Ritchie v Clayton Utz

[2010] NSWADT 80

CITATION:	Ritchie v Clayton Utz [2010] NSWADT 80
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Alan Ritchie RESPONDENT Clayton Utz
FILE NUMBER:	091122
HEARING DATES:	2 February 2010
EXTEMPORE DECISION DATE:	2 February 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Discrimination, complaint declined lacking in substance, application for leave to proceed
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Jones and Anor v Ekermawi [2009] NSWCA 388
REPRESENTATION:	APPLICANT In person RESPONDENT D Hillard, solicitor
ORDERS:	Leave is refused for the complaint to be the subject of proceedings before the Tribunal.

REASONS FOR DECISON

1 HER HONOUR: Mr Ritchie made a complaint to the Anti-Discrimination Board of disability discrimination in the provision of goods and services. The complaint was against the law firm, Clayton Utz who provides a legal clinic and referral service at Our Place on Stanmore Road in Enmore. Pro bono legal advice is provided to people who are homeless or at risk of homelessness. Face to face advice is sometimes followed by referral to an appropriate legal provider. On other occasions Clayton Utz will enter into terms of engagement with clients to act for them in relation to certain matters.

2 In brief the nature of Mr Ritchie’s complaint was that Clayton Utz did not enter into terms of engagement with him, in relation to any of the legal issues that he raised with them. He said that from the time he first attended the Centre, Clayton Utz staff were not intending to help him because he had a mental illness. The nature of Mr Ritchie’s mental illness has been described by a consultant psychiatrist, Mr Parkinson, as an anxiety disorder with severe obsessional symptoms.

3 The Anti-Discrimination Board declined the complaint on the basis that it lacked substance. The reasons the Board gave for that decision are set out at pages 40 and 41 of the President’s report to the Tribunal. When a matter is declined by the President an applicant has the opportunity to request that the complaint be referred to the Tribunal. Mr Ritchie did so on 24 August 2009. Where a complaint is referred, section 96 of the Anti-Discrimination Act 1977 states that the complaint cannot proceed unless the Tribunal grants leave for it to do so. Before setting out the principles on which leave should be granted I will briefly describe the allegations which Mr Ritchie says constitute his complaint.

4 On the 25 January 2009 Mr Ritchie wrote to the Anti-Discrimination Board saying that he wished to make a complaint of discrimination against Clayton Utz. In particular, he alleged that he had attended the Centre but at the end of a period of months they just “dumped all my material in my lap and that was it, without even talking to me on that day.” When asked to provide further particulars of these allegations, Mr Ritchie wrote a letter to the Board which was received on 6 March 2009. In the President’s Report, at pages 12 to 18, is further correspondence from Mr Ritchie expanding on his complaint. Following receipt of that correspondence the Board wrote to Clayton Utz setting out various questions for them to answer. Clayton Utz replied on 21 April 2009.

5 Mr Ritchie was then given an opportunity to respond to Clayton Utz’s letter. The Board decided to decline the complaint as lacking in substance. Mr Ritchie, today, does not have a copy of the Anti-Discrimination Board’s report with him but contends that there may be some letters missing from the report as provided to the Tribunal. The basis of the Tribunal’s jurisdiction is the referral of a complaint by the President of the Board to the Tribunal. The Board sets out the documents that have been attached in a covering letter and gives a summary of the complaint. That is the complaint which the Tribunal has jurisdiction to determine. If there was correspondence which constitutes the complaint, which has not been provided by the Anti-Discrimination Board, that is not a matter that this Tribunal can inquiry into or take account of.

6 Mr Ritchie has not specified or provided to the Tribunal copies of any correspondence that were not included in the President’s report even though he has had a copy of the report for some time. For those reasons I have taken the complaint to be the complaint as referred by the President and Mr Ritchie’s allegations to be those contained in the report. In brief the allegations are that firstly, Clayton Utz refused to enter into terms of engagement with him in relation to any of the matters that he raised with them. In particular, he raised a matter against a chiropractor and also matters against various stockbrokers. He agrees that the main issue related to the conduct of a stockbroker some ten or eleven years previously but that he also raised in general terms complaints about stockbrokers which had occurred more recently.

7 In addition to not acting for Mr Ritchie in relation to those matters, Mr Ritchie complains that from the outset Clayton Utz did not intend to help him and that was because of his mental illness. In particular, at page 9 of the President’s report at paragraph (b), Mr Ritchie says, “In my opinion it is discrimination on mental grounds because I believe someone else with the same matters would have got help to some extent from them. They are eliminating me because of my pathetic state. This is an ongoing pattern with me. I mean, why should not I be able to get help but I never have been able to.”

8 I turn now to the principles on which the Tribunal should approach the issue of leave. These were most recently described by the Court of Appeal in the decision of Jones and Anor v Ekermawi [2009] NSWCA 388. The effect of that decision is that the Tribunal has an open discretion to grant or not to grant leave for a complaint to proceed but that in determining that question the Tribunal should be guided by what is fair and just in the circumstances. In addition, the criteria in section 92(1)(a) of Anti-Discrimination Act are relevant to the exercise of the discretion but not necessarily determinative of a leave application. The matters listed 92(1)(a) include grounds for declining a complaint because it is frivolous, vexatious, lacking in substance or does not disclose a contravention. It is also important to note that the onus is on the applicant to persuade the Tribunal that leave should be granted.

9 There were some factual matters in dispute. In each case I have accepted Mr Ritchie’s characterisation of events. Firstly I accept that Clayton Utz’s employees were aware of Mr Ritchie’s mental illness during the period in which he attended the Centre from May until November 2008. Secondly, I accept that his complaint is about not only a refusal by Clayton Utz to act for him in the old stockbroking matter but its refusal to act for him in any of the matters which he drew to Clayton Utz’s attention.

10 The only matter about which I find against Mr Ritchie, is that his complaint also involved allegations of discrimination on the basis of a physical disability that is, a back injury which meant that he was unable to sit or stand for any extended period and needed to walk up and down to alleviate the pain in his back. Mr Ritchie says that part of his complaint was that Clayton Utz did not attend to him quickly enough or at all on some occasions and did not telephone him so that he could come to the Centre on short notice from his home. Despite inviting Mr Ritchie to identify where he had made those allegations in his complaint he was unable to do so and I am not satisfied that that particular allegation was part of the complaint that the Board referred to the Tribunal.

11 In order for Mr Ritchie to prove that he was discriminated against on the ground of a disability contrary to section 49M of the Anti-Discrimination Act he would have to prove four things. Firstly, that he has a disability within the meaning of that term in section 4 and section 49A of the Anti-Discrimination Act. Secondly, that the services Clayton Utz was providing come within the meaning of services in the Anti-Discrimination Act. Thirdly, that services were refused or provided on less favourable terms and finally that any refusal or provision of services on less favourable terms constitutes discrimination as defined in section 49B.

12 Clayton Utz has conceded that Mr Ritchie has a disability as described earlier in these reasons. Clayton Utz also concedes it was providing a service of face to face legal advice to people who were homeless or at risk of homelessness and that it refused Mr Ritchie a service in the sense that it did not act for him in relation to any of the matters about which he complained. That leaves, in dispute, the question of whether the conduct of Clayton Utz that has been identified constitutes direct discrimination on the ground of disability. The first component of the test for direct discrimination is the differential treatment test. The treatment afforded to Mr Ritchie must be compared to the treatment that would have been afforded to a person without his disability in the same or similar circumstances.

13 In the absence of an actual person whose treatment could be compared with the treatment given to Mr Ritchie, a Tribunal would have to rely on a hypothetical person in a comparable situation. That is, a person seeking advice on the same matters that Mr Ritchie sought advice about but who did not have a mental illness. The second component of the test for direct discrimination is causation. At least one of the reasons for being refused a service or for being provided a service on unfavourable terms must be his disability. The question would be whether Mr Ritchie’s disability is at least one of the real genuine or true reasons for the treatment. As Mr Hillard pointed out, when there is a hypothetical comparator the two elements of direct discrimination merge to some extent and the causation question is logically the first issue that should be addressed.

14 In Mr Ritchie’s view it is obvious to him that one of the reasons that he was treated in the way that he was treated was his mental illness. He said he could sense, from the beginning, that he was not going to be assisted and that in his view another person who did not have a mental illness would have been assisted to a greater extent. However, Mr Ritchie also conceded that he does not know the law and that Clayton Utz could have been right in refusing to provide him with legal representation. Nevertheless, Mr Ritchie did argue the merits of his various matters contending that he should have been provided with assistance.

15 Clayton Utz’s submission was that the record shows that they frequently act for people with mental illness and the Tribunal is aware of many of those occasions. That in itself, while of some persuasive value, is obviously not a complete answer to any allegation of discrimination. The second submission that Clayton Utz made was that it is not their policy to represent people in relation to personal injury matters and that is how the complaint about the chiropractor had been characterised. In any event Clayton Utz did refer Mr Ritchie to the Law Society to obtain the name of a suitable solicitor who may have been able to represent him or at least assess his case.

16 In relation to the allegations against the stockbroker, Mr Hillard told the Tribunal that money lost through share investments does not come within Clayton Utz’s pro bono guidelines. Clayton Utz also had previously given as reasons for refusing to represent Mr Ritchie that the allegations were some 11 years old and that Mr Ritchie had made several efforts to obtain advice about his likelihood of success in relation to those proceedings. Mr Hillard also pointed out that there was no direct evidence of any discrimination. In particular, there had been no discussion of Mr Ritchie’s mental illness or any overt indication by any employee of Clayton Utz that his mental illness was an issue.

17 Of course, that is normally the case. It is rare for a person to broadcast an intention to discriminate on the ground of mental illness. However, Mr Hillard also submitted that there was no basis for any inference that Mr Ritchie’s mental illness was even one of the reasons for the way he had been treated. As I have said, in support of that proposition Clayton Utz pointed to its record in representing people with a mental illness and to its pro bono guidelines as well as to the lack of merits of Mr Ritchie’s case.

18 This is not a case where it is appropriate for me to assess the merits of Mr Ritchie’s complaints against stockbrokers or others. Rather it is to assess his likelihood of success in any subsequent proceedings before the Tribunal. On the basis of all the evidence that I have heard and seen today including the President’s report there is nothing that Mr Ritchie has been able to submit that persuades me that it would be fair and just for his complaint to go ahead. There is no basis for inferring that the issues he raised with Clayton Utz’s solicitors had merit and that the real reason for refusing to act for him was his mental illness. Nor is there any basis for inferring that he was treated less favourably than a person without a mental illness would have been treated. In all the circumstances it is my view that the complaint lacks substance and leave is refused.