STELLA YFANTIDIS v. DR WARREN JONES and FLINDERS MEDICAL CENTRE No. SCGRG 92/2641 Judgment No. 4337 Number of Pages - 16 Discrimination (1994) EOC 92-555 (1993) 61 SASR 458

[1993] SASC 4337

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Discrimination - discrimination on ground of marital status - Direct discrimination - Refusal of fertility clinic to perform surgery to improve fertility - Two grounds of refusal one of which is discriminatory - Proper approach where more than one reason - Whether conduct amounted to discrimination - Relevant principles - Refusal held to be an act of discrimination. Equal Opportunity Act 1984.

HRNG ADELAIDE, 24 March 1993 #DATE 15:12:1993
Counsel for appellant:   Mr M L Abbot QC
   with Mr M W Ahern
Solicitors for appellant:                 Crown Solicitor
Counsel for respondent Jones:             Mr A R Harris
Solicitors for respondent Jones:         Fisher Jeffries
Counsel for respondent Medical Centre:     Dr R J Baxter
Solicitors for respondent Medical Centre: Finlaysons

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The appellant appeals from an order of the Equal Opportunity Tribunal dismissing a complaint that the respondents had discriminated against her in refusing to provide her with a service in the form of microsurgery, contrary to s.39 of the Equal Opportunity Act, 1984. An appeal lies to this Court pursuant to s.98 of the Act. 2. Section 39 of the Act makes it unlawful, among other things, for a person who offers or provides services to which the Act applies (whether for payment or not) to discriminate against another
    1. by refusing or failing to perform the service, or
    2. in the terms or conditions on which or the manner in
    which the services are performed. It is common ground that, on the date of the relevant events, the services referred to by the respondents were services to which the Act applied. 3. The first respondent Professor Jones is (and was in 1987) the Director of Reproductive Medicine and Fertility in the Infertility Clinic at the Flinders Medical Centre ("the Fertility Clinic"). It was conceded that Professor Jones was employed by the Flinders Medical Centre. Section 91 of the Act renders a person vicariously liable for the acts or defaults of his employees while acting in the course of their employment unless he can prove that he exercised all reasonable diligence to ensure that the employee would not act in contravention of the Act. The Flinders Medical Centre did not make any submission on the question of reasonable diligence. Flinders Medical Centre is, therefore, vicariously liable pursuant to s.91 if Professor Jones is held to have breached the Act. 4. On 29 October 1987 the appellant complained to the Commissioner for Equal Opportunity against both respondents, alleging acts of discrimination contrary to s.39 of the Act. The Commissioner investigated the complaint. She attempted to resolve the matter by conciliation. The conciliation having failed, the Commissioner referred the complaint to the Equal Opportunity Tribunal pursuant to s.95(8) of the Act for hearing and determination. The Tribunal heard the complaint on 27, 28 and 29 August 1991 and on 4 November 1991. On 30 October 1992 it published its reasons and dismissed the complaint. The appellant appeals from that decision. 5. The complaint alleged that between 1 July 1987 and 2 September 1987, the respondent discriminated against the appellant by refusing to perform services on the grounds of her marital status. The appellant alleged that medical services had been refused on two separate occasions, on 1 July 1987 and on 31 August 1987. The Tribunal held
    1. that there had been no refusal to provide a service to
    the appellant on 1 July 1987, and
    2. that while there had been a refusal to provide a service
    to the appellant on 31 August 1987, the refusal was not on
    the ground of the appellant's marital status but on the
    basis of a medical judgment made by Professor Jones taking
    into account the circumstances of the appellant's request
    for the service. 6. The appellant appeals only against that part of the decision which relates to the refusal of the service on 31 August 1987. She submits that the Tribunal has erred in holding that refusal was not by reason of her marital status. 7. The Tribunal delivered its decision dismissing the complaint on 30 October 1992. Section 98(2) of the Act requires that an appeal be instituted within one month of the decision. The notice of appeal was issued within time on 27 November 1992 but was not served until 25 January 1993, almost two months after the date by which it should have been served. The appellant applied for an extension of time within which to serve the notice of appeal. An affidavit sworn by Mr Ahern, an officer in the Crown Solicitor's Office, gave some reasons for the delay. The delay appears to stem in large part from the time taken by the Crown Solicitor and the Commissioner of Equal Opportunity in resolving what was said to be a policy issue as to whether the Crown Solicitor should prosecute the appeal. The appellant had given instructions that she wished to appeal. She had left the conduct of the matter in the hand of the Commissioner and the Crown Solicitor and I do not think she should be penalised in consequence of any delays on their part in serving the notice of appeal. No prejudice to the respondents has been shown. In all the circumstances I think it is appropriate to extend the time within which the notice of appeal should be served until 25 January 1993. 8. The Tribunal heard evidence from a number of witnesses, including the appellant, Professor Jones, and nursing staff at Flinders Medical Centre. The Tribunal was critical of the appellant's evidence and was not prepared to accept her evidence where it conflicted with the evidence of other witnesses. It expressly stated that it preferred the account given by Professor Jones of the two interviews on 1 July and 31 August 1987. The Appellant Seeks Medical Advice 9. Although the appellant does not appeal against the finding that no service had been refused on 1 July 1987, it is necessary to examine all of the facts in order that the events of 31 August 1987 can be seen in their proper context. In 1987 the appellant was aged 25 years. She was a single woman. She lived with her son who was then about seven years old. The son was the child of a previous relationship which had ended in about 1986. Before her son's birth, the appellant had suffered severe gynaecological problems, including pelvic inflammatory disease. Soon after the birth of her son, she had been fitted with an intra-uterine contraceptive device. She was later diagnosed as suffering again from pelvic inflammatory disease and, upon examination, her left fallopian tube was found to be badly diseased. Both the left fallopian tube and the intra-uterine contraceptive device were removed. The appellant was then told that it was possible that her right fallopian tube was also blocked and she understood that it might be difficult for her to conceive again. Between 1980 and 1987, other gynaecological procedures were performed but the appellant did not have any further investigation of her right fallopian tube. 10. In about June 1986, the appellant entered into a sexual relationship with a man named Samir Sheik-Al-Vasatneh. She lived with him from the end of 1987 to October 1990. She was not living with him when she consulted Professor Jones. She did, however, give evidence that by early 1987 she and Mr Al-Vasatneh considered the relationship to be serious and she thought it might lead to marriage. Because the relationship was serious, the appellant decided that she ought to enquire whether her right fallopian tube was functioning and whether she was fertile. She said that she did not specifically discuss any aspect of this with Mr Al-Vasatneh. She gave evidence, however, that she understood that he considered children to be an important part of a permanent relationship and that, if she could not have children, he might not marry her. She consulted her general practitioner. He referred her to a Dr Chen at the Fertility Clinic at the Flinders Medial Centre. The Fertility Clinic 11. Before examining the events leading to the alleged discrimination it is appropriate to examine the services provided at the Fertility Clinic. 12. The Fertility Clinic at the Flinders Medical Centre opened in 1976. In 1980, an in vitro fertilisation unit was established at the Clinic. In 1987 the Clinic had two broad functions. Its primary function was to assess and treat couples with problems as to infertility. A secondary function was to assess the fertility of individuals. This latter function represents less than five per cent of the work for the clinic. 13. The manner in which the Clinic conducted its consultations in 1987 was as follows. In the case of fertility problems with couples, both parties were encouraged to attend at the second, if not at the first, consultation. A full history was taken from the couple involving not only a medical history and a reproductive history but also history of the domestic and social circumstances which might be relevant to the management and treatment for infertility. Each of the partners was examined for the purpose of assessing their reproductive capacity. It was a requirement that the male partner be examined as well as the female partner. For the male partner, the tests included semen analysis and blood tests. The female partner is tested to ensure that she is ovulating and other tests are conducted for hormone and antibodies against sperm. Tests on the female might also include a laparoscopy to assess the state of the pelvis. Because a laparoscopy is a surgically invasive process, semen analysis is usually conducted on the male partner before the laparoscopy in case the semen analysis should show infertility of the male. The order of these procedures may alter if there has been a history of pelvic surgery on the woman. Once the assessment is complete, there is a range of treatments available and, depending on what has been diagnosed, these treatments could culminate in the more recent technology such as in vitro fertilisation and artificial insemination. 14. The Flinders Medical Centre had developed rules concerning the persons to whom the Clinic would provide the services of in vitro fertilisation and artificial insemination. Those rules had developed out of a concern that a child born in consequence of the treatment would be born into a stable environment. These rules only applied once the process of treatment had begun. They did not apply to the assessment of the fertility status of individuals or couples. The clinic was prepared to investigate the fertility status of individuals or couples irrespective of their marital status. In the case of couples, the clinic preferred to examine both couples but was prepared to investigate one partner only for the purpose of making an assessment of that person's fertility. Again, it was prepared to make an exception where a woman had had a history of fertility problems. In that case, the clinic might undertake a laparoscopic examination before the fertility of the male partner was assessed. 15. As the appropriate type of treatment would depend on the fertility status of the partner, the clinic believed that it had a responsibility to take into account not only the medical situation but the social and domestic circumstances of the couple. Once the stage of treatment had been reached, the clinic imposed the following three requirements
    1. that the couple be married or living in a stable de facto
    relationship of at least two years standing;
    2. that both partners submit to examination; and
    3.that both partners engage in counselling provided at the
    clinic. 16. Professor Jones explained the reasons in these terms:
    "Q. At that stage of treatment initiatives, was that when
    the requirement in relation to either married or a stable
    defacto relationship for two years became applicable.
    A. Yes, indeed. I mean, it wasn't the case that we were in
    the business of going ahead and investigating, without
    counselling, the patients, in general terms, about what the
    spectrum of infertility management meant. We would indicate to
    them that there were going to be certain limitations depending
    on what problems were found. But of course we don't know what
    type of management or anything is appropriate until we have done
    the investigations but we certainly were not putting patients
    into these investigation without them having a broad idea about
    what might follow.
    Q. So for example there was no point holding out to
    someone the prospect that within 12 months they might be
    candidates for IVF treatment if, for example, they had no
    plans to marry and had only been together for a short time.
    A. No, none at all." 17. In short, the clinic was prepared to assess the fertility of individuals and to do so regardless of the marital status of the patient and without any requirement that the partner, if there was one, be examined also. However, once the process of treatment was about to begin, the conditions were applied. The services of in vitro fertilisation and artificial insemination are expressly exempted from the operation of the Equal Opportunity Act: see s.5(2). The Clinic could, therefore, lawfully inform an individual or a couple that, unless they were married or living in a de facto relationship, those services would not be provided. 18. While conducting the investigation, the Clinic would counsel the partners as to the implications of fertility treatment in order that they might have a broad understanding of what might follow after the assessment stage had been completed. For example, the Clinic took the view that there was no point in holding out to a couple the prospect of in vitro fertilisation if they had no intention of marrying or living in a stable de facto relationship. The Events at the Fertility Clinic 19. On 1 July 1987 the appellant went to the Fertility Clinic. Mr Al-Vasatneh went with her. The appellant was told that Dr Chen was no longer consulting at the Fertility Clinic and that she would be seeing Professor Jones. The appellant did not object to seeing Professor Jones. There is a conflict of evidence as to what occurred while the appellant was waiting to see Professor Jones. As the appellant does not appeal against the finding that there was no refusal of a service on 1 July 1987, it is unnecessary to go into the evidence concerning the events of 1 July in any detail. The following is taken from the Tribunal's findings. 20. While waiting to see Professor Jones, Ms Hart, a nurse employed at the Flinders Medical Centre, asked the appellant her name. Ms Hart then indicated Mr Al-Vasatneh and asked, "And your husband's name?" According to Ms Hart, the appellant then "exploded", saying, "He has nothing to do with this". Ms Hart apologised and withdrew. She reported the conversation to Ms Denholm, the clinical nurse consultant at the Fertility Clinic. Before Professor Jones saw the appellant, Ms Denholm informed him that the appellant did not wish her partner to be involved in the consultation. 21. Professor Jones began the consultation by obtaining a detailed medical history from the appellant. He then began to ask questions concerning her social and domestic circumstances. The appellant then interrupted him and somewhat heatedly asked why he wanted this information. She told Professor Jones that Mr Al-Vasatneh did not know that she was seeking treatment concerning her fertility. She said that none of his questions were relevant and she only wanted to ascertain "the state of her pelvis" at this stage. Professor Jones then explained the purpose of the Clinic and its procedures. He explained the progression from investigation to treatment and that the Clinic had guidelines that required the involvement of both parties so that both could be tested for infertility. He informed her that the requirement that the sexual partner be involved applied to everyone who wanted to be investigated for infertility and that it did not apply only to married couples or couples in a de facto relationship. He explained that the male partner would be required to provide semen for analysis. Professor Jones also informed the appellant of the Clinic's other guideline that required that the couple be married or in a stable de facto relationship of two years' standing. 22. It is to be noted that Professor Jones mentioned in vitro fertilisation to the appellant at the consultation on 1 July 1987 when, according to the appellant, he thoroughly explained what the hospital could do for married couples and couples in a de facto relationship. To use her words, Professor Jones gave her "a pretty good run down of what the Clinic had to offer". 23. Towards the end of the consultation, the appellant asked Professor Jones if there was anything that could be done to assist her. Professor Jones agreed to undertake a laparoscopic examination of her right fallopian tube to determine its condition and assess her fertility. 24. Thus, at the conclusion of the consultation on 1 July 1987, Professor Jones clearly knew that the appellant did not wish Mr Al-Vasatneh to be examined. The Tribunal found that the only service sought by the appellant on 1 July was for a laparoscopic assessment of her pelvis and that she did not request any other treatment, notwithstanding that there had been a general discussion of possible options for management of any problems revealed by the laparoscopy. None of these findings are challenged. The Tribunal found that there was no refusal of a service on 1 July and there is no appeal from that part of the decision. 25. The laparoscopy was arranged for 30 July 1987. Professor Jones conducted the operation that morning. The laparoscopy disclosed that the right fallopian tube was twisted and bound down by adhesions. Professor Jones concluded that the tube could be freed of the adhesions and cleared by microsurgery. Professor Jones saw the appellant at about five o'clock in the afternoon of 31 July as part of his normal post-operative round. Mr Al-Vasatneh was sitting by her bedside. Professor Jones was surprised to see him there, given the appellant's earlier insistence that Mr Al-Vasatneh was not to know of the procedure. Professor Jones asked the appellant if he could speak with her in the presence of Mr Al-Vasatneh. The appellant agreed. As the appellant was still recovering from the operation, Professor Jones gave her but a brief indication of what had been found. He arranged for her to see him again on 31 August. There was no contact between the appellant and Professor Jones between 30 July and 31 August. 26. Professor Jones described the consultation on 31 August as unusual. The consultation began with Professor Jones informing the appellant of his findings. He told her that microsurgery was suitable, although there were doubts as to the ultimate function of the right fallopian tube. The appellant asked him to conduct microsurgery to repair her right fallopian tube. Professor Jones then told her that the Flinders Medical Centre would proceed with further treatment but only upon compliance with three conditions. He recorded the conditions in the clinical notes he made immediately after the consultation. The conditions as recorded in his notes are as follows:
    "1. Married or stable de facto relationship.
    In their case at least two years.
    2. Partner has full investigation here at FMC.
    3. They would need to see the Fertility Clinic Counsellor." 27. Professor Jones could not recall whether he stated the conditions in the order in which he had listed them in his notes. The appellant reacted angrily to these conditions. She asked a series of prepared questions from notes she had made. Some of them related to her treatment. The consultation concluded with Professor Jones stating that he would be prepared to treat her but only on the conditions he had outlined. He informed her that if she did not wish to comply with them, he would refer her to the Queen Elizabeth Hospital, the Queen Victoria Hospital or to any private gynaecologist outside the Flinders Medical Centre. 28. Ms Denholm was present for part of the consultation on 31 August. However, she left when the appellant began to ask her prepared questions. She said that the appellant put them quite aggressively to Professor Jones. She said that Professor Jones had answered questions but the appellant had been angry, hostile and rude and did not appear to be waiting for answers. The consultation was becoming unpleasant and Ms Denholm decided to leave the room. Ms Denholm was not clear whether she had been present throughout the early stages of the consultation. Her evidence does not materially assist in the determination of whether there has been discriminatory conduct. 29. In his evidence in chief, Professor Jones quite unequivocally stated that he informed the appellant of his findings and then indicated the conditions which would apply to further treatment. In cross-examination he said that he reiterated to the appellant the need for her partner to be involved but that the appellant had made it quite clear that she did not wish Mr Al-Vasatneh to be involved. He also stated that the requirement the couple be married or be in a stable de facto relationship was equally as important as the other conditions. He refused the surgery because the appellant could not comply with both conditions. 30. Professor Jones also stated that, even if the appellant had been married, he would not have agreed to perform the surgery unless she had agreed to involve her partner so that his fertility could be assessed. His reasons were first that the failure to involve her partner indicated that there was a domestic situation where it might not have been in the best interests of the couple or of the unborn child to go ahead with a fertility enhancing procedure involving high technology, and, secondly and more importantly from a medical point of view, it would not be a proper treatment to subject a patient to invasive surgery if her husband were later examined and found to be infertile. In cross-examination, he said that there were some married couples, admittedly not many, where the male partner refused to be involved and treatment is then refused. 31. On 1 September, the day following the consultation, Professor Jones wrote to the appellant's general practitioner reporting on the consultation. His letter reads:

    "I am writing with an update on this patient. As
    foreshadowed in my previous letter she was laparoscoped on the
    30th of July 1987. There was a residual stump on the left tube
    remaining and, quite curiously, this was patent to dye. On the
    right side there was a tortuous tube, possibly a hydrosalpinx,
    with a distal block and with peritubal and periovarian
    adhesions.
    From an anatomical point of view Ms. Yfantidis is therefore
    suitable for microsurgery although the ultimate function of the
    right tube must remain very doubtful.
    When I saw her back in my Fertility clinic on the 31st of
    August 1987 I explained this to her but again reiterated that
    she would need to be either married or in a stable defacto
    relationship (in this situation I would suggest at least two
    years) before we would contemplate undertaking high technology
    infertility management of this nature. I also had to reiterate
    to her that we would need to discuss this with her partner and
    that he would have to be fully investigated through our clinic.
    I also suggested that they would need to see our Fertility
    clinic Counsellor before proceeding.
    Ms. Yfantidis was upset at what she saw to be an intrusion on
    her personal right and I tried to explain to her that we try to
    take all factors into consideration including the stability of
    her relationship which of course has significant potential
    bearing on the environment into which any child resulting from
    the management would be born. In addition to this the Family
    Relationships Act is quite clear on the fact that the management
    of infertility concerns a couple not an individual and that
    there can be no legal pressure on medical practitioners to treat
    a single woman for infertility should be believe that this is
    not in her best interests or in the interests of the potential
    child.
    I don't quite know what Ms. Yfantidis now wishes to do but we
    of course are happy to help her with her problems providing the
    above conditions are fulfilled.
    Thank you once again for referring her. With kind regards." 32. Pausing here, it is clear from the evidence given by Professor Jones, as confirmed by his letter of 1 September, that he gave three grounds for his decision to refuse the surgery. The first concerned the marital status of the appellant and the second required that her partner also be examined. The third condition as to engaging in consultation is ancillary to each of the other conditions and, in any event, it is not material to the issues in this appeal. In these reasons I will, therefore, refer only to the first two grounds. It is also clear that so far as Professor Jones was concerned each of the first two grounds was equally important. He said as much in cross-examination. Was the Microsurgery Appropriate in this Case? 33. Professor Jones is an experienced obstetrician and gynaecologist. In 1991 he was Vice President of the Royal Australian College of Obstetricians and Gynaecologists. He is Professor and Chairman of obstetrics and gynaecology at Flinders University and at the Flinders Medical Centre. He has specialised in the area of reproductive medicine and fertility for a number of years. Since 1977 he has been Director of Reproductive Medicine and of the Fertility Clinic at the Flinders Medical Centre. He has published three text books and about 180 papers on the topic of reproductive medicine. He is a recognised expert in his field. 34. The Tribunal accepted Professor Jones' view that it would have been medically reprehensible to perform microsurgery on the appellant's right fallopian tube without knowing whether Mr Al-Vasatneh was fertile. It would have been pointless to undertake what Professor Jones called a surgically invasive and complicated procedure to attempt to correct a damaged fallopian tube if Mr Al-Vasatneh had been infertile. Instead, it would be better to pursue other treatment such as donor insemination or the use of in vitro fertilisation with donor insemination. It was also Professor Jones' opinion, which the Tribunal found was the accepted opinion in 1987, that it was medically ill advised to proceed with microsurgery to seek to restore fertility to a woman if she were not going to be exposed to the possibility of pregnancy within the next twelve months. The reason for this view is that there can be a gradual process of deterioration following microsurgery. The twelve months following the operation is the period in which the woman would have the best chance of becoming pregnant. Thereafter, the chances of becoming pregnant reduce. In short, microsurgery would be appropriate only if there was both an intention and an ability for the woman to become pregnant within 12 months after the operation. 35. The evidence of Professor Jones was substantiated by Dr Verco who had been called by the appellant. Dr Verco did express what he described as his own idiosyncratic view that surgical repair could be usefully carried out even if pregnancy was not immediately desired but he acknowledged that his view was not widely shared. The views of Professor Jones are borne out also by the fact that the appellant later had the microsurgery performed by Dr Chen but only after Mr Al-Vasatneh had submitted to a semen analysis. That procedure had been suggested to her and she then acceded to it. Was the Conduct Discriminatory? 36. The Tribunal found that at the consultation on 1 July 1987 the appellant was very definite in her statement that Mr Al-Vasatneh was not to be involved in her fertility assessment and she was not interested in other considerations but only wanted to be advised as to the state of her pelvis. The Tribunal accepted the evidence of Professor Jones that the appellant made it very clear from the outset she did not want her partner to be involved, that it was for her own purposes that she sought the fertility assessment and, later, the microsurgery, and that such decisions would be hers alone to make, regardless of the existence or nature of any other relationship in which she might be engaged. The Tribunal also found that the appellant set the agenda for treatment in that she insisted that Mr Al-Vasatneh should not be involved. All of these findings were plainly open on the evidence and no cause has been shown for interfering with them. Having found on 31 August 1987 that Professor Jones refused to provide the service of microsurgical repair of her right fallopian tube, the Tribunal turned to consider whether that refusal constituted discrimination as defined by the Equal Opportunity Act. 37. While s.39 makes it unlawful to discriminate against another by refusing to supply goods or perform services, other provisions of the Act define what constitutes discriminatory conduct. Section 29 defines the word "discriminate". It includes discrimination on the ground of marital status which is defined by s.29(5) in these terms:
    "For the purposes of this Act, a person discriminates
    against another on the ground of his marital status if -
    (a) he treats the other person less favourably by reason of
    his marital status than in identical or similar
    circumstances he treats, or would treat, a person of a
    different marital status;
    (b) he treats the other person less favourably by reason of
    the fact that he does not comply, or is not able to comply,
    with a particular requirements and -
    (i) the nature of the requirement is such that a
    substantially higher proportion of persons of a different
    marital status complies, or is able to comply, with the
    requirement than of those of the same marital status as that
    of the other person;
    and
    (ii) the requirement is not reasonable in the circumstances
    of the case;
    or
    (c) he treats the other person less favourably on the basis
    of a characteristic that appertains generally to persons of
    that marital status, or a presumed characteristic that is
    generally imputed to persons of that marital status." 38. It is common ground that the only relevant provision is paragraph (a), which defines what has come to be known as direct discrimination. The expression "marital status" is defined by s.5 of the Act and means "the status or condition of -
    "(a) being single;
    (b) being married;
    (c) being married but living separately and apart from one's
    spouse;
    (d) being divorced;
    (e) being widowed or
    (f) co-habiting with a person of the opposite sex as his
    husband or wife de facto." 39. The Tribunal referred to s.29(5) of the Act but unfortunately to the terms of s.29(5) as amended by the Act No 68 of 1989. The amended section has no application to the circumstances of this case. However, the Tribunal's failure to refer to the correct provision may be of little consequence, particularly if regard is had to the terms of s.6(3) which was introduced into the Act at the same time as s.29(5) was amended. However, the Tribunal also failed to refer to s.6(2) of the Act which was in force at all relevant times. For the reasons which follow, the Tribunal's failure to refer to s.6(2) appears to have led it into error. 40. Having referred s.29(5) and to other provisions of the Act the Tribunal continued:
    "The question for the Tribunal to determine then is whether
    the refusal by the respondents to provide the service of
    microsurgical repair to her fallopian tube was on the unlawful
    discriminatory basis that she was single. This was Ms Yfantidis'
    allegation.
    We are satisfied that a service to which the Act applies was
    refused. Was it refused because Ms Yfantidis was single?
    In our view, the relevant question is not merely, 'would Ms
    Yfantidis have received the surgery she sought if she had been
    married or in a stable de facto relationship?' as this does not
    reflect the particularity and complexity of her case. In our
    view the relevant question is, 'if a married woman (or one in a
    stable de facto relationship) had presented as did Ms Yfantidis
    and sought this medical service, would she have received it?' In
    our view, the answer to this question is 'no'. The service
    would have been refused to that married woman on the same basis
    as it was refused to Ms Yfantidis.
    We accept the evidence given that a medical judgment, not a
    judgment about personal circumstances, was the basis of the
    refusal to provide the service of microsurgery to Ms Yfantidis.
    The medical assessment was that such a procedure would be
    'medically reprehensible' (according to Professor Jones) or
    'medically inappropriate' (according to Dr Verco) where there
    had been no fertility assessment of the patient's partner. This
    medical judgment was made pursuant to considerations of both the
    relative invasiveness and risk of such assessments and the
    possible undertaking of such a risky, invasive and painful
    procedure for no purpose, should the patient's partner in fact
    be infertile. The evidence given concerning this medical
    judgment was not challenged either in evidence or in cross
    examination, and Professor Jones' evidence concerning it was in
    fact corroborated by the complainant's medical witness, Dr
    Verco.
    We are conscious that a 'medical judgment' may in fact be merely
    disguised or dressed up discrimination. We do not however
    accept that it is in this case. Professor Jones gave clear and
    specific evidence that this service would not be available to
    any woman, whatever her marital status, who refused to involve
    her partner in her treatment. Dr Verco expressed precisely the
    same view, quite explicitly.
    There was considerable evidence and discussion concerning the
    'policy' and 'guidelines' for infertility treatment at FMC.
    There are apparently, three interrelated guidelines:
    (a) that the patient be a member of a 'stable' couple -ie
    married or in a de facto relationship of at least two years;
    (b) involvement of both partners;
    (c) that both agree to, or engage in, counselling.
    As Ms Yfantidis was not a member of a couple at that time,
    this first requirement took on considerable significance
    separate from the other two. It is clear to us that, had Ms
    Yfantidis agreed to the involvement of her partner, it is most
    likely that she would have been refused this service. However,
    it is out view that the circumstances of Ms Yfantidis'
    relationship with her partner never became a relevant factor in
    determining her ineligibility to receive the service she sought.
    We accept the evidence of Professor Jones, which was supported
    by that of Ms Hart and Ms Denholm, that Ms Yfantidis set the
    agenda from the outset, by her vehement exclusion of her
    partner. This precluded, on the medical grounds expressed in
    evidence which we accept, any opportunity to explore further the
    question of providing the service." 41. The Tribunal's reasoning turns on the question it posed for itself, namely, "If a married woman (or one in a stable de facto relationship) had presented as did Ms Yfantidis and sought this medical advice, would she have received it?" The Tribunal was correct in concluding the appellant would not have received the surgery even if she had been married or had been living in a stable de facto relationship. But, in asking that question, the Tribunal has focussed its attention on only one of the conditions stated by Professor Jones to the exclusion of the other. 42. Section 29(5)(a) is addressing its attention to whether a person has been less favourably treated than others in the same circumstances and what has caused that less favourable treatment. It is concerned with the conduct of the alleged discriminator. Thus, s.29(5)(a) required the Tribunal to resolve two questions; first, what were the reasons why Professor Jones refused to perform the microsurgery? and, secondly, what were the relevant circumstances for the purpose of determining whether the appellant received less favourable treatment? The Reasons for the Decision 43. There were two reasons for his decision, the appellant's marital status and her refusal to permit Mr Al-Vasatneh to be examined. Section 29(5)(a) is directing its attention to the conduct of the alleged discriminator. There is a difference of judicial opinion whether the conduct of the alleged discriminator should be viewed objectively or subjectively in the sense of ascertaining the intention of the alleged discriminator or the reason for his conduct: see, for example, the different views expressed in the speeches in James v Eastleigh Borough Council (1990) 2 AC 751 and see also Waters v Public Transport Commission (1991) 173 CLR 349. The authorities are reviewed by Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited (unreported, Full Court of Federal Court of Australia, judgment no 796 of 1993, delivered on 9 November 1993) and in The Commonwealth v Human Rights and Equal Opportunity Commission (unreported, Full Court of Federal Court of Australia, judgment no 821 of 1993, delivered on 17 November 1993). As Lockhart J noted in Human Rights and Equal Opportunity Commission v Mount Isa Mines, there may not be as great a divergence between the two tests as some might think. But it is not necessary in this appeal to stay with the question as to what is the proper test because, be it viewed subjectively or objectively, Professor Jones' conduct in refusing microsurgery was founded on two reasons, one of which was the marital status of the appellant. His evidence was that each condition was of equal importance. The answer to the question "Was the marital status of the appellant a reason which motivated Professor Jones to refuse the surgery?" can only be "Yes". If the reasons he gave to the appellant are viewed objectively, the same answer must be given. 44. The intention of s.29(5) can be demonstrated if the expressions "single person" and "married person" are substituted in the appropriate places in paragraph (a) to accord with the facts in this appeal. Section 29(5)(a) would then read:
    "For the purposes of this Act, a person discriminates
    against a single person on the ground of her marital status
    if he treats that single person less favourably by reason of
    her marital status than in identical or similar
    circumstances he treats, or would treat, a married person." 45. However, to express s.29(5)(a) in those terms has the capacity to obscure the intention of the Act where there is more than one reason for the allegedly discriminatory conduct. If the only reason for Professor Jones' decision to refuse the microsurgery had been the marital status of the appellant, there would have been no room for doubting that he would have been guilty of a breach of s.29(5). The fact that he had two reasons for his decision would usually have led to an inquiry as to which of those reasons caused the decision. The words "by reason of" in s.29(5)(a) call for an examination of cause and effect, an inquiry which might be difficult where there is more than one reason for the decision. However, the need to examine which of several reasons is the cause for the decision is eliminated by s.6(2) of the Act. The Tribunal's failure to refer to s.6(2) appears to have led it to address only one of Professor Jones' reasons. 46. Section 6(2) provides:
    "For the purposes of this Act, a person acts on a particular
    ground referred to in this Act if he in fact acts on a
    number of grounds, one of which is the ground so referred
    to, and that ground is a substantial reason for his act." 47. Section 6(2) operates where it has been proved that a person had more than one reason for his conduct, that one of those reasons is a ground of discrimination as defined in the Act, and that the reason for the discrimination is a substantial reason for his conduct. The meaning of the word "substantial" varies according to context. In his judgment in Terrys Motors Ltd v Rinder (1948) SASR 167 at 180, Mayo J briefly noted the variety of meanings of "substantial". In the 40 years since that judgment the variety of those meanings might have increased. In s.6(2) it connotes that which is of substance or weight as opposed to that which is illusory or of little moment. It is not intended to denote a ground which predominates over other grounds. The premise for the operation of s.6(2) is that there was more than one reason for the conduct and at least the discriminatory reason is of some substance. Thus, once there is a finding that discrimination on the ground of marital status was one of the grounds of the decision to refuse the microsurgery and that ground was substantial in the sense I have indicated, the refusal amounts to discrimination within the meaning of the Act. In other words, if the appellant's marital status was a substantial reason for Professor Jones' decision to refuse the microsurgery, it matters not that he had other reasons for his decision because the effect of s.6(2) is that he is deemed to have refused the surgery on the ground of the appellant's marital status. As Professor Jones has given evidence that the two reasons given by him were of equal importance, both were substantial reasons in the sense required by s.6(2). It follows, therefore, that by virtue of s.6(2) Professor Jones is deemed to have refused the microsurgery on the ground of the appellant's marital status provided also that it is established that the appellant was less favourably treated than, say, a married woman. It is therefore necessary to examine the circumstances in which the microsurgery was refused. The Relevant Circumstances 48. In this case, the circumstances to which regard must be had for the purpose of determining whether the appellant was treated less favourably are those of an unmarried woman seeking surgery to repair a condition which has caused infertility, namely, a repair to the right fallopian tube, and where the woman seeks to become pregnant. I have added the latter words somewhat tautologically because the appellant was in a fertility clinic expressly for the purpose of seeking to have a child; she was not seeking the repair for any other medical reason. The question the Tribunal should have asked itself was, "Was the appellant treated less favourably than a married woman seeking microsurgery to repair her right fallopian tube for the purpose of becoming fertile?" The answer to that question must be, "Yes" because the condition as to her marital status disqualified the appellant even if she had agreed to Mr Al-Vasatneh being examined. The medical reasons which justified refusing to perform the microsurgery until he was examined do not alter the fact that the refusal was also based on the appellant's marital status. 49. The Tribunal has in effect determined that the relevant circumstances were that the appellant was requesting microsurgery to repair her right fallopian tube but on terms that Mr Al-Vasatneh not be involved. The Tribunal's emphasis on the fact that the appellant set the agenda caused it to fail to give due weight to both of the reasons given by Professor Jones for his decision to refuse the microsurgery. It has caused it to overlook the fact that the Act has regard to all of the reasons for the conduct of the alleged discriminator, which in turn required it to have regard to each of the reasons. Even if Mr Al-Vasatneh was examined and found to be fertile, the appellant could not at that stage satisfy the requirement that she be married or be living in a stable de facto relationship of at least two years' standing. As the Tribunal found in the passage already quoted, had the appellant agreed to the involvement of her partner, it is most likely that she would have been refused the microsurgery. 50. For these reasons, I hold that the appellant was treated less favourably by reason of her marital status and when the decision was made on 31 August 1987 to refuse to provide her with microsurgery. A Doctor's Dilemma 51. One can sympathise with Professor Jones. There is also an air of unreality about these proceedings. As the Tribunal found, the appellant set the agenda and refused to involve her partner. Had Professor Jones simply informed the appellant that her refusal to involve Mr Al-Vasatneh prevented him from performing the microsurgery, it might have been difficult for the appellant to contend that she was being refused surgery because of her marital status. That is emphasised by the fact that, if it had been found that the relevant circumstances for the purpose of s.29(5)(a) were those of a woman seeking treatment but refusing to allow her partner to be involved, there could not have been a finding of discrimination. 52. Moreover, it appears that the appellant reconsidered her position. When she later consulted Dr Chen and sought the microsurgery, it was suggested to her that Mr Al-Vasatneh should undergo a semen analysis. She agreed and the semen analysis was undertaken before the microsurgery was performed. 53. Further and more importantly, the facts in this case fall just outside the exemption in s.5(2) of the Equal Opportunity Act. It will be recalled that s.5(2) exempts from the operation of the Act the carrying out of either artificial insemination or in vitro fertilisation. After the laparoscopic examination on 30 July, Professor Jones had assessed the appellant's fertility and determined that the problems with the appellant's right fallopian tube could be treated by microsurgery. He had reached the stage where it was necessary that he examine Mr Al-Vasatneh to determine his fertility before proceeding with the microsurgery. It would have been reprehensible to have proceeded with the microsurgery before he knew whether Mr Al-Vasatneh was fertile. Without that knowledge, the appropriate form of treatment could not be ascertained. Neither the appellant nor Professor Jones knew whether the microsurgery would be a pointless procedure. At that stage, neither knew what direction the treatment of the appellant would take and whether it would be necessary for her to undertake a program of artificial insemination or in vitro fertilisation. Had Mr Al-Vasatneh been infertile and the appellant wished to have a child, the microsurgery would not have been performed and it would have been necessary to proceed by either artificial insemination or in vitro fertilisation. Professor Jones could then have lawfully informed the appellant that he would not supply those services until she was able to comply with the conditions. The refusal of the microsurgery was made at a point when the appellant was but one step short of artificial insemination or in vitro fertilisation. In one sense, the question of discrimination could be said to depend on whether Mr Al-Vasatneh was infertile. 54. If he had agreed to perform the microsurgery, Professor Jones was required by law to inform the appellant of the relevant implications of the procedure. If he had failed to do so, he might have been liable in an action in negligence: Rogers v Whitaker (1992) 67 ALJR 47. Professor Jones would then have informed the appellant not only of the risks inherent in the procedure but also that the procedure would be pointless if Mr Al-Vasatneh was infertile and that the only means by which she could have a child, while living with him, was to undergo artificial insemination or in vitro fertilisation. He would then have advised the appellant that he would refuse those services because she was not married or had not been living in a stable de facto relationship for two years. In short, had Professor Jones expressed himself in those terms, he would have simply been advising the appellant of all of the risks involved. He would not have committed an offence under the Equal Opportunity Act or be liable under the Act to a claim for damages at the suit of the appellant. But he took a short cut and, because he did not express himself in an appropriate manner, he is guilty of discriminatory conduct. In all the circumstances, it cannot be said that there is any real culpability in the conduct of Professor Jones. The offence has the hallmarks of a technical offence. 55. This appeal calls attention to the question whether it is desirable to extend the operation of the exemption in relation to in vitro fertilisation and artificial insemination. This is a far cry from the ordinary case of discrimination. It is not a case where a standard kind of service usually available to a wide range of consumers has been refused. Instead, it is service provided in a fertility clinic where the treatment might ultimately involve artificial insemination or in vitro fertilisation. It is true that the microsurgery requested by the appellant does not directly involve the bioethical implications of in vitro fertilisation or artificial insemination. But those who work in fertility clinics of this kind where patients might ultimately seek to undergo artificial insemination or in vitro fertilisation should not be placed in some kind of legal minefield where the manner in which they inform the patients of the fact that the time might be reached when in vitro fertilisation and artificial insemination might be refused would expose them to liability because of some carelessness in the terms in which that information is given. The Act should be capable of ready and easy understanding and application. The question whether there is discrimination should not depend on how busy people in a fertility clinic express themselves. As Lockhart J noted in Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited:

    "Anti-discrimination legislation must be understood, not
    only by statutory bodies that enforce it, but by all sections of
    the community because the implications and effects of the
    legislation could touch us all. It is important that the
    legislation is not approached and construed with fine and nice
    distinctions which will not be comprehended by any except
experts in the field." 56. If the exemption is to have any useful operation, it should apply to treatment which might ultimately result in in vitro fertilisation or artificial insemination. As the circumstances of this appeal illustrate, it is not necessary that the exemption should apply to the assessment of the fertility of an individual. However, as this case also illustrates, once the process of assessment is to all intents and purposes complete and the process of treatment to cure the diagnosed fertility problem by surgery or otherwise has begun, the medical practitioner treating the patient is embarking on a course which might lead to in vitro fertilisation or artificial insemination. The microsurgery was but one step removed from artificial fertilisation procedures and depended on the question whether Mr Al-Vasatneh was fertile. 57. For these reasons, I would allow the appeal. The order of the Tribunal is set aside and in lieu thereof there will be an order that the first and second respondents discriminated against the appellant on 31 August 1987 by refusing to perform services on the grounds of her marital status contrary to s.39(1)(c) of the Equal Opportunity Act. The complaint will be remitted to the Tribunal for further hearing and determination.