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[1998] QCA 228
Court of Appeal (Qld)
1998-08-18
Davies J, Pincus J, Thomas J, Ambrose J
Original judgment source is linked above.
For the reasons published by Davies J.A. and Pincus J.A. I agree that the President failed to enter upon any proper consideration of this important factor. I would add that the circumstance that a doctor considers that a potential patient does not demonstrate any need for the services that are requested would prima facie seem to be a very reasonable basis for refusing or delaying the provision of such services. Other relevant factors would include the absence of authoritative guidance from public authorities, and the circumstance that on a subject where community views may range very widely, the concept of tolerance which the Anti-Discrimination Act would seem designed to promote, would demand that a wide ambit be permitted in the concept of determining the reasonableness of individual responses to such situations.
On the evidence in the record I, like Pincus J.A. would have been inclined to set the finding of indirect discrimination aside, and decline to remit the matter under s.218(c). It is highly likely that practices and even views have changed in the four years since the issue was brought forward and that it would be preferable to terminate the dispute at this stage. However no application was brought on behalf of the respondents to vary the Judge's order that the issue of indirect discrimination be remitted to the Tribunal. That order should therefore stand. Whether the parties proceed to relitigate the matter is of course a matter for them.
The question was litigated whether Dr GK was the agent of the company called QFG. The evidence on this question was sparse and unsatisfactory. My impression from reading the evidence is that the company was the agent of the various doctors, acting on their behalf to solicit and direct clients to the various members of the group, rather than the converse. For the reasons mentioned by Davies J.A. and Pincus J.A. I agree that the finding of vicarious liability should be set aside.
If the issue of indirect discrimination, including reasonableness, is to be reconsidered, it is appropriate that the exemption mentioned in s.104 of the Act be considered along with it. Arguably, the people for whose benefit the respondents provide their services may comprise a group under s.104, and s.103 provides that it is not unlawful to discriminate in such a case. Indeed the doctor and his fellow practitioners seem to have been attempting to benefit a finite and readily identifiable group of persons in the community, namely heterosexual couples who have attempted to have a baby and have failed. Other formulations of an appropriate group for consideration under s.104 are of course possible. It would seem that this issue ought to be included if any further litigation ensues on the issue of indirect discrimination and whether the doctor imposed an unreasonable requirement.
[3] The examples given in the section also support that construction: Acts Interpretation Act 1954 ss.14(3), 14D.
[5] Secretary, Foreign Affairs and Trade v. Styles [1989] FCA 342; (1989) 23 F.C.R. 251 at 263, approved in Waters v. Public Transport Corporation [1991] HCA 49; (1991) 173 C.L.R. 349 at 395-6.
[6] Secretary, Foreign Affairs and Trade v. Styles [1989] FCA 342; (1989) 23 F.C.R. 251 at 264.
[7] Rama Corporation Ltd. v. Proved Tin & General Investments Ltd. [1952] 2 Q.B. 147 at 149, 150; Freeman and Lockyer (a firm) v. Buckhurst Park Properties (Mangal) Ltd. [1964] 2 Q.B. 480 at 498, 502-6; Northside Developments Pty. Ltd. v. Registrar-General [1990] HCA 32; (1990) 170 C.L.R. 146 at 172.
JM
QFG & GK [1998] QCA 228
Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 C.L.R. 321
Minister for Immigration and Ethnic Affairs v. Pochi [1980] FCA 85; (1980) 31 A.L.R. 666
Some of the English cases give support to a wide power to attack administrative findings of fact: Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320 at 1326 (". . . a conclusion to which on the evidence he could not reasonably come"); Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] A.C. 1014 at 1047 (". . . acted . . . upon an incorrect basis of fact"); R v. Hillingdon London Borough Council; ex parte: Puhlhofer [1986] UKHL 1; [1986] A.C. 484 at 518, which suggests that perverse findings ground an attack on the basis of error in law. In Bond's case Mason C.J. referred to the last of these cases and expressed the view that:
But what the appellant thought about this subject was not disclosed. To establish that, in discriminating against her as the doctor was said to have done in his dealings with the appellant, the doctor acted with the ostensible authority of the company, the appellant had to show that she believed him to have so acted; not only was it necessary that a representation be made that the doctor, in his dealings with the appellant, acted as agent of the company, but that representation must have been accepted and acted upon by the appellant: Northside Developments Pty Ltd v. Registrar-General [1990] HCA 32; (1990) 170 C.L.R. 146 at 172, 207. No-one asked the appellant whether she understood the doctor to be dealing with her on behalf of the company, or as an independent practitioner using the company's services, and it is difficult to imagine how the representations relied on could have enabled her to form a view on that point. I note that the principles of ostensible authority to which I have referred appear to have been applied in the Equal Opportunity Tribunal of Western Australia: Graham v. Ietto [1992] E.O.C. 92- 451.