Zanella v Carroll's Auto Repairs Pty Ltd

[2001] NSWADT 220

CITATION:	Zanella -v- Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Anna Zannella RESPONDENTS Carroll's Auto Repairs Pty Ltd Motor Vehicle Repair Industry Council
FILE NUMBER:	001070; 001071
HEARING DATES:	30/03/2001, 21/06/2001, 22/06/2001
SUBMISSIONS CLOSED:	06/22/2001
DATE OF DECISION:	12/21/2001
BEFORE:	Bell N - Judicial Member; Lau L - Member; Strickland J - Member
APPLICATION:	Sexual Harassment - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Crewdson -v- President, Anti-Discrimination Board [2000] NSWADT 60
REPRESENTATION:	APPLICANT In person RESPONDENTS P Livingstone, barrister E Brus, barrister
ORDERS:	1. Complaints dismissed; 2. No order as to costs.

1 Ms Zannella has complained against two Respondents, the first Carroll’s Auto Repairs Pty Ltd (“Carroll’s”), and the second, the Motor Vehicle Repair Council (“the MVRIC”). In relation to Carroll’s she has complained of sex discrimination and sexual harassment in the provision of goods and services. In respect of the MVRIC she has complained of sex discrimination and of sexual harassment.

2 The common ground in this matter is that in early March 1998 Ms Zannella returned her car, a 1985/86 Daihatsu Charade turbo hatchback, to Carroll’s Auto Repairs where it had originally been repaired for a leaking oil pipe in January or February 1998. At the time of the repair the car had traveled approximately 250,000 kilometres.

3 After some discussion about whether a second hand part should be used in the further repair, a second hand part located by Ms Zannella was installed for her by Carroll’s.

4 In mid May 1998 another oil leak occurred. Ms Zannella approached Carroll’s to have the oil leaked fixed. After some discussion and disagreement about responsibility for the problem, an attempt by Carroll’s to modify the second hand part, and after Ms Zannella had contacted the MVRIC about the matter, an inspection, arranged by the MVRIC was held at Carroll’s premises on 17 July 1998. The MVRIC Inspector was not able to assist Ms Zannella and Carroll’s with their dispute.

5 Ms Zannella then lodged a complaint with the Motor Vehicle Repair Disputes Committee (“the Committee”). The Committee heard the matter on 4 September 1998. The hearing was adjourned to a later date to allow Ms Zannella to obtain further evidence. Ms Zannella did not pursue the matter.

6 In relation to Carroll’s, Ms Zannella alleges that Carroll’s failure to fix the oil leak in her car was on the grounds of her gender. She also alleges that at the inspection of the car on 17 July 1998 there was visible in the workshop area where the inspection took place a calendar on which were two photographs of partially or totally naked women. In addition, at this inspection, Mr Shea of Carroll’s placed oil in the car in order to aid the inspection of the car. Ms Zannella alleges that this was done by Mr Shea holding the oil bottle at thigh level and pouring the oil in a phallic gesture. She argues that these incidents constituted sexual harassment.

7 As to the MVRIC, Ms Zannella alleges that at the hearing of her complaint by the Committee, Mr Munro, Chairman of the Committee failed to give her a fair hearing and showed preference to Carroll’s. Ms Zannella also alleges that through its inspector, Mr Clancy, the MVRIC aided and abetted the alleged sex discrimination and sexual harassment by Carroll’s.

8 Ms Zannella also alleges that the MVRIC inspector Mr Clancy failed to correctly diagnose the problem with Ms Zannella’s car and this was due to his having aligned with Carroll’s against Ms Zannella on the basis of her sex.


Applicant’s Evidence
9 The tribunal examined the evidence presented by Ms Zannella in support of her case. She called no witnesses and relied only on her own oral evidence, together with the transcript of proceedings of the hearing before the Committee, the Anti-Discrimination Board President’s Report, some documentation from the Anti-Discrimination Board’s file and documentation relating to issues raised generally by women’s dealings with the motor vehicle repair industry.

10 In brief, Ms Zannella’s evidence was, as against Carroll’s, that after the car had first been repaired by Carroll’s and then another oil leak occurred, Mr Mammino of Carroll’s spoke to Ms Zannella in a way which was indignant, argumentative and emotional when she stated that she wished to have a second hand part installed. She also stated that when she contacted Carroll’s to have the problem which emerged with that second hand part addressed, a young unnamed mechanic from Carroll’s called her an “idiot”. She also stated that she was spoken to by Mr Shea and this young mechanic in a way which was condescending and inappropriate.

11 Ms Zannella stated that she sent a pamphlet issued by the MVRIC to Carroll’s because she considered that they were being unreasonable by not returning her calls or talking to her over a period of approximately three weeks. The car was repaired again by Carroll’s but another leak occurred on 15 June 1998. Her calls to Carroll’s following this leak went unreturned.

12 Ms Zannella stated that at the inspection of the car arranged by the MVRIC to take place at Carroll’s premises on 17 July 1998, Mr Clancy, the MVRIC Technical Inspector, arrived 20 minutes late. She waited outside until Mr Clancy arrived. She said that the mechanics asked her to drive to the back of the workshop to a position next to a large sunken pit next to a wall. On the wall beside the sunken pit was a calendar on which were two photographs of naked women. The woman in the photograph on the left of the calendar was totally naked and immersed in water up to her thighs. She had a clutch of fish on her shoulder. Her pubic hair was visible. The photograph on the right side of the calendar was of a naked woman crouching with her genitalia visible. Ms Zannella initially said that the car was one metre away from the wall on which the calendar was posted, with the pit between the car and the wall. She later conceded, in cross examination, that the calendar was 3 to 4 metres away from her during the inspection. She was, during the inspection, standing at the open bonnet of the car on the passenger side facing the front of the workshop. When shown a photograph of the area of the workshop in which the inspection took place, she confirmed that the wall referred to by her was largely opaque glass with a post on which the calendar had hung. She also stated that it was fairly dark and gloomy inside the workshop and that when the inspection took place there was a light concentrated on the motor of the car. She insisted, however, that she could see the calendar quite clearly.

13 The photograph, which was admitted into evidence, shows the position where her car was parked and inspected, confirmed by Ms Zannella in her evidence, relative to the wall of the workshop. It appears to be approximately 4 metres from the wall which also appears to be comprised mainly of windows, with narrow pillars at intervals along the wall. Between the position in which Ms Zannella’s car was placed and the wall is a pit and in the photograph a car is parked on the ramp above the pit.

14 She did not say anything about the calendar at the inspection and it was not referred to by anyone else there. Ms Zannella said that seeing the calendar was “disturbing”. She stated that she was “harassed” by the calendar. In cross examination Ms Zannella said that the calendar is “definitive evidence that what I said about Carroll’s is true” and that “it has symbolic importance and it is proof”. She also stated that “the calendar is supportive of the facts”.

15 Ms Zannella, in cross examination, said that she finds sexist representations of women offensive and that she has studied mass media to masters level and so is “aware of the issues”. While she conceded that she has seen representations of women that offend her on billboards, on television and in newsstands, she said that she tends not to subject herself to such representations.

16 When asked by the Tribunal whether she was suggesting that the calendar had been placed on the wall because it was known Ms Zannella would be attending an inspection, Ms Zannella said that she hadn’t been to that part of the premises before and usually picked up her car outside. She said, however, that she thought the circumstances had been set up. She then said that she thought that Carroll’s had given no thought to the implications of it being there. She then mentioned the term “premeditated rape”.

17 Ms Zannella said that she had driven the car to Carroll’s with an oil leak and so it was necessary to put oil in the car again in order to inspect it. She stated that Mr Shea of Carroll’s offered to put oil in the car and got a bottle from Carroll’s stores and poured oil in the car. She said he held the bottle at thigh level and that it appeared to her that he was conscious of the calendar and of the bottle and that it seemed to her to be a phallic gesture.

18 Ms Zannella said that Mr Clancy then inspected the car and stated that there was no undue vibration of the parts. Ms Zannella said that she was already of the opinion that Mr Clancy was being deceptive, that he located and saw the problem, but intentionally misled as to the correct diagnosis. She said that he at no time addressed any question of workmanship and that his “misdiagnosis” was an attempt to deflect attention from poor workmanship.

19 In cross examination, Ms Zannella conceded that Mr Clancy’s role was as a mediator, to try to help the parties to the dispute reach agreement at a meeting at the repairer’s premises, and not to give a diagnosis. She also conceded that Mr Clancy said at the inspection that he could not determine the problem with her car because there was too much oil present. However Ms Zannella asserted that Mr Clancy was lying because he was siding with Carroll’s.

20 Ms Zannella stated that after about one hour, she, Mr Clancy, Mr Bovill and Mr Shea adjourned to Mr Bovill’s office. It was agreed that Ms Zannella would take the car to Daihatsu Parramatta. More oil was then placed in the car and Ms Zannella left, being guided as she reversed out of the workshop. She said she had driven into the workshop quite a long way. She stated that the place where the inspection took place is an area that is visible by the public and sometimes visited by the public.

21 Ms Zannella said that Daihatsu did not fix the problem either.

22 As to the MVRIC, Ms Zannella said that at the Committee hearing, the Chairman of the Committee, Mr Munro, showed favouritism towards Carroll’s and that she put forward the correct diagnosis but no matter what she said and how correct she was her evidence was disregarded by Mr Munro. She said that Mr Munro collaborated with Carroll’s throughout the hearing and he failed to answer her questions on technical matters. She said he constantly avoided questions of the responsibility of mechanics and of identifying any liability on Carroll’s part. She said that she suggested to Mr Munro that the car’s turbo had needed to be reharnessed and that Carroll’s had not done this but he avoided this issue.

23 The Tribunal also had before it a transcript of the proceedings before the Committee. The transcript was made by Ms Zannella, from a tape recording of the proceedings. It was accepted into evidence by the Tribunal as the best available record of the proceedings.

24 Ms Zannella pointed to the use of the words “harden and stiffen” by Mr Munro in relation to a concertinaed pipe part. She said that she considered these words to be inappropriate, vulgar, provocative and lewd and that they caused her offence, affected her coherency and made her upset. Ms Zannella also pointed to Mr Munro’s statement in the hearing that he did not “have a crystal ball”. Ms Zannella stated that she considered these words a reference to witchcraft and showed that Mr Munro viewed Ms Zannella in relation to her gender. She said she considered the reference to a crystal ball to be derogatory. She was unable to point to any other specific words used by Mr Munro in the hearing which she considered were harassing or discriminatory.

25 In cross examination Ms Zannella conceded that Mr Munro had not denied her an opportunity to speak in the hearing and that in fact she spoke for a long time. However, she maintained that he disputed her credibility, avoided directing blame at anyone for concluding that the pipe had broken because of wear and tear rather than as a result of a missing bolt and generally “sided with Carroll’s on the basis of the boys’ club”.

26 Ms Zannella also stated that, although Mr Clancy was not present at the Committee hearing reference was made there to his report of his inspection and to what he said at the inspection. Ms Zannella asserted that Mr Clancy “lied and conspired and acted in a covert manner to hide the facts because he was ganging up on me as a woman”. She stated that had Mr Clancy not denied that Ms Zannella’s diagnosis of a missing bolt was correct then proof of Clancy’s “intentional negligence” would have been available to the Committee. She further said that Mr Clancy misled everyone concerned by protecting Carroll’s and presenting an incorrect diagnosis and that because of that the Committee hearing could not conclude on the day. She confirmed that the Committee proceedings were adjourned to enable Ms Zannella to obtain further evidence but she did not return to the Committee.

27 Ms Zannella also stated that Mr Clancy, and through him, the MVRIC had endorsed the conditions under which the inspection took place, that is, the presence of the calendar and Mr Shea’s alleged “phallic gesture”. Ms Zannella also said that she knows Mr Clancy saw the calendar because “it was there”.


Respondents’ Evidence
28 For the First Respondent, statements of Brendan Bovill, Managing Director of the First Respondent, and Paul Shea, Manager of the First Respondent, were tendered and each gave oral evidence in support of his statement. Ms Zannella cross examined each of these witnesses.

29 For the Second Respondent, Richard Clancy, Technical Inspector with the Motor Vehicle Repair Industry Council, Cameron Outterside, Legal Officer with the Second Respondent, and Lindsay Munro, Chairman of the Motor Vehicle Repair Disputes Committee provided statements to the Tribunal and each, with exception of Mr Munro, was cross examined by Ms Zannella on his statement.

30 Mr Bovill’s evidence was that he was only present in the workshop when Ms Zannella visited it on 17 July 1998 for the inspection by Mr Clancy. He said in his statement:

“I have no actual recollection of there being two calendars displaying partly clothed women in the area where the car was inspected on that day. The car was located beside the pit area of the workshop. If any such calendar or calendars were displayed they would have been well away from the public areas at the back of the workshop where I know the Complainant did not go on that particular occasion.
The Complainant made no complaint at the time concerning any calendars to my knowledge. If she had I would have insisted that the calendars be removed if they were causing offence to her. However, as I have stated, I can never recall having any such calendars in the public areas of the workshop in all the years I have conducted the business.
I deny that there was any intention to sexually harass or discriminate against the Complainant in the Company’s dealings with her.
Further I deny that any person in my presence made phallic gestures towards her at the time of the inspection or at any other time.
Knowing the relevant employees at the time on a close personal basis for some years I can say that it would be completely out of character for any of my staff to act in this manner. Further any verbal abuse or aggressive behavior to the Complainant is denied and again this would be totally out of character with the employee’s normal behaviour to my knowledge and belief.”
31 Mr Bovill acknowledged that Ms Zannella’s problem with her car was clearly very irritating for her.

32 Mr Shea, in his statement, outlined the First Respondent’s dealings with Ms Zannella over the repair of her vehicle. These included the fitting of a new part, Ms Zannella’s advice of the failure of the part, that it was agreed to fit a replacement second hand part to Ms Zannella’s vehicle free of charge, Ms Zannella’s advice that this part too had failed and that he, Mr Shea, took over the repair job and spent some 2 to 3 hours modifying the part to remedy the problem.

33 He stated that he did not refuse to return a telephone call from Ms Zannella but conceded that, as 4 or 5 different people answer the telephone in the workshop, sometimes messages are not passed on. In relation to the inspection on 17 July 1998 he said in his statement:

“This inspection took place on 17 July 1998 at 121 Riley Street, East Sydney. I was present as was Brendan Bovill. By this stage Fulvio Mammino had left our employment. Richard Clancy attended for the Motor Vehicle Repair Industry Council. I recall that the vehicle was inspected beside the pit area of the workshop. I was present the whole time the inspection took place. At no time did I hear the Complainant refer to or make any complaint concerning two calendars depicting partly clothed females which she alleges were displayed in the area of the inspection.
Further such calendars as described by the Complainant in her claim have not been displayed in Carroll’s Auto Repair workshop during the Complainant’s dealings with us. I concede that at such times calendars depicting partly clothed women were from time to time sent to the workshop by suppliers.
Further I deny making any phallic gestures in the presence of the Complainant nor did I see any other member of staff at Carroll’s Auto Repairs making any such phallic gestures towards her at the time of her attendance at the motor vehicle inspection. I further deny that I insulted the Complainant in any manner whatsoever by calling her an “idiot” or conducting myself in any inappropriate manner on any occasion when I was in her company. Similarly I have no recollection that any other person in the workshop acted in a rude insulting or inappropriate manner towards her in my presence.”
34 Mr Shea stated, in his oral evidence, that he recalled the Complainant arriving at the inspection about 30 seconds after Mr Clancy.

35 Mr Clancy, Technical Inspector with the Motor Vehicle Repair Industry Council, in his statement said of the inspection:

“At the meeting I met with Ms Zannella (vehicle owner) and Mr B Bovill, a representative of the repairer. I briefly explained my dispute settlement function, then proceeded to discuss the matter with the parties and view the vehicle concerned – a Daihatsu Charade.
I observed a major oil leak in the area of the engine block and the oil feeder pipe. However, due to the excess oil present and the poor inspection facilities, it was clear to me that better diagnosis of the problem was impossible. The pit was very dirty and the workshop was very crowded with vehicles and equipment. Given these conditions and restrictions, I am able to state that there was no visible crack in the oil feeder pipe.
I then started the engine and observed excessive smoke, discussing this factor with both owner and repairer. I concluded from my observations that the source of the smoke could be worn valve stem seals.
Ms Zannella agreed with my conclusion and expressed her wish that Carrolls not perform any necessary rectification repairs.
At that point I recommended that Ms Zannella obtain an independent report from a Daihatsu dealer. My reason for that suggestion was that Daihatsu would be both product familiar and provide a more accurate conclusion on the basic cause of the overall problems with the vehicle in that area.

It is a standard practice of inspectors to suggest such action , where assessment is hampered and dismantling would clearly assist. In this instance it was my technical opinion that an independent report would be suitable.
The meeting concluded without a settlement between the parties and I instructed Ms Zannella and Mr Bovill that the matter would be referred to the Committee for determination and that the independent report discussed should be obtained.”
36 In relation to the matter of calendars, Mr Clancy said in his statement:
“I am aware of allegations made by Ms Zannella concerning calendars on a wall, in the general vicinity of the meeting area. I have no recollection of any calendars in that area nor anywhere else in the repairer’s workshop. To my knowledge, Ms Zannella never took issue regarding any calendars during the meeting.”
37 In relation to the question of bias or unfair treatment, Mr Clancy said:
“My role is to mediate a settlement and I reject any suggestion of bias or discrimination regarding either party.
Finally, in relation to the issues of bias and impartiality, I am aware that Ms Zannella alleged that I was late to the scheduled meeting on 17 July 1998. I was in fact early for the meeting and was waiting in my vehicle further down Riley Street, given difficulties in parking in this location.
Inspectors do not wait at repairers’ premises prior to arrival of vehicle owners, simply because there may be a perception of bias. To the best of my knowledge I recall Ms Zannella being late herself for the appointed time. Upon seeing her arrive I left my vehicle and proceeded to the repairer’s workshop for the meeting.”
38 Mr Outterside, Legal Officer of the Motor Vehicle Repair Industry Council, gave evidence in relation to two issues: the unavailability of a tape recording of the Motor Vehicle Repair Disputes Committee Investigation in the matter of Anna Zannella v Carroll’s Auto Repairs Pty Ltd and the abolition of the Motor Vehicle Repair Disputes Committee.

39 Mr Outterside told the Tribunal that it is an administrative policy of the Council to destroy dispute records which are more than twelve months old and effectively finalized. These records include hard copy files and until 1999, audio tape recordings of Disputes Committee investigations. He gave evidence of a search he had done of the office of the Council for the audio tape of the relevant investigation and of his conclusion that, in accordance with policy, the records had been destroyed either approximately one year after the investigation or one year after the abolition of the Committee.

40 In relation to the second issue of the abolition of the Committee, he gave evidence that the Committee had been constituted as a separate statutory corporation to the Council under sections 13(1) and (2) of the Motor Vehicle Repairs Act 1980 (“the MVR Act”) and that while the Committee and the Council shared a Chairman, the majority of Disputes Committee investigations were conducted by an Alternate Chairman appointed under clause 11 of Schedule 1 of the MVR Act.

41 Mr Outterside told the Tribunal that section 55 of the MVR Act conferred powers of determination upon the Committee in respect of motor vehicle repair disputes and as part of those powers the Committee could dismiss applications (s.55(2)(b)) or make a range of orders (s.55(2)(b)). He said that the Fair Trading Tribunal Act 1998 (“the FTT Act”) pursuant to Schedule 4 (Amendment of Other Acts) amended the MVR Act by abolishing the Disputes Committee. The Council was then given the power to investigate disputes and reach contractual settlements with no powers of determination. Powers of determination were conferred on the Fair Trading Tribunal. The FTT Act was proclaimed to commence on 1 March 1999, with transitional provisions permitting the Committee to finalise dispute matters pending at 1 March 1999. Mr Outterside said that all pending matters were completed by the Committee by July 1999, at which time Mr Munro ceased his duties as Alternate Chairman.

42 Mr Munro’s evidence, given by statement, was that he was employed as Alternate Chairman of the Committee from September 1997 to July 1999. He maintained that the hearing of the investigation into repairs to Ms Zannella’s vehicle was conducted in a fair and impartial manner mindful of the rules of natural justice. He described the process of the hearing as beginning with an opening explanation by him of the informal nature of the proceedings, the ways in which evidence would be adduced and powers of the Committee. He denied ever admonishing Ms Zannella or failing to take her complaint seriously. He stated that the Committee had no subpoena powers and that it was not the Committee’s place to call witnesses. He denied being sorry that he could not make a decision in favour of the repairer or treating Ms Zannella unfairly or in a manner different from anybody else. He said:

“Ms Zannella has alleged that the Committee concluded that rectification should be performed at Thompson’s Automotives, contrary to evidence of a simple repair, with an obvious answer in respect of necessary rectifications. I strongly deny this allegation.
Firstly, there was no conclusion in this matter and the dispute was never dismissed. The engine oil leak still existed at the time of the Committee hearing and nobody present at that hearing knew what cost would be incurred in having the leak rectified.
The vehicle at the time of the hearing, was at another repairer’s premises. I believe that this repairer was not able to rectify the leak. I further believe that a third repairer successfully rectified the problem.
Secondly, the Committee adjourned the matter on 4 September 1998 to allow the complainant to have the problem rectified. The complainant was then to inform the Committee that this had been done and that the cost had been quantified by way of an invoice.
The Committee then intended to reconvene and establish the extent of Carroll’s responsibility in the matter and the appropriate amount of recompense the repairer would be required to pay.
The recommended course of action was not undertaken by Ms Zannella and prior to the abolition of the Committee in March 1999, the investigation could not reconvene.”
Other evidence
43 The Tribunal also had before it extracts, downloaded by Ms Zannella, from a Department of Women website concerning women consumers and the motor vehicle repair industry. The extracts discuss a study into women and the motor vehicle industry. Under the heading “Commentary” the extract states:
The research findings provide a strong indication that discrimination against women still exists within the motor vehicle industry. The continuing male dominated nature of the industry guarantees that women experience a sense of exclusion when dealing only with men, especially when they are not offered the same kind of trust building techniques or service offered to male customers. It also appears that outdated stereotypes and negative attitudes to women still exist throughout the industry, creating tension between women consumers and the industry and a breakdown in communication.
Access to information about consumer rights and advice and motor vehicles generally, is key to ensuring that women feel in control and protected in their dealings with the industry. Women believe they are being treated in a negative way for a number of reasons. It is important that they are able to access information about the industry, cars, and their rights and obligations. The call centre survey revealed a large percentage of women did not know where to seek assistance and independent advice to address their dissatisfaction with the service provided.
44 The extract goes on to detail some further results of the survey which are in support of the commentary above.

Consideration of the Law and Evidence
45 Section 24 of the Anti-Discrimination Act provides relevantly:
What constitutes discrimination on the ground of se x
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex,
46 Section 33 of that Act provides relevantly:
Provision of Goods and Services
(1) it is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex –
(a) by refusing to provide the person with those goods or services; or
(b) in the terms on which he or she provides the person with those goods or services.
47 Ms Zannella has asserted that Carroll’s failure to fix the oil leak in her car was on the ground of her sex. Ms Zannella has a firm view of what was required to fix the problem with her car and maintains that Carroll’s did not follow that course of action. The issue of the appropriate mechanical repair required to fix Ms Zannella’s car is not one for determination by this Tribunal. The relevant issue for consideration by the Tribunal is whether Carroll’s failure to fix Ms Zannella’s car was less favourable treatment than would, in the same or similar circumstances, be afforded to a man and, if so, whether that treatment was on the ground of her sex.

48 Ms Zannella has made numerous assertions as to Carroll’s motivation for failing to fix her car. She has referred to the existence of a “boys club”, the motor vehicle repair industry’s “demographic” and to the individuals involved being “products of their generation”. She has, however, presented no evidence to the Tribunal as to the treatment that has been or would be received by male or other female customers of Carroll’s. She has shown no differentiation in treatment which has resulted in a detriment to her. The Tribunal is also mindful that a subsequent repairer, Thompson Daihatsu, was also unable to repair the car and Ms Zannella has presented no evidence as to the reasons for that failure.

49 The Tribunal had regard to the material contained in the extract from the Department of Women website tendered as evidence by Ms Zannella. However, while that material suggests that women have experienced considerable difficulty in their dealings with the motor vehicle industry it does not deal with the particular circumstances of this case or establish any differentiation in treatment experienced by Ms Zannella.

50 Ms Zannella has argued that, in her view, the problem was so simple and obvious that the only conclusion available is that deliberate damage was done to her car by Carroll’s on the basis of her gender.

51 Assuming, for the purposes of this analysis, that Ms Zannella was treated less favourably by Carroll’s than other customers have been or would be treated, there is no evidence apart from Ms Zannella’s own assertions, that the treatment afforded to her was on the ground of her sex. Ms Zannella stated that the alleged presence of the calendar during the inspection and Mr Shea’s alleged phallic gesture with the oil bottle are proof of an attitude of sexism and support her assertions as to the cause of the treatment she received. While such matters, if proved, may point to a particular attitude in relation to some matters on the part of Carroll’s or its employees, they would not, of themselves, support the conclusion that she was treated less favourably by Carroll’s in its actual repair of her car on the ground of her sex. The Tribunal therefore finds no substance in her complaint against Carroll’s of discrimination on the ground of sex.

52 In relation to Ms Zannella’s complaint against Carroll’s of sexual harassment, the Tribunal considered the provisions of section 22A and section 22F of the Anti-Discrimination Act which provide relevantly:

22A For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
22F It is unlawful for a person to sexually harass another person in the course of:
(b) providing, or offering to provide, goods or services to that other person.
53 Ms Zannella has raised two incidents which she asserts amount to sexual harassment. The first incident of alleged sexual harassment raised by Ms Zannella is the allegedly phallic gesture made by Mr Shea by pouring oil into the car. Ms Zannella’s evidence was that Mr Shea held the oil bottle at thigh level as he poured and that “it appeared” to her that he “was making a phallic gesture”. She gave no evidence of any accompanying gesture, statement or expression by Mr Shea that lent any additional meaning to his action of pouring oil into the car. Nor did Ms Zannella give evidence of any comment being passed by others present in relation to Mr Shea’s movements. In the absence of any evidence other Ms Zannella’s own interpretation of the movement by Mr Shea of pouring oil into the car, the Tribunal cannot conclude that this action was a phallic gesture.

54 The second incident raised by Ms Zannella is the presence of a calendar, depicting two naked women, on a wall some 3 to 4 metres from where she was standing in the workshop during the inspection of her car on 17 July 1998.

55 The only evidence of the calendar is the uncorroborated assertion of Ms Zannella. The only material other than that assertion which supports Ms Zannella is the vehemence of her assertions and the degree of detail with which the calendar is described.

56 In cross examination, Ms Zannella conceded that the workshop was dimly lit, apart from the light that was directed onto the motor of her car. She also conceded that she was in fact some 3 to 4 metres from the wall on which she alleged the calendar was posted, rather than the significantly shorter distance she first described. Her description of the calendar was, however, and has been, consistently particular including a description of the state of undress of the subjects of the calendar and the parts of their bodies that were exposed.

57 On the other hand, two witnesses for the first respondent flatly deny the presence of such a calendar in the location attributed to it by Ms Zannella, and a third witness, for the second Respondent, cannot recall the existence of the calendar.

58 Although numerical superiority of witnesses for one side of a dispute is not an automatic indication that the evidence of those witnesses is correct, it is clearly a relevant consideration.

59 It is true that the witnesses for the first Respondent had an interest in denying the existence of the calendar, but on the other hand Ms Zannella had a corresponding interest in alleging its existence. As she said in her evidence and submissions to the Tribunal, it was ‘proof’ of her allegation that the first Respondent had failed to repair her car on the ground of her sex. This allegation was otherwise based in significant part on hypothesis.

60 Although demeanour is not an infallible guide to veracity, the witnesses for the Respondents gave evidence and withstood a lengthy and vigorous cross-examination by Ms Zannella in a straightforward and calm manner. There were no inconsistencies or contradictions in their evidence which would suggest that they were not being frank with the Tribunal.

61 The onus in this case is on the Applicant to establish that all relevant factual elements of her case are more likely than not to be true. In this case, there is no independent evidence which supports the Applicant. There is no material which would support a finding that the witnesses for the Respondents are so lacking in credibility as not to be believed. In those circumstances, the Tribunal cannot be comfortably satisfied that the calendar was in fact on the wall at the relevant time.

62 If the Tribunal is wrong in this finding, and the existence of the calendar as alleged is established, for this to amount to sexual harassment the following requirements, pursuant to section 22A, must be met:

1. There must be an unwelcome sexual advance or an unwelcome request for sexual favours to Ms Zannella; or
2. a) There must be unwelcome conduct of a sexual nature in relation to Ms Zannella and
b) That conduct must take place in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
63 As to the first of the above requirements Ms Zannella has not alleged any unwelcome advance or any unwelcome request for sexual favours. It is therefore necessary to consider whether there was unwelcome conduct of a sexual nature in relation to Ms Zannella.

64 Ms Zannella’s evidence was that the calendar depicted two women, both naked, the first immersed in water up to her thighs with her pubic hair visible. The second woman depicted on the calendar, according to Ms Zannella, was crouching and her genitalia was visible.

65 Ms Zannella has made it clear that the alleged presence of the calendar was unwelcome to her. It remains for the Tribunal to consider whether the posting of the calendar was conduct of a sexual nature in relation to Ms Zannella.

66 The Tribunal is prepared to accept that the posting of a sexual representation of a woman may amount, in some circumstances, to conduct of a sexual nature. However, the Tribunal considers that not all representations of naked women amount to sexual representations of women and not all sexual representations of women amount to conduct of a sexual nature.

67 We take notice of the presence of representations of naked women in many of our public and state owned galleries. However, it is unlikely that the representations of naked women appearing on a calendar are expressions of fine art. For the purpose of this analysis, the Tribunal is prepared to accept that the posting of the calendar was conduct of a sexual nature.

68 It is important, however, to read the requirement in the provision in context. What is required by section 22A (b) is that there be unwelcome conduct of a sexual nature in relation to the other person, in this case, Ms Zannella.

69 Ms Zannella’s evidence, in answer to a question from the Tribunal as to whether she thought the calendar had been placed on the wall because it was known that she would be there, was that she had never before been to that part of the workshop, where she says the calendar was displayed. She said, somewhat inconsistently, that she thought the circumstances had been set up and then said that she thought that Carroll’s had given no thought to the implications of the calendar being there. There was certainly no evidence put to the Tribunal to support the proposition that the calendar was posted with Ms Zannella directly in mind. However, the provision does not require any form of intention. It merely requires that the unwelcome conduct of a sexual nature be in relation to Ms Zannella.

70 The words “in relation to (the person)”, as they are commonly used, indicate a connection with the person, being in reference to the person or being with regard to the person.

71 There is no evidence to suggest that the calendar was posted on the occasion of the inspection at which Ms Zannella was to attend or that the inspection to be attended by Ms Zannella was held specially in proximity to the calendar. There is no evidence of any particular connection between the posting of the calendar, or its presence on the wall, and the presence of Ms Zannella, other than the common gender of the people depicted on the calendar and that of Ms Zannella.

72 There is no evidence of reference being made to the calendar in the presence of Ms Zannella or of attention being directed to it during the course of the inspection. Ms Zannella’s amended evidence was that the calendar was some three to four metres from where she was standing during the inspection and that, in what she described as a gloomy space, a light was directed on the car engine.

73 Ms Zannella was not a regular visitor to the workshop and had never before been in the rear part of the workshop where the inspection took place. The premises, or that part of the premises of the workshop where the inspection took place, had no particular connection with Ms Zannella other than on the occasion of the inspection. These circumstances are therefore in contrast to those of, for example, employment where an employee would have an ongoing connection with the premises, and with any visible posted material, by virtue of the employee’s frequent and routine occupation of the premises.

74 The Tribunal concludes then that, in the particular circumstances of this case, it cannot be said that the calendar was posted in relation to Ms Zannella. It follows that the posting of the calendar, in the circumstances of this case, did not amount to sexual harassment within the meaning of section 22A.

75 That is not to say that the posting of a calendar of the type alleged by Ms Zannella could not in any circumstances amount to sexual harassment in the course of providing goods or services or in any other area covered by the Anti-Discrimination Act. There may well be instances where such conduct would amount to sexual harassment where the circumstances are such that it can be said that the conduct was done in such a way or in such circumstances as to be “in relation to” that person.

76 As to Ms Zannella’s complaint of sex discrimination against the MVRIC, the Tribunal considers that the evidence presented by Ms Zannella fails to support her assertion that Mr Clancy failed to correctly diagnose the problem with her car on the ground of her sex. Assuming that an incorrect diagnosis was made by Mr Clancy (and there is documentary evidence of Mr Clancy having not been able to make any diagnosis), Ms Zannella has presented no evidence of this incorrect diagnosis being treatment that was less favourable than the treatment that was or would be afforded to a man. However, even assuming that she was able to establish less favourable treatment, she has not provided any evidence, beyond her own assertions, that this treatment was on the ground of her sex.

77 Similarly, Ms Zannella has presented no evidence to support her assertion that Mr Munro, in the course of the Committee’s hearing, failed to afford her fairness or to take her seriously. The transcript of the hearing lends no support to her allegation and it was Ms Zannella’s own evidence that she was given ample opportunity to be heard. Ms Zannella also confirmed in her evidence to the Tribunal that no determination was made by the Committee on the day of the hearing and the matter was adjourned in order to enable further evidence to be obtained by Ms Zannella.

78 Ms Zannella did point to two statements made by Mr Munro, that a pipe had “hardened and stiffened” and a reference to a “crystal ball”. Her interpretation of these statements was that they were inappropriate, derogatory and that the former statement was lewd. She asserted that the statements were made on the basis of or arising from, her gender. The Tribunal has read the transcript of the proceedings prepared by Ms Zannella and detected nothing that might lend additional meaning to the statements beyond their apparent meaning. Taken in context, the first statement appears simply to refer to a car part and its change in consistency over a period of time. The second statement, the reference to a “crystal ball”, appears only to be a form of words used by Mr Munro to indicate that he was unable to make a prediction.

79 Ms Zannella’s complaint of sexual harassment against the MVRIC was based on her assertion that the MVRIC had, through Mr Clancy who was present at the inspection, endorsed Carroll’s sexual harassment of her. The Tribunal has concluded that Ms Zannella’s complaint of sexual harassment against Carroll’s is not substantiated. It follows that her complaint against the MVRIC of aiding and abetting Carroll’s sexual harassment of her is not substantiated.

80 The Tribunal therefore dismisses the complaints pursuant to section 113(1) of the AD Act. Both Respondents in their submissions encouraged the Tribunal to dismiss the complaints pursuant to section 111(1) of the AD Act. That section provides:

111 Tribunal may dismiss frivolous etc. complaints
(1) Where, at any stage of the inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.
81 The Tribunal is not satisfied that Ms Zannella’s complaints were frivolous, vexatious or misconceived. Although the Tribunal has found her complaints to be not made out, it does not doubt Ms Zannella’s belief that she had been treated less favourably on the ground of her sex. The Tribunal considers that she approached her complaints to the President of the Anti-Discrimination Board and her application to this Tribunal with a firmly and honestly held view that she had complaints of substance.

82 Both Respondents made submissions to the Tribunal at the conclusion of the hearing in support of an application for costs to be awarded against the Applicant should her complaints be dismissed. Both submitted that such an order should be made pursuant to section 111(2) of the Act. That provision allows for the Tribunal to award costs against a complainant where their complaint has been dismissed under section 111(1).

83 Under section 88(1) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) the Tribunal may grant an award of costs in proceedings (other than proceedings for an original decision), but only if it is satisfied that there are “special circumstances”. Section 88(1) also provides that the costs provisions of the ADT Act are “(s)ubject to…any other Act”. In a similar way to section 88, section 114(1) of the ADA Act establishes a general rule that each party to an inquiry shall pay his or her own costs.

84 This rule is subject to section 114(2), which gives the Tribunal the discretion to make an order either as to costs or as to security for costs “as it thinks fit”, if it believes there are circumstances that justify it doing so.

85 The Tribunal in Sloey -v- State Transit outlined the way in which this test differs from the section 88 test:

“[T]he test here is not a "special" circumstances test, but rather an assessment of the circumstances of each case to determine whether there is something within those circumstances which would justify the awarding of costs. Accordingly, the Tribunal must examine the circumstances set out by the parties, and assess this justification.”
86 Mr Livingstone for the first Respondent submitted that the Applicant extended the proceedings by irrelevant cross examination and by the tender of irrelevant documents. The Tribunal is mindful that the Applicant, who is not legally qualified, was not legally represented and in these circumstances prosecuted her complaint against two respondents without assistance. The matter was originally (rather optimistically) listed for one hearing day and ultimately took two days. In these circumstances, the Tribunal does not consider that there is any matter to justify departure, pursuant to section 114(2), from the usual rule that each party pay its own costs.

87 Mr Clarke for the second Respondent referred the Tribunal to the following passage in its decision in Crewdson -v- President, Anti-Discrimination Board [2000] NSWADT 60:

56 The Tribunal is given the power by section 111(1) of the Act to dismiss a complaint at any stage of an inquiry if “satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained”. These words are precisely the same as those found in section 90(1) which permits the President to decline to entertain a complaint. Section 111(2) permits the Tribunal to order the complainant to pay the costs of the inquiry if it dismisses a complaint under section 111(1). In my opinion it should be a rule of practice that the Tribunal will order costs against an unsuccessful complainant (unless truly exceptional circumstances exist) if the Tribunal dismisses a complaint under section 111(1) when the President has earlier declined the complaint pursuant to section 90(1) and the complaint has come before the Tribunal at the insistence of the complainant. Even if the complaint is fully heard, and section 111 is not invoked, the power to order costs granted by section 114(2) should be invoked (unless truly exceptional circumstances exist) if a complaint which is dismissed by the Tribunal is one which came before the Tribunal at the insistence of the complainant after it had been declined by the President.
88 Crewdson was decided in very different circumstances to this case, and can have very limited application to this matter. Crewdson concerned an application for review, under the recently introduced section 90(3) of the AD Act, of a decision of the President to decline to entertain a complaint. No application for costs had been made in Crewdson , no order for costs was made, and the Tribunal in Crewdson remitted the matter to the President. Further, the “rule of practice” suggested in Crewdson, in relation to matters dismissed by the Tribunal under section 111 of the A D Act, has no application to this matter given that it has been dismissed by the Tribunal under section 114. The additional comments by the Tribunal, concerning those cases where a complaint has been dismissed other than under section 111 following referral by the President of the Board under section 91(1) of the Act, expressly exclude cases where exceptional circumstances exist. The Tribunal considers that Ms Zannella’s complaint of sexual harassment, concerning the alleged calendar, raised issues of fact and law that required substantial consideration by the Tribunal. In the view of the Tribunal, the circumstances were, therefore, exceptional.

89 The Tribunal makes no order as to costs.