Connor v Australian Financial Complaints Authority Ltd

Background

1. The Australian Financial Complaints Authority (AFCA or the Authority) provides an external complaint resolution scheme to resolve complaints about certain financial services provided by AFCA Members.

AFCA complaint

1. In 2022 Mr Connor made three complaints to AFCA about services he received from Financial Firms covered by the scheme. Mr Connor's third AFCA complaint was made on 12 December 2022. He complained about the insurer of his truck. Mr Connor alleged that the repairs authorised by the insurer were in fact inadequate and the repairer had damaged the truck and it was now a write off.

Discrimination complaint

1. On 1 March 2023 Mr Connor lodged a discrimination complaint with the Anti-Discrimination Board about his dealings with AFCA. He alleged he was subjected to disability discrimination in the provision of goods and services.
2. To avoid confusion, in these reasons for decision we refer to the discrimination complaint as the "complaint" and the complaints to AFCA as the "AFCA complaint".
3. The President of the Anti-Discrimination Board accepted the complaint and identified the period covered by the complaint as 1 August 2022 to 1 March 2023.
4. After investigation and attempts to resolve the complaint, the President decided to refer the complaint to this Tribunal. The President's Summary of Complaint with attachments was received in the Tribunal Registry on 12 October 2023.
5. The case was heard on 2 May 2024.

The complaint and issues not in dispute

1. It is not in dispute that the Australian Financial Complaints Authority (AFCA) provides an external complaint resolution scheme to resolve complaints about financial services. The scheme is operated by a not-for-profit company limited by guarantee. The scheme is based on AFCA's Rules (AFCA Rules). The AFCA Rules have been approved by the Australian Securities and Investments Commission (ASIC) and are part of a contract between AFCA, Financial Firms the subject of the scheme and Complainants.
2. Mr Connor alleged that AFCA, in dealing with his financial services complaint: 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.
3. On the online Anti-Discrimination Board complaint form Mr Connor identified his disability as psychiatric.
4. AFCA conceded in written submissions that the Authority was aware that Mr Connor lives with a mental illness and that Mr Connor has a 'disability' as defined by section 4(1) of the Anti-Discrimination Act 1977. AFCA also acknowledged that Mr Connor's disability affects his stress tolerance. However, the Authority submitted that Mr Connor had not provided any evidence that the disability "or its characteristic of stress intolerance is associated with verbal abuse".
5. In an email sent by Mr Connor on 19 April 2024 to the Tribunal Registry and to Ms Leigh, Legal Counsel for AFCA, Mr Connor identified as having "BIPOLAR and mood dysfunction exasperated by stress" and that "distressing situation invoking often volatile behaviours and self harm".
6. AFCA conceded that AFCA had provided 'services' to Mr Connor for the purposes of section 49M of the Anti-Discrimination Act 1977.

Relevant legislation

1. 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.
2. 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.
3. '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.

Leave granted for Applicant to appear by AVL

1. The case was listed for hearing on 2 May 2024 at 10:00am. At 8:58am on the morning of the hearing the Tribunal Registry received an email from Mr Connor stating that he was unable to attend the hearing in person as "[his] intended support didn't work". He requested to appear by audio visual link (AVL).
2. At the commencement of the hearing Mr Connor explained that he wanted someone to come with him to the hearing in person to explain what was happening due to his social anxiety and for support with the emotional side of participation in the hearing. Such a person was not available.
3. The Respondent had no objection to Mr Connor's request.
4. We granted Mr Connor's request to appear by AVL. Due to technical difficulties Mr Connor appeared with his camera off.

Evidence

1. Mr Connor gave oral evidence at the hearing. The Respondent did not seek to cross-examine Mr Connor and relied on the documentary evidence.

Mr Connor's evidence

1. 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".
2. 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".
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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".
9. Mr Connor explained that he blew a gasket because he "could feel the disrespect and the bias".

AFCA's case

1. AFCA provided information about what it said occurred in the Authority's interactions with Mr Connor.

Conversation with case manager on 25 July 2022

1. According to a letter to the Anti-Discrimination Board from AFCA's in-house Legal Counsel, dated 1 May 2023, an AFCA customer service officer dealing with Mr Connor's first AFCA complaint had a telephone conversation with Mr Connor on 25 July 2022. Mr Connor told the officer that he had attempted to take his life in March 2022 but "that he was in a much better place at the time of the call, and that he had no further concerns at that time."

Conversation with case manager on 20 February 2023

1. AFCA filed a copy of the file note, dated 20 February 2023, taken by the case manager dealing with the AFCA complaint about the truck repairs.
2. That file note records the following:

• Mr Connor said he had a mental breakdown and attempted suicide in 2022.
• The case officer said they had "reviewed the information to hand so far" and that Mr Connor is "going to need to provide an expert report to contradict [the insurer's] information, showing that the mechanical damages are related to the repairs and not wear and tear".
• The case officer explained that the insurer had provided a report that said the repairs had been completed correctly and that Mr Connor will need to obtain a report to show "the repairs were not completed properly".
• Mr Connor said he cannot afford such a report.
• Mr Connor said that he knows that the insurer "did not fucking repair his truck". The case officer responded by stating that they appreciated that Mr Connor was not swearing at them but warned Mr Connor that AFCA does not tolerate swearing of any kind and that "this is his first and only warning".
• The case manager took the view that Mr Connor was speaking sarcastically, interrupted and spoke over the case manager. Mr Connor denied speaking sarcastically or interrupting the case manager. He said that the case manager was being biased.
• The case manager said that AFCA could temporarily close the complaint until Mr Connor can obtain the information AFCA needs.

Conversation with the team manager on 21 February 2023

1. AFCA relied on a file note, dated 21 February 2023, when an AFCA team manager spoke to Mr Connor.
2. That file note records the following:

• Mr Connor said that the case manager asked him to get an expert report "to write what is bloody obvious".
• Mr Connor said that he has a mental illness and is financially challenged but AFCA expects him to get a report.
• Mr Connor said that the case manager is a "monkey" and was saying these things because he had "mates at [the insurer]".
• That his truck is "fucked" because of the dodgy repairs.
• The team manager said the "direction" about getting the report was "correct and consistent with what AFCA asks - we are not experts, and so rely on the information provided by the parties" and where the Financial Firm provides an expert report it can be hard for AFCA to find in a complainant's favour where they did not have information to challenge the report.
• Mr Connor interrupted the team manager and said "what truck, they can keep the fucking truck. I'll email [the insurer] now to tell them".
• The team manager explained that AFCA has expectations about communication and that the Authority expected parties not to swear at AFCA.
• Mr Connor terminated the phone call.

Email sent by team manager and closure of the file on 1 March 2023

1. Following the conversation on 21 February 2023, the team manager sent an email to Mr Connor which stated: "I understand that you no longer intend to pursue the complaint. I recall you saying you would email [the insurer] and instruct them to keep the truck". The manager said if that was incorrect, Mr Connor should let AFCA know, otherwise they will close the file on 28 February 2023.
2. The manager also raised concerns in the email about the way Mr Connor had engaged with AFCA's staff, "including the language used". The email said: I acknowledge your experience is frustrating, and appreciate you sharing your health condition with us. However, it is not appropriate to swear at our staff, and does not meet AFCA's engagement expectations.
3. The manager included a link to AFCA's Engagement Charter and said that if the "use of inappropriate language continue [sic], we may make the decision to stop dealing with you".
4. AFCA's Engagement Charter stated that it "must provide a safe environment for [AFCA's] staff" and that AFCA expected parties to treat AFCA staff "with courtesy and respect". The Charter stated that AFCA "will not tolerate conduct that puts our people or parties at risk of physical or mental harm", including behaviour that is abusive or unreasonable.
5. AFCA received no response from Mr Connor and closed the file on 1 March 2023.

Conversation with Senior Service Complaints Specialist on 14 March 2023

1. On 7 March 2023 Mr Connor asked AFCA to reopen his AFCA complaint.
2. On 14 March 2024 a Senior Service Complaints Specialist contacted Mr Connor. Mr Connor told the complaints specialist that he suffers from "stress tolerance" difficulties and that AFCA's general insurance team had contributed to this stress.
3. Mr Connor said he was having a really bad day on 21 February 2023 and he remembered being very upset but could not remember exactly what he had said.
4. No file note has been provided of this phone call but in a letter to the Anti-Discrimination Board, Ms Lillian Leigh, AFCA's Legal Counsel said that Mr Connor referred to AFCA's staff as "monkeys".
5. The complaints specialist agreed to reopen Mr Connor's complaint to allow him further time to provide to provide information and referred him to a community legal centre for assistance.

Email from Senior Service Complaints Specialist and reopening of the file 16 March 2023

1. Following the phone call on 14 March 2023, the Senior Service Complaints Specialist emailed Mr Connor on 16 March 2023 to advise that his complaint has been reopened and allocated to a new specialist and team within AFCA. The complaints specialist provided the contact details of Mr Connor's local community legal centre and said: [The legal centre] can hopefully assist you in responding to the AFCA information request that has not been sent yet. When it is sent, I have asked the new Dispute Resolution Specialist to provide more than the usual 7 days for you to respond.

Letter from Dispute Resolution Specialist on 22 March 2023

1. The Dispute Resolution Specialist emailed a letter to Mr Connor on 22 March 2023. That letter explained that Mr Connor's AFCA complaint was being dealt with through a "Fast Track Stream". The letter explained that where there are issues in dispute, AFCA will ask both parties to provide evidence to support their position and that this can include expert reports. The officer attached information received from the insurer to support its case and invited Mr Connor to comment on the information.
2. The Dispute Resolution Specialist asked Mr Connor to provide any expert reports about the cause of the truck damage by 29 March 2023, which was seven days from the date of the emailed letter. The letter stated: If you cannot meet the set timeframe, please let me know now. It is important you stay engaged in your complaint by providing responses by the due date. If you do not, I may not be able to proceed with the complaint or may form my preliminary assessment with only the information we have.

AFCA Determination on 24 July 2023

1. AFCA issued a Determination of the AFCA complaint on 24 July 2023. The Determination stated that Mr Connor had been asked to provide an expert report to support his case but none have been provided. The Adjudicator noted that Mr Connor had financial difficulty and there were costs involved in obtaining such a report.
2. The Adjudicator said that there was no evidence the repairs caused the damage to the truck and concluded that fact had not been established.

The AFCA Rules and Operational Guidelines

1. AFCA filed a copy of the 'Australian Financial Complaints Authority (AFCA) Complaint Resolution Rules', dated 13 January 2021 (AFCA Rules) and also the 'Australian Financial Complaints Authority (AFCA) Operational Guidelines to the Rules' dated 1 April 2022 (AFCA Operational Guidelines).
2. The AFCA Rules explain that a party to a complaint must comply with AFCA requirements to provide information within the timeframe specified by AFCA (refer to A.9.1). If the party fails to provide that information within the timeframe without reasonable excuse, AFCA can proceed with the resolution of the complaint on the basis of an adverse inference drawn from the lack of production of the evidence or AFCA can refuse to continue considering the complaint (A.9.5). AFCA can also seek expert advice (A.9.7).
3. According to AFCA Operational Guidelines after "considering the issues in dispute, exchanging information and discussing the matter with the Financial Firm" AFCA may obtain written expert advice and that: We will only do this if we are unable to reach a decision based on what is fair in the circumstances. Factors we will take into account may include: - the extent to which expert advice would be expected to hep AFCA resolve the complaint - the cost of obtaining the advice - likely delays if we obtain advice

Mr Connor's submissions

1. Mr Connor explained that the outcome of his AFCA complaint about the insurer was the opposite outcome to what he had expected. He said he felt "disregarded". He said his behaviour can "get under the skin of people", describing himself as "reactive" and "difficult".
2. Mr Connor said that his understanding of AFCA's Operational Guidelines was that they would not need to seek an expert report about the truck repairs. Mr Connor argued that AFCA had not been flexible with him. He said that the end result was the demise of his removalist business. He stated that he was tired of demanding what is fair.

AFCA's submissions

1. Mr Pinkerton, the solicitor representing AFCA, argued that while the Authority agreed it was aware Mr Connor lives with mental illness it denied that it had been informed about the full extent of his disability or his need of a "coping mechanism". AFCA also denied it did not remain independent or provide support to Mr Connor in the AFCA complaints process.

Request for an expert report

1. AFCA contended that the requirement or condition that Mr Connor provide an expert report was not a requirement or condition that a substantially higher proportion of persons who do not have Mr Connor's disability comply or are able to comply. The Authority suggested that Mr Connor provided no evidence to show that the task of obtaining the expert report has any connection with his disability.
2. AFCA submitted that there was no less favourable treatment of Mr Connor. The Authority argued the way AFCA treated Mr Connor would be similar to how it would treat a complainant to AFCA who did not have Mr Connor's disability in circumstances that are not materially different. AFCA submitted this was the case because the AFCA case manager and team manager acted in accordance with AFCA's Rules, AFCA's Operational Guidelines and the Factsheet entitled 'How AFCA will assess the information you give us'.
3. The AFCA Operational Guidelines provide that AFCA will only seek an expert report if the Authority is unable to reach a decision. AFCA argued it was up to Mr Connor to provide that report.
4. AFCA argued in written submissions that AFCA's request that Mr Connor provide an expert report was entirely reasonable. The Authority communicated to Mr Connor how to support his claims with persuasive evidence.

Manner in which Mr Connor communicated with AFCA

1. AFCA submitted that there was no evidence that allegedly abusive manner in which Mr Connor communicated with AFCA on 20 and 21 February 2023 was a characteristic that appertains generally to persons who have Mr Connor's disability.
2. AFCA argued in written submissions that was reasonable to impose what it described as an "engagement expectation" on parties to AFCA complaints, that is, that parties communicate in a respectful manner.

Exception of 'unjustifiable hardship'

1. AFCA argued that even if the Tribunal found that the manner in which Mr Connor communicated with AFCA was a characteristic that appertains to persons with Mr Connor's disability and found that AFCA treated Mr Connor less favourably on the ground of his disability, it cannot be said to have discriminated against him on the ground of disability in the provision of services due to the exception in section 49M(2) of the Anti-Discrimination Act 1977 (refer to [17] above) as the provision of the goods and services would impose unjustifiable hardship on AFCA.
2. What AFCA said if it allowed Mr Connor to "repeatedly interrupt and swear at our staff" they would be subjecting their employees to verbal abuse and this would be in breach of AFCA's obligations under the Work Health and Safety Act 2011.
3. AFCA also argued that it needed to explain to Mr Connor the nature of the evidence that the insurer had submitted and to fail to do so would have put ACFA in breach of its contractual obligations under AFCA's Rules which require it to fully investigate a complaint. If it did not explain these things to Mr Connor "to avoid causing [him] distress", it would be in breach of these obligations. It would also disadvantage Mr Connor in his complaint against the insurer.

Disclosure about "coping mechanism" or support required

1. AFCA argued in written submissions that Mr Connor had the opportunity to discuss what supports he required when he spoke with the customer service officer on 25 July 2022.
2. AFCA contends that at no time did he tell the Authority that he has a "coping mechanism" that he may need to access and what that was. The Authority also submitted that Mr Connor did not tell AFCA what support he needed.

Consideration

1. We have no doubt that Mr Connor feels aggrieved about the way his AFCA complaint was handled. He is convinced he was treated this way because of his disability and the way he communicates when stressed, which he believes is caused by his disability.
2. The task of this Tribunal is to examine whether Mr Connor has made out the legal requirements for disability discrimination. This involves consideration of the evidence and the application of the law.

Findings of fact

1. We made the following findings of fact on the evidence before us.
2. 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.
3. 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.
4. 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.
5. 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

1. 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.
2. 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.
3. 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.
4. We find there is no evidence of bias in the way that AFCA interacted and provided complaint resolution services to Mr Connor.

Has 'disability' been established?

1. 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.
2. 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).
3. 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.
4. 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]).
5. 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.
6. 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.
7. We find that Mr Connor has not proved he has a 'disability' as defined by Anti-Discrimination Act 1997. His complaint must therefore fail.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Indirect discrimination - requirement or condition

1. We considered whether Mr Connor could succeed in proving indirect disability discrimination if we amended the complaint as set out above at [93].
2. It could be argued by Mr Connor that the request that he provide an expert report or meet AFCA's "engagement expectation" in terms of respectful communication are requirements or conditions with which a substantially higher proportion of persons who do not have Mr Connor's disability comply or are able to comply.
3. It is unlikely that the request that Mr Connor provide an expert report is a requirement or condition, given there needs to be some sort of compulsion or obligation: refer to Sluggett v Human Rights & Equal Opportunity Commissioner (2002) 123 FCR 561 at 577 (refer to [56]). It was up to Mr Connor to provide such a report and if he did not do so his AFCA complaint would be assessed by AFCA on the basis of the available information.
4. In any event, a claim of indirect discrimination too must fail as we found that there was no evidence before us that Mr Connor's conditions impacted on his ability to provide the expert report or to engage with AFCA in accordance with its "engagement expectations".
5. We also had no evidence before us to show what coping mechanism or support, if provided to Mr Connor by AFCA, would have assisted him to meet these requirements or conditions. There was also no evidence that Mr Connor had communicated the need for a coping mechanism or support to AFCA.
6. The Respondent did provide evidence and submissions about the conduct at [93] as if these were part of the complaint as referred by the President. However, given the above discussion we do not consider that these additional aspects have merit and we decline to amend the complaint.

Conclusion

1. For the reasons above, we find the complaint of disability discrimination to be not substantiated.

ORDERS 1. The complaint of disability discrimination made by Mr Connor and referred by the President of the Anti-Discrimination Board and received by the Tribunal Registry on 12 October 2023 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2025