Victorian Civil and Administrative Tribunal|2006-08-03

Csizmadia-Estok v Bendigo Bank (Anti Discrimination) [2006] VCAT 1566 (3 August 2006)

Anti-discrimination - application to strike out/dismiss complaint-whether complaint incapable of constituting discrimination- Equal Opportunity Act 1995 ss8 and 42; Victorian Civil and Administrative Tribunal Act 1998 s75

Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, this Tribunal orders -

1 On 3 November 2005, Mr Csizmadia-Estok lodged with the Equal Opportunity Commission ("the Commission") a complaint under the Equal Opportunity Act 1995 ("the Equal Opportunity Act") against the respondent, which I call "the Bank". The Commission declined the complaint under s108(1) of the Equal Opportunity Act. This permits the Commission to decline to entertain a complaint which it considers frivolous, vexatious, misconceived or lacking in substance. As was his right, Mr Csizmadia-Estok required the Commission to refer the complaint to VCAT. It did so by letter dated 24 February 2006.

2 At a directions hearing before the Tribunal on 14 March 2006, the Bank applied to summarily dismiss or strike out the complaint under s75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The Tribunal directed Mr Csizmadia-Estok to file and serve particulars of complaint, and made a timetable for the making of written and oral submissions by the parties. I first say something about the principles applying to applications under s75 of the VCAT Act. I then summarise the claims and the material before me. I then say something about the law. Finally, I discuss the parties' submissions and state my conclusions.

3 The Bank applies to strike out or dismiss the complaint because it lacks substance. This is a ground on which a proceeding can be struck out or dismissed under s75 of the VCAT Act. In dealing with applications under this section, the Tribunal follows principles originally discussed in the Victorian Court of Appeal's decision in Rabel v State Electricity Commission[1]. These principles have been followed by VCAT in many cases. Relevantly here they are these. Section 75 involves a power to summarily terminate a proceeding, here a complaint. The Tribunal should be cautious before doing this, and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where the applicant satisfies it that, for one of the reasons set out in the section, the case is manifestly hopeless, undoubtedly untenable, doomed to fail, or on no reasonable ground can justify relief. It will not be enough if a respondent simply disputes an assertion made by the complaint. If this is all that the respondent puts forward, the case should go to a hearing where the disputed issues can be the subject of evidence which can be tested by cross-examination.

4 If the respondent relies on a defence to found its application, it must show that the defence so completely answers the claim that the claim can be said to be manifestly hopeless. It must be remembered that the respondent must prove the application of any of the exceptions in the Equal Opportunity Act on which it relies.

5 On this application there is no sworn evidence, either orally or by affidavit. No oral evidence in fact was given. In these circumstances, the Tribunal takes the complainant's case at its highest and assumes that he can prove what he asserts.

6 I have before me the complaint and particulars of complaint, and the written and oral submissions of the parties on the strike out application. Properly read, and as clarified by the particulars and complainant's submissions, the complaint makes two claims. The grounds of complaint are race, physical features and religious belief or activity in the provision of goods or services. Only direct discrimination is claimed. I call the first claim of the complaint "the police claim". I call the second claim in the complaint "the account claim".

7 Before I summarise the material concerning the claims, I say something about the police brief concerning certain criminal charges brought against Mr Csizmadia-Estok in 2003. The brief was produced to the Tribunal pursuant to an order made on 23 May 2006. Counsel for Mr Csizmadia-Estok argued that I should disregard the police brief, either as inadmissible or, if admissible, as of no weight either because it was irrelevant or because its prejudicial nature outweighed its probative value. Counsel for the Bank argued that I should have regard to the brief, and give it the weight that I considered appropriate.

8 I deal with the brief in this way. For the purpose of this application, I have not had regard to it. There is no dispute that the charges to which the brief relates were dismissed by the Magistrates' Court. It was unclear whether the magistrate had any regard to the brief. Mr Csizmadia-Estok says, and the Bank does not dispute, that the hearing of the charges was contested, that he and other witnesses gave evidence and that the magistrate then gave a decision. If this were the full hearing of the complaint, it might be that my conclusion could be different. But it is not the full hearing. This is a hearing at a preliminary stage to determine whether the complaint should be terminated. In the absence of sworn evidence, either on affidavit or orally, I take Mr Csizmadia-Estok's case at its highest, and assume that he would at hearing be able to prove the factual allegations he asserts.

9 The use to which the police brief was put in the Magistrates' Court proceeding is unclear. There is no record of the evidence given at that hearing and there is no record of the reasons for decision given by the magistrate. There is nothing to indicate whether the statements in the police brief were adopted by the witnesses in oral evidence or contradicted by them or in fact used at all. In these circumstances, I have had no regard to the police brief in determining this matter.

10 Apart from a few matters which I shortly mention, the parties are not in dispute as to what happened here. In November 2003, Mr Csizmadia-Estok had an account with the Bank's Langtree Avenue branch in Mildura. On 5 November 2003, Mr Csizmadia-Estok entered that branch with a large amount of cash to deposit into that account. He was also carrying a device comprising the timing component, a cylinder with a screw-top, wires coming out of the timing component and a cardboard box labelled "Bundaberg Rum". The customer service officer who assisted him was Suzanne, and it appears that her full name was Suzanne Evans.

11 Mr Csizmadia-Estok was born in Czechoslovakia. He is of the Christian faith. He has a heavy accent when he speaks English and in November 2003, he had a heavy beard and moustache.

12 Because of the large amount of money involved, Ms Evans took Mr Csizmadia-Estok to a private room in which to conduct the transaction. The content of the conversation between the two is disputed. Taking Mr Csizmadia-Estok's case at its highest and assuming that he can prove his version of the conversation occurred, Ms Evans pronounced his name, which is Zoltan, as "Sultan", although he told her what the correct pronunciation was, asked him about the war in Iraq and then asked him about a noise emanating from the device which he carried and whether it was a bomb and was going to explode. He told her that it was not going to explode and that it was a clock. He completed his banking transaction and left the branch.

13 Attached to the Bank's submission is an incident report which appears to have been completed by Bank staff, although the report is undated and unsigned. It is unclear from the material whether Ms Evans herself referred the matter to the police, or whether following the report by her to her managers, the managers referred the matter to the police.

14 Certainly, whoever referred the matter, the matter was referred to the police by the bank. The police then became involved. They arrested Mr Csizmadia-Estok and questioned him. They then charged him with offences under s317A of the Crimes Act 1958. In summary, the offences relate to the placing of an article with intention to induce a false belief that it is liable to explode and making a false statement with intention to induce the belief that an article is present which is liable to explode.

15 The matter came on for hearing before the Magistrates' Court on 19 March 2004. The charges were dismissed.

16 Mr Csizmadia-Estok claims that by the matter being referred to the police, which then led to the charges, the Bank treated him less favourably than it would have treated a clean-shaven customer, either of Anglo-Saxon descent or with an Australian accent and that the substantial reason for referring the matter to the police was that its staff member, Ms Evans, believed that Mr Csizmadia-Estok was a Muslim of Middle Eastern origin, and therefore likely to carry a bomb.

17 The parties are not in dispute as to what happened here, except for the date. In June or July 2005-the date is disputed- Mr Csizmadia-Estok entered a Melbourne branch of the Bank. The customer service officer who assisted him was Ms Templar. He told her that he had been a previous customer of the Bank and asked to open an account. She keyed in his name into the relevant computer database and a warning symbol appeared on the screen. On accessing the screen relating to the warning symbol, she was instructed to contact a telephone number which she recognised to be the telephone number of the Bank's fraud department. She did this, and spoke to a staff member in that department who told her that because of Mr Csizmadia-Estok's previous dealings with the Bank, the Bank did not want to accept him as a customer. While she was talking on the telephone, Ms Templar overheard a conversation at the other end of the line to the effect that Mr Csizmadia-Estok had scared girls at the Mildura branch of the Bank. She then told Mr Csizmadia-Estok that because of his previous dealings with the Bank, the Bank would not accept him as a customer.

18 Mr Csizmadia-Estok claims that the Bank refused a service to him. The claim is of direct discrimination and is formulated in similar terms to the police claim. He argues that the same reason which he claims actuated the Bank to refer the matter to the police in 2003 also led it to refuse him as a customer.

19 Both claims allege direct discrimination in the provision of goods and services. Goods and services are dealt with in s42 of the Equal Opportunity Act. Under s8, direct discrimination occurs if a person treats someone with an attribute less favourably than the person treats or would treat a person without that attribute or with a different attribute in the same or similar circumstances. A substantial reason for the treatment must be the attribute, although it need not the sole or dominant reason.

20 Section 42 prohibits discrimination against a person by refusing to provide services to the person or in the terms of which services are provided to the person, or by subjecting the person to a detriment in connection with services provided to him or her.

21 I first deal with the police claim. The Bank argues that the police claim is incapable of constituting prohibited direct discrimination under s42 of the Equal Opportunity Act. I agree. First, since neither the Bank nor its staff have expressly stated that the matter was referred to the police because of Mr Csizmadia-Estok's race, physical features or religious belief or activity, he must, if the matter went to hearing, prove that a substantial reason for referral was imputed Middle Eastern national or ethnic origin, imputed Muslim religious belief or activity, or that his physical features may have led to the belief that he was similar to (or was perhaps) a terrorist. The way in which such an inference must operate is that it must be open to the Tribunal from the primary facts and there would have to be no equally probable or more probable non-discriminatory explanation for the Bank's conduct. In my view, such an inference would not be reasonably open to the Tribunal from the primary facts if the matter went to hearing.

22 Even on the complainant's own material, an equally or more probable non-discriminatory explanation is available, namely that Ms Evans simply believed that Mr Csizmadia-Estok was carrying a bomb, or something likely to explode, and it was this fear that prompted her to report the matter to her manager or perhaps to refer it to the police. As the case of Kapoor v Monash University & anor[2] shows, it is not enough that the alleged discriminator imputes to another person a particular characteristic. The alleged discriminator must relate that characteristic to a particular attribute under the Equal Opportunity Act so that it could be said that a substantial reason for that person's conduct was that attribute.

23 Second, there is nothing in the material to show that in the same or similar circumstances, Ms Evans would have treated a hypothetical comparator differently from Mr Csizmadia-Estok. The comparator here, in the same or similar circumstances, would be a customer who entered the Bank with the device I have described, who Ms Evans believed was carrying something likely to explode and who did not have the attributes alleged by Mr Csizmadia-Estok.

24 Third, I doubt that the referral of the matter to the police can be described as a detriment in connection with the provision of the particular services here. The services here are the transaction requested by Mr Csizmadia-Estok - the receipt and banking of the money which he brought into the Bank. Referral to the police is not connected with the provision of this service.

25 Fourth, I doubt whether it is the intent of the Equal Opportunity Act to prohibit those who rightly or wrongly believe that a person has approached them carrying something which is likely to explode from raising this matter with the police. In my view, this claim cannot be cured by amendment and should therefore be dismissed as manifestly hopeless under s75 of the VCAT Act.

26 I now turn to the account claim. I reach a similar conclusion concerning this claim. I agree with the Bank's submissions that it ought to be dismissed as manifestly hopeless. First, there is a refusal of services here - the refusal to open an account - a service which the Bank provides to other potential customers. But for the same reasons which I have given concerning the police claim, I do not consider it reasonably open for the Tribunal at hearing to infer that the refusal was based on the imputed attributes mentioned by Mr Csizmadia-Estok or on a characteristic which in Ms Templar's mind was related to one of those attributes.

27 Second, I consider that in the same or similar circumstances, Ms Templar would have treated a hypothetical comparator for direct discrimination purposes in the same way and not less favourably than she treated Mr Csizmadia-Estok. If a customer without the alleged or imputed attributes of Mr Csizmadia-Estok had asked her to open an account with the Bank, and the Bank's computer system had for some reason not related to those attributes contained the same warning and the same prohibition as it did for his case, the Bank would also not have opened an account for that comparator. It would have, in other words, refused the service in the same way.

28 Third, if my view is correct that the police claim is incapable of constituting prohibited discrimination and assuming that the bar on Mr Csizmadia-Estok's opening of accounts was for the same reasons that led the Bank to refer the 2003 matter to the police, it must follow that this bar and its implementation also cannot constitute prohibited discrimination. In my view, this claim too is not curable by amendment and should also be dismissed under s75 of the VCAT Act.

29 I make some concluding comments. First, although it is not necessary for me to deal in detail with an alternative argument raised by the Bank, it seems to me sufficiently important to say something about it. That argument was based on a defence that the exception in s69 of the Equal Opportunity Act applied. The argument ran that the discrimination, if there was any, was necessary or authorised by an act of Parliament, the relevant Occupational Health and Safety Act s21. That section, it was said, obliged the Bank as an employer, to provide and maintain a working environment for its employees which was safe and without risks to health. The obligation was imposed before I July 2005 by the Occupational Health and Safety Act 1985, and after that date, by the Occupational Health and Safety Act 2004. For present purposes, I can treat them as in similar terms. The Bank said that what it did was required by the section to fulfil its duty. There is no evidence before me of exactly what measures the Bank put in place to meet its obligations under this section. As far as the account claim is concerned, I note that the Bank did not refuse entry to its branches to Mr Csizmadia-Estok, but only refused to let him open an account. In my view, the Bank has not produced sufficient material to enable me to say that this defence so completely answers the claim that the claim should be dismissed on that basis.

30 Second, I express my considerable concern about a matter which is implicit rather than expressly stated in the material before me. It would seem that at some time after November 2003 but before June or July 2005, the Bank placed in its computer system a warning against Mr Csizmadia-Estok's name and instructed its fraud department, when contacted by other Bank staff, to tell those staff that the Bank would not open accounts for Mr Csizmadia-Estok. It appears that no time limit was placed on these instructions. They had and have continuing effect, and may indeed continue for the rest of Mr Csizmadia-Estok's life. This is so even though the charges against Mr Csizmadia-Estok were dismissed in March 2004 and there is no suggestion that he has again entered a Bendigo Bank with any article that might cause fear or concern to any person. This is a situation which seems to me arbitrary and unfair and, given the indefinite nature of the Bank's effective ban on Mr Csizmadia-Estok becoming its customer, excessive. I strongly urge the Bank to review the matter in the light of what I have said. If this is the Bank's general practice, I urge the Bank to reconsider it and provide some means by which such bans might be from time to time monitored, reviewed and, if provided with sufficient and appropriate information by a customer or potential customer, overturned.

Csizmadia-Estok v Bendigo Bank

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Csizmadia-Estok v Bendigo Bank (Anti Discrimination) [2006] VCAT 1566 (3 August 2006)

Parties

Cases Cited (1)