Cairns v ANZ Banking Group Ltd

Cairns v ANZ Banking Group Ltd - [2016] NSWCATAD 165 - NSWCATAD 2016 case summary — Zoe

[4]

Race Discrimination Complaint

Mr and Mrs Cairns complaint is set out as follows.
Mr and Mrs Cairns are New Zealand citizens residing permanently in Australia since 2004. They entered Australia under the Trans-Tasman Travel Arrangement - the TTTA. They were granted a Special Category Visa - SCV. The SCV is unique to New Zealand citizens and allows them to remain in Australia indefinitely with no work limitation or other conditions attached.
In September 2005 Mr Cairns was sent an ANZ Bank (first Respondent) direct marketing letter offering him a life insurance product called Easy Cover Life underwritten by ING Life, now OnePath Life Limited - the policy.
The letter stated, amongst other matters:
"As an ANZ customer who is a Permanent Australian Resident and aged between 21 and 59, your acceptance is guaranteed."
The product disclosure statement (PDS) dated 1 August 2005 set out that the offer was to permanent residents of Australia aged 21 to 59. A definition of 'Permanent Australian Resident' was not provided. In 2005 Mr Cairns took up the policy for both himself and his wife.
In March 2015 the Cairns' financial adviser raised concern regarding the wording of their policy. They obtained a copy of the PDS for their policy dated November 2006. In this latter version of November 2006, the wording had changed to define Permanent Resident of Australia as: 'Permanent resident of Australia: an Australian citizen or a person in possession of a Permanent Resident's visa'.
The Cairns' financial adviser wrote to OnePath on 28 March 2015 to clarify the matter. On 9 April 2015 the Cairns received a response from OnePath stating that the Cairns "would not be covered from commencement of the policy as they are not citizens or permanent residents of Australia." They were advised that the only option available to them was to cancel the policy from inception and all premiums would be refunded.
The Cairns complained of race discrimination in the provision of services against both ANZ and OnePath to the ADB in September 2015.

[5]

Responses of Respondents to President of ADB

One Path's response to the complaint of 14 December 2015 to the President of the ADB stated that it denied discriminating against the Cairns either directly or indirectly. The letter offering the policy did not say that Mr Cairns had met all the eligibility criteria. Only Mr and Mrs Cairns would have knowledge of their permanent residency status or otherwise. The term "permanent resident of Australia" was not defined in the August 2005 version but was defined in the November 2006 PDS. The policy document dated June 2005 included the following definition of "permanent resident of Australia": "permanent resident of Australia means an Australian citizen or person in possession of a permanent residents visa".
OnePath stated that it was clear that the SCVs held by the Cairns were temporary visas not permanent visas. Further the Cairns had the option of becoming permanent residents of Australia and had they done so they would have fulfilled the eligibility criteria for the policy regardless of their New Zealand citizenship. The Cairns had declared in their application that they had received and understood their application. The policy was issued based on the declarations that the Cairns had made in that application.
It was the Cairns who had realised that they were not eligible for the policy as they did not hold permanent visas. Even though OnePath denied discriminating on the grounds of race, OnePath refunded all premiums paid for the Easy Cover Life policy which is now closed to new business. OnePath offered to replace the Easy Cover life policy with a Secure Life Plan policy which has additional benefits. As Mr Cairns finds it difficult to obtain new cover due to a stroke that he had suffered since taking out the Easy Cover life policy in 2005, OnePath also stated that it was prepared to waive the five-year pre-existing condition exclusion on the Secure Life Plan Policy for the Cairns, to offset this issue. Mr and Mrs Cairns did not accept this offer.
Since 2009 cover has been made available to New Zealand citizens by OnePath regardless of whether or not they are permanent residents of Australia, as long as they received the PDS in Australia. OnePath also says it is in the process of changing its business rules to retrospectively apply the current eligibility criteria to the older policies.

[12]

The Applicants' submissions

The Applicants made both written and oral submissions. The Tribunal summarises them as follows.
The Acting President of the ADB had been incorrect in stating that the applicants had not been refused a service. The applicants had been issued with a policy which did not cover them and the respondent OnePath had confirmed that the applicants were never covered by the policy. The applicant asserted the fact that they had never sought to claim and had not been refused was not relevant.
Effectively the applicants had never received the service for which they had paid for the period 2005 to 2015. This service was to be covered by the policy of insurance.
The Acting President had noted that some parts of the complaint had occurred after the Applicants had moved to Western Australia in 2008. The applicants should be permitted to argue whether or not they remained covered by the New South Wales ADA after this time. This was not a basis on which the Acting President should have declined the complaint as it was an arguable issue.
ANZ's argument that it did not provide any services in relation to the insurance policy was flawed. The definition of services in section 4 of the Act specifically refers to services relating to insurance. ANZ had provided a direct marketing service to link customers with the provision of life insurance. In this respect they were providing a service relating to life insurance.
The policy document had not been sent to the Cairns after until after the decision to purchase the life insurance policy. They were not advised of conditions and exclusions until after their purchase. Further, as customers of ANZ they had provided ANZ with all their details when opening bank accounts The ANZ would have been aware of the Cairns' visa status.
The Respondents' motive in excluding New Zealand applicants from coverage was irrelevant. The fact that the Cairns had been offered a replacement policy did not change the fact that they were not covered by the original policy that they had wanted to be covered by. That still remained discriminatory.
The applicants argued that however one looked at the issue, the problem at all times came back to the Cairns' New Zealand citizenship - whether OnePath was motivated by a discriminatory attitude towards New Zealanders or not.

[16]

Race

"Race" is defined in s 4 of the Anti-Discrimination Act to include: "colour, nationality, descent and ethnic, ethno-religious or national origin." It is not in dispute that Mr and Mrs Cairns' national origin is New Zealander.
The two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to the Complainants must be compared to the treatment that was or would have been afforded to a real or hypothetical person of a different race in the same circumstances or in circumstances which are not materially different.
In addition, race must be at least one of the reasons for the treatment: Anti-Discrimination Act, s 4A. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's race is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. As with the vast majority of complaints of discrimination, a causal link between the Applicants' race and the alleged treatment would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: "... (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence."

[23]

Section 108 (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter. (3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or Complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate. (4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body. (5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons. (6) ………..

It is clear that there are a range of potential outcomes for a successful complaint foreseen under the Act.
The Tribunal respectfully disagrees with the Acting President of the ADB that the fact of a settlement offer has been made to the Applicants renders it unfair or unjust for leave for the complaint to proceed. The Applicants may, if their complaint is successful at hearing, seek remedies other than those offered in settlement. Further the fact that a complaint may or could be settled does not detract from any inherent merit the complaint may have.

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)