Zangari v St John Ambulance Service - [2010] WASAT 6

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: ZANGARI and ST JOHN AMBULANCE SERVICE [2010] WASAT 6

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)

HEARD: 2 4 DECEMBER 2008
FINAL SUBMISSIONS FILED 12 MARCH 2009

DELIVERED : 25 JANUARY 2010

FILE NO/S: EOA 69 of 2007

BETWEEN: MARIA ZANGARI
Applicant
AND
ST JOHN AMBULANCE SERVICE
Respondent

Catchwords:

Definition of service - Whether provision of service to doctor on behalf of patient - Race - Racial characteristics - Accent - Less favourable treatment - Drawing of inference from facts

Legislation:

Equal Opportunity Act 1984 (WA), s 3, s 4(1), s 5, s 36, s 36(1)(b), s 46, s 93(1)(b), s 161
State Administrative Tribunal Act 2004 (WA), s 50(1), s 87(1), s 87(2)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41

Result:

Application dismissed
Order for submissions on costs

Category: B

Representation:

Counsel:

Applicant: Ms G Visscher
Respondent: Mr M Hemery

Solicitors:

Applicant: Pynt & Partners
Respondent: Talbot Olivier Lawyers

Case(s) referred to in decision(s):

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Carr v Baker (1963) 36 SR (NSW) 301
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Cocks McNish v Biundo [2004] WASCA 194
Collard v Department of Housing and Works [2004] WAEOT 13
Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 31
Dare v Hurley [2005] FMCA 844
Department of Health v Arumugun [1988] VR 319
Dowling v Bowie (1952) 86 CLR 136
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
Garity v Commonwealth Bank of Australia [1999] EOC 92966
Ghockson v Commissioner of Police (1996) EOC 92-798
Glasgow City Council v Zafar [1998] 2 All ER 953
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Heikkinen and Edith Cowan University [2007] WASAT 321
Hoddy v Executive Director Department of Corrective Services (1992) EOC 92397
IW v City of Perth (1997) 191 CLR 1
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Jernakoff v WA Softball Association (Inc) (1998) EOT 9298
Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107
Nominal Defendants v Owens (1978) 22 ALR 128
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Rainsford v Victoria [1007] FCA 1059
Sharma v Legal Aid (QLD) [2002] FCAFC 196
Soelberg (formerly Van Droffelaar) and Commissioner of Police [2008] WASAT 305(S)
Soelberg and Commissioner of Police [2008] WASAT 305
State of Victoria v Macedonian Teachers' Association of Victoria Inc (1999) 91 FCR 47
Summerville and Department of Education and Training and Others [2006] WASAT 368(S)
Waters v Public Transport Corporation (1991) 173 CLR 349

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant in this case, Dr Maria Zangari, attended on one of her patients who had collapsed in his car in the car park of the York Street Medical Centre on 6 July 2006. She complained under the Equal Opportunity Act1984 (WA) that when she called the St John Ambulance Service to attend on her patient, whom she suspected was suffering a cardiac arrest, the respondent treated her less favourably than it treated others who utilised its services. She said this was because she is Italian. Dr Zangari alleged that the St John Ambulance Service did not treat her call as a priority, by taking too long to arrive and not attending with lights and sirens. She also claimed that when the ambulance did arrive, the ambulance officers ignored her, threatened her, assaulted her and did not consult her as the patient’s treating doctor.
Dr Zangari further alleged that the complaint she later made to the respondent concerning her treatment on 6 July 2006 was not properly investigated.
Dr Zangari claimed that her faith in emergency services providers has been eroded as a result of this incident.She sought an apology, damages of $7,500 and an unspecified amount for aggravated damages arising primarily, she said, because of the way the respondent dealt with her complaint.
There was much dispute as to what had occurred at the York Street Medical Centre on 6 July 2006. The Tribunal was therefore required to make findings of fact before it could address questions of law.
The Tribunal held that the respondent had not provided Dr Zangari with a service, as required by s 46(c) of the Equal Opportunity Act 1984 (WA). A service under the Equal Opportunity Act 1984 (WA) must be provided to an applicant ‘directly’ and generally, there needs to be some sort of direct legal connection between the respondent and the recipient of the service. As the agent for the recipient of the service (the patient), Dr Zangari was not in that direct legal relationship with the respondent and therefore, a service was not provided to her. The fact that Dr Zangari is a medical practitioner did not affect the Tribunal’s finding of whether or not a service was provided to her as well as the patient.
As Dr Zangari failed to prove that the respondent provided her with a service, her claim failed on the first hurdle and the Tribunal was not required to turn its mind to the question of whether or not Dr Zangari was treated less favourably than others in the same or similar circumstances.
The Tribunal dismissed Dr Zangari’s application and sought submissions from the parties on costs.

Background

At about 9.50 am on 6 July 2006, the applicant in this case, Dr Maria Zangari attended on one of her patients, Mr L, who had collapsed in his car in the car park of the York Street Medical Centre (surgery). Mr L remained in his car during the relevant period. Dr Zangari says that when she arrived at his car, Mr L was not responsive and 'hard as a rock'. At 9.58 am, Dr Zangari's receptionist, Ms Mary Spatocco, telephoned 000 and asked for an ambulance. During this call, Mr L regained consciousness.
When the ambulance arrived at the surgery at 10.10 am, it was directed to the car park at the rear of the surgery by a number of Dr Zangari's patients. The ambulance stopped perpendicular to Mr L's car; Mr Russell Jaggard and Ms Rosalind Howell (ambulance officers) got out of the ambulance and walked towards the surgery entrance.
Dr Zangari attempted to direct the ambulance officers to Mr L's car by calling 'excuse me' and when the ambulance officers failed to respond to her, she said: 'Are you deaf? Where are you going? We have been waiting here for 20 minutes.' At this time, the ambulance officers were directed to Mr L's car by one of Dr Zangari's patients and they commenced their examination of Mr L.
During the examination, an altercation took place between Ms Howell and Dr Zangari and both Dr Zangari and Mr Jaggard called for police attendance at the surgery.
Dr Zangari claims that she was ignored, threatened and not consulted by the ambulance officers because she is Italian. On 30 April 2007, Dr Zangari lodged a complaint of unlawful discrimination of the ground of race in the area of the provision of goods and services with the Commissioner for Equal Opportunity who investigated and attempted to conciliate the complaint without success. On 13 December 2007, the Commissioner referred the matter to this Tribunal pursuant to s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (EO Act).
At the request of the parties, the Tribunal held two preliminary hearings before the final hearing. The first was on 28 August 2008 when Deputy President Judge Eckert heard submissions on whether the St John Ambulance Service (SJA) provided a 'service' within the meaning of the EO Act, to Dr Zangari on 6 July 2006, so that she was a 'person aggrieved' under s 36 of the EO Act and entitled to bring these proceedings under s 46 of the EO Act. The Tribunal also heard submissions on whether the ambulance officers should be joined as parties. On 1 September 2008, Judge Eckert gave an oral decision that the question of whether SJA provided services to Dr Zangari was a question of fact that could only be decided after the Tribunal had heard the evidence and made its findings of facts regarding the chain of events on 6 July 2006. The issue of whether the ambulance officers should be joined as parties fell away at the first preliminary hearing when SJA correctly accepted it was vicariously liable for the actions of the ambulance officers under s 161 of the EO Act.
The second preliminary hearing was on 26 November 2008, when SJA applied to strike out Dr Zangari's application and to transfer the proceedings to the Supreme Court. At the time, Dr Zangari had current Supreme Court proceedings against SJA and the ambulance officers for battery and defamation. The Tribunal constituted by Judge Eckert dismissed SJA's application on the basis that the Supreme Court did not have the primary jurisdiction to hear matters under the EO Act. That jurisdiction lay solely with the Tribunal and the Supreme Court was not a 'more appropriate' jurisdiction under s 50(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Tribunal heard the substantive application over three days in December 2008; the applicant filed her closing submissions in March 2009. The Tribunal apologises for the lengthy delay in providing this decision and these written reasons and sincerely apologises for any inconvenience this delay has caused the parties.

The allegations

Dr Zangari makes eight allegations that the respondent, SJA, by the ambulance officers, breached s 46 of the EO Act by treating her less favourably than they would have treated someone who was not Italian:
1)the ambulance officers ignored multiple attempts by Dr Zangari to attract their attention when they first arrived at the surgery ('first allegation');
2)Mr Jaggard responded to Dr Zangari's fifth attempt to attract their attention by saying to her words to the effect: 'We have been told to go to a doctor['s] surgery and if you call us like that, I will call the police' ('second allegation');
3)neither of the ambulance officers attempted to engage Dr Zangari's assistance as soon as they realised she was a doctor ('third allegation');
4)neither of the ambulance officers attempted to engage Dr Zangari's assistance as soon as they realised she was the doctor who had caused them to be called to the surgery ('fourth allegation');
5)neither of the ambulance officers attempted to engage Dr Zangari's assistance as soon as they realised Mr L was her patient ('fifth allegation');
6)neither of the ambulance officers asked Dr Zangari whether Mr L was her patient or anything about Mr L at any time after they realised she was a doctor ('sixth allegation');
7)neither of the ambulance officers asked Dr Zangari whether Mr L was her patient or anything about Mr L at any time after they realised she was a doctor and that Mr L was her patient ('seventh allegation');
8)Ms Howell stood up and pushed Dr Zangari twice with her hand while Dr Zangari was talking to Mr L, without firstly:
a)attempting to engage Dr Zangari's assistance; or
b)asking Dr Zangari whether Mr L was her patient or anything about Mr L,
in circumstances in which she knew or ought to have known Dr Zangari was a doctor and that Mr L was her patient ('eighth allegation').
SJA denies all of the allegations. Dr Zangari seeks damages of $7,500, an unspecified amount for aggravated damages arising primarily, she says, because of the way SJA dealt with her complaint to it and an apology.

The relevant legislation

The relevant provisions of the EO Act are:
3.       Objects
The objects of this Act are
(a)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs;
…
(d)to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.
36.     Racial discrimination
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person;
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator -
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
46.     Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race -
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Race is defined in s 4(1) of the EO Act as follows:
race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act;
By the definition provided in s 4(1) of the EO Act,
services includes:
…
(c)services relating to transport or travel;
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government … a government or public authority or a local government body;
'Employment' is defined as including:
(a)parttime and temporary employment;
(b)work under a contract for services; and
(c)work as a State employee.
5. Act done for 2 or more reasons
A reference in Part II, IIAA, IIA, IIB, III, IV, IVA or IVB to the doing of an act on the ground of a particular matter includes a reference to the doing of an act on the ground of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
161. Vicarious liability
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent -
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

The issues

The issues before the Tribunal are firstly, whether SJA provided Dr Zangari with a service as defined in s 4(1) of the EO Act. If we find that SJA did not provide a service, then that is the end of the matter. Our jurisdiction under s 36 and s 46 of the EO Act is not enlivened and we must dismiss Dr Zangari's application. If we find that SJA provided a service to Dr Zangari, then the second issue is relevant. That requires us to look at whether SJA, through the ambulance officers, breached s 46 of the EO Act by discriminating against Dr Zangari on the ground of her race in the manner in which they provided her with ambulance and first aid services and facilities at the surgery on 6 July 2006.

Outline of claim and response

Dr Zangari says that on 6 July 2006, the ambulance officers, as employees of SJA, discriminated against her on the grounds of her race when they provided ambulance services to her. She says they dismissed her, ignored her and were rude to her. She relies on an inference that there is no other reasonable basis to explain the ambulance officers' actions, other than that they had a stereotypical view of who they were dealing with and their stereotypical view was based on race. She says they therefore treated her less favourably than they would have treated someone who was not Italian, and it would seem, particularly a doctor who was not an Italian.
SJA says that the ambulance officers merely saw what they concluded was an hysterical person; they did not immediately know that she was the doctor and in any event, the ambulance officers had the role to take charge of the scene when they arrived; they were acting quickly in an emergency situation of a possible cardiac arrest and they, therefore, acted reasonably in the circumstances throughout the time they were at the surgery. They were properly focusing on their patient and following recognised emergency procedures. They did not need to defer to Dr Zangari because the patient provided them with all the information they needed. SJA says the ambulance officers would not have acted any differently if the hysterical bystander or doctor was not an Italian.
Essentially, Dr Zangari views the conduct of the ambulance officers on 6 July 2006 in a subjective way. She is clearly very upset, but in these proceedings the law asks us to apply an objective test to see if discrimination occurred. Ultimately, this is a bitter dispute from Dr Zangari's perspective over lack of respect for her as a doctor and as a person.

The relevant legal principles

Standard of proof

Dr Zangari bears the onus of proof and must prove her case on the balance of probabilities; Dowling v Bowie(1952) 86 CLR 136; Soelberg and Commissioner of Police [2008] WASAT 305 at [71]. Discrimination proceedings should be assessed on a casebycase basis, and the standard of proof should take into account the seriousness of the allegations, the gravity of the consequences flowing from an adverse finding and the likelihood of the matters alleged having occurred; State of Victoria v Macedonian Teachers' Association of Victoria Inc (1999) 91 FCR 47 at [21]. This is known as the Briginshaw standard of proof or the Briginshaw test and is generally accepted as being applicable in discrimination proceedings: Briginshaw v Briginshaw(1938) 60 CLR 336 (Briginshaw) (C Ronalds, Discrimination Law and Practice (3rd ed, 2008) (Discrimination Law and Practice) at 202. The Briginshaw test does not create a separate standard of proof, distinct from the civil standard of the balance of probabilities.
Racial discrimination is a very serious allegation and because of the consequences of a finding that conduct is unlawful on the ground of race, we must feel an 'actual persuasion' that a particular event occurred. The Briginshawtest requires us to take great care in weighing the evidence. Although there is an argument that it is unfair to require a complainant to prove an allegation in accordance with Briginshaw (see N Rees, K Lindsay and S Rice, Australian Antidiscrimination Law: Text, Cases and Materials (2008) at 4.4.13 - 4.4.15), we are of the view that we must consider the standard in each case and not automatically apply the Briginshaw test to the civil standard. We find in these proceedings that, due to the seriousness of the allegations and the consequences of finding against SJA, the Briginshawtest applies.

Intention and purpose

Dr Zangari does not need to show that SJA intended to discriminate against her. It is a well accepted principle of discrimination law that it is the effect of an impugned practice, not the underlying intent, that is the governing factor in determining whether the practice or conduct gives rise to discrimination; Garity v Commonwealth Bank of Australia [1999] EOC 92966; Waters v Public Transport Corporation(1991) 173 CLR 349 (Waters) at 359; Jamal v Secretary, Department of Health(1988) 14 NSWLR 252 (Jamal) at 259-260 (Kirby P) and 265 (Samuels JA).
Dr Zangari's race or racial characteristics need not have been the sole or even the dominant reason for SJA's less favourable treatment, in order for unlawful discrimination to be proved. All that is required is that Dr Zangari's race or racial characteristics be a reason for the less favourable treatment; see s 5 of the EO Act; Ghockson v Commissioner of Police(1996) EOC 92 - 798 at 78,912 (WA, EOT); Collard v Department of Housing and Works [2004] WAEOT 13 at [63].
Despite this, however, the act which amounts to discrimination must be deliberate; that is, it must have been done with the knowledge that Dr Zangari is Italian; Jamal at 265 per Samuels JA.

Causation

For a finding of unlawful discrimination to be made out, Dr Zangari must establish a causal connection between the ground of discrimination that she alleges and the conduct that she complains about. Dr Zangari must show that she was treated 'less favourably' by the ambulance officers than they would have treated another person in 'the same' or 'not materially different' circumstances, because of her race; Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis) at 163 (Gummow, Hayne and Heydon JJ). .
Discrimination Law and Practice at 36 also observes that 'establishing the existence of that causal link is frequently the most crucial element in any case'.
The accepted test for causation is the 'but for test' as described by Kirby J in IW v City of Perth (1997) 191 CLR 1 (IW) at 63:
The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.
In considering whether circumstances are 'the same' or 'not materially different', we must consider all of the objective features which surround the actual or intended treatment that is said to have been 'less favourable': Purvis at [224] per Gummow, Hayne and Heydon JJ.

Less favourable treatment

The expression 'less favourably' in s 36 of the EO Act is to be given its ordinary meaning. Implicit in the notion of the words 'less favourably' than another in 'the same circumstances', is the necessity to establish a comparator so that we can examine two situations or sets of circumstances, the actual and the hypothesised, to enable us to determine by comparison, whether the treatment in the former is 'less favourable' than in the latter; Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).
An omission which causes detriment may also constitute less favourable treatment: Cocks McNish v Biundo [2004] WASCA 194 at [42].

The comparator

The basis of direct discrimination as alleged by Dr Zangari is that we compare how SJA treated Dr Zangari with how SJA would have treated someone else, known as the comparator. The basis of that comparison is 'less favourable treatment'; see s 36 of the EO Act.
If, as is often the case, there is not an actual person in comparison with whom an aggrieved person is less favourably treated, the comparison will be with a hypothetical other person; Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service (No 2)[2003] NSWADT 107. It is not necessary that the 'comparator' be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis of an appropriate comparison.
Dr Zangari submits that the relevant comparator with respect to her allegation under s 46 of the EO Act 'is a person who is not Italian'; see [19] of Dr Zangari's statement of issues, facts and contentions. However, in [63] of her closing submissions, Dr Zangari proposes that the relevant comparator is 'a doctor who was not Italian'.
SJA submits that we should apply a different comparator to the first and second allegations than we apply to the remaining six allegations. SJA argues that this is because, in the first two scenarios, the ambulance officers did not know that Dr Zangari was either a doctor or Mr L's treating doctor, so the comparator would be: 'a female bystander conducting herself in the manner … Dr Zangari conducted herself, but without an Italian accent' (respondent's closing submissions at [131]). However, Dr Zangari disputes that the ambulance officers did not know that she was a doctor. We must therefore assess the evidence in order to conclude if that is an appropriate comparator. We note that we do not see any necessity to refer to 'female bystander', and that 'bystander' would be adequate. No evidence was put before us that any particular or relevant characteristics would be ascribed to a 'female bystander'.
SJA argues that the appropriate comparator for the third, fourth and fifth allegations is: how the ambulance officers would have treated a doctor who called an ambulance in the same or similar circumstances where the doctor did not have an Italian accent.
Finally, SJA says the comparator for the sixth and seventh allegations, and it would seem the eighth allegation, is a doctor who had called the ambulance for their patient, who conducted herself towards the officers as Dr Zangari did, but who did not have an Italian accent. We agree that there could be theoretically a different comparator for each allegation.
We note that in Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [58] (Chew) this Tribunal held that 'accent' is a characteristic of race and the comparator in those proceedings was 'another person of a race different from Ms Chew's but about whom Ms Castledine [the alleged discriminator] would not have made that comment' [72]. The Tribunal noted the same comments would not have been made 'about a person with a very upper class English accent, for example, or a Southern United States drawl or even a very broad Australian accent' [72].
Ultimately, we must make a finding, as a question of fact, as to the appropriate comparator.

Drawing of inferences

It is rarely the case that a person who alleges racial discrimination will have direct evidence of the motivation for the impugned conduct. SJA is in a special position to know and explain the reasons behind the impugned conduct, even if the motivation was subconscious. It is very difficult therefore for an applicant to prove, at the level of evidence required by Briginshaw, that one of the reasons for the conduct that they complain about was race or a characteristic pertaining to race. An applicant is therefore entitled to ask us to draw an inference that the conduct was racially motivated. In most cases, this is the only means available to an applicant to prove their case of racial discrimination.
But, we must take care in drawing inferences. We cannot rely on explanations that are not supported by proper proof, just because an applicant would find it very hard to prove their case by direct evidence.
In these proceedings, Dr Zangari relies on the primary inference that race is the only reasonable and plausible explanation for the ambulance officers' conduct towards her on 6 July 2006.
An inference must be logical, rational and connected to the evidence before us; therefore, an inference can only be drawn from facts that we find proved: Glasgow City Council v Zafar [1998] 2 All ER 953 and Sharma v Legal Aid (QLD) [2002] FCAFC 196 (Sharma) at [40]. We cannot draw an inference where the basic facts, as found by us, are consistent with another innocent inference. The 'negative' inference of conduct motivated by race will be displaced if other inferences can reasonably be drawn from the entire picture of facts relevant to the incident and accepted by us as the correct description of what occurred on the relevant day.
We look at the cumulative effect of all of the facts as we find them: Sharma. If SJA gives an explanation (as it has) for the conduct of its ambulance officers, then we must decide whether or not we accept that explanation. If we do not accept it, we should draw the inference submitted by Dr Zangari, subject of course to it being based on facts found by us. If we do accept the explanation, then we cannot draw the inference as requested by Dr Zangari.
To form a view about whether or not we accept SJA's explanation that the ambulance officers acted professionally in accordance with the requirements of a priority one emergency, we must decide if that explanation is a probable explanation. It is insufficient for it to be a possible explanation. There must be an acceptable level of likelihood that it occurred, otherwise it is only conjecture rather than a plausible explanation; it must provide a reason for the conduct. In Department of Health v Arumugun [1988] VR 319, Fullargar J said at 330: 'if all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a nonacceptance of an explanation can by itself provide an element of proof required'.
It follows that there cannot be conflicting inferences of equal probability. One must be, on all the evidence, more likely to be the actual case than the other.
In Gama v QantasAirways Ltd (No 2) [2006] FMCA 1767, the Federal Magistrates Court cited Carr v Baker (1963) 36 SR (NSW) 301 at 306 307 as follows:
[where an applicant claims an inference should be drawn] there must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture. ... the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action...to such practical certainty as would justify a conviction in a criminal prosecution.
The need for 'a foundation of objective facts' was discussed by Muirhead J in Nominal Defendants v Owens(1978) 22 ALR 128 at 130, adopting the statements of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd[1940] AC 152 at 169. Muirhead J cites with approval the dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd(1955) 72 WN (NSW) 261 (Gurnett) at 264:
... the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view. ...A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.
As we have found that the Briginshaw standard is the appropriate standard of proof in these proceedings, then we must also accept that discrimination of this nature is a serious matter. As such, it should not be lightly inferred. We should not consider one piece of circumstantial evidence in isolation; rather we should consider 'the united force of all the circumstances put together'; Sharma at [4].
In these proceedings, it is therefore appropriate to apply Street CJ's test in Gurnett, and ask whether it is reasonable for us to draw a probable conclusion that conduct was less favourable and racially motivated as a matter of strict logical deduction from the whole of the relevant facts as we find them proved, or whether we should accept an innocent alternative explanation as the likely or probable reason for the conduct.

The witnesses

Dr Zangari filed witness statements and called the following witnesses:
1)Dr Zangari, who gave some limited additional oral evidence in chief and was then subjected to rigorous cross-examination by Mr Hemery, counsel for SJA;
2)Mr Mariano D'Ulisse, a patient of Dr Zangari's who was in the surgery car park at the relevant time;
3)Mr L, the patient for whom the ambulance was called;
4)Mr Nicola Ratta, a patient who observed the events from inside the surgery;
5)Ms Mary Spatocco, a receptionist at the surgery;
6)Ms Flora Petta, a patient who observed the events from inside the surgery; and
7)Ms Emilia Boccardo, a patient waiting in the surgery's reception area.
SJA filed witness statements for:
1)Mr Ashley Morris, Technical Services Director of SJA.
2)Mr Brett Screen, who was a Team Leader of SJA at the relevant time;
3)Mr Anthony Ahern, Chief Executive Officer of SJA.
4)Mr Jesper Sentow, Chief Financial Officer of SJA.
5)Mr Steven Johnston, Senior Lecturer in Paramedical Sciences;
6)Mr Russell Jaggard, ambulance officer employed by SJA; and
7)Ms Rosalind Howell, employed by SJA as an ambulance officer at the time of the incident.
Dr Zangari did not challenge the contents of Mr Morris' witness statement and he was not called to give oral evidence. The Tribunal heard oral evidence from and crossexamination of all of SJA's other witnesses.

Characteristics of race

From the outset, Dr Zangari has maintained that the ambulance officers discriminated against her on the grounds of a racial characteristic, namely her thick Italian accent. It is accepted that Dr Zangari has an Italian accent when she speaks English. SJA presented its case on that basis.
However, when SJA's witness, Mr Johnston, was crossexamined by Ms Visscher, counsel for Dr Zangari, in response to questions from her, he gave evidence about his understanding of cultural aspects of Italians. We note in this regard that Mr Johnston is not particularly qualified in a relevant sociological discipline to be treated as an expert with specialist knowledge regarding these matters. In particular, see T: 46 - 55 for 02.12.2008 of Mr Johnston's evidence. In our view, Mr Johnston's evidence needs to be taken in the context in which it was given. He described to the Tribunal at T: 45, 02.12.2008 the 'hard clinical skills' of an ambulance officer and those skills are reflected in the two practice manuals which are kept in every ambulance and which are regularly updated. They cover recommended practice for a range of circumstances that a paramedic could encounter. Mr Johnston pointed out 'there is not much in the way of soft skills in terms of how to interact with people': T: 45, 02.12.2008.
Mr Johnston is a senior lecturer in paramedical sciences at Edith Cowan University. He gave evidence that paramedics have a curriculum that allied health workers 'all over Australia and internationally are taught' T: 46. He outlined soft skills units as being mental health, the social environment, cultural awareness and communications. He then went on to describe the method of training being based on simulationtype training. This is so that paramedics are taught from an early stage 'to cope with relatively stressful sets of circumstances': T: 46. He told us that there is training to do with all cultures, including Mediterranean cultures and those from around the world. However, he was at pains to point out that he does not actually teach and have involvement in training in Mediterranean cultures. He said that the curriculum covers behaviour, religions and cultural focuses and how certain cultures behave in certain situations. Again though, he was at pains to say 'I am not an expert in this area': T: 48. He then talked in general terms about interaction of families in the Southern European context and that they are close families which can affect how they behave. He also said there is respect between age groups and towards certain professions and that there is a need to understand the religious connotations associated with decisionmaking: T: 48. He stated that Southern Europeans could generally be more verbose and more aggressive. He then clarified that by saying 'they are more emotional, but from a perceptive point of view, when coming into a situation, I would say it could be perceived as aggressive': T: 49. In response to a question from Ms Visscher about ambulance officers being in confrontational situations, he said that ambulance officers must keep in mind that the patient is their primary focus: 'their own personal safety is the first focus, themselves and then, the patient, and that nothing should be seen as an impediment to that': T: 49.
Having presented her case, and SJA having responded based on allegations relating to Dr Zangari's accent, in her closing submissions, Dr Zangari sets out a range of what she says are characteristics of Italians and she alleges that she was treated less favourably because of these characteristics. Dr Zangari asks the Tribunal to accept that the following descriptions are characteristics which appertain generally or are generally imputed to an Italian person and the grounds for saying that, she says, are based on the evidence of SJA's witness Mr Johnston. The relevant characteristics are:
1)using their hands while communicating;
2)speaking broken English;
3)being more emotional in emergency situations;
4)being more quickly excited and moved to anger in emergency situations;
5)being more aggressive in emergency situations;
6)as a professional, expecting a higher degree of respect in an emergency situation; and
7)in circumstances where a professional was not treated with respect by persons less qualified in emergency situations, then that professional is more likely to become more emotional and more excited.
We do not accept that these conclusions can be drawn from Mr Johnston's evidence. We also do not accept that Dr Zangari is entitled to base her case around these characteristics. They were not put to the witnesses. They were not set out or argued in any submissions until her final closing submissions. Dr Zangari provided her closing submissions after SJA filed its closing submissions, and SJA has not been given an opportunity to comment on these characteristics.

These socalled characteristics represent stereotypical characterisations that would appear to us to have no sound basis in fact. They form the basis for the very kind of behaviour that Dr Zangari complains about.
We are somewhat confused as to the basis on which Dr Zangari raises these characteristics. It appears that she is accepting of them as being typical. We don't see that that conclusion can be drawn and in particular, there is no sound basis for drawing conclusions 6 and 7 regarding attitudes of professionals. In opening submissions, T: 22, 02.12.2008, Ms Visscher said it was common ground 'I think you can take judicial notice of the fact that Italians are known to wave their hands, you know. When they speak, they use their hands and they probably use large movements'. We take it that where those characteristics are expressed as an Italian person being 'more' than some unspecified being, Dr Zangari means more than an Australian, or another person who is not Italian. Dr Zangari's submissions do not tell us what the basis of that comparison is; the descriptions are given in a vacuum.
In any event, we do not accept that the characteristics listed by Dr Zangari can be relied on by her in these proceedings as they did not form any part of the proceedings until she provided her closing submissions. Assertions such as those in [40(b)] of her closing submissions that hottempered Italian persons are legendary, and the extensive descriptions and conclusions drawn from Mr Johnston's evidence are speculative and not based on proper supporting evidence.
We therefore rely on Dr Zangari's accent as being the relevant 'racial characteristic' that identifies her as being Italian for the purposes of s 36(1)(b) of the EO Act and these proceedings (see Chew at [58]).

Did SJA provide a service to Dr Zangari?

Before we can find whether there is discrimination, we need to find whether or not SJA provided a service to Dr Zangari; and before we can make a finding on the law, we need to examine the facts.

The uncontested facts

Dr Zangari and SJA, through the ambulance officers, give very different accounts of what they say happened at the surgery on 6 July 2006. Leaving aside those critical aspects of the evidence, there is nonetheless a large amount of evidence that is uncontested or is in unimpeachable documentary form and which paints a background into which the eight allegations sit. We had a compact disk of the relevant telephone conversations (ten in total), which we listened to numerous times, and agreed transcripts of these conversations. We set out below what we find to be the undisputable or accepted evidence.
Dr Zangari is a registered medical practitioner who has practised in Western Australia since 1989. She migrated to Australia from Italy in 1984 and she speaks English with a strong Italian accent. At the relevant time, Dr Zangari practised at the surgery as a general practitioner.
SJA's mission is to 'provide high quality ambulance and first aid services for the welfare of the Western Australian community with the best use of limited resources available'.
SJA describes itself as a 'user pays' organisation and generates funds through the provision of ambulance services and other business activities such as industrial paramedical services and first aid training. Additional funding is provided by the Department of Health and through grants from supporters such as Lotterywest.
On 6 July 2006, Dr Zangari attended on Mr L at the surgery. Mr L suffers from type 2 diabetes and ischaemic heart disease. At about 9.50 am, Dr Zangari attended Mr L again, as he had collapsed in his car in the surgery's car park.
SJA's call centre received a telephone call from Ms Spatocco, the surgery receptionist at 9.58 am. She told the call operator that Mr L was conscious but that Dr Zangari believed he might be having a heart attack. She stressed a number of times that Dr Zangari 'just said immediately', 'you need to come immediately'. Dr Zangari made a second call to the call centre at 10.02 am and asked if the ambulance was coming to the surgery as Mr L's heart had stopped and restarted. In response, Mr Wade Bloffwitch, a call centre operator, told her that the ambulance was on its way. Dr Zangari replied 'where is it? It's been five minutes already. I hope you be quicker'. In a third call, Mr Bloffwitch called the surgery (again at 10.02 am) to seek some clarification of Dr Zangari's call. Dr Zangari took the phone from Ms Spatocco and walked into the car park where there was static interference and poor reception. Mr Bloffwitch reapeatedly asked Dr Zangari to go back inside the surgery; however, Dr Zangari remained in the car park. Mr Bloffwitch continued to ask Dr Zangari to slow down as he could not 'understand a word [she was] saying', and after some time he told her: 'The ambulance has been dispatched and it's already on its way … it's coming lights and sirens to you'.
When the ambulance arrived at the surgery at 10.10 am, it was directed to the car park at the rear of the surgery by a number of Dr Zangari's patients. The ambulance stopped perpendicular to Mr L's car and upon alighting from the ambulance and gathering the necessary equipment, the ambulance officers proceeded towards the surgery entrance.
Dr Zangari called 'excuse me' to the ambulance officers as they were approaching the surgery doors. Dr Zangari continued to call 'excuse me' and after receiving no response from the ambulance officers she said words to the effect of: 'Are you deaf? Where are you going? We have been waiting here for 20 minutes.' The ambulance officers then turned toward Dr Zangari and were advised by one of the bystanders, Mr D'Ulisse, that Mr L was in a car in the carpark.
The ambulance officers immediately approached Mr L's car and Ms Howell proceeded to examine Mr L whilst Mr Jaggard telephoned SJA's operations centre. The records show that this call took place at 10.12 am and during the call, Mr Jaggard told Mr Bloffwitch that a lady (later identified as Dr Zangari) was 'abusing us … for not coming over to her car. Apparently, this patient is not in the doctor's surgery, it's in her car so she's now ringing the police … and she's just going off.' Mr Bloffwitch responded that he would 'give VKI a call coz the information we had was that the gentleman had been in the doctor's surgery, walked outside and collapsed.' Towards the end of this conversation, Mr Jaggard states that 'the doctor's here', but it is unclear from the conversation whether he believes Dr Zangari or another person to be the doctor.
At one point in Ms Howell's examination of Mr L, she pushed Dr Zangari's left shoulder with both hands. At this time, Dr Zangari said words to the effect of: 'keep your hands off me' and called 000 requesting police attendance. During her telephone conversation with the police call centre operator, Dr Zangari requested that Mr Jaggard speak with the police call centre operator. She did not identify who it was on the telephone, she merely referred to 'someone'; however, the evidence is clear that Mr Jaggard knew that Dr Zangari was calling the police. In response to this request, Mr Jaggard told Dr Zangari that both he and Ms Howell were too busy with Mr L to speak on the telephone.
Mr Jaggard also called SJA's operations centre at 10.15 am to request police attendance and during this telephone call had the following conversation with Mr Bloffwitch:
Mr Jaggard:Yeah, this um, this lady's actually the doctor and she is just going right off and she's starting to get physical now.
Mr Bloffwitch: Ok. I'll, she's becoming aggressive towards you?
Mr Jaggard:Yes.
Mr Bloffwitch: I will, I will give the police a call now and get them on the way priority to you.
…
In the background, we could hear Mr Bloffwitch say: 'the doctor has become physically aggressive towards them.' This comment is not recorded on the transcript of this telephone call, but is clearly audible on the compact disc recording of the conversation.
…
Mr Jaggard:Ah man, this she's just a she's insane here at the moment. Yeah priority 2's good. She's just a fruit loop, you can probably hear her going off.
Mr Bloffwitch: Yes I can. Has she hit smacked any of you guys yet?
Mr Jaggard:She's she's actually got in front of Lindy so, she yeah just getting a bit pushy.
Mr Bloffwitch: Yeah okay. The coppers are coming too. How's the patient?
Mr Jaggard:Oh he's fine. Absolutely, hasn't even had any chest pain, he hasn't had an arrest or anything like that … She's just lost the plot completely the doctor. The female Italian doctor's just lost the plot completely.
Mr Bloffwitch then spoke with a police officer at Fremantle Police Station and said:
… [Dr Zangari] was extremely panicked when she called it in and a patient had collapsed outside her surgery after seeing her and the crew's got there and she's become extremely verbally aggressive towards them and now they've just called back and saying that she is actually becoming physically aggressive towards them … And becoming a problem, so, oh, actually it's Dr Zangari is the doctor that was there when it was called in so I would assume that's who it is.
After leaving the surgery, Ms Howell reported to SJA communications officer, Ms Sandra May Johnson:
Ms Howell:We got to the house, a surgery in a house and there was a gesticulator on the road, one half way up the driveway and one in the back car park … We pulled up got out of the van with our gear, and headed into the door of the surgery and there was three old Italian people watching us walk into the surgery when from somewhere in the back of the car park we heard this s'cuse me s'cuse me s'cuse me … So we kind of ignored that because you know everyone else was watching us walk into the surgery and then we hear 's'cuse me you bloody deaf I'm talking to you I call ambulance 50 minutes, not come, you not listening'.
Ms Johnson:And that was the doctor. An Asian was it?
Ms Howell:Nooo an Italian (male in background) ITALIAN. And um Russell had just turned around and both us had steam coming out of our ears and he said how dare you talk to us like that, we will not be spoken to like that. Do you want us to turn around and go away or do you want us to look at your patient. If you want us here you treat us with some respect. And she just lost it then.
Ms Johnson:Did she?
Ms Howell:She just lost it and she wouldn't let me get near the patient who was in the car…so I just grabbed her by the shoulder and said go out there… There was a patient lying in the car, he has no monitor, no oxygen, no aspirin, no isortal, no nothing, no BP cuffs, nothing … He hasn't been looked after and in actual fact she wanted to argue and barrier us from him rather than let us see him.
After attending at the surgery and speaking with Dr Zangari, Sergeant Langley reported to another of SJA's employees over the telephone as follows:
Just am ringing so you have a record somewhere there, we came because you booked for us to attend for a doctor going crazy.
…
It's just a matter yes for you to have record the Doctor is going a bit troppo and will make a complaint about the ambulance. The ambo's did the right thing, nothing wrong just for your records.
…
And there all the Italians and going off and going berserk.
The subsequent report filed by a senior police officer read:
*PS* SJA officers being attacked by doctor. A/A/A SAJ (sic) stated doctor had become abusive towards them when they arrived at above address to treat a patient … All quiet on Police arrival. SJA officers fine. Doctor extremely agitated. Upset. AQPD. Attend hospital to speak with SJA.
The parties agreed that at no time during the incident did Dr Zangari identify herself to the ambulance officers as either a doctor or Mr L's treating doctor. However, she says she had her stethoscope around her neck.

The contested evidence

Dr Zangari's evidence

In her witness statement at [5], Dr Zangari says that when she attended to Mr L in his car, he was 'sitting in the driver's side, his head leaning forward, pupils dilated and not responsive'. She says that she tried to shake Mr L, but he was 'hard as a rock'. She confirms this in her oral evidence, and goes on to say that she initially thought Mr L was dead, until he began breathing again (T: 41, 02.12.2008). Dr Zargari alleges that she then called for an ambulance as she was worried Mr L may be having a heart attack (witness statement at [6]).
In her crossexamination, Dr Zangari at first said that she had called the call centre a second time (after Ms Spatocco's original telephone call) to find out if the ambulance was on its way and to give the call centre a brief history of Mr L's heart condition. However, when counsel for SJA, Mr Hemery put to her that in fact she made the second call to the call centre to express her dissatisfaction at how long the ambulance was taking to arrive, she ultimately agreed that she had been anxious, shouting at the call centre operator and she wanted the ambulance to hurry up (T: 47 and T: 51, 02.12.2008). At no time, however, did she think to tell the call centre that Mr L was in a car in the car park, rather than inside the surgery (T: 48, 02.12.2008). Dr Zangari alleges that she assumed Ms Spatocco had told the call centre that Mr L was in the car and that the ambulance officers would listen to all the people standing outside the surgery 'trying to tell them the patient's in the car' (T: 48 and T: 53, 02.12.2008).
In examination in chief, Dr Zangari submitted that when the ambulance arrived, it had no sirens or lights (T: 31, 02.12.2008). She later conceded in crossexamination that she had her back to the driveway and did not see the ambulance arrive (T: 55, 02.12.2008). Dr Zangari says she was 'quite agitated' at this time (T: 56, 02.12.2008). Yet, she submits that when Mr Jaggard got out of the ambulance and walked around to the other side, she said, 'nice and gentle', 'Excuse me', from the back of the car park.
Earlier in her examination in chief, Dr Zangari had given evidence that she had needed to 'shout' for an ambulance when she first examined Mr L in his car, because she was eight to ten metres away from the doors of the surgery (T: 39, 02.12.2008). Given her 'agitated' and 'anxious' state when the ambulance arrived, and her tone and evident panic in the telephone conversations, we find it hard to believe that Dr Zangari would have spoken quietly and calmly to Mr Jaggard, particularly when he and Ms Howell appeared to her to intentionally ignore her and continue towards the surgery doors.
Dr Zangari submits that Mr Jaggard should have been able to see and hear her, when she was saying 'excuse me', despite him facing in her direction for less than ten seconds and her standing between two cars and speaking 'quietly' (T: 31 and T: 63, 02.12.2008). In any event, Dr Zangari admits that in trying to attract the ambulance officer's attention, at no time did she identify herself as a doctor, or say that the patient was in the car, she simply called 'excuse me' (T: 62 of 02.12.2008). She did however, submit that the ambulance officers should have known she was a doctor as she was wearing a stethoscope around her neck (T: 66, 02.12.2008 and witness statement at [9]).
At [10] of her witness statement, Dr Zangari states that after the ambulance officers continued to ignore her repeated calls of 'excuse me', she said: 'Are you deaf? Where are you going? We have been waiting here for 20 minutes.' This is partially confirmed in her oral evidence, where she admitted shouting these words (T: 68 and T: 73, 02.12.2008). Dr Zangari alleges that in response to these questions, Ms Jaggard said 'we've been told to go to doctor['s] surgery and if you talk to us like this, I will call the police' (T: 32, 02.12.2008). Yet, according to Dr Zangari, she kept her composure at all times, despite being surprised and shocked (T: 69, 02.12.2008).
Dr Zangari then submits that Mr Jaggard walked away and started using his telephone. She said 'you call the police. I'm going to call the police', to which Mr Jaggard replied, 'already done' (T: 80, 02.12.2008). Dr Zangari says that she then went towards the car to speak with Mr L and Ms Howell stood up and pushed her twice in the left shoulder: [11] of her witness statement and T: 80, 02.12.2008. In response, Dr Zangari shouted: 'You get your hands off me' (T: 32 and T: 34, 02.12.2008). Dr Zangari says that when she was talking to Mr L, she was not inhibiting Ms Howell's access to him and Ms Howell's actions made her 'agitated', 'irritated' and 'angry' (T: 33, T: 34 and T: 81, 02.12.2008).
At [11] of her witness statement, Dr Zangari says that during her conversation with the 000 police operator (in her witness statement, Dr Zangari says she was speaking to a male operator, yet in her examination in chief, she says that the police operator was female), the operator was 'talking over the top' of her and not listening to what she was saying. She says that after five or six minutes of this, the operator asked if he or she could speak with one of the ambulance officers and when Dr Zangari told Mr Jaggard that 'someone wants to talk to him', he refused, saying they were too busy (T: 33, 02.12.2008).
Dr Zangari says she then 'completely blank[ed] out' and decided to return to the surgery to continue seeing patients. Before she left, she told Mr L that he would be okay and that she would take care of his car keys, which were with Ms Spatocco, and she told the ambulance officers that if they 'want anything, come inside' (T: 33 and T: 87, 02.12.2008). The police arrived at the surgery soon after and when Dr Zangari 'told them all the facts, how these people were I didn't approve their behaviour', the police said: 'There has been a misunderstanding and we won't get involved' (T: 34, 02.12.2008).
Dr Zangari made a formal complaint to SJA, dated 4 August 2006, which she says took her weeks to complete because it made her 'completely upset'. Dr Zangari submits that SJA's response to her complaint unjustifiably criticised her for not taking certain steps in treating Mr L, such as telling the ambulance officers that Mr L had chest pain and not administering oxygen. (T: 35 and T: 36, 02.12.2008).

The ambulance officers' joint statement

The ambulance officers prepared a joint statement later in the day after the incident. Ms Howell says in crossexamination that the telephone conversations and the joint statement would be the most reliable indicator of their view of what occurred because they were relatively contemporaneous. We accept that.
When considering the evidence of the ambulance officers, we were cognisant of the Supreme Court proceedings and that caution may be taken by them because of that concurrent action. However, the joint statement was prepared at a time when Supreme Court proceedings were not an issue for the ambulance officers and it can therefore be relied on, subject to consideration of the fact that the ambulance officers were aware that Dr Zangari had threatened to make a complaint and that threat was treated seriously. It is possible that the joint statement could be couched in protective terms with a bias towards the description of the conduct of the people involved. We are aware of that possibility and take it into account.
The joint statement says the ambulance officers attended the surgery with the information that the patient had experienced a cardiac arrest. They were directed to the rear of the surgery by 'gesticulators waving vigorously'. Dr Zangari took issue with the use of the term 'gesticulators', saying it was racist and denigrating. However, we heard evidence that it is a standard term used by ambulance officers to describe a bystander who directs them to a specific location and race has no bearing on its use (see for example Mr Johnston's evidence: T: 54, 04.12.08).
The joint statement goes on to say that the gesticulators watched the ambulance officers in silence as they gathered their equipment and headed to the surgery. As both officers walked toward the surgery doors, there was heard from the back of the car park a person repeatedly calling (with a strong Italian accent) 's'cuse me'. As the officers did not immediately understand or acknowledge this, they proceeded to the surgery door and the expected cardiac arrest.

The truth of this evidence was not challenged by Dr Zangari, although she took great exception to it and viewed it as an unwarranted attack on her professional ability. Dr Zangari said that the ambulance officers were disrespectful in that they either ignored or dismissed her. She remains distressed about what happened and views it quite emotively and subjectively. She has no distance from the events. The ambulance officers were not and did not need to be reliant on Dr Zangari for they could properly fulfil their obligations and duty of care to Mr L who had now, for the purpose of attending to his immediate medical needs, become their patient.
Dr Zangari also failed to bring any evidence that she offered information or assistance to the ambulance officers (or to Mr L after their arrival). The ambulance officers do not bear the entire burden of ensuring they are properly informed. The patient's treating doctor should provide information or offer assistance if appropriate and if they are able to assist. The doctor should usually volunteer this information and assistance so that the ambulance officers do not have to actively seek out the information. Whether or not this is appropriate will always depend on the particular situation.
Arguably, Dr Zangari had adequately discharged her 'single comprehensive duty' of care to her patient by calling an ambulance and allowing the ambulance officers the scope and freedom to fulfil their obligations to Mr L, although this was not argued before us. Ultimately, Mr L was SJA's patient until the handover to medical staff at Fremantle hospital.
SJA asked us to draw an inference from the previous facts that Dr Zangari could not provide any additional care or treatment that would have assisted the ambulance officers in their task of attending to Mr L. Based on the unchallenged evidence of the ambulance officers, we are able to draw the inference that Dr Zangari was not, at that particular point in time, able to provide any assistance, medical or otherwise, to Mr L (other than the assistance she provided prior to the arrival of the ambulance) or to the ambulance officers, if asked to do so (see also crossexamination of Dr Zangari at T: 40 - 41, T: 54, 02.12.08).
We also find that it is probable, based on the evidence and on Dr Zangari's crossexamination in particular, that Dr Zangari could not have been of useful assistance to the ambulance officers while they attended on Mr L. In any event, they were not required nor compelled to call on her assistance, even though she was Mr L's treating doctor.
In light of our findings set out above, in particular that Dr Zangari could not have assisted the ambulance officers who from the time of their arrival had seen to the primary care of their patient, Mr L, and were obliged to take charge of the situation, it cannot be said that their role was to assist Dr Zangari to fulfil her duty of care to Mr L. The mere fact that Dr Zangari might have benefited from SJA providing services to her patient Mr L, is not sufficient to establish that she was a person receiving a service within the meaning of s 46 of the EO Act. In reality, Dr Zangari was just a 'bystander' although she proved to be a hindrance to Ms Howell in particular. We accept that an applicant in discrimination proceedings under s 46 must have personally or directly received (or been refused) the service (see IW at [24] [25]). Clearly, that was not the situation with Dr Zangari.
We can distinguish the findings of the former Western Australian Equal Opportunity Tribunal in Hoddy v Executive Director Department of Corrective Services (1992) EOC 92397 and Jernakoff v WA Softball Association (Inc) (1998) EOT 9298 at 36 and 42, on the basis that those cases involved allegations of discrimination where the respondent had refused to supply a service to the applicant. In both of those cases, a special situation arose that meant that a direct contractual relationship between the parties was not a prerequisite to a claim under the EO Act. We accept the authorities that require a direct relationship which is not present between SJA and Dr Zangari in these proceedings.
It would, in our view therefore be inherently contradictory to find that SJA provided a service to Dr Zangari when it dispatched an ambulance to the surgery. SJA provided a service to Mr L. It did not provide a service to Dr Zangari. It follows that we must therefore dismiss Dr Zangari's applications.

Costs

Counsel for both parties asked the Tribunal to take submissions on costs after final determination of the application, including costs of the two preliminary hearings. Dr Zangari's solicitors advised that she would apply for indemnity costs against SJA for any failed attempt by it to 'adjourn, stay or transfer the Tribunal's proceedings' (letter from Pynt & Partners dated 13 November 2008).
Section 87(1) of the SAT Act provides that parties bear their own costs 'unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section … '. The relevant enabling Act is the EO Act and it contains no provision as to costs. Section 87(2) of the SAT Act provides that the Tribunal may make an order for the payment by a party of all or any of the costs of another party.
We take the view that in proceedings under the EO Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. There is a view that in those cases, the Tribunal not only can make an order for payment of costs, but it should make such an order (see Soelberg and Commissioner of Police [2008] WASAT 305(S)).
The Tribunal has also considered the issue of costs in discrimination proceedings in the following decisions: Chew at [84 - [85]; Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317; Summerville and Department of Education and Training and Others [2006] WASAT 368(S).
In Heikkinen and Edith Cowan University [2007] WASAT 321, the respondent sought an order for costs. Where the application was dismissed by the Tribunal and the University had previously made an offer to settle the proceedings specifically in accordance with r 40 and r 41 of the State Administrative Tribunal Rules 2004 (WA). The Tribunal in that case made an order for the payment of witness disbursements.
On the basis that the parties have indicated an intention to seek costs, we make an order regarding submissions on costs.

Orders

The Tribunal makes the following orders:
1.The application is dismissed.
2.If either party intends to seek an order for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (and whether or not pursuant to Pt2 Div 5 of the State Administrative Tribunal Rules 2004 (WA)) and they are unable to agree costs with the other party by 5 February 2010, then the party seeking an order for costs must by 8 March 2010 notify the Tribunal (in writing) and the other party of the failure to reach agreement and of the party's intention to seek an order for costs. The Tribunal will then list the matter for oral submissions for a maximum of 30 minutes from each party or program the costs application for filing of written submissions, after considering the preferred option of each party.
I certify that this and the preceding [207] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT