclusion in this respect was infected by legal error. The finding of indirect

discrimination should therefore be set aside, the question whether the second respondent's

refusal was not reasonable should be remitted to the Tribunal to be decided according to

law, and the Tribunal should then proceed to determine whether there has been indirect discrimination and to make orders accordingly. These are, in effect, the orders made by

the learned judge.

6.         Vicarious liability of the first respondent

The President concluded that the first respondent was liable under s.133 of the Act

for the second respondent's actions because he was apparently acting as its agent. The

sole question here is whether the second respondent was the agent, actual, implied or

ostensible, of the first respondent. It is unlikely that he was the actual agent of the first

respondent. In fact the converse appears to be the true position. The first respondent was

a service company of a number of doctors including the second respondent and was

consequently their agent for certain purposes. But the real question is whether the first

respondent held itself out as the principal providing a fertility service by means of doctors

including the second respondent.

There is no evidence as to how the appellant came to contact the first respondent.

However she rang it and spoke to a person whom she described as a co-ordinator. That

person then wrote to her, on letterhead paper of the first respondent which showed also the

name of the "Director", a number of "Clinicians" including the second respondent and

some "Scientific Consultants". In that letter, the writer informed the appellant that two of the

doctors whose names appeared on the letterhead under the heading "Clinicians", the

second respondent and one other, would provide a fertility service at Medicare rates. This

would have indicated to a reasonable person in the appellant's position that the doctors

whose names appeared on the letterhead had different charging policies, two of them only

offering services at Medicare rates but it does not necessarily imply that they were not

agents of QFG in providing those services. Having chosen one of those, the second respondent, apparently on the basis that he could see her sooner than the other, she then

spoke to her general practitioner who, knowing of her homosexual status, told her that there

was a chance that he, particularly, would help her. The only further objective evidence of

the involvement of QFG was the consent form referred to earlier which, at the time of her

consultation with him, the second respondent gave the appellant to sign and to have signed

by her partner. It was on the letterhead of QFG, to which I have already referred. Its

opening phrase was as follows:

"We . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and ............................................................

(fill name of female partner) (fill name of male partner)

agree that should (QFG) agree to consider . . . . (full name of female
partner) ..........................................................................................................................

as a candidate for artificial insemination by donor: "

Then followed a number of terms one of which was that neither the attending medical

practitioner, nor any person associated with (QFG) would reveal specified information

without written approval.

The phrase set out above, together with the following term referred to and the earlier

letter would have been sufficient to cause the appellant reasonably to believe that she was

contracting with the first respondent. The appellant also gave evidence that, during the

consultation with the second respondent, he referred to an unwritten agreement between

QFG and the State Government as to the categories of persons to whom the service was

to be provided. But as this version of the conversation was denied by the second

respondent and the President made no finding as to whether she accepted this evidence

it cannot now be relied on.

However the appellant did not say or imply that, in agreeing to undergo treatment

from the second respondent, she was acting on the above statements by the first

respondent that the second respondent has authority to make the contract on its behalf.

It may well be that she gave no thought to that matter at all.

It is arguable that ostensible authority here was proved by proving that the acts of

the first respondent conferred apparent authority on the second respondent to act on its

behalf; that is authority apparent to a reasonable person in the appellant's position. In this

case I think it was open to the President to conclude that the first respondent's conduct did

so confer that apparent authority on the second respondent. But liability based on

ostensible authority at common law is founded on estoppel.[7] And I think that the more

sensible construction of the combined effect of s.133(1) and the extended definition of

agent in s.4 is that liability for acts within ostensible authority exists only where the person

to whom the representation is made relies on it in making the contract or supposed

contract. It follows that here vicarious liability of the first respondent has not been

established.

[7]          Rama Corporation Ltd. v. Proved Tin and General Investments Ltd. [1952] 2 Q.B. 147 at

7.         The welfare measures exemption

On the appeal from the Tribunal to the Supreme Court the present respondents

raised the possible application of s.104 of the Act to the facts of this case. That section

provides:

"A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act."

This question had been raised but not developed by the respondents in the course

of oral argument before the Tribunal but it had not been raised in the respondents' points

of defence and it was not adverted to in the reasons for judgment of the Tribunal.

Section 206 of the Act requires that such an exemption from the unlawfulness of a

discrimination otherwise prohibited must be proved, on the balance of probabilities, by the

respondent to the application, the present respondents. It follows that, this exemption not

having been properly raised before the Tribunal, the respondents should not ordinarily be

permitted to raise it on appeal from the Tribunal's determination. So much was

acknowledged by the learned judge who heard the appeal. However his Honour said that,

as he was ordering that the issue of reasonableness be remitted to the Tribunal for its

determination according to law, and as the applicability of s.104 raised similar

considerations, it would, in such case, be appropriate to permit that question to be raised

and determined at the same time as the question of reasonableness; and counsel for the

appellant conceded in this Court that if the matter is to be remitted to the Tribunal on the

issue of reasonableness then "perhaps" this issue should also be considered.

There is undoubtedly some common ground between the question of

reasonableness under s.11(1)(c) and the question of welfare measures under s.104. In

those circumstances, and in view of the appellant's concession, I am inclined to agree with

his Honour that it is appropriate to permit the respondents to raise the applicability of s.104

on the further hearing before the Tribunal. If there are any additional costs incurred by

raising that issue then they can be dealt with by an appropriate order under s.213.

8.         Orders

The conclusions which I have reached and the orders which I would make, therefore,

are substantially in accordance with those of the learned judge although my reasons for

reaching those conclusions and making those orders are somewhat different from his

Honour's. Those orders are:

1.         dismiss the appellant's appeal against orders 1, 2, 3 and 4;

2.         order:

(a)	that the orders made by the Tribunal be set aside;
(b)	that the issue of indirect discrimination by the second respondent GK be

remitted to the Tribunal to be reheard on the evidence already called and

such further evidence as may be permitted by the Tribunal; and determined

in accordance with these reasons;

(c) that the issue of welfare measures under s.104 be heard on the evidence

already called and such further evidence as may be permitted by the Tribunal

and determined according to law.

I would make no order as to costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10523 of 1997.

Brisbane

Before Davies J.A. Pincus J.A. Thomas J.A.

[JM v. QFG & GK]

BETWEEN:

J.M.

(Respondent) Appellant

AND:

Q.F.G.

(First Appellant) First Respondent

AND:

G.K.

(Second Appellant) Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 18 August 1998

I have read the reasons of Davies J.A. in which the nature of the proceedings is explained.

Direct discrimination

The Queensland Anti-Discrimination Tribunal had before it a body of evidence relevant to the

question whether the refusal of services to the appellant involved direct discrimination within the meaning

of s. 10 of the Anti-Discrimination Act 1991 ("the Act"). To find for the appellant on that point it was necessary to identify an "attribute", being one in the list set out in s. 7(1) of the Act and to find that the

appellant had been, to put it simply, discriminated against on the basis of such an attribute. The

Tribunal’s conclusion on that point was that the second respondent ("the doctor") refused the appellant

service "because of her lawful sexual activity of being engaged in an exclusive lesbian relationship".

There are two questions: the first is whether there was adequate evidence to support that finding and

the second whether the finding identifies an "attribute" of the kind set out in s. 7(1) of the Act.

Section 217 of the Act creates a right of appeal to the Supreme Court against a Tribunal

decision on a question of law, but there is no such right in relation to questions of fact. It is not easy to

state succinctly in what circumstances what is said to be a factual error creates a right of appeal on a

question of law. The leading Australian case on the topic is Australian Broadcasting Tribunal v. Bond

(1990) 170 C.L.R. 321, which related to judicial review under the Administrative Decisions (Judicial

Review) Act 1977 (Cth). That Act allows review on a "no evidence" ground: see s. 5(1)(h), qualified

by s. 5(3). Here, in contrast, there is a right of appeal in law only; however, what was said in Bond’s

case related in part to the question: what sorts of factual errors can amount to errors of law? Mason

C.J., whose views were agreed in by Brennan J. (365) and, generally, by Toohey and Gaudron JJ.

(387), said in effect that the ground of "error of law" in the Commonwealth statute should be treated as

"embracing the ‘no evidence’ ground as it was accepted and applied in Australia before the enactment

of" that statute. A little later Mason C.J. said that:

". . . a finding of fact will . . . be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing" (359, 360).

The language used is reminiscent of the remarks of Deane J. in Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 A.L.R. 666, to the effect that the Administrative Appeals Tribunal, under

the relevant statute, had to base its decision on findings "based on logically probative material".

Some of the English cases give support to a wide power to attack administrative findings of fact:

Ashbridge Investments Ltd v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320 at

1326 (". . . a conclusion to which on the evidence he could not reasonably come"); Secretary of State

for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014 at 1047 (". . .

acted . . . upon an incorrect basis of fact"); R v. Hillingdon London Borough Council; Ex parte

Puhlhofer [1986] A.C. 484 at 518, which suggests that perverse findings ground an attack on the basis

of error in law. In Bond’s case Mason C.J. referred to the last of these cases and expressed the view

that:

"In this context, ‘perversely’ signifies acting without any probative evidence . . .".

On the other hand, in New South Wales the Supreme Court has rejected the proposition that a factual

determination marred by "patent error, illogicality or perversity" can be an error of law: Donnelly v.

Victims Compensation Fund (1995) 82 A.Crim.R. 55 at 62, 63, 67. I do not find that view to be easily

reconcilable with what was held in Bond; it certainly cannot be squared with what the leading English

text (Wade and Forsyth, Administrative Law, (7th ed., 1994)) puts forward as the appropriate tests

- "no satisfactory evidence" and "no tribunal could reasonably reach that conclusion on that evidence"

(312).

It appears to me that a factual conclusion cannot be treated as infected by legal error unless it

is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong.

That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.

Were the appeal to this Court one which may be based on factual as well as legal errors, I

would adopt the view that the conclusion reached by the Tribunal on this point must be disregarded, as

inconsistent with the totality of the doctor’s evidence. But some of the answers the doctor gave tended

to support the Tribunal’s conclusion, at least if read in isolation:

"So what was - what was crucial was that they were lesbian?--- Yes."

"But if she was in an exclusive and stable lesbian relationship she would be excluded, whether she was married or not?--- She would be, because - that’s right - because the cause of the infertility wouldn’t be just the medical problem with her husband."

"So what we are talking about is there must be a partnership with a male for a woman

to get access to your group?--- Right."

It is, as Davies J.A. points out, impossible to agree with the Tribunal’s expressed view that there

was no conflict as to the reason for refusal: not only was the appellant’s evidence relevant to the point

hard to reconcile with that given by the doctor, but the latter evidence was not itself entirely consistent.

The Tribunal’s finding that discrimination was based on a certain sort of "relationship" does not

accord with the language of the Act, which requires, so far as relevant to the present case, that there

be discrimination on the basis of "lawful sexual activity": see s. 7(1)(l). If one reads the finding with

emphasis upon the important word "exclusive", as should be done, what was intended to be conveyed

was plainly that the ground of discrimination was engagement by the appellant only in lesbian activity,

being a "lawful sexual activity".

The evidence of the doctor on which the finding was based makes clear that there was no policy
of excluding from services women who engaged in lesbian activity. It was the absence of heterosexual

activity which mattered. I conclude, then, that the Tribunal’s finding can stand only insofar as it conveys

that an absence of heterosexual activity, implied by stating that there was an exclusively lesbian

relationship, was a ground of refusal.

There is a question whether, so construed, the finding is capable in law of providing a foundation

for the conclusion that the doctor acted illegally, because he directly discriminated against the appellant.

The problem is whether discrimination on the basis of absence of a certain sort of sexual activity can

be held to be discrimination on the basis of sexual activity. Ordinarily, one would treat the word

"activity" as describing a doing of something, not the condition of refraining from doing it: cf. the

discussion of whether inactivity may be regarded as "conduct" in Re Dernacourt Investments Pty Ltd;

Baker Davis Supply Co. Pty Ltd v. Dernacourt Investments Pty Ltd (1990) 20 N.S.W.L.R. 588 at

615. The question has importance beyond the present case; for example, it may be argued that "trade

union activity", being the immediately preceding category in s. 7(1), can include inactivity, such as failure

to join a union or failure to take part in its affairs.

One approaches any suggestion that provisions of the Act should be given an expansive

interpretation, attributing to terms in it a wide meaning, against the background that it should have been

evident to those who drew the statute that not engaging in an activity was a possible ground of

discrimination. In Victoria the Equal Opportunity Act 1995 defines "lawful sexual activity" as

"engaging in, not engaging in or refusing to engage in a lawful sexual activity". It is also relevant that the

Act gives an administrative tribunal, subject only to a limited right of appeal, power to make orders of a very drastic kind, including orders to pay sums of money without limit (s. 209(1)(b), (c)), on the basis

of its conclusions on such broad issues as the reasonableness in "all the relevant circumstances" of

certain acts of discrimination: see s. 11(2) of the Act. It appears that the proper course is to give the

word "activity" its ordinary meaning - of doing something rather than nothing - instead of an extended

one; I would exclude from the expression "lawful sexual activity" in s. 7(1) the condition of not engaging

in a particular sort of sexual activity.

The Tribunal’s finding, discussed above, could stand as a finding that the basis of discrimination

was that the appellant engaged in no sexual activity other than that of a lesbian kind and that she did not,

in particular, engage in heterosexual activity and, so read, the finding could not in my opinion be treated

as unsupported by evidence. But what was found does not amount, in law, to direct discrimination.

Nor is anything gained by recourse to the provisions of s. 8, dealing with discrimination on the basis of

characteristics associated with the attributes mentioned in s. 7.

Indirect discrimination

It appears to me, with respect, clear that the Tribunal’s conclusion on this topic cannot stand.

Section 11(2) referred to above makes unreasonableness, for the purposes of the concept of indirect

discrimination, depend on "all the relevant circumstances of the case". As was argued on behalf of the

respondents, "the learned President simply failed to apply in any way" the test of reasonableness set out

in the Act. The Tribunal’s dismissal of the issue on the basis that there are certain "accepted definitions

of infertility" reduces the point to a mere question of the proper meaning of the word "infertility". I agree

with the reasons of Davies J.A. on this point and would add nothing to them except that it appears to me to be a question whether the Tribunal’s error requires that the matter be remitted to it; I discuss this

below.

Vicarious liability

It must be said that the reasons ultimately supporting the finding against the first respondent ("the

company") are not extensive: "[it] is vicariously liable under s. 133 of the Act for his actions when he

was apparently acting as their (sic) agent". The evidence relating to ostensible authority came from the

appellant and was to the effect that she contacted the company and received a letter, headed "The

Queensland Fertility Group" and dated 20 May 1994, suggesting that she make an appointment. She

was given to understand that two of the doctors in the group had a different practice, as regards

charging, from the others. The appellant then made an appointment to see the doctor who gave her a

consent form, also headed "The Queensland Fertility Group". Each of the documents I have mentioned

had the doctor’s name, and other names, on the letterhead. It was submitted for the appellant before

us that a person not legally trained would assume that the company "was the umbrella organisation with

the doctors employed by it, and that the doctor was acting as the agent for the group". There were of

course other possibilities, the most obvious one being that the company was formed to provide services

to the doctor and others in their own practices. That the persons on the letterhead had their own

practices was a reasonable conclusion, once it was disclosed to the appellant that two only of them

would consider charging on the basis of accepting the Medicare rebate only; that some but not others

adopted this attitude seems inconsistent with the notion that they worked as employees of a company.

But what the appellant thought about this subject was not disclosed. To establish that, in
discriminating against her as the doctor was said to have done in his dealings with the appellant, the

doctor acted with the ostensible authority of the company, the appellant had to show that she believed

him to have so acted; not only was it necessary that a representation be made that the doctor, in his

dealings with the appellant, acted as agent of the company, but that representation must have been

accepted and acted upon by the appellant: Northside Developments Pty Ltd v. Registrar-General

(1990) 170 C.L.R. 146 at 172, 207. No-one asked the appellant whether she understood the doctor

to be dealing with her on behalf of the company, or as an independent practitioner using the company’s

services, and it is difficult to imagine how the representations relied on could have enabled her to form

a view on that point. I note that the principles of ostensible authority to which I have referred appear

to have been applied in the Equal Opportunity Tribunal of Western Australia: Graham v. Ietto [1992]

E.O.C. 92- 451.

Remission

Under the Act the Court has a discretion whether or not to remit the matter: see s. 218(c). In

favour of remission, there is the consideration that it may be thought to be in the public interest that the

case should proceed further, to a final conclusion, the Tribunal’s errors having been corrected. But

there are in my opinion countervailing considerations, one of which is that, apart from costs, the amount

of money involved is not substantial and for all one knows the relevant facts - for example, as to the way

in which the doctor practises (if indeed he still does so), the personal situation of the appellant, matters

dealt with by the Tribunal under the headings "The ethics committee", "The NHMRC", and perhaps

other matters - have altered substantially in the period of more than four years since the cause of

complaint arose. I would also have taken into account, had the primary judge’s remission order been

attacked, that what prompted the appellant to approach the doctor appears to have been principally

a desire to have the point tested; she expected that her approach would be rejected. Having regard

to the views expressed by this Court as to the factual and legal issues, I should have thought the proper

order would have been one designed to bring this dispute to an end.

But there has been no challenge, on the part of the respondents, to the orders for remission.

I therefore agree with the orders proposed by Davies J.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10523 of 1997

Brisbane

Before Davies J.A. Pincus J.A. Thomas J.A.

[JM v. QFG & GK]

BETWEEN:

JM

(Respondent) Appellant

AND:

QFG

(First Appellant) First Respondent

AND:

GK

(Second Appellant) Second Respondent

REASONS FOR JUDGMENT - THOMAS J.A.

Judgment delivered 18 August 1998

This case concerns the provision of medical assistance and the circumstances in which a medical

practitioner may refuse a service aimed at human procreation. The provision of such services may be

the subject of considerable difference of opinion within different groups in the community, and it is a

subject upon which governmental authorities have not yet laid down requirements that give clear indications to doctors and prospective patients of the point at which such services may or should be

refused.

This appeal is against the decision of a Supreme Court Judge which set aside some of the

findings made against a doctor by the President of the Anti-Discrimination Tribunal upon a complaint

by a lesbian patient whose request for artificial donor insemination services was refused by the doctor.

This Court has a limited function in the present proceedings. It is to determine whether legal error

occurred in the Tribunal’s determination and whether the Judge erred in reversing the Tribunal’s

decision. This involves the application of various sections of the Anti- Discrimination Act 1991. It

does not involve the Court in reaching any view on the question whether artificial insemination ought to

be available to lesbian couples.

I have the benefit of having read the reasons of Davies J.A. and Pincus J.A. The relevant facts

and circumstances are set out in the reasons of Davies J.A. I shall proceed immediately to the principal

legal issues.

Direct Discrimination

The finding by the President that the doctor was guilty of direct discrimination was the result of

a number of errors of law.

(a) Under the combined effect of ss.7 and 10 of the Act, direct discrimination occurs if a person

treats another person “with an attribute” less favourably on the basis of that attribute than

another person without the attribute. The attribute upon which the doctor was said to have

relied as the basis of his less favourable treatment was “lawful sexual activity”. It is common

ground that the patient’s lesbian sexual activity was lawful, and that less favourable treatment

to a person on the basis of such activity would amount to direct discrimination. However the President treated as the relevant attribute the special type of relationship that the patient had

with her female partner, which she repeatedly characterised as “an exclusive and stable lesbian

relationship”. That characterisation introduced factors over and above the attribute referred to

in s.7 and relied on factors of individual arrangement and relationship. The only relevant

attribute for the purposes of the present case was lawful sexual activity, and more specifically,

lawful lesbian sexual activity. It was erroneous to overload the term by the introduction of other

factors such as the relationship. This was a fundamental error and it underlay the whole

approach of the President to the determination of the case.

(b)        The finding of direct discrimination was based on the President’s interpretation of the doctor’s

evidence as a whole, and the evidence of the patient, based on the view that on a proper

reading of the doctor’s evidence there was direct discrimination. For reasons mentioned below,

a proper reading of the doctor’s evidence demonstrates that there was no such discrimination

on the basis of the patient’s lesbian sexual activity, and it was not open to find that there was.

The evidence showed that doctors providing services of this kind (including the respondent

doctor) endeavoured to act upon reports and statements made by various bodies including the

National Bioethics Committee. That Committee had published the view that “the most

commonly accepted definition [of infertility] within medicine is the inability of a couple to

conceive after twelve months of intercourse without contraception”. That definition on any

reasonable view seems to contemplate failure to conceive after intercourse between members

of opposite sexes before infertility is established. The doctor went on to observe:

“My medical definition would follow that. It’s a very good working guideline and when we practice medicine we practice under the HIC and Medicare and the implication always is that you are treating something which has gone wrong or isn’t working. If someone has blocked tubes we can try and fix them; if someone doesn’t ovulate we can fix that; if someone has a very low or absent or defective sperm count we can fix that. Now in this case with lesbians we’re not - our group as a group doesn’t have any views or any antagonism towards lesbian relationships and perhaps that should be stated in case we’re made to look like a sort of bunch of rednecks. We’re not. But lesbians cannot have children because they have a biological problem. No two females or two males can have children. Now people may have access and say ‘We would like to get hold of some sperm because we want a child’ and that may or may not be a good thing. We’re not there to comment on that but if they come to us we treat infertility and my understanding is it would be wrong, ethically and under HIC and Medicare to be treating someone who does not have a medical problem under that schedule.”

It is true that as the result of some leading and argumentative cross-examination by the President

the doctor made statements, which taken in isolation, admitted the lesbian relationship as the

basis of his decision. But those concurrences were driven by the “stable and exclusive lesbian

relationship” fallacy mentioned above, and also, it would seem, by the assumption in the

questioning that the failure of a member of a lesbian couple to qualify was the result of her

lesbian sexual activity rather than the result of her sexual inactivity with a member of the

opposite sex. This is addressed in (c) below.

I accept the analysis of Davies J.A. of the President’s findings concerning the doctor’s evidence.

In my view those findings reveal a misapprehension of what the doctor’s evidence, looked at

as a whole, meant. I am grateful for Pincus J.A’s analysis of current authorities concerning the

extent to which error in law may be discerned in apparently erroneous factual conclusions. In

my view the misinterpretation of the doctor’s evidence was itself the product of an erroneous

approach to the law. It was also a conclusion that no tribunal could reasonably reach on such

evidence, and the evidence was not capable of leading to that conclusion. This therefore was

an error of law reviewable by the Supreme Court under s.217.

(c)        The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but

common sense suggests that many lesbians are also prepared to engage in heterosexual activity.

One can only include the quality of heterosexual inactivity in a particular individual if one

overworks the term “lawful sexual activity” by adding personal relationship factors such as

“exclusive relationship” to the concept.

With some slight hesitation, I am of the view that in s.7, “sexual activity” does not include sexual

inactivity. For example, the practice of chastity would not ordinarily be regarded as a form of

sexual activity. To the contrary, it is abstinence from sexual activity. In the context of such a

person approaching a doctor for artificial insemination services, I would find it difficult to be

critical of a doctor who says “Why do you need me? You have not tried to have a baby. You

do not demonstrate any need for this special service. You are not ill or disabled and I have no

reason to think you infertile. I am not going to provide these special services to you”.

This consideration bears both upon the question of reasonableness (soon to be mentioned under

“Indirect Discrimination”) and as an example which I think tends to support the view that sexual

activity does not include sexual inactivity.

On this basis then, the doctor’s basis of refusal of the service (i.e. his use of a definition of

infertility based upon inability to conceive after heterosexual intercourse) is not an attribute that

is prohibited by s.7 of the Act.

I agree with Pincus J.A’s reasons for this conclusion, and note that the same view was taken

by the learned Supreme Court Judge from whose decision the present appeal is brought.

For the above reasons, the finding of direct discrimination was tainted with legal error and

should be set aside.
Indirect Discrimination

“Imposing a term..that is not reasonable..” is one of the essential components for a finding of

indirect discrimination (see s.11(1)(c)). It was necessary to show that this doctor had imposed a term,

requirement or practice “that [was] not reasonable”. Section 11(2) sets out a number of criteria that

must be addressed in finding whether a term, requirement or practice is reasonable. These include

various consequences of failure to comply with the term, the cost of alternative terms, and the financial

circumstances of the person imposing the term. The section also requires the Tribunal to take account

of “all the relevant circumstances of the case”.

For the reasons published by Davies J.A. and Pincus J.A. I agree that the President failed to

enter upon any proper consideration of this important factor. I would add that the circumstance that

a doctor considers that a potential patient does not demonstrate any need for the services that are

requested would prima facie seem to be a very reasonable basis for refusing or delaying the provision

of such services. Other relevant factors would include the absence of authoritative guidance from public

authorities, and the circumstance that on a subject where community views may range very widely, the

concept of tolerance which the Anti-Discrimination Act would seem designed to promote, would

demand that a wide ambit be permitted in the concept of determining the reasonableness of individual

responses to such situations.

On the evidence in the record I, like Pincus J.A. would have been inclined to set the finding of

indirect discrimination aside, and decline to remit the matter under s.218(c). It is highly likely that

practices and even views have changed in the four years since the issue was brought forward and that

it would be preferable to terminate the dispute at this stage. However no application was brought on

behalf of the respondents to vary the Judge’s order that the issue of indirect discrimination be remitted to the Tribunal. That order should therefore stand. Whether the parties proceed to relitigate the matter

is of course a matter for them.

Vicarious Liability of QFG

The question was litigated whether Dr GK was the agent of the company called QFG. The

evidence on this question was sparse and unsatisfactory. My impression from reading the evidence is

that the company was the agent of the various doctors, acting on their behalf to solicit and direct clients

to the various members of the group, rather than the converse. For the reasons mentioned by

Davies J.A. and Pincus J.A. I agree that the finding of vicarious liability should be set aside.

Welfare Measures Exemption

If the issue of indirect discrimination, including reasonableness, is to be reconsidered, it is

appropriate that the exemption mentioned in s.104 of the Act be considered along with it. Arguably,

the people for whose benefit the respondents provide their services may comprise a group under s.104,

and s.103 provides that it is not unlawful to discriminate in such a case. Indeed the doctor and his

fellow practitioners seem to have been attempting to benefit a finite and readily identifiable group of

persons in the community, namely heterosexual couples who have attempted to have a baby and have

failed. Other formulations of an appropriate group for consideration under s.104 are of course possible.

It would seem that this issue ought to be included if any further litigation ensues on the issue of indirect

discrimination and whether the doctor imposed an unreasonable requirement.

Orders

I agree with the orders proposed by Davies J.A.

although, initially, she relied on s.7(1)(b), this was not later pursued.

exclusively lesbian sexual activity because "exclusively" does not describe the lawful sexual activity but rather
the relationship in which that activity occurs.

1954 ss.14(3), 14D.

approved in Waters v. Public Transport Corporation (1991) 173 C.L.R. 349 at 395-396.

149, 150; Freeman & Lockyer (a firm) v. Buckhurst Park Properties (Mangal) Ltd. [1964] 2 Q.B. 480 at
498, 502-506; Northside Developments Pty. Ltd. v. Registrar-General (1990) 170 C.L.R. 146 at 172.