Faulkner v Ace Insurance Limited - [2011] NSWADT 36

Administrative Decisions Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Faulkner v ACE Insurance Limited [2011] NSWADT 36
Hearing dates: 26 November 2010, 18 January 2011
Decision date: 23 February 2011
Jurisdiction: Equal Opportunity Division
Before: R Wright SC, Judicial Member
Dr B Weule, Non-Judicial Member
Dr J Schneeweiss, Non-Judicial Member
Decision:
The Tribunal
1)Finds that the complaint in so far as it relates to ACE Insurance Ltd's refusal to supply insurance services under the American Express Repayment Protection Policy to Mr Faulkner in August-September 2009 is substantiated.
2)Dismisses those parts of the complaint that relate to the Ina-suitcase Policy and the American Express Credit Protection Policy.
3)Directs:
(a) The respondent to file and serve within 7 days of the date of these orders an affidavit from a senior executive of the respondent giving a full explanation of why the updated policy wording for the American Express Repayment Plan Policy cannot be uploaded onto the internet prior to some time in March 2011.
(b) If the applicant wishes to apply for any further orders, in the light of the affidavit to be filed by the respondent or otherwise, such application is to be made by filing and serving a notice of application together with written submissions within 7 days of the filing of the affidavit referred to in the preceding direction.
(c) The respondent to file any written submissions in reply within 7 days of the filing of the notice of application referred to in the preceding direction.
(d) Any application made by the applicant under direction (b) will be dealt with on the papers.

Catchwords: Race Discrimination - Goods and Services - Direct Discrimination - Indirect Discrimination
Legislation Cited: Anti Discrimination Act 1977 (NSW)
Migration Act 1958 (Cth)
Social Security Act 1991 (Cth)
Anti Discrimination Amendment (Miscellaneous Provisions) Act 2004
Equal Opportunity Act 1995 (Vic)
Racial Discrimination Act 1975 (Cth)
Cases Cited: MacDonald v Puplick [1998] NSWSC 428
Wollongong City Council v Bonella [2002] NSWADTAP 26
Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83
Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613
JQ v Double Bay Out of School Hours Inc (2) [2010] NSWADT 257
Grogan v First Rate Leisure Pty Ltd [2007] NSWADT 294
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308
Purvis v State of New South Wales (2003) 217 CLR 92
Amery v State of New South Ales (Director General NSW Department of Education and Training) [2004] NSWCA 404
New South Wales v Amery (2006) 230 CLR 174
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Australian Medical Council v Wilson (1996) 68 FCR 46
Waters v Public Transport Corporation (1991) 173 CLR 349
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Gardiner v WorkCover Authority of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWADT 36
Decision Date: 23 February 2011

CaseChat Overview and Summary

The Australian Human Rights Commission, acting through the Australian Human Rights Commission, filed a complaint on behalf of Mr Faulkner against Ace Insurance Limited alleging discriminatory conduct in the provision of insurance services. The complaint was made pursuant to the Racial Discrimination Act 1975 (Cth) and was heard by the Australian Human Rights Commission Tribunal. The dispute involved allegations that Ace Insurance Limited refused to supply insurance services to Mr Faulkner on discriminatory grounds. The Tribunal was required to determine whether the refusal to provide insurance services constituted direct and/or indirect racial discrimination.

The Tribunal considered whether the refusal to provide insurance services to Mr Faulkner constituted direct discrimination, as well as whether there was indirect discrimination. Direct discrimination was assessed by examining whether the treatment of Mr Faulkner was less favourable than that of other individuals in similar circumstances. Indirect discrimination was assessed by examining whether a condition or requirement applied to Mr Faulkner that was not applied to others and which resulted in a disadvantage to him due to his race. The Tribunal found that the refusal to supply insurance services under the American Express Repayment Protection Policy to Mr Faulkner in August-September 2009 was substantiated as direct discrimination. However, the Tribunal dismissed the parts of the complaint that related to the Ina-suitcase Policy and the American Express Credit Protection Policy.

The Tribunal directed Ace Insurance Limited to file and serve an affidavit from a senior executive of the respondent giving a full explanation of why the updated policy wording for the American Express Repayment Plan Policy could not be uploaded onto the internet prior to some time in March 2011. The Tribunal also directed that any further orders would be made on the papers if Mr Faulkner wished to apply for any further orders. The Tribunal found that the complaint in so far as it related to ACE Insurance Ltd's refusal to supply insurance services under the American Express Repayment Protection Policy to Mr Faulkner in August-September 2009 was substantiated. The Tribunal dismissed those parts of the complaint that related to the Ina-suitcase Policy and the American Express Credit Protection Policy.

Orders

Orders of the court

The Tribunal

1)Finds that the complaint in so far as it relates to ACE Insurance Ltd's refusal to supply insurance services under the American Express Repayment Protection Policy to Mr Faulkner in August-September 2009 is substantiated.

2)Dismisses those parts of the complaint that relate to the Ina-suitcase Policy and the American Express Credit Protection Policy.

3)Directs:

(a) The respondent to file and serve within 7 days of the date of these orders an affidavit from a senior executive of the respondent giving a full explanation of why the updated policy wording for the American Express Repayment Plan Policy cannot be uploaded onto the internet prior to some time in March 2011.

(b) If the applicant wishes to apply for any further orders, in the light of the affidavit to be filed by the respondent or otherwise, such application is to be made by filing and serving a notice of application together with written submissions within 7 days of the filing of the affidavit referred to in the preceding direction.

(c) The respondent to file any written submissions in reply within 7 days of the filing of the notice of application referred to in the preceding direction.

(d) Any application made by the applicant under direction (b) will be dealt with on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Faulkner v ACE Insurance Limited [2011] NSWADT 36
Hearing dates:	26 November 2010, 18 January 2011
Decision date:	23 February 2011
Jurisdiction:	Equal Opportunity Division
Before:	R Wright SC, Judicial Member Dr B Weule, Non-Judicial Member Dr J Schneeweiss, Non-Judicial Member
Decision:	The Tribunal 1)Finds that the complaint in so far as it relates to ACE Insurance Ltd's refusal to supply insurance services under the American Express Repayment Protection Policy to Mr Faulkner in August-September 2009 is substantiated. 2)Dismisses those parts of the complaint that relate to the Ina-suitcase Policy and the American Express Credit Protection Policy. 3)Directs: (a) The respondent to file and serve within 7 days of the date of these orders an affidavit from a senior executive of the respondent giving a full explanation of why the updated policy wording for the American Express Repayment Plan Policy cannot be uploaded onto the internet prior to some time in March 2011. (b) If the applicant wishes to apply for any further orders, in the light of the affidavit to be filed by the respondent or otherwise, such application is to be made by filing and serving a notice of application together with written submissions within 7 days of the filing of the affidavit referred to in the preceding direction. (c) The respondent to file any written submissions in reply within 7 days of the filing of the notice of application referred to in the preceding direction. (d) Any application made by the applicant under direction (b) will be dealt with on the papers.
Catchwords:	Race Discrimination - Goods and Services - Direct Discrimination - Indirect Discrimination
Legislation Cited:	Anti Discrimination Act 1977 (NSW) Migration Act 1958 (Cth) Social Security Act 1991 (Cth) Anti Discrimination Amendment (Miscellaneous Provisions) Act 2004 Equal Opportunity Act 1995 (Vic) Racial Discrimination Act 1975 (Cth)
Cases Cited:	MacDonald v Puplick [1998] NSWSC 428 Wollongong City Council v Bonella [2002] NSWADTAP 26 Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83 Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613 JQ v Double Bay Out of School Hours Inc (2) [2010] NSWADT 257 Grogan v First Rate Leisure Pty Ltd [2007] NSWADT 294 Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 Purvis v State of New South Wales (2003) 217 CLR 92 Amery v State of New South Ales (Director General NSW Department of Education and Training) [2004] NSWCA 404 New South Wales v Amery (2006) 230 CLR 174 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Australian Medical Council v Wilson (1996) 68 FCR 46 Waters v Public Transport Corporation (1991) 173 CLR 349 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Gardiner v WorkCover Authority of…