Ritchie v CMC Markets Stockbroking Ltd

Merits of the complaint 9Being self-represented, Mr Ritchie was not able to articulate the legal character of his complaint. I understand that he alleges a breach of s 49M of the Anti-Discrimination Act which states that: (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. 10In order to determine whether CMC Markets' conduct constitutes direct disability discrimination a Tribunal hearing this matter would have to ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of disability: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the treatment afforded to Mr Ritchie with the treatment that was or would have been afforded to a person who did not have Mr Ritchie's disability in the same or similar circumstances. As Mr Ritchie did not put forward any actual person as a comparator, the comparison must be made in relation to a hypothetical person: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. 11To substantiate a complaint of direct disability discrimination, as defined in section 49B(1)(a), Mr Ritchie would have to prove that: (1)he has a disability within the meaning of that term in s 4 and s 49A; (2)CMC Markets was providing him with a service and the nature of that service; (3)CMC refused to provide him with that service or provided that service on less favourable terms than they were provided or would have been provided to a person without his disability; and (4)at least one of the reasons for refusing the services or providing services on less favourable terms was his disability. 12Mr Ritchie gave very few details of his disability saying only that his own diagnosis was that he has "death obsessions" and "obsessive compulsive disorder". I accept for the purposes of these proceedings that Mr Ritchie has a disability within the meaning of that term in the Anti-Discrimination Act. 13Section 4 of the Anti-Discrimination Act defines "services" to include "services relating to banking, insurance and the provision of grants, loans, credit or finance". CMC Markets offers stockbroking and investment advice. But these proceedings do not concern the giving of advice. The service which Mr Ritchie submits has been refused is the service of providing him with documents and recordings of phone calls in a timely manner. 14CMC Markets stated that the standard procedure for responding to a client's request for access to their personal information is set out in their privacy statement. In summary, clients can access copies of any information held about them by telephoning or emailing the company. The service is usually provided at no charge within 14 days unless the matter is complex or expensive. If access is denied a reason will be given in accordance with their privacy statement. 15CMC Markets denies that it refused to provide Mr Ritchie with a service. They say that they have provided Mr Ritchie with all the documents and recordings of phone conversations that he has requested. 16Mr Ritchie's submitted that the Tribunal would infer that the phone calls had been made and the recordings are available. The basis for that submission was that he says that he made three phone calls for which he does not have recordings between 10.06 am and 2.00 pm on 1 June 2009. He asks the Tribunal to infer that the calls were made because he knew that he had lost money after the first call so it is unlikely that he would go away and relax for a few hours before ringing again. Mr Ritchie also claims that records of another two calls he made on 18 September 2009 have not been provided. 17He said that he had no access to a computer at the time and is not computer literate so phoning a broker was the only way he could check on the progress of his trades. Mr Ritchie says he cannot obtain phone records from his telephone provider because he has been advised that they only keep records of calls for 60 days. 18Without the records from his telephone provider, and given that CMC Markets denies that it has records of these calls, it is highly unlikely that Mr Ritchie would be able to prove that he made the calls. If he cannot do so, this part of his complaint will not be substantiated. It is likely that the evidence will remain the same at a hearing. In those circumstances, I do not consider it fair and just for this part of the complaint to proceed. 19Even if he could prove that he made the phone calls, Mr Ritchie would also have to establish that CMC Markets has discriminated against him on the ground of his disability by not providing him with those recordings. Since it is common ground that CMC Markets has provided Mr Ritchie with at least some of the recordings, a Tribunal hearing this case would be unlikely to infer that one of the reasons the other recordings have not been provided is Mr Ritchie's disability. 20The next part of the complaint is that Mr Ritchie is "fairly certain" that he has not received all the contract notes for which he has asked. He says he needs to check the monthly statements and CMC Markets has not provided him with those contract notes. In my view, this part of the complaint lacks substance because of Mr Ritchie's uncertainty about what he has and has not received and CMC Markets' repeated assertions that they have provided him with all the information to which he is entitled. 21The final part of Mr Ritchie's complaint relates to the time it has taken for CMC Markets to provide him with the information he requested. Mr Ritchie says that it was not until he complained to the Ombudsman about the conduct of CMC Markets that he was eventually provided with some of the relevant documents. 22CMC Markets states that following a complaint from Mr Ritchie in September 2009, he was offered a "small monetary payment as a good faith customer relations measure". In his reply Mr Ritchie requested certain documents and copies of telephone recordings. According to CMC Markets certain documents were provided in a letter dated 9 November 2009. Mr Ritchie then complained to the Ombudsman. Following that complaint CMC Markets provided recordings to the Ombudsman and these were passed on to Mr Ritchie. The Ombudsman found in favour of CMC Markets and acknowledged that while there may be additional recordings that CMC Markets had not provided, Mr Ritchie had not explained what was discussed in those phone calls and how they were relevant to his complaint. Mr Ritchie's response is that he cannot recall what was said, that is why he wants them so much. 23Following the report from the Ombudsman, CMC Markets took the view that the complaint had been finally resolved. CMC Markets refused Mr Ritchie's request to provide the same information that had been provided previously to the Ombudsman. According to Mr Ritchie the Ombudsman did not bother to get all the recordings and just accepted CMC Markets' version of events. 24This part of the complaint relates to the terms on which CMC Markets has provided a service. Depending on the evidence, a Tribunal hearing this complaint may find that CMC Markets had not provided every record that Mr Ritchie had requested in accordance with its privacy statement or in a timely manner. Again, Mr Ritchie would have to link that conduct with his disability. Mr Ritchie has not put forward an actual person without a mental illness whose request had been dealt with in a timely manner where the circumstances are the same or similar to his circumstances. If the Tribunal were to hear this complaint it would have to infer, on the basis of a hypothetical person, that Mr Ritchie's disability was a reason for the delay. There is little or no basis on which the Tribunal could draw that inference and it is unlikely, given that these events occurred in 2009, that such evidence would be adduced at a hearing. In those circumstances it is not fair or just for the complaint to proceed.

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: 12 November 2014