DEPUTY PRESIDENT HENNESSY: Mr Ritchie complained to the President of the Anti-Discrimination Board on 6 March 2014, that the Financial Ombudsman Service Ltd, had discriminated against him on the ground of disability. Mr Ritchie's disability is a mental illness. The President declined that complaint and in those circumstances, under s 96 of the Anti- Discrimination Act 1977 (NSW), the Tribunal's leave is required before the complaint can go ahead.
The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. In that case Schmidt J:
1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights": [32];
2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint: [28];
3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted . . ." and went on to say, that:
"Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates": [38].
The circumstances of this case are that Mr Ritchie had a dispute with Canaccord Genuity (Australia) Limited. In relation to that dispute, he contacted the Financial Ombudsman Service Limited (FOS) which operates an ASIC approved external dispute resolution service for banking and financial disputes which is free to consumers. Mr Ritchie complains that when considering his complaint, FOS skipped a stage in the process, namely the recommendation stage, and that that disadvantaged him in two respects. Firstly, it gave him less time than he would otherwise have had to provide the information he says is relevant to the dispute. Secondly, he says that he was not able to ascertain what the preliminary view of FOS may have been in relation to the dispute. He says that if he knew what the recommendation was, he would have had a further opportunity to respond.
In order to prove a breach of the Anti-Discrimination Act Mr Ritchie would have to establish that FOS was providing him with a service and that it has refused that service or provided it, on certain terms. The relevant provision is s 49M of the Anti-Discrimination Act which states that:
"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."
It is my understanding that there is no dispute in these proceedings that FOS provides a service to consumers such as Mr Ritchie and that in this case, those services were provided on certain terms. The real dispute is whether FOS has discriminated against Mr Ritchie in the course of providing him with a service. That depends on whether or not the treatment meets the definition of disability discrimination in s 49B of the Anti-Discrimination Act.
(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.
Mr Ritchie complains of both direct and indirect discrimination as defined in s 49B(1)(a) and (b). The definition of direct discrimination has two elements. Firstly, Mr Ritchie must be able to establish that FOS treated him less favourably than it would have treated a person without his disability, in the same or similar circumstances. Secondly, he would have to establish that one of the reasons for that treatment was his disability.
The response that FOS provided to the Anti-Discrimination Board, explains the process that FOS adopts when dealing with disputes. That response is at pp 15- 21 of the President's report. Significantly, at p 17, FOS says:
"Over the period from September 2013 to 11 February 2014, the matter was managed with a view to try to reach an agreed resolution. Unfortunately, this was unsuccessful and as set out in the extract of 25 February 2014 letter, provided to you by Mr Ritchie, his dispute was expedited under para 8.6 of the TOR (Terms of Reference), for a determination without a recommendation being provided. This was due to an assessment by FOS that the parties were unlikely to agree to accept an outcome that was not binding. To provide some additional context, in the 2013/2014 financial year, FOS utilised the para 8.6 mechanism to expedite 405 banking and financial disputes out of 684 banking and financial disputes, that were referred for a determination. As can be seen, this is a common process which occurred in 59.2% of banking and finance disputes in 2013/2014." (Words in italics added)
There is no direct evidence that FOS treated Mr Ritchie differently from other people because of his disability. The only way Mr Ritchie could establish that connection is by identifying other primary facts which would allow the tribunal to draw an inference to that effect. An inference must be logical, reasonable and establish a "probable connection" with his disability. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70].
Based on FOS's response, it appears that it was common practice for it to skip the recommendation phase. That decision cannot be seen to be based on Mr Ritchie's disability because a more probable and innocent explanation for missing that step has been provided. That explanation is that FOS regarded it as unlikely that the parties would agree to accept an outcome that was not binding. Secondly, it seems unlikely that a tribunal hearing this matter would consider that disability was a ground for missing the step, in circumstances where nearly 60% of banking and financial disputes, are dealt with in that way.
The second basis for Mr Ritchie's complaint is one of indirect discrimination. As I understand it, Mr Ritchie submits that FOS has imposed a requirement or condition on him that he deal with the complaint and provide responses within a particular period of time. Thirty days was the period of time Mr Ritchie nominated. Mr Ritchie would also have to establish that he cannot comply with that requirement, that a substantially higher proportion of people without his disability, compared with people with his disability, can comply with that requirement and that the requirement is unreasonable in all the circumstances.
It seems, despite Mr Ritchie's submission, that he had a reasonable period of time in which to put his case to FOS. The period of the complaint as referred to the tribunal by the President of the Anti-Discrimination Board, is very short. It covers the few weeks from 25 February to 6 March 2014. At p 20 of the President's report, a chronology is listed of Mr Ritchie's submissions during that period. On no less than seven occasions within that period, Mr Ritchie provided emails, submissions or additional points in respect of his claim. A further response was received from Mr Ritchie on 24 April 2014 updating FOS in relation to contact that he had had with Canaccord Genuity (Australia) Limited. The determination was not made until 12 May 2014. Mr Ritchie says that he recalls advising FOS before the determination, that significant new evidence was coming. I have been unable to find that email in the President's report but even if that is the case, it does not appear that Mr Ritchie was requesting an extension of time in which to lodge that material.
In relation to the reasonableness of any time limits, there is obviously a tension between resolving disputes in a timely fashion and giving parties a reasonable opportunity to make relevant submissions and provide evidence. It seems to me, in the period covered by this complaint, that Mr Ritchie was given a reasonable opportunity to respond and did so. The real point of contention appears to be that Mr Ritchie disagrees with the final determination that FOS made. That determination was that Canaccord Genuity (Australia) Limited, pay him a sum of $59,000 plus interest. Mr Ritchie regards that as an unreasonable outcome. The nature or extent of the determination is not something about which Mr Ritchie can complain in these proceedings. His complaint is about the provision of a service, that is, the dispute resolution process adopted by FOS.
Having reviewed that process, I see no basis for a complaint that there has been discrimination on the ground of Mr Ritchie's disability. Because the complaint lacks substance, 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
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Decision last updated: 14 April 2015