1. The applicant applied for an injunction against NAB taking enforcement action in respect of the line of credit account. At the hearing of that application on 3 December 2013, NAB gave an undertaking to the Tribunal to refrain from taking any action to enforce the debt it says is owing by the applicant to the first respondent under the line of credit account until 5.00pm on the first hearing day. At the conclusion of that hearing, NAB extended the undertaking to 5 pm on the second hearing day. The undertaking was again extended on the second hearing day to allow for a period for written submissions and for the Tribunal to make final orders.
2. On 3 December 2013, the Tribunal made orders regarding the hearing of the application. The Tribunal ordered that the applicant was to present all of the evidence and material on which he intended to rely to prove his EO Act complaint of discrimination. The orders then made provision for the respondents to:
   • (a) Present their own evidence; or
   • (b) Request an adjournment in order to prepare their defence to the complaint; or
   • (c) Make an application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) that the application should be dismissed or struck out.
3. Before the first hearing day, the respondents indicated they intended to make an application under section 75 of the VCAT Act and sent to the Tribunal and the applicant an outline of submissions. At the conclusion of the presentation of the applicant's evidence, that application was made.
4. I have decided to dismiss the application. These are the reasons for that decision.
5. I will first refer to the relevant legislation and then set out the reasons for my decision.

1. The EO Act is protective legislation that seeks to ensure that persons with named attributes are not discriminated against because of those attributes in relation to specified activities or classes of activities. One of those protected attributes is age.[1] Section 44 of the EO Act prohibits discrimination in the context of the provision of services.
2. Section 44 says:

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person; or

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

1. The definition of 'services' in section 3 includes banking services, the provision of loans, finance or financial accommodation.
2. The respondents understood that the applicant alleged that they had engaged in direct discrimination (as defined in section 8). However, on the first hearing day the applicant clarified that his allegation was that NAB and the named individual respondents engaged in indirect discrimination as defined in section 9. Under section 109 of the EO Act, where an employee engages in prohibited discrimination, both the employee and employer may be liable.

1. Section 9 of the EO Act defines indirect discrimination as follows:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(b) that is not reasonable.

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c) the cost of any alternative requirement, condition or practice;

(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

1. A store requires customers to produce photographic identification in the form of a driver's licence before collecting an order. This may disadvantage a person with a visual impairment who is not eligible to hold a driver's licence. The store's requirement may not be reasonable if the person with a visual impairment can provide an alternative form of photographic identification.
2. An advertisement for a job as a cleaner requires an applicant to speak and read English fluently. This may disadvantage a person on the basis of his or her race. The requirement may not be reasonable if speaking and reading English fluently is not necessary to perform the job.
3. As indicated by the above examples, indirect discrimination arises where what appears to be a neutral requirement, condition or practice is imposed on persons with a particular attribute. When that requirement, condition or practice is imposed, it is likely that those persons will be disadvantaged. [2] The provision recognises that treating all people the same, regardless of difference, may unfairly disadvantage some people or groups of people.

1. On the first hearing day, the applicant said that that the requirement, condition or practice (collectively 'the requirement') which was imposed on him by NAB was a requirement that his finance proposals meet the lending guidelines or policies for a home loan and for him to have a source of income to meet repayments. He said that this requirement was unreasonable given his age and his circumstances. He said that NAB ought to have allowed some flexibility in the application of its home loan guidelines and policies so as to take into account his particular circumstances which included his age, his professional experience and capacity, the circumstances which led to him experiencing financial problems and the merits of his proposals. I understand that he says that NAB failed to give proper consideration to the merits of his proposals and rather simply applied its home loan guidelines and policies.
2. Between the two hearing dates the respondents sought clarification of the requirement. The applicant responded in writing saying that the requirements relied on by him were as follows:

(a) His business financials must evidence receipt of just dues from his clients;

(b) His finance proposals must be based on the past/existing unmodified form of the business;

(c) His credit application for re-finance must evidence that he is currently employed;

(d) He must be able to demonstrate loan serviceability both prior to loan setup as well as post loan setup, i.e. capitalisation of interest within the loan amount was unacceptable;

(e) His application must be based on his current account balance in 2013, i.e. absorb all of the additional interest incurred over 12 months since making application in 2012;

(f) His existing line of credit account must be within its existing limit before new loan setup; and

(g) Despite his advice that his proposed finance restructure will bring his existing line of credit account within its limit before new loan setup, his existing line of credit account must be within its existing limit before the bank will consider his proposed finance restructure.

1. The applicant again referred to standard lending policies as an aspect of the requirement imposed on him.
2. The applicant maintained that the requirements set out above were unreasonable. The basis for that view may be summarised as arising from four matters:
   • First, applying concepts from the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act), the applicant's proposals were not 'unsuitable' when one had regard to his financial situation, needs and objectives;
   • Second, the regulator, the Australian Securities and Investments Commission (ASIC) has said in its Regulatory Guide 209[3] that flexibility ought to be applied when considering finance applications from persons who do not have regular income. In particular, where a retiree does not have work related or other regular income, a lender ought to consider other sources of repayment. ASIC examples relied on by the applicant include short term bridging finance arrangements, capitalisation of interest for a prior determined term that will not exhaust the loan amount and/or prior agreement to sell the security property and downsize. The applicant says that applying a flexible approach would impose no cost on NAB.
   • Third, the detriment to him as a consequence of NAB not proceeding with his proposals were substantial, particularly when regard is had to his age. Where his proposals used lawful means and strategies to achieve his needs and objectives without causing substantial hardship, the proposals could be not regarded as unsuitable. In fact, the reverse was true: not to accept the proposals would be unsuitable to his needs and objectives and cause him substantial hardship. That is because he would be forced to prematurely surrender the Rae Street property which was to have been his principal place of residence and home office once renovated and which was to be the location most appropriate for his plans to develop his business recovery plan; and
   • Fourth, the requirements were unreasonable given that the effect on him would have been disproportionate to whatever NAB could have sought by their imposition, the approval of one of the proposals would have represented no imposition on NAB and also amounted to reasonable adjustments which would have reduced the disadvantage to him.
3. As I understand it, in brief, the applicant's proposal was for the new legal entity to purchase properties for which planning and building permits would be obtained for redevelopments and then those properties would be sold at a greater price because of the value added by the planning and building permits being in place. The applicant was to supply his services to the new entity in exchange for payment and those services were what would add value to the properties via planning and building permits being obtained. He was to transfer his intellectual capital to the new entity in return for a controlling share. The new entity would be his sole client and so he would be guaranteed payment. This would eliminate the risk of bad debts and the circumstances which had led to his 2011/2012 financial problems. One version of the proposal allowed for NAB to provide investment capital in the new entity and become a shareholder.
4. As to the question of an income as the source of repayment, the applicant says that he could have repaid the line of credit through an extension to the existing facility. He could then have repaid that new facility through his planned new business operation or ultimately, if necessary, from the sale of the Rae Street property.
5. The applicant conceded in his oral evidence that no one employed by NAB and, in particular, none of the other named respondents, said anything directly or indirectly about his age being a matter which led to the rejection of his proposals.
6. The applicant gave evidence that he had a meeting with a banker from Commonwealth Bank of Australia (Commonwealth Bank) in around April 2013. His evidence was that, after he pressed the banker about why it would not provide finance based on the same proposals, the banker referred 'sheepishly' to 'brand damage'. The banker explained that, given the applicant's age and Commonwealth Bank's recent experience with Storm Financial and retirees, it did not want to lend to people over 65 years of age. The banker said that those events had been a big lesson for all of the banks. The banker suggested that the applicant try again with NAB given the applicant's 25 year history with that lending institution.[4]
7. In addition, the applicant referred the Tribunal to a publication called Australian Broker Online, which carried articles relaying various brokers' experiences in having difficulty in securing finance for older borrowers. The articles suggested that lenders were being unnecessarily constrained by the NCCP Act and concerns about how older borrowers can meet the responsible lending guidelines where they do not have traditional income sources. The articles referred to older borrowers being the victims of ageism and discrimination.[5] The applicant's materials also included reference to a response from ASIC, which said that the law did not seek to restrict older borrowers and that it was working with lenders to ensure unreasonably restrictive interpretations of the law were not adopted.[6]
8. The applicant says that this evidence about practices in the lending community indicates that indirect discrimination does occur for persons of his age and that his loan proposals were refused on the basis of his age.
9. The applicant provided other articles and material which concerned a range of matters include the difficulties older persons have in finding work. He also provided extracts from NAB's advertising materials.[7]
10. The applicant's materials were extremely lengthy and included detailed comments about his finance proposals and responses to criticisms (express and perceived) about them. As indicated at the hearing, I have had regard to the materials to which I was taken by the applicant and by the respondents' Counsel during cross-examination of the applicant. It is convenient to note here that the emails referred to in these Reasons were all produced by the applicant in support of his claim.

1. Section 75 gives the Tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process.
2. There have been many cases about section 75 and the law about how to approach the section is clear.[8] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding. If the applicant indicates to the Tribunal that the whole of his or her case is contained in the material before the Tribunal, the Tribunal may consider whether, on all of that material, there is a real question of substance which should go to a full hearing. However, where an applicant indicates that there is other evidence to be called, unless that evidence is heard, the Tribunal cannot determine the application on the basis of the material then before it.[9]
3. If the Tribunal is not satisfied that the proceeding should be summarily dismissed, the matter should go to a hearing so the applicant has the chance to have the complaint heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.
4. In considering an application under section 75, the Tribunal must take the applicant's case at its highest.

No claim regarding non- compliance with existing line of credit account terms and conditions

1. The respondents contend that the fact that NAB has acted to require compliance with the terms and conditions of the existing line of credit account cannot constitute a refusal to provide services, discrimination on the terms on which the service is provided or other detriment within the meaning of section 44 of the EO Act. On this basis, the applicant cannot make a complaint about NAB's requirement that he repay the existing facility. That proposition is correct.

1. On the question of the approach to section 9 of the EO Act, the respondents say that, in order for an applicant to succeed in the claim, it must be established that:
   • NAB imposed, or proposed to impose, the requirements;
   • The requirements had, or were more likely to have, the effect of disadvantaging persons with an attribute; and
   • The requirements are unreasonable.
2. The applicant carries the burden of proving the first two matters and the respondents must establish the third.[10]
3. The respondents say that the applicant must establish a causal link between the requirements and the attribute in question - that is, that the particular requirement disadvantages him because of his age. It is not sufficient to demonstrate that the requirements cause him disadvantage.
4. I accept those submissions as correct.

Applicant's requirements (a), (b), (d), (e) and (f)

1. Having regard to the applicant's formulation of his complaint of indirect discrimination set out at paragraph 27 above, the respondents say that the proceeding ought to be dismissed on the basis that the requirements as set out in (a), (b), (d), (e) and (f) are misconceived and or lacking in substance, because they cannot be requirements within the meaning of section 9(1) of the EO Act.
2. For convenience, I will set out again the applicant's formulation of the requirements he says were imposed by the respondents:

(a) His business financials must evidence receipt of just dues from his clients;

(b) His finance proposals must be based on the past/existing unmodified form of the business;

(c) His credit application for re-finance must evidence that he is currently employed;

(d) He must be able to demonstrate loan serviceability both prior to loan setup as well as post loan setup, i.e. capitalisation of interest within the loan amount was unacceptable;

(e) His application must be based on his current account balance in 2013, i.e. absorb all of the additional interest incurred over 12 months since making application in 2012;

(f) His existing line of credit account must be within its existing limit before new loan setup; and

(g) Despite his advice that his proposed finance restructure will bring his existing line of credit account within its limit before new loan setup, his existing line of credit account must be within its existing limit before the bank will consider his proposed finance restructure.

1. The respondents say that even if the Tribunal accepted that the respondents imposed requirements in the form described in (a), (b), (d), (e) and (f), he has not established a nexus between the imposition of those requirements and his age.
2. In respect of (a), the respondents note that the difficulty arose not because of his age but rather because of the client defaults or the fact that the business ceased operation. In respect of (b), similarly any connection between the past business structure and operation and the proposed new entity, is not related to the applicant's age.
3. The respondents say that requirements (e) to (g) are identical in substance as they go to the requirement that the applicant reduce his line of credit account below its $770,000 limit. The difficulty with achieving that outcome is said to be related to the applicant's lack of assets or available funds, rather than his age.

1. As to requirement (c), the respondents say that the allegation is without substance because there is no or insufficient evidence to establish that it was imposed or that it disadvantages persons with the applicant's attribute. In any event, it says that the evidence before the Tribunal establishes that any reliance on that requirement was reasonable.
2. The respondents say that the evidence shows that NAB required the applicant to show serviceability in relation to his proposal. When it became apparent that the applicant had no other avenues of income or assets and after the applicant volunteered to seek other income through employment, NAB required evidence of current and ongoing income to service debt in order to advance funds by way of a credit extension. NAB says that this is the substance of what it has referred to as the 'employment requirement'.
3. The respondents say that the evidence relied on in respect of the employment requirement consists of the hearsay evidence from a Commonwealth Bank officer and the Australian Broker Online articles commenting on ASIC's regulatory guide.
4. The respondents note that, while the Tribunal is not bound by the rules of evidence, they ought not to be discarded lightly and that it must act on the basis of rationally probative evidence. They suggest that the Briginshaw standard ought to apply to such serious allegations.
5. The respondents contend that the evidence about the discussion with the Commonwealth Bank officer ought not to be accepted for a number of reasons including where it was not tested in cross-examination, where there is no evidential basis for the comment or evidence about the officer's particular knowledge and because it is vague. The respondents also noted that a Commonwealth Bank officer cannot speak for the respondents. It suggested that the applicant's detailed version of what was discussed about his proposal was improbable and suggested recent invention. It also contended that it was improbable that the applicant would not have raised the discussion and allegation of age based discrimination with NAB earlier.
6. The respondents say that the Australian Broker Online material suffers from the same problems. They contend that it is difficult to see how the material is relevant to the Tribunal's determination whether the employment requirement has the effect of disadvantaging persons with the relevant attribute. The respondents suggest that the commentators may have difficulty applying the NCCP Act and understanding ASIC's regulatory guide and that is not a matter which is relevant to or which may assist the Tribunal.

1. Addressing the matters set out in section 9(3)(a) to (e) of the EO Act, the respondents submit that any employment requirement was reasonable. It submits:
   • The nature and extent of the disadvantage of the employment requirement which addresses loan serviceability, where one cannot comply is for the loan application to be rejected. That rejection does not mean that the applicant is prevented from seeking or obtaining finance from other sources. The disadvantage cannot be said to include the requirement to pay the existing indebtedness to NAB;
   • The disadvantage is proportionate to the result sought by the requirement: namely an assurance that the applicant does not over commit himself with debt he is unable to service;
   • There is no cost of the requirement, other than any cost associated with the applicant applying for or securing employment. In the absence of evidence about such a cost, the respondent has assumed it would be nominal;
   • The respondents do not assert that NAB's financial circumstances are relevant to the imposition of the requirement. However, they note that NAB undertakes a degree of risk and exposure to costs in any lending transaction; and
   • In the applicant's case, alternative means of demonstrating serviceability were found not to be available before the bank required evidence of employment derived income.
2. The respondents say that the requirement was otherwise reasonable in all the relevant circumstances having regard to matters including the following:
   • The applicant was in default on the line of credit account and had existing credit card debts which he estimated at $30,000 in May 2013;
   • Entries in the line of credit account statements suggested that, prior to going into default, he had been unable to finance the facilities for some months without deposits being made by his wife;
   • No payments had been made to the line of credit account since September 2012;
   • The applicant's financial information showed his only income to be Centrelink benefits of $489 per fortnight and he had no assets of value other than the Rae Street property. The evidence indicated that the applicant had no superannuation. At the relevant time, the monthly liability on the line of credit account was $4,000 per month;
   • Despite indicating to NAB that he had made efforts to do so, the applicant had been unable to source funding elsewhere, including equity funds from third parties to fund the existing line of credit account;
   • The untested and unproven nature of the proposed new business, including an acknowledgement by the applicant that it would be at least four months before he could determine whether the new business could turn a profit. If no such profit eventuated, the principal could not be repaid and there would be a reduction in the applicant's equity in the Rae Street property;
   • The risk to NAB of failing to recover the amount owed to it; and
   • NAB's obligation to take into account matters such as these when assessing whether credit products are not suitable for customers.
3. Having regard to all of the available information about the applicant's financial position, the respondent says that the employment requirement was reasonable, as it was the only remaining means by which the applicant could establish serviceability.

1. At the conclusion of the hearing, I made an order allowing the applicant until 14 February 2014 to file and serve written submissions in response to the section 75 application. The applicant's submissions were received on 21 February 2014. The respondents informed the Tribunal that no further submissions were to be made, however, the respondents noted that they took issue with the applicant's references to concessions said to have been made by Counsel at the hearing and to other comments. The applicant responded to those comments by email on 7 March 2014. I have had regard to all correspondence and submissions made.

The applicant's response to the section 75 application

1. In the applicant's written response to the section 75 application, he clarified further how he described the requirement. He said that his reference to NAB's standard policy and guidelines was an adoption of bank terminology which referred to an assessment based on standard guidelines and policies. He also referred to NAB's communications with him about an assessment which took into account the particular special circumstances which applied to his proposal including changes in business structure and strategy and risk mitigants such as prepayment of interest. This form of assessment is referred to by the applicant as 'assessment on the merits'.
2. The applicant accepted that NAB had responsible lending obligations. The applicant agreed that the application of standard policy and guidelines was an appropriate and practical method of assessment of the bulk of loan applications, in particular where a prospective borrower is employed and seeking a private home loan or vehicle lease. He considered, though, that, in a small business situation like his, it might not be appropriate for a bank to work from standard policy and guidelines alone. He said:

I thus use the term 'standard policy and guidelines' in my submissions as any requirement imposed by the bank which unreasonably omits to consider the atypical financial situation, needs and objectives, and concomitant risk mitigation of my proposal which an 'assessment on the merits' could otherwise reasonably accommodate.

Circumstances commonly occurring in small business may push a finance proposal outside the practical limits of assessment according to 'standard policy and guidelines' and necessitate the alternative method of assessment in processing loan applications - an 'assessment on the merits'.

Nonetheless, if the bank were to impose 'standard policy and guidelines', in circumstances more suited to 'assessment on the merits', a self-employed business person would not necessarily be disadvantaged by the requirement because they could always temporarily suspend their business and get a job to secure and/or service the loan if necessary.

However, in a case like mine, if the credit team for the bank were to impose a 'standard policy and guidelines' requirement in assessing a business banking proposal, the effect would be to disadvantage me and persons like me of Retirement Age.

The casual link between the requirement imposed by the bank and the effect of disadvantaging me and persons like me of Retirement Age is that by imposing a 'standard policy and guidelines' requirement on my business banking proposal, omitting to take into consideration my means of self-employment, the bank relegates me to having to find employment in order to meet the requirement and support the proposed loan. This is where the disadvantage is caused because employment opportunities are almost impossible for me and persons like me at Retirement Age compared to persons without the attribute of Retirement Age.

1. I have allowed some latitude to the applicant as a self represented party to clarify his case a number of times. My last orders did not allow for a further reformulation. However, in circumstances where the respondents have elected not to make further submissions and in the interests of ensuring that the applicant's case is considered at its highest, I have considered these further submissions.

1. The applicant confirmed to the Tribunal that he had presented to the Tribunal all of his evidence in support of his claim. In those circumstances, the question is whether, having regard to the evidence called to prove the basis for the application, the claim is bound to fail and so it is appropriate for the application to be summarily dismissed.
2. I understood there to be no dispute that:
   • The applicant fell into financial difficulty after some of his clients failed to meet debts to his then service company and that, having been unable to recover those debts, he ceased operating the service company business and ceased work as a property development consultant;
   • Other than the Rae Street property, the applicant had no assets, including superannuation, to realise or draw on to meet the line of credit account liability on and from September 2012;
   • On and from around September 2012, the applicant's sole income was a Centrelink benefit; and
   • Since September 2012, the applicant has either enquired about or applied for finance other than with NAB and that none of those enquiries or applications have resulted in finance being offered.
3. Consistent with the cautious approach to be adopted to summary dismissal applications, I will proceed on the basis that:
   • The effect of the email correspondence between the parties and conversations between the applicant and individual bank officers, is that the applicant was informed that the matters set out in his list of requirements (a) to (g) were raised as preconditions or considerations for further finance being provided;
   • The applicant had a conversation of the kind described with a Commonwealth Bank officer;
   • The commentators and contributors to Australian Broker Online relayed actual experiences they had with a range of prospective customers and lenders in Australia; and
   • It is the applicant's case that, taking the range of finance proposals he put to NAB over the period October 2012 to October 2013 together, by rejecting or refusing to properly consider and assess those proposals, NAB and the other respondents engaged in indirect discrimination on the basis of his age contrary to section 44 of the EO Act.

1. The applicant sought to argue that the line of credit account was not in default. That argument arose from a NAB internal 'Risk & Capital Report', which said that default occurs when a loan obligation is 90 days or more past due. I understood that to be a policy document which was directed at when recovery or other action will be taken. Having been taken to the terms and conditions of the line of credit account and noted that the above internal document does not form part of the contract, I am satisfied that, as a matter of contract law, the line of credit account was in default on and from September 2012.
2. I have found above that it is correct that NAB's actions requiring compliance with the terms and conditions of the existing line of credit account cannot constitute discrimination under section 44 of the EO Act. Accordingly, the applicant cannot make a complaint about NAB's requirement that he repay the existing facility.
3. The consequence of that finding is that the applicant's requirement (g) cannot be the subject of this claim as it is concerned with whether or not the existing line of credit account is within its limit. A further consequence of my finding is that any requirement that has as an element a requirement that the existing line of credit account be repaid or be able to be serviced also cannot be considered.

Applicant's requirements (a), (b), (d), (e) and (f)

1. Assuming that the applicant has proven that the requirements (or something like them) were imposed by NAB, he has not proven that it is more likely than not that these requirements had or are likely to have the effect of disadvantaging persons of his age.
2. The matter raised in (a) arises from the fact that the applicant's past client's failure to pay had led to the failure of his business. To the extent that NAB might require all customers to have proof of payment by the borrower's clients, there is no evidence before me to conclude that such a requirement has or is likely to disadvantage persons of the applicant's age. The question of payment by clients seems to concern the financial capacity of those clients rather than the age of the creditor.
3. The matter raised in (b) is very specific to the applicant and his plan to create a new business vehicle which would supply his income. That is not the kind of general neutral requirement with which indirect discrimination is concerned.
4. Matter (d) arises in the context of the applicant's proposal that the amount to be advanced would include an amount to meet future interest obligations. That meant that the obligation to meet interest payments would be met by funds advanced by NAB rather than from the applicant's resources or from another source. The interest capitalisation proposal was part of the detail of the applicant's proposal. Even if I were to assume that the NAB would never grant this option to a prospective borrower, there is no evidence before me to prove it is more likely than not that such a requirement might disadvantage persons of the applicant's age rather than younger persons.
5. Matter (e) concerns the applicant's proposal that NAB effectively waive the interest which had accrued on the line of credit account since further finance was sought in October 2012. That proposal was rejected and, as I understand it, NAB requires payment of all interest due under the existing line of credit account. Matter (f) is also concerned with the current default status of the line of credit account. The indebtedness arising from the applicant's default on the line of credit account terms and conditions cannot be considered for the reasons discussed above. Even if these matters could be considered as part of the overall finance proposal which was rejected by NAB, it has not been proven that a neutral requirement that accrued interest be repaid and a default account be rectified, has or is likely to have the effect of disadvantaging an older person as compared to a younger person.

1. Having regard to the evidence before the Tribunal, it is important to take into account the applicant's income and asset position when considering matter (c). The respondent has fairly summarised the position: where the applicant did not have assets other than the Rae Street property or sources of income such as shares or superannuation, the only way for the applicant to prove a capacity to service the finance sought was by obtaining work. Where he had conceded the new business would have a lead time of at least four or six months,[11] the discussions with NAB turned to the applicant obtaining employment elsewhere in order to be able to service the existing and further borrowings.
2. The applicant contends that a requirement for employment for a person such as him amounts to indirect discrimination because persons of retirement age tend not to be employed and have difficulty becoming employed, so the income sought by lenders cannot be produced. The applicant's restatement of his position in his post hearing correspondence raises the same claim.
3. As stated above, where the bar for dismissal under section 75 is so high, I have proceeded on the basis that there was a discussion of the kind the applicant described with the Commonwealth Bank officer. I have also proceeded on the basis that the anecdotes in the Australian Broker Online have some basis in fact.
4. Having said that, the material does little to assist me in establishing that the requirement in its proper context has or is likely to have the effect of disadvantaging older people. The fact that one bank may discriminate on the basis of age does not mean all do. The fact than some retirees have had trouble borrowing from some banks does not establish whether that is because they do not have employment as opposed to other sources of income or other assets.
5. I have reviewed the various versions of ASIC's Regulatory Guide 209 applicable at relevant points of time. Consistent with the NCCP Act, the Guide discusses the enquiries a lender ought to make so it may undertake an assessment as to whether a proposed loan might be regarded as 'not suitable'. A loan is not suitable where it does not meet the customer's requirements and objectives and where the customer will be unable to meet payment obligations at all or only with substantial hardship.
6. It is apparent from the Guide and, appears to be accepted by the applicant, that there is an expectation of repayment of borrowings. The question raised by the NCCP Act and discussed in the Guide is whether the prospective borrower can show a source of repayment and whether repayment from that source will result in substantial hardship. In broad terms, there is a preference for repayment from income rather than assets.[12]
7. As discussed by the applicant, ASIC has recognised that for retirees downsizing, bridging finance which cannot be serviced may not be unsuitable where the sale of a larger property will be the ultimate source of repayment. Reference is made to reverse mortgages which allow for borrowings and capitalised interest to be repaid on the sale of the borrower's home on their death. The Guide also suggests that superannuation may be relied on as an income source in appropriate cases.[13]
8. This material demonstrates that repayment of debt may come from a range of sources other than employment. Retirees and other older people may be able to demonstrate serviceability and so face no barrier to obtaining finance. Without comprehensive evidence about the range of circumstances faced by retirees and older people generally, it has not been demonstrated that there is indirect discrimination in imposing a requirement that income to repay debt be produced from employment where a borrower has no assets or other income source. In my view, the applicant's approach fails to give sufficient weight to the fact that debt is repayable and that a responsible lender must be satisfied that there is a source of repayment. An absence of a repayment source is likely to lead to the rejection of finance proposals made by people of all ages.
9. Even if I were to be incorrect in this analysis, I am satisfied that such a requirement is reasonable.

1. The applicant's submissions proceeded on the mistaken basis that the question raised by section 9(3) of the EO Act was whether his finance proposal was reasonable and ought to have been accepted. He analysed the disadvantage to him of not obtaining the finance and other matters such as whether there was a risk or cost to NAB in lending to him. That approach was flawed because the correct question was whether the requirement that he have a source of income from the only available option open, being employment, was reasonable.
2. In considering the question of reasonableness, I have had regard to the Guide and also to the email correspondence which the applicant produced to the Tribunal and about which he was cross-examined by the respondents' Counsel.
3. Based on the content of the Guide discussed above, I am satisfied that it was reasonable for NAB to refuse to advance funds to the applicant in the absence of proof of a source of repayment. As discussed, in the absence of assets or other income, the applicant could not establish a reliable source of income at the time the proposals were being considered.
4. I accept the respondents' submissions that, what may be summarised as the 'employment requirement' was reasonable in all of the circumstances of this case. I refer particularly to the matters listed above in paragraph 59. To find it unreasonable for a lender such as NAB to disregard matters of that kind would be tantamount to requiring it to lend to someone with no capacity to repay.
5. In addition, I have considered the express matters referred to in section 9(3) of the EO Act (set out in paragraph 24 above). The disadvantage arising for the applicant was that NAB would not lend to him. That did not mean that he could not find another financier to do so or find an investor to supply the capital investment he sought from NAB in some of his proposals. Having regard to the Guide and the applicant's existing indebtedness, the refusal to lend was proportionate to the risk to both the applicant and the respondent that the applicant might not be able to repay the debt. In a commercial context, the fact that NAB may have had sufficient funds available to it to lend to the applicant, does not mean it ought to have done so.
6. It ought to be recalled that one version of the applicant's plan was for him to use funds from NAB to address the current default in the line of credit account and further funds to set up the new company and fit out the Rae Street property. Once the new company was operating, it was to pay him a salary which he regarded as guaranteed. The applicant estimated that would take at least six months. In the meantime, interest due on the existing and new debt was to be capitalised. The other option was for NAB to invest in the new company and become a shareholder. Quite separate from the express matters contained in section 9(3), the financial circumstances of the applicant and the applicant's existing default in respect of the line of credit account, prove it was reasonable for NAB to require that the applicant establish that he had an income to meet the proposed loan. Where the applicant had no assets or other income to rely on, employment was the only means available and it was a reasonable requirement imposed by NAB. Providing funds in advance to create an opportunity for the company to engage paying clients so it would be in a position to pay a salary to the applicant cannot be regarded as a reasonable adjustment.

The requirement to meet standard policy and guidelines

1. The applicant says that, while he accepts that it is appropriate for a lender to apply standard policy and guidelines to loans, it ought to also take into account the particular circumstances of the borrower and particularly small business owners such as himself. I understand the requirement the applicant says was imposed on him was a requirement to meet such standard policy and guidelines without NAB also undertaking an assessment of the merits of his particular circumstances.
2. The applicant refers to an email sent to him on 30 September 2013 by the second respondent, Mr Efthymiou, Regional Business Executive. That email was sent in response to a series of emails in which the applicant set out details of his then current finance proposal. Mr Efthymiou said in part:

I have asked James Green to work with his Senior Credit Partner taking into consideration the changes in business structure and strategy. On the back of this conversation, I expect James will be able to communicate with yourself and/or Kateena's replacement regarding a proposed solution and next steps.

I expect James will be in a position by the end of the week to move forward.[14]

1. The 'Kateena' referred to is Kateena Cookson, Portfolio Manager, Late Stage Mortgage Collections.
2. On 15 October 2013, Mr Efthymiou sent a further email to the applicant in response to the applicant's email dated 11 October 2013 in which the applicant expressed concern that no-one was listening to him and he set out concerns about his proposals which had been raised with him by the fourth respondent, Mr James Green, Business Banker. Mr Efthymiou said:

I have asked James [Green] to arrange a face to face conversation with Darren [Seisun] and yourself to resolve.

I appreciate there are mitigants which you have outlined below, however there are also clear guidelines and policies we need to employ as responsible lenders. The mitigants outlined below, may or may not suffice to address these requirements and hence this will be discussed in the conversation with James and Darren.[15]

1. The applicant contends that the 30 September 2013 email captures what he refers to as an 'assessment on the merits' and the 15 October 2013 email concerns what he refers to as standard policy and guidelines. He says that, rather than giving his proposals an assessment on the merits, NAB and the other respondents simply applied the standard policy and guidelines. As a consequence, the applicant contends that the requirement imposed on him was to comply with standard policy and guidelines despite the fact that such a requirement did not suit him and persons of his age. The disadvantage said to arise is the difficulty obtaining employment and so necessary income as discussed above.
2. The applicant's basis for concluding that there had been no assessment on the merits arose from the following matters:
   • NAB's refusal to provide finance despite what he saw as undertakings or indications that the proposals would be assessed favourably. The applicant made particular reference to what he regarded as positive statements made by the second respondent, Mr Efthymiou;
   • Comments made at a meeting between him and the fourth respondent, Mr Green, in around October 2012 which suggested to him that the complexity and merits of his proposals had not been properly understood. The comments included a claimed admission by Mr Green that he had not read all of the applicant's material.
   • Comments made at a meeting between him and the third respondent, Mr Seisun, Senior Credit Partner, in around October 2013, where Mr Seisun was said to have stated that he had not read the applicant's proposals and that he would only consider them once the existing line of credit account had been repaid or the applicant had proven income from the new business for an extended period; and
   • The failure of bank officers to ask him questions or seek further information.

1. I am not satisfied that the applicant has established that the respondents failed to undertake such an 'assessment on the merits'.
2. The applicant sent large amounts of material to NAB. He sent it to business bankers and also to members of NAB's mortgage collection section. The material included details of his experience (including references), the particular value he could add to property development projects, how his previous business had fallen into trouble, the case for his new business and detailed financial projections.
3. On 24 May 2013, the applicant emailed Ms Stephanie Busooa, Portfolio Consultant, Late Stage Collections, asking for confirmation that all of his emails had been forwarded to the business banking area for inclusion in their assessment. On the same day, Ms Busooa confirmed that 'all your emails have been saved, together with attachments, business plan, permits, references etc - they will all be reviewed before making an assessment.'[16]
4. On 31 May 2013, Ms Busooa emailed the applicant asking that he complete an attached statement of financial position so that NAB could understand his current position and 'how you are currently supporting yourself.' The applicant replied that the standard form was 'not really amenable to an accurate set out of the current financial situation and how I am supporting myself.' He then set out a summary of his and his wife's position and reiterated aspects of his proposals.[17]
5. There were then various staff changes and absences and the matter was referred to Ms Cookson. On 12 August 2013, she emailed the applicant and said that she had reviewed his emails, NAB's system notes and discussed his situation with a credit representative. She then said that, at that point in time, NAB was not in a position to advance any funds by way of an extension of credit. She said:

In order for us to consider a request of this nature, there needs to be evidence of current and ongoing income to service the debt.

These are our requirements and without evidence of income to support any submission there will be no consideration for additional lending - we cannot rely on projected income for an application.[18]

1. Ms Cookson then said that any further proposals had to be directed to a business banker.
2. On 26 September 2013, Ms Cookson explained in an email to the applicant that she was not a business banking specialist and so his emails to her setting out his 'varied proposals' had been referred to Mr Green and Mr Efthymiou so that the options could be considered. Ms Cookson said that the business bankers did not see the proposals as viable.[19]
3. The extract from Mr Efthymiou's 30 September 2013 email set out above indicates that he was aware of the planned business restructure. His 15 October 2013 email makes express reference to the risk mitigants the applicant was relying on. He also refers to guidelines and policies to be applied by a responsible lender.
4. On 16 October 2013, Mr Efthymiou said this in an email to the applicant:

There appears to be a disconnect between the conversation you early this week (sic) and your email below pursuing further options.

Darren (and James) are both senior members of the Small Business team. The (sic) is no opportunity to entertain further funding at this stage, and this decision is final.

We need the loan to be brought back under its limit and maintained in-line with your contractual obligations or the debt needs to be paid out in full. Failure to do this will result in collections activity continuing, given the severity of arrears and days irregular.

You are well within your rights to seek funding elsewhere, and I would understand if you chose to go down this path, however the decision we have made is in-line with our responsible lending obligations with a clear focus on not over extending your commitments. These are not decisions we face into lightly.[20]

1. On 17 October 2013, the applicant was told by Mr Mateen Shaik, Associate - Mortgage Recoveries, in an email that no further restructure proposals or any further lending requests would be considered by Mr Efthymiou or his team. There was a reference to time being allowed to sell the Rae Street property.[21]
2. The content of these emails is not consistent with the claim that NAB imposed a requirement that it would only assess the applicant's proposals against standard policy and guidelines and that it would not undertake an assessment of the merits of those proposals. Contrary to the applicant's claim, the emails indicate that NAB regard was had to all of the material presented. The fact that the applicant is dissatisfied with NAB's decisions does not prove that an assessment on the merits was not given or that an alleged failure of understanding amounted to a failure to assess the proposals on their merits.
3. What the email correspondence shows is that NAB was unwilling to lend further when the applicant could not show a current income sufficient to meet the existing debt and that it was not willing to lend based on projected income. This response is consistent with NAB having considered the proposals together with the applicant's overall actual financial position. The evidence does not establish that NAB merely applied a standard policy and guidelines tick box approach which failed to take into account the proposals presented.
4. Further, there was an absence of evidence about the financial position of persons of the applicant's age, their capacity to meet standard policy and guidelines and whether their loan proposals are given an assessment on the merits such that an otherwise neutral requirement disadvantages persons of the applicant's age.
5. While at the relevant points in time Messrs Green and Seisun may not have read the detail of all of the versions of the applicant's proposals, the applicant has produced no evidence that they did so on the basis of his age. The material, including the applicant's summary of what was said, indicates that their concerns were centred on the line of credit which was in default and the absence of current income.
6. Even if I were incorrect about whether the claimed requirement was imposed on the applicant, as discussed previously, it is reasonable for a lender such as NAB and its officers to have regard to a prospective borrower's capacity to repay. There can be no doubt that the establishment of a source of repayment is part of a standard policy or guideline. Careful and flexible attention to an unusual or different loan proposal will also require proof of a source of repayment. As discussed earlier, that approach is reasonable.

1. For these reasons, the application will be dismissed.
2. I note that, with effect from 5 pm today, NAB is released from its undertaking as discussed in paragraph 15 above.
3. The respondents sought an opportunity to be heard on the question of costs if they succeeded in their section 75 application. I will allow a period of four weeks for an application to be made together with a supporting affidavit. If an application is made, the applicant may file material in response four weeks later. The matter is then to be listed for hearing before me, allowing half a day.

[1] See section 6 which sets out the list of attributes on the basis of which discrimination is prohibited.

[2] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349.

[3] As applied from time to time and published in March 2011, May 2013 and September 2013. It was common ground that at all relevant times the pertinent sections of the Guide were the same.

[4] Applicant's witness statement made on 16 December 2013, paragraphs 62 ff.

[7] Referred to by the applicant as his 'Public Domain' materials.

[8] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[11] Exhibit A32 - an email dated 10 May 2013 in which the applicant referred to a period of six months for the business to be established. Later emails referred to periods of 7.5 and nine months for the fit out of the Rae Street property.

[12] Regulatory Guide 209, September 2013, page 35-36.

[13] Regulatory Guide 209, September 2013, page 33-37.

[18] The applicant's materials - document 67.