El Kassir v Westpac Banking Corporation

[2025] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

El Kassir v Westpac Banking Corporation [2025] NSWCATAD 159

Hearing dates:

27 May 2025

Date of orders:

3 July 2025

Decision date:

03 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hennessy ADCJ, Deputy President

Decision:

1. Leave is refused for the applicant’s complaint to be the subject of proceedings before the Tribunal.

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaint to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Watts v Australian Post [2014] FCA 370; (2014) 222 FCR 220

Category:

Principal judgment

Parties:

Hani El Kassir (Applicant)
Westpac Banking Corporation (Respondent)

Representation:

Applicant (self-represented)
P Green (Customer Management Legal Westpac Banking Corporation) (Respondent)

File Number(s):

2025/00132602

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. Mr El Kassir complained to the President of the Anti-Discrimination Board that Westpac Banking Corporation (Westpac) had discriminated against him on the ground of his disability, in the provision of services. Mr El Kassir identified the allegedly discriminatory conduct as Westpac deciding not to re-establish a banking relationship with him and not responding to either of his July 2024 emails. Westpac does not dispute that it has refused to reverse its decision not to provide banking services to Mr El Kassir.

2. The President accepted the complaint for investigation. The period covered by the complaint is the four days from 19 – 22 July 2024. The President declined the complaint for the period before 19 July 2024. Following investigation, the President declined the complaint of disability discrimination as “lacking in substance” under s 92(1)(a)(i) of the Anti-Discrimination Act1977 (NSW):

(1)  If at any stage of the President’s investigation of a complaint—

(a)  the President is satisfied that—

(i)  the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance,

...

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint..

3. The President advised Mr El Kassir of the “reasons for declining the complaint” and his right to require the President to refer the complaint to the Tribunal: Anti-Discrimination Act, s 92 and s 93A. Mr El Kassir exercised that right. A complaint that is referred to the Tribunal on the requirement of a complainant “may not be the subject of proceedings before the Tribunal without the leave of the Tribunal”: Anti-Discrimination Act, s 96(1). The word “leave” means “permission”. For the following reasons I refuse to give Mr El Kassir permission for his complaint to be the subject of proceedings in the Tribunal.

Summary of complaint

Background

4. In 2019 Westpac ended its banking relationship with Mr El Kassir because of his allegedly abusive behaviour towards Westpac employees. Westpac issued him with a “banning notice” which prevented him from entering any of Westpac’s premises. Despite the ban, Mr El Kassir attended a Westpac branch in April 2022 and opened an account. Westpac closed the account the following month. Since that time, Mr El Kassir has corresponded with Westpac and the Australian Financial Complaints Authority (AFCA) in an effort to persuade Westpac to re-open his account.

5. On 19 July 2024 and again on 22 July 2024, Mr El Kassir emailed a letter of apology to Westpac employees in Customer Service and Complaint Management. Mr El Kassir apologised for his behaviour to staff on 29 November 2019 and on 3 May 2022. He acknowledged that he “may have spoken to staff in an inappropriate and offensive manner”. He said he now understands that his unreasonable conduct has impacted on those staff members’ mood and mental health . He added that he is now more aware of respecting other people’s boundaries.

6. Mr El Kassir said he has made efforts to address his mental health so he will not reoffend. He has regular psychological treamtment from his psychologist to address his behaviour and said that is helping him recognise his reckless and impulsive behaviour.

7. In his July 2024 correspondence with Westpac Mr El Kassir included a letter from his treating psychologist dated 8 December 2023. The letter stated that Mr El Kassir “has a history of mental health issues that has led to (him) behaving in a disruptive manner and being banned from certain organisations in the past”. The psychologist went on to provide the following opinion:

Hani [Mr El Kassir] has made good progress in his treatment and is working on managing his negative emotions and working on strategies to develop prosocial behaviours.

Westpac’s response to complaint

8. Westpac’s written response to the President was that they had considered the information Mr El Kassir had provided in the July 2024 emails but did not reply at the time. The reason for taking no action was that Mr El Kassir had made the same request many times and AFCA had recently decided that Westpac was entitled to close his bank account. Mr El Kassir had complained to AFCA and the parties had participated in a dispute resolution process. On 27 June 2024, approximately three weeks before Mr El Kassir sent the July 2024 emails to Westpac, AFCA had decided that Westpac was entitled to close his account and the decision not to reverse the “banning order” did not amount to discrimination.

9. Westpac submitted that the decision not to reopen Mr El Kassir’s account did not amount to disability discrimination in the provision of services as defined in the Anti-Discrimination Act. Westpac said that it refused to reverse the decision not to provide banking services because of the history of Mr El Kassir’s “unacceptable aggressive behaviour towards staff and the value it places on the safety and well being of its staff”.

Legal principles for granting or refusing “leave” under s 96(1) of the Anti-Discrimination Act

10. Section 96(1) provides that:

96   Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

11. This provision gives the Tribunal a discretion to allow a complaint to be the subject of proceedings or to refuse to allow a complaint to be the subject of proceedings. That decision is not “dictated by the application of a fixed rule to the facts” but involves “value judgments in respect of which there is room for reasonable differences of opinion, no opinion being uniquely right”: Norbis v Norbis [1986] HCA 17 at [4]; (1986) 161 CLR 513 at 518 per Mason and Deane JJ. However, the court may give guidance “as to the manner in which the discretion should be exercised”: Norbis at [519].

12. The courts have provided guidance of that kind in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (Ekermawi). On appeal, the Court of Appeal endorsed that approach: Jones & Anor v Ekermawi [2009] NSWCA 388 (Jones). In summary:

1. The Tribunal’s decision is not subject to any fixed rule or legislative standard, but it must be exercised “having regard to the context in which it appears and the purposes for which it is provided”: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 536 (Kirby P) (Emphasis added.)

2. Leave should 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”: Ekermawi at [40].

3. The President’s reasons for declining a complaint are relevant “although not necessarily determinative of the leave application …”: Jones [2009] NSWCA 388 at [60].

13. Applying these principles, Schmidt AJ in Ekermawi at [38] held that question of leave should be approached “on the basis of identifying whether it is fair and just to grant or refuse the leave sought in the particular circumstances in which the application for leave to proceed with a complaint comes forward”. Her Honour went on, in the same paragraph, to explain what is meant by fairness and justice in the context of the discretion under s 96(1) of the Anti-Discrimination Act:

That requires the position of both parties to be considered. 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.

14. We should also keep in mind that refusing leave will finally determine the complainant’s rights under the Anti-Discrimination Act: Jones at [57]; Ekermawi at [32].

Consideration of the merits of the complaint

15. I have considered the merits of Mr El Kassir’s complaint based on the material before me and the provisions of the Anti-Discrimination Act. I have not taken into account any opinion expressed by AFCA as to whether particular conduct constitutes discrimination.

16. Under s 49M(1)(a) of the Anti-Discrimination Act, it is unlawful for Westpac to discriminate against Mr El Kassir on the ground of disability by refusing to provide him with banking services.

49M   Provision of goods and services

(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.

17. Westpac did not dispute that, by refusing to open an account in Mr El Kassir’s name, it was refusing to provide him with a banking service “[S] ervices relating to banking” are included in the definition of “services” in s 4 of the Anti-Discrimination Act. Westpac is not providing a service of responding to Mr El Kassir’s July 2024 emails. That part of Mr El Kassir’s complaint lacks merit.

18. Disability is defined in s 4 of the Anti-Discrimination Act to include:

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

19. The letter from Mr El Kassir’s psychologist states that he “has a history of mental health issues” and that those issues have “led to (him) behaving in a disruptive manner”. This opinion supports a finding that that Mr El Kassir has a disability within the meaning of that term in s 4(e), namely an illness that affects his emotions. But the precise nature of any mental illness and the connection of that illness with his so-called “disruptive behaviour” is less clear. I discuss the significance of that observation below.

20. Discrimination on the ground of disability discrimination is defined 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.

(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.

…

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

21. Section 4A of the Act provides that:

If—

(a)  an act is done for 2 or more reasons, and

(b)  one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason. 

22. The definition of discrimination includes what I will call “direct” discrimination under s 49B(1)(a) and “indirect” discrimination under s 49B(1)(b). Mr El Kassir did not say whether his complaint was a complaint of direct or indirect discrimination. I will assess the merits of both.

23. To prove direct discrimination on the ground of disability by refusing to provide banking services Mr El Kassir would have to establish that Westpac:

1. treated him less favourably than in the same circumstances or in circumstances which are not materially different, Westpac treated or would have treated a person who did not have Mr El Kassir’s disability; (the differential treatment issue) and

2. that differential treatment was on the ground of Mr El Kassir’s disability; (the causation issue).

24. There is no actual comparator in this case. Mr El Kassir has not identified a person without his disability who Westpac has treated differently from him. Where the comparator is hypothetical, the two issues (differential treatment and causation) can be addressed as part of the same reasoning process. As explained by Mortimer J in Watts v Australian Post [2014] FCA 370; (2014) 222 FCR 220, ‘less favourable treatment’ and because of disability’ are not two separate elements:

... the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person’s treatment more readily emerges. In the context of s 5(2)(b), it can be said that the “real effect” more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between “less favourable treatment “and “because of the disability” in s 5(2)(b). 

25. In determining how Westpac would treat a hypothetical comparator, I must take into account the facts of this case, including the “objective features that surround the actual or intended treatment”: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [222]-[225] per Gummow, Hayne and Heydon JJ.

A comparison must be made to consider how, in those circumstances, the Respondent would have treated a person without the disability, noting that in Purvis, the High Court was considering s5(1) of the Disability Discrimination Act 1992 (Cth) (DD Act) which at that time did not have a general characteristic extension for disability as exists in s49B(2) of the Act. The DD Act was amended with effect from 5 August 2009 to include a partial characteristics extension in s4 ‘behaviour that is a symptom or manifestation of the disability.’

26. In Purvis, the High Court stated that the question is why the aggrieved person was treated as they were: Gummow, Hayne and Heydon JJ at [223]. The focus is on the ‘true basis’ or ‘genuine basis’: Gleeson J at [102], or the ‘real reason’ for the treatment: McHugh and Kirby JJ at [144].

27. Mr El Kassir does not appear to dispute Westpac’s submission about the reason it refused to provide him with banking services. That reason was said to be Mr El Kassir’s history of “unacceptable aggressive behaviour towards staff and the value it places on the safety and well-being of its staff”. Those reasons are credible. Mr El Kassir appears to accept that they are the reasons for refusing to provide him with banking services. That is apparent from the fact that his July 2024 emails attempt to address Westpac’s concerns about his previous behaviour. It is likely that the ‘true basis’ or ‘genuine basis’ for Westpac’s conduct was Mr El Kassir’s past disruptive behaviour and the value Westpac places on the safety and well-being of staff.

28. There is no material before the Tribunal that would support a finding that “disruptive behaviour” is a characteristic that appertains generally to people who have a mental illness or that it is a characteristic that is generally imputed to persons who have that disability: Anti-Discrimination Act, s 49B(2).

29. Mr El Kassir’s complaint of direct discrimination is obviously lacking in merit.

30. To prove indirect discrimination on the ground of disability, Mr El Kassir would have to prove that Westpac imposed a requirement on potential customers that they do not have a history of disruptive behaviour towards staff. Mr El Kassir would also have to prove he cannot comply with that requirement and that a substantially higher proportion of people without his disability cannot comply with that requirement. Finally Mr El Kassir would have to prove that such a requirement is not reasonable in all the circumstances.

31. There is no material before the Tribunal which would support a finding that a substantially higher proportion of people without Mr El Kassir’s disability would not be able to comply with a requirement of that kind. People with and without a mental illness engage in disruptive behaviour.

32. If Mr El Kassir is complaining of indirect discrimination, such a complaint is obviously lacking in merit.

Order

1. Leave is refused for the applicant’s complaint to be the subject of proceedings before the Tribunal.

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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

Decision last updated: 03 July 2025