Davis v State Bank of New South Wales Limited trading as Colonial State Bank

[2001] NSWADT 107

CITATION:	Davis -v- State Bank of New South Wales Limited trading as Colonial State Bank [2001] NSWADT 107
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lance Davis RESPONDENT State Bank of New South Wales Limited trading as Colonial State Bank
FILE NUMBER:	001037
HEARING DATES:	22/02/2001
SUBMISSIONS CLOSED:	02/22/2001
DATE OF DECISION:	06/26/2001
BEFORE:	Rice S - Judicial Member; Silva A - Member; Luger M - Member
APPLICATION:	Age Discrimination - Goods and Services - Disability Discrimination - Goods and Services - Indirect discrimination
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT S Kidd, agent
ORDERS:	1. Complaint dismissed

Decision

1 For the reasons below, the Tribunal is not satisfied that Mr Davis was discriminated against on the ground of his age or on the ground of his disability. This means that Mr Davis’s complaint is dismissed.

Complaint

2 Mr Lance Davis complained to the Anti-Discrimination Board that the State Bank of New South Wales Limited trading as Colonial State Bank (‘the bank’) discriminated against him unlawfully in the provision of banking services. Mr Davis complained that he was discriminated against on the ground of his age and on the ground of his disability.

3 By s49M of the Anti-Discrimination Act (AD Act):

(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.

4 Section 49B describes what constitutes discrimination on the ground of disability:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) 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 such 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.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

5 By 49ZYN of the AD Act:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
6 Section 49ZYA describes what constitutes discrimination on the ground of age:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if, on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, the perpetrator:

(a) 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 is not of that age or age group or who does not have such a relative or associate who is that age or age group, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, 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.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

7 The President of the Board declined Mr Davis’s complaint under s90(1) of the AD Act as lacking in substance. Mr Davis then requested that his complaint be referred to this Tribunal for inquiry, as he was entitled to do under s91(2) of the AD Act.

Inquiry

8 At the inquiry Mr Davis represented himself. The bank was represented by one of its officers, Mr Kidd.

9 The Tribunal admitted the report of the President into evidence, and heard evidence from Mr Davis. The bank relied on material in the President’s report, and on a statement from a Mr Bruce Stimpson. The bank had not arranged for Mr Stimpson to be available for cross-examination.

10 The bank does not dispute that Mr Davis has a physical disability, nor is Mr Davis’s age in dispute. The dispute is whether the bank’s conduct towards Mr Davis was on the ground of his age, his disability, or both.

Background

11 Mr Davis farms sheep to produce fine wool. He has done so his whole life. He has been a customer of the bank for over 40 years, he says, and his father and grandfather were customers of the bank as well. The bank in that time has been known successively as the Rural Bank, the State Bank and the Colonial State Bank.

12 1993, 1994 and 1995 were bad years on the farm. There was drought. In 1997 Mr Davis sheared his sheep not long before an unseasonal blizzard. 1400 of his sheep died.

13 Mr Davis made a loss each year, despite the receipt of rural assistance payments. He needed financial assistance from the bank for feed and for shearing. He approached the bank a number of times for this assistance. It is the bank’s continuing refusal, culminating in a meeting in August 1999, of which Mr Davis complains.

14 In 1996 Mr Davis fell and injured his leg. He has not had full use of his leg since. He continued to operate his farm.

15 At the time that Mr Davis complained to the Anti-Discrimination Board in October 1999, he was 73 years old.

Mr Davis’s evidence

16 Mr Davis gave oral evidence. As well, Mr Davis relied on the account of his dealings with the bank in correspondence in the President’s report:

His written complaint to the Anti-Discrimination Board of 11 October 1999
His further letter to the Board received on 25 November 1999
His further letter to the Board of 4 January 2000
His letter to the bank received on 10 February 2000
His further letter to the Board received on 17 February 2000 and an attached statement dated 10 February 2000
His further letter to the Board of 28 February 2000
His further letter to the Board of 25 March 2000
His further letter to the Board of 12 April 2000
His further letter to the Board of 27 April 2000 and an attached statement
His further letter to the Board of 25 May 2000.
17 By way of general summary, Mr Davis says that he saw a series of officers of the bank at its Bathurst branch of the bank, asking each for a loan for feed and/or shearing.

18 He says that a Mr Jameson said that there was no money for shearing sheep and that Mr Davis should leave the wool on the sheep. A Mr George said that the “bank was not going to deal with a client over 65 years of age”. A Mr Bell, on Mr Davis’s showing him a sample of his wool, said he was not interested in wool and threw it back.

19 Mr Davis saw a Mr McColl who, he says, told him that there was “no money for hay, no money for you farmers”. That was Mr Davis’s evidence in chief. Towards the end of the day’s hearing, in answer to a question from the Tribunal, Mr Davis said that Mr McColl had in fact said “no money for you disabled farmers”. The emphasis was his when giving this evidence.

20 A meeting Mr Davis had with Mr McColl in 1996, for an annual review of his account, was three weeks after coming out of hospital. Mr Davis told Mr McColl of his injured leg. Shortly afterwards, the bank closed Mr Davis’s cheque account. The last cheque was drawn on 15 August 1997.

21 When Mr Davis went to the bank for a loan to buy new sheep after the 1997 blizzard, he was, he says, “treated like a dog”. He was spoken to in terms which could be described as rude and dismissive.

22 In 1999 Mr Davis saw a Mr Stimpson. Mr Stimpson, says Mr Davis, ‘gave him hell’. Mr Stimpson said that the bank was interested only in commercial business, and that Mr Davis’s was not viable. Mr Davis says that he argued and argued, to no avail.

23 Mr Davis had the assistance of a financial counsellor, Mr Neville, who attended a meeting with Mr Davis and Mr Stimpson in August 1999. At that meeting, says Mr Davis, Mr Stimpson repeated the view that Mr Davis’s business was not viable. The meeting involved the exchange of heated words. Mr Stimpson, says Mr Davis, told him that he’d never get a loan again and that the bank didn’t want any more to do with aged and disabled people.

24 After that Mr Davis ceased his dealings with the bank. He has since obtained financial assistance from a non-bank financial institution specialising in rural loans.

Bank’s evidence

25 The bank relied on a statement by Mr Stimpson dated 25 September 2000, and on documents in the President’s report.

26 Mr Stimpson was not available in person on the day of the hearing. He was not available for cross-examination by Mr Davis, or for questioning by the Tribunal.

27 In his statement Mr Stimpson denies having said anything to Mr Davis regarding age or disability.

28 Documentary material which Mr Stimpson refers to in his statement is available to the Tribunal in the President’s report. Mr Stimpson’s statement adds nothing to the Tribunal’s own reading and interpretation of those documents. The documents are:

Compilation Report by Cranston & McBride, Accountants, dated 17 February 1999
Livestock account for Lance LRA Davis for year ended 30 June 1998
Balance Sheet for Lance LRA Davis for year ended 30 June 1998
Primary Production account for Lance LRA Davis for year ended 30 June 1998
Monthly cashflow budget 1999/2000
Letter from Bruce Stimpson to Mr Davis dated 10 August 1999
Further letter from Bruce Stimpson to Mr Davis dated 19 August 1999
Facsimile letter from Bruce Stimpson to Gary Neville dated 19 August 1999
(Loan) Application Precis by Bruce Stimpson dated 9 September 1999
Non-Indemnified Loan Submission by Bruce Stimpson dated 8 September 1999
Letter from the Australian Banking Industry Ombudsman to Mr Davis dated 30 November 1999
Further letter from Bruce Stimpson to Mr Davis dated 10 February 2000
29 The bank’s position is summarised in the Australian Banking Industry Ombudsman’s letter of 30 November 1999 to Mr Davis, responding to a complaint Mr Davis made about the bank. The letter reads, relevantly:

. . . the bank says:

that the financial trend of your farming venture does not support your existing debt level
it has grave concerns about the long term viability of the farming operation
the cash flow forecast prepared by yourself and Mr Neville does not demonstrate that capital repayment of your indebtedness is achievable; and
that partial or full sale of the bank’s security (farm property) appears to be the only likelihood of debt recovery for the bank.
The bank says that your requests for short term assistance and long term debt consolidation were declined based on the financial performance of the farm business. Although the bank became aware of your serious accident in 1996 and noted the impact the accident had on your ability to operate the farm, the bank agreed to extend the facility you enjoyed. The facilities were again reviewed and extended in 1997 for a further two year term.
[T]he bank . . . has since agreed to extend the facilities granted to you until February 2000 when a review is to be undertaken after receipt of your wool clip.
30 The Ombudsman concluded:

The financial information you [Mr Davis] provided to the bank does not support that the farming operation is a viable long term project that is able to meet your immediate expenditure requirements or able to commence a debt repayment strategy.

31 The documents relating to Mr Davis’s financial dealings with the bank demonstrate clearly to the Tribunal Mr Davis’s difficult financial situation.

32 Mr Davis concedes that in any one year, for a number of consecutive years during the 1990s, he was unable to show a profit. He agrees that there were losses in the years during which he was attempting to borrow from the bank. He contends, however, that that is the way with sheep farming. The period within which Mr Davis would look to show a profit is, say, five years: three bad years and two good ones, on average. During that 5 year period he would need funds for hay and for shearing. Over this 5 year period Mr Davis would expect to ‘break even’.

33 Mr Davis agrees that the bank did lend him $60,000 in 1994, and in the same year extended an overdraft facility to him of $25,000. He agrees they extended the loan term in July 1997. He agrees the bank took no enforcement action over his failure to make repayments. The documents show that after the meeting in August 1999 the loan term and overdraft facility were further extended to February 2000 with payment of interest and charges deferred.

34 Mr Davis does not dispute the bank’s account of the various dealings, or of his financial situation. Despite the agreed history of the bank having provided funds and shown forbearance, Mr Davis says that the bank’s refusal to lend further funds was on the ground, at least in part, of his disability and age.

Findings

35 Mr Davis might have been subject to unlawful differential treatment in two ways: directly and indirectly.

36 Firstly, he might have been treated less favourably, on the ground of his disability or his age, than someone without his disability or not of his age would have been treated in the same circumstances: direct discrimination.

37 In all the documents, and in Mr Davis’s account of his dealings with the bank, there is no evidence of direct discrimination. That is to say there is no evidence of the bank’s making its decisions on Mr Davis’s loan applications on the ground either of his age or of disability.

38 There is no evidence, nor any material from which an inference could reasonably be drawn, that the various bank officers were hostile to Mr Davis, in the interviews described by him, on the ground of his age or disability. We have no reason to doubt Mr Davis’s account of the interviews, but it is as likely, in the absence of any evidence, that the bank officers were simply rude or that, unprofessionally, they were exasperated by Mr Davis’s persistent approaches for further financial assistance when the bank, as persistently, was refusing to give it.

39 Nor is there any evidence that the bank, in the period until late 1999, took account of Mr Davis’s age or disability in its refusal not to provide further financial assistance. It is not enough for Mr Davis, unable to accept or understand the bank’s persistent refusal, to surmise that it must have been on the ground of age or disability.

40 The one reference to Mr Davis’s disability in the period until late 1999 is Mr Davis’s evidence of a comment by Mr McColl (paragraph 19 above). In none of his extensive written material to the bank and the Anti-Discrimination Board, nor in his evidence in chief, did Mr Davis refer to this allegation against Mr McColl. It was only towards the end of the day’s hearing that Mr Davis said that Mr McColl said “you disabled farmers”. In the circumstances in which that evidence was given, and in the absence of any other evidence, we are not satisfied that that is what Mr McColl said.

41 There is evidence of Mr Stimpson’s having referred to Mr Davis’s disability in the meeting in August 1999. Mr Davis has been consistent in making that allegation. Mr Davis concedes, however, that Mr Neville, who was present with him at the meeting, did not hear Mr Stimpson say the words alleged by Mr Davis.

42 In his statement Mr Stimpson denies having said the words. He says that it should be accepted that he would not have made the comment. He says this is so because, having retired from the bank, he has nothing to gain by not stating the truth, and that while he employed by the bank a comment such as that alleged would have resulted in adverse consequences for him. He states that he is an honest and ethical person.

43 In the Tribunal’s view, so too is Mr Davis. Mr Stimpson’s statement does little to help the Tribunal’s inquiry into a serious allegation concerning the bank’s alleged lending practices, except to put in issue Mr Davis’s recollection of the detail of a conversation.

44 Having heard from Mr Davis and read his many statements, and having read Mr Stimpson’ statement, in the Tribunal’s view it is likely that Mr Stimpson did make reference to Mr Davis’s age and disability during the meeting. The Tribunal cannot, however, be satisfied as to what exactly was said and, in particular, as to whether the reference to Mr Davis’s age and disability was coupled with a suggestion by Mr Stimpson that they were factors in the bank’s deciding not to make further loans.

45 There is evidence of Mr Stimpson’s having made written reference to Mr Davis’s age and disability in a document assessing future management of Mr Davis’s financial obligations to the bank. In the Non-Indemnified Loan Submission Mr Stimpson wrote

Mr Davis is “banged up” following a horse accident a few years ago. He walked into our meetings on crutches. He is dependent on day labour for maintenance of the property and flock. This situation renders him even more susceptible to the adverse economic conditions that confront the rural community.

46 It is clear that Mr Stimpson was aware of Mr Davis’s age and disability.

47 In the Tribunal’s view it does not follow, and the evidence does not establish, that the bank’s refusal of further financial assistance was on the ground of Mr Davis’s age or disability. The bank viewed the economic conditions that confronted the rural community generally as adverse. Mr Davis’s farm had been making annual losses for some years. Loan repayments were outstanding. The evidence establishes a sufficient ground in financial considerations alone for the banks’ refusal of further assistance, and does not establish that age or disability were additional grounds.

48 Mr Davis is bewildered by the bank’s persistent decision to refuse a loan to him, and has, as he said in his evidence, assumed that the reason for the bank’s conduct must be his age or disability: “it was because I’m a disabled person. That’s all I can bring it down to”. It seems that he was alerted to this possible reason for the bank’s conduct by Mr Stimpson’s reference to his age and disability in the meeting in August 1999. It is, however, only Mr Davis’s best guess at why the bank would not lend further funds.

49 As we discuss below, Mr Davis has a very different view from that of the bank as to what constitutes a viable farm and therefore an eligible loan application. The banks’ view on viability, rather than Mr Davis’s age or disability, was the reason for the bank’s refusal to lend further funds.

Direct discrimination

50 On the evidence, the Tribunal is not satisfied that a person in the same circumstances – the financial situation Mr Davis was in – who was not of Mr Davis’s age or with his disability, would have been treated differently by the bank. Mr Davis is therefore unsuccessful in his claim under sections 49B(1)(a) and 49M(1)(a) of the Anti-Discrimination Act (direct disability discrimination), and under sections 49ZYA(1)(a) and 49ZYN(1)(a) of the Anti-Discrimination Act (direct age discrimination).

Indirect discrimination

51 The way the bank treated Mr Davis was to apply a standard of ‘economic viability’. As a factual matter Mr Davis disagrees with that standard. As a matter of law it could be discriminatory if it required Mr Davis to comply with a condition with which a substantially higher proportion of persons not of his age or not with his disability, comply or are able to comply, and which is not reasonable having regard to the circumstances of the case.

52 Mr Davis says that a sheep farm’s viability should be assessed over a long period, say a 5 year cycle, not by reference to annual results.

53 A ‘break even’ result over a 5 year period is quite simply not the basis on which the bank assesses the commercial risk of its loans. Mr Davis says that it should be. He says that the bank demonstrates no understanding of and sensitivity to the way in which farming works. It appears that his understandable frustration at this state of affairs, as he perceives them, has added impetus to his complaint to the Tribunal. He says that “the whole attitude of the Colonial Bank managers is rude”. By way of contrast, Mr Davis says, the non-bank financial institution from which he has since borrowed money demonstrates knowledge of farming, and understands his circumstances.

54 The appropriate period for assessing viability is a matter of differing opinion and differing practice. Clearly Mr Davis is aggrieved by what he sees as the bank’s insensitivity to, or ignorance of, rural and farming issues.

55 Whatever the period for assessing the requirement of viability, was Mr Davis’s age or disability a factor in his not being able to meet it?

56 It may be that Mr Davis, because of his age and/or disability, was in fact less able to comply with this requirement than someone of a different age and without his disability.

57 Both Mr Davis and the bank were without legal representation. The issues to be addressed in relation to indirect discrimination are complex, and were not anticipated or addressed by the parties. This is often the case in this jurisdiction. There is on this occasion sufficient evidence on which the Tribunal can form a view as the existence or not of a state of affairs resulting in indirect discrimination.

58 Mr Davis in his evidence denies that his inability to show a profit on an annual basis was attributable to his age or disability. He was asked by the Tribunal whether his age or disability prevented his meeting the bank’s viability requirements, or whether that was attributable to other factors. He replied that it was attributable to other factors, specifically to the bank’s attitude towards farmers.

59 Even if, despite his protestations to the contrary, the Tribunal was satisfied that Mr Davis was unable to meet the bank’s viability requirement because of his age or disability, the Tribunal would also have to be satisfied that a significantly higher proportion of people without his disability would be able to meet the requirement. Assuming this to be so, the final question would be whether the bank’s viability requirement was reasonable in the circumstances. The Tribunal is satisfied that such a requirement would be reasonable in the circumstances.

60 For a lending institution dealing with a prospective borrower, who presented with a record of annual losses and outstanding loans as did Mr Davis, the bank’s viability requirement was in our view reasonable. In saying this we are not expressing a view in relation to Mr Davis’s contention that bank should vary their standards for farmers generally. It may be that some flexibility or accommodation on the part of a bank in certain subjective circumstances is appropriate. The application of a standard of commercial liability on an annual basis might not be the best approach to take in all circumstances, but it is not necessarily an unreasonable one, and was not unreasonable in these circumstances.

61 We are satisfied that Mr Davis had to meet a requirement which, even if he was unable to do so because of his age or disability, was reasonable in the circumstances. Mr Davis is therefore unsuccessful in his claim under sections 49B(1)(b) and 49M(1)(a) of the Anti-Discrimination Act (indirect disability discrimination), and under sections 49ZYA(1)(b) and 49ZYN(1)(a) of the Anti-Discrimination Act (indirect age discrimination).

Costs

62 Neither party was legally represented. A costs order is not appropriate. There are no exceptional circumstances which would justify a costs order in any event. The fact that the President formed the view that Mr Davis’s complaint was lacking in substance would not have determined any consideration of costs in this matter. Despite the President’s view, in the Tribunal’s opinion there was clearly sufficient material to warrant Mr Davis’s instigating an inquiry into the grounds for the bank’s behaviour towards him.

Order

1 Pursuant to s113(a) of the Anti-Discrimination Act we dismiss the complaint.