Cairns v ANZ Banking Group Limited

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cairns v ANZ Banking Group Limited [2018] NSWCATAD 138

Hearing dates:

30 and 31 March 2017; 12 May 2017; 17 and 18 July 2017

Date of orders:

29 June 2018

Decision date:

29 June 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Perrignon, Senior Member
Dr M Murray, General Member

Decision:

1. The complaints of direct and indirect discrimination against the first respondent are dismissed.

 

2. The complaints of direct and indirect discrimination against the second respondent are dismissed.

 

3. The complaint that the first respondent aided and abetted the second respondent to breach the Anti-Discrimination Act 1997 is dismissed.

 

4. The parties are to file and serve applications for costs, if any, with supporting submissions, by 14 July 2018.

 5. Grant leave to file and serve any submissions in reply by 28 July 2018.

Catchwords:

HUMAN RIGHTS - discrimination in provision of marketing services – both applicants of New Zealand nationality and origin – first respondent marketed second respondent’s life insurance to first applicant - whether direct discrimination on grounds of race – whether indirect discrimination

 

HUMAN RIGHTS - discrimination in provision of insurance services –second respondent issued life insurance policy to both applicants - exclusion clause enabled insurer to decline benefit unless insured held Australian citizenship or permanent residency visa - whether direct discrimination on grounds of race - whether indirect discrimination

  HUMAND RIGHTS - aiding and abetting – whether in marketing life insurance to the first applicant the first respondent aided or abetted the second respondent to discriminate directly or indirectly against him

Legislation Cited:

Anti-Discrimination Act 1977
Migration Act 1958 (Cth)

Cases Cited:

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Faulkner v Ace Insurance Limited [2011] NSWADT 36
IW v City of Perth (1997) 191 CLR 1
Matthews v Hargreaves (No 4) [2013] FMCA 4
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v NSW (Department of Education and Training) (2003) 217 CLR 92
Rainsford v Victoria [2007] FCA 1059
Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83,
Tate v Rafin [2000] FCA 1582

Category:

Principal judgment

Parties:

Charles Cairns (First Applicant)
Judith Cairns (Second Applicant)
ANZ Banking Group Limited (First Respondent)
OnePath Life Limited (Second Respondent)

Representation:

Counsel:
K Eastman SC (Respondents)
J Oakley (Respondents)

 

Solicitors:
Turks Legal (Respondents)

  Applicants’ representative:
D Faulkner

File Number(s):

2016/00378062

Reasons For Decision

1. Mr and Mrs Cairns were both born in New Zealand. Mrs Cairns first entered Australia in 1993 and Mr Cairns in 1998. By 2004, both had well and truly settled in Australia, and were residing here on a permanent basis. In 2005, Mr Cairns took out life insurance for himself and Mrs Cairns with ING Life Limited, which is now known as OnePath Life Limited (‘OnePath’). He had been told about the insurance by his bank, ANZ Banking Group Limited (‘ANZ’).

2. In 2014, Mr Cairns suffered a…