Connor v Australian Financial Complaints Authority Ltd

Connor v Australian Financial Complaints Authority Ltd - [2025] NSWCATAD 46 - NSWCATAD 2024 case summary — Zoe

[6]

Relevant legislation

Section 49B of the Anti-Discrimination Act 1997 sets out what constitutes discrimination on the ground of disability. The relevant part reads: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
Section 49M of the Anti-Discrimination Act 1977 sets out when disability discrimination is unlawful in the provision of goods and services: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability - (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. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
'Disability' is defined in section 4(1) of the Anti-Discrimination Act 1977 in the following terms: disability means - (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

[9]

Mr Connor's evidence

Mr Connor explained the circumstances of his first AFCA complaint, which he made against a bank. In correspondence to the Anti-Discrimination Board, Mr Connor said that the bank "accused me of fraud freezing my accounts and then refusing to release fundsa [sic] id [sic] signed for in the branch to finalise the banks decision to close my accounts invoking me to call nsw police…". In response to these circumstances, Mr Connor said "I do get loud" and "I don't want to scare or upset anybody".
Mr Connor described himself as having a psychological disability. He said that he had made an attempt on his life by taking an overdose. When asked about his disability, Mr Connor explained he had been diagnosed with "mood dysregulation", "distress intolerance" and complex Post-traumatic stress disorder. He said it affects the way he communicates. He becomes "more blunt", with a touch of "arrogance". Later he explained that he had experienced mental illness since his early 20s and had been diagnosed with bipolar and schizophrenia. He is taking the medication Seroquel and has accessed therapy from a psychologist. He described his experience as "a horrendous existence".
Mr Connor referred to himself as a "traumatised person". He said that the request by AFCA that he obtain an expert report was unfair and exacerbated his trauma. He said that if AFCA treated him fairly it would have given him more than a week to respond. He described being "elevated" and in distress and said that once his "gasket is blown" he does not know what he is saying. He said the conversation with AFCA triggered him pretty quickly. The fact he would have to pay more money to fund the report caused him to blow a gasket. He did not see why he had to obtain an independent assessment and he could not afford to pay.
Mr Connor said that AFCA gave him seven days to try to find an expert assessor. He said he did not have the opportunity to ask for more time.
Mr Connor said he found and paid an assessor but they did not turn up to conduct the assessment on the repairs. Mr Connor was asked what would have happened if he had more than seven days to get the report and he said he did not know if the situation would change as the first assessor pulled out.
Mr Connor said that he spoke to AFCA again after he had calmed down and they reopened his file and gave him more time. He described being "escalated" and in "fight and flight" mode due to his trauma.
Mr Connor said he was not just treated unfairly by AFCA but was treated this way because of his disability. He explained that as being baited in order to get a response.
Mr Connor agreed that he did say to an ACFA officer that the insurer could keep the truck, a comment which led to ACFA to write to confirm he wanted to discontinue his complaint. Mr Connor that the comment was an "act of frustration".
Mr Connor explained that he blew a gasket because he "could feel the disrespect and the bias".

[27]

Findings of fact

We made the following findings of fact on the evidence before us.
AFCA asked Mr Connor to provide an expert report to support his claims about the repairs to his truck. Mr Connor had trouble getting that report due to the cost and the fact that when he did organise an assessor and paid that person, they did not show up.
The request from AFCA that Mr Connor provide an expert report in circumstances where there was a dispute as to whether the repairs to the truck were insufficient or caused further damage was a request made in accordance with the AFCA Operational Guidelines.
AFCA wrote to Mr Connor on 22 March 2023, giving him a week to respond and provide any expert report, that is, by 29 March 2023. The Dispute Resolution Specialist asked Mr Connor to let AFCA know if he could not meet this deadline.
Mr Connor was distressed by the requests made by phone and in writing by AFCA that he provide an expert report. Mr Connor expressed this in the following ways:

He stated to AFCA he knows that the insurer did not fucking repair his truck; that his truck is fucked because of the dodgy repairs and that the insurer can keep the fucking truck
He referred to AFCA staff as "monkeys"
He interrupted and spoke over AFCA officers when speaking on the phone

However, no evidence was presented to us by Mr Connor to show that it was more difficult for him to obtain the expert report because of his stated mental health conditions. There is no evidence that Mr Connor asked for more time to provide the report once he was given the request that he provide the report within seven days, that is, by 29 March 2023. This is despite AFCA's letter asking him to advise AFCA if he was unable to meet that timeframe.
There was also no evidence that Mr Connor spoke to AFCA staff in this manner because of his conditions. There is also no evidence that this manner of communication is an attribute of his conditions or a characteristic of someone with Mr Connor's disability or imputed to persons with that disability.
The is no evidence that at any stage Mr Connor explained any coping mechanism he needs to use or the support he required, if any, in order to engage in the AFCA complaints process.
We find there is no evidence of bias in the way that AFCA interacted and provided complaint resolution services to Mr Connor.

[28]

Has 'disability' been established?

The definition of 'disability' in the Anti-Discrimination Act 1977 is very wide. Paragraph (e) of the definition in subsection 4(1) appears to squarely aimed at psychiatric disability and reads: (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
However, we note that there are other paragraphs of the definition under which Mr Connor's conditions could fall, for example, paragraph (a) of the definition (refer to [18] above).
The only evidence of disability is Mr Connor's own evidence. He provided no medical evidence including about the nature, extent and currency of his mental health conditions and how the conditions impact him including his mental functioning and behaviour.
As the Federal Court explained in Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744, a case under the Disability Discrimination Act 1992 (Cth), a complainant needs to establish they in fact have a disability. In that case Mr Zoltaszek argued that he had experienced back pain and various elbow injuries but the Federal Magistrate in hearing the matter at first instance said that in the absence of evidence as to the impact of mild scoliosis and how the changes in his elbows impacted Mr Zoltaszek, it could not be established that he had a disability at the relevant time (refer to [41] and [45]). The Federal Magistrate said there was a lack of evidence as to the seriousness of the conditions and their impact on Mr Zoltaszek's functioning and ability to work (where the allegation was discrimination in employment): refer to [45]. The Federal Court agreed ([46]).
Mr Connor faces the same issue here. There is a lack of medical evidence about Mr Connor's "BIPOLAR and mood dysfunction", "trauma", "mood dysregulation", "distress intolerance" and complex Post-traumatic stress disorder or schizophrenia. There is also no medical evidence about how these conditions affect Mr Connor's functioning and how the conditions result in a need for a "coping mechanism" or support when accessing AFCA's complaint resolution services.
There is also no expert evidence before us to show that Mr Connor's reduced stress tolerance or difficult or allegedly verbally abusive behaviour is "a characteristic that appertains" to people with Mr Connor's conditions or is a "characteristic that is generally imputed to persons who have disability": refer to section 49B(2) of Anti-Discrimination Act 1997 at [16] above.
We find that Mr Connor has not proved he has a 'disability' as defined by Anti-Discrimination Act 1997. His complaint must therefore fail.

[29]

Direct discrimination: Why was Mr Connor treated the way he was?

A further aspect that Mr Connor needed to prove in order to show direct discrimination is that he was treated the way he was by ACFA "on the ground of" disability: refer to section 49B(1)(a) of the Anti-Discrimination Act 1997 set out at [16] above.
In Zoltaszek (at [43]) the Court referred to Stevenson v Murdoch Community Services Inc [2010] FCA 648: [85] The words "because of" in s 5(1) require a causal connection between the disability and the "less favourable treatment". In Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [236] Gummow, Hayne and Heydon JJ posed the question to be asked in the following terms: "[T]he central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability?" [86] In determining whether a person has been treated "less favourably" in circumstances that are the same or not materially different, the proper comparator is a person with the same behavioural characteristics without the disability: see Purvis [2003] HCA 62; 217 CLR 92 at [11] and Zhang [2009] FCAFC 35; 174 FCR 366 at [64] per Jessup and Gordon JJ.
Even if we were satisfied that Mr Connor has a 'disability', on the evidence before us we could not be satisfied that AFCA treated Mr Connor less favourably or than it treats or would treat a person who does not have that disability in the same circumstances or circumstances which are not materially different.
We note that the scope of Mr Connor's discrimination complaint as referred by the President of the Anti-Discrimination Board is that: 1. Prevented him "from accessing [his] coping mechanism relating to distress AFCA whom were fully aware of my disability"; and 2. Failed to remain independent or provide adequate support in relation to the complaint process.
We do have power to amend complaints of discrimination: refer to section 103 of the Anti-Discrimination Act 1977. If we allowed the amendment of the complaint to include the following AFCA conduct: 1. To request that Mr Connor provide an expert report within seven days, that is, by 29 March 2023; and 2. To require Mr Connor to abide by the AFCA's "engagement expectation" about respectful communication Mr Connor would still be unsuccessful in proving discrimination.
We are satisfied that in circumstances where a person without Mr Connor's disability who made the same AFCA complaint against an insurer about the truck repairs and the insurer presented information in support of its case, AFCA would have treated that complainant the same by providing the insurer's material and asked that person to obtain their own evidence by way of an expert report.
We are also satisfied that AFCA staff would have responded the same way to such a person if they had made the same comments and interrupted and spoke over AFCA staff, as described at [77] above.
As we found at [78]-[79] there is no evidence that Mr Connor's difficulties in providing the expert report or meeting AFCA's "engagement expectation" about respectful communication had any connection with his conditions.

At a glance

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Judgment (33 paragraphs)

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Legislation Cited (1)

Cases Cited (6)