Ritchie v CMC Markets Stockbroking Ltd

[2014] NSWCATAD 195

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ritchie v CMC Markets Stockbroking Ltd [2014] NSWCATAD 195
Hearing dates:	21 October 2014
Decision date:	12 November 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM Deputy President
Decision:	Leave for the Applicant's complaint to proceed is refused
Catchwords:	NSW CIVIL AND ADMINSTRATIVE TRIBUNAL - disability discrimination complaint against stockbroker - whether fair and just to give leave for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Category:	Interlocutory applications
Parties:	Alan Ritchie (Applicant) CMC Markets Stockbroking Ltd (Respondent)
Representation:	A Ritchie (Applicant in person) P Casey (agent for Respondent)
File Number(s):	1410456

reasons for decision

Introduction

1. Mr Ritchie complained to the President of the Anti-Discrimination Board that CMC Markets Stockbroking Ltd had discriminated against him on the ground of his disability in breach of the Anti-Discrimination Act 1977 (NSW). Mr Ritchie alleges that CMC Markets did not provide him with recordings of phone calls that he said took place between him and officers of CMC Markets in 2009. He also complained about the time that it had taken CMC Markets to provide him with certain documents and recordings.

1. The President of the Anti-Discrimination Board declined Mr Ritchie's complaint as lacking in substance. When that happens, s 96 of the Anti-Discrimination Act requires an applicant to obtain the Tribunal's permission (or leave) before the complaint can proceed. The Tribunal has an open discretion to grant or not to grant leave for a complaint to proceed but in determining that question the Tribunal should be guided by what is fair and just in the circumstances: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. 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.

1. The onus is on the applicant to persuade the Tribunal that leave should be granted.

The complaint

1. In May, June and September 2009 Mr Ritchie telephoned employees of CMC Markets, a stockbroking company to purchase shares. He says he lost "huge sums of money" and eventually complained to the Financial Ombudsman Service (the Ombudsman). In the course of investigating his complaint, the Ombudsman obtained recordings of phone conversations that Mr Ritchie had had with employees of CMC Markets. The Ombudsman concluded that Mr Ritchie had not been induced to purchase shares.

1. When Mr Ritchie complained to the Anti-Discrimination Board in March 2013, he was out of time to complain about the money he says he lost. Instead, Mr Ritchie complained that CMC Markets has refused to provide him with recordings of three phone calls he made between about 10 am and 2 pm on 1 June 2009. He acknowledged that he was provided with recordings of two phone calls (the first with two different people) that he made on that day but says between the first and second phone calls he made three more calls. Secondly he says that while he has been provided with a recordings of phone calls made on 14, 15 and 18 September 2009, CMC Markets have not provided him with recordings of a further two phone calls he made on 18 September 2009. Thirdly, he is missing the recoding of a phone call made on or about 1 May 2009. Altogether he says that the recordings of 6 phone calls have not been provided.

1. As well, Mr Ritchie says that while he is "fairly certain" that he has received all the contract notes for which he has asked, he needs to check the monthly statements to be sure that CMC Markets has provided him with those statements.

1. In relation to that part of his complaint that concerns the delay in being provided with recordings, Mr Ritchie says that it was not until he complained to the Ombudsman about the conduct of CMC Markets that he was eventually provided with some of the relevant recordings.

1. CMC Markets states that all the relevant information has been given to Mr Ritchie and denies that it has any record of the telephone calls he has identified.

Merits of the complaint

1. Being self-represented, Mr Ritchie was not able to articulate the legal character of his complaint. I understand that he alleges a breach of s 49M of the Anti-Discrimination Act which states that:

(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.

1. In order to determine whether CMC Markets' conduct constitutes direct disability discrimination a Tribunal hearing this matter would have to ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of disability: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the treatment afforded to Mr Ritchie with the treatment that was or would have been afforded to a person who did not have Mr Ritchie's disability in the same or similar circumstances. As Mr Ritchie did not put forward any actual person as a comparator, the comparison must be made in relation to a hypothetical person: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19.

1. To substantiate a complaint of direct disability discrimination, as defined in section 49B(1)(a), Mr Ritchie would have to prove that:

(1) he has a disability within the meaning of that term in s 4 and s 49A;

(2)   CMC Markets was providing him with a service and the nature of that service;

(3)   CMC refused to provide him with that service or provided that service on less favourable terms than they were provided or would have been provided to a person without his disability; and

(4)   at least one of the reasons for refusing the services or providing services on less favourable terms was his disability.

1. Mr Ritchie gave very few details of his disability saying only that his own diagnosis was that he has "death obsessions" and "obsessive compulsive disorder". I accept for the purposes of these proceedings that Mr Ritchie has a disability within the meaning of that term in the Anti-Discrimination Act.

1. Section 4 of the Anti-Discrimination Act defines "services" to include "services relating to banking, insurance and the provision of grants, loans, credit or finance". CMC Markets offers stockbroking and investment advice. But these proceedings do not concern the giving of advice. The service which Mr Ritchie submits has been refused is the service of providing him with documents and recordings of phone calls in a timely manner.

1. CMC Markets stated that the standard procedure for responding to a client's request for access to their personal information is set out in their privacy statement. In summary, clients can access copies of any information held about them by telephoning or emailing the company. The service is usually provided at no charge within 14 days unless the matter is complex or expensive. If access is denied a reason will be given in accordance with their privacy statement.

1. CMC Markets denies that it refused to provide Mr Ritchie with a service. They say that they have provided Mr Ritchie with all the documents and recordings of phone conversations that he has requested.

1. Mr Ritchie's submitted that the Tribunal would infer that the phone calls had been made and the recordings are available. The basis for that submission was that he says that he made three phone calls for which he does not have recordings between 10.06 am and 2.00 pm on 1 June 2009. He asks the Tribunal to infer that the calls were made because he knew that he had lost money after the first call so it is unlikely that he would go away and relax for a few hours before ringing again. Mr Ritchie also claims that records of another two calls he made on 18 September 2009 have not been provided.

1. He said that he had no access to a computer at the time and is not computer literate so phoning a broker was the only way he could check on the progress of his trades. Mr Ritchie says he cannot obtain phone records from his telephone provider because he has been advised that they only keep records of calls for 60 days.

1. Without the records from his telephone provider, and given that CMC Markets denies that it has records of these calls, it is highly unlikely that Mr Ritchie would be able to prove that he made the calls. If he cannot do so, this part of his complaint will not be substantiated. It is likely that the evidence will remain the same at a hearing. In those circumstances, I do not consider it fair and just for this part of the complaint to proceed.

1. Even if he could prove that he made the phone calls, Mr Ritchie would also have to establish that CMC Markets has discriminated against him on the ground of his disability by not providing him with those recordings. Since it is common ground that CMC Markets has provided Mr Ritchie with at least some of the recordings, a Tribunal hearing this case would be unlikely to infer that one of the reasons the other recordings have not been provided is Mr Ritchie's disability.

1. The next part of the complaint is that Mr Ritchie is "fairly certain" that he has not received all the contract notes for which he has asked. He says he needs to check the monthly statements and CMC Markets has not provided him with those contract notes. In my view, this part of the complaint lacks substance because of Mr Ritchie's uncertainty about what he has and has not received and CMC Markets' repeated assertions that they have provided him with all the information to which he is entitled.

1. The final part of Mr Ritchie's complaint relates to the time it has taken for CMC Markets to provide him with the information he requested. Mr Ritchie says that it was not until he complained to the Ombudsman about the conduct of CMC Markets that he was eventually provided with some of the relevant documents.

1. CMC Markets states that following a complaint from Mr Ritchie in September 2009, he was offered a "small monetary payment as a good faith customer relations measure". In his reply Mr Ritchie requested certain documents and copies of telephone recordings. According to CMC Markets certain documents were provided in a letter dated 9 November 2009. Mr Ritchie then complained to the Ombudsman. Following that complaint CMC Markets provided recordings to the Ombudsman and these were passed on to Mr Ritchie. The Ombudsman found in favour of CMC Markets and acknowledged that while there may be additional recordings that CMC Markets had not provided, Mr Ritchie had not explained what was discussed in those phone calls and how they were relevant to his complaint. Mr Ritchie's response is that he cannot recall what was said, that is why he wants them so much.

1. Following the report from the Ombudsman, CMC Markets took the view that the complaint had been finally resolved. CMC Markets refused Mr Ritchie's request to provide the same information that had been provided previously to the Ombudsman. According to Mr Ritchie the Ombudsman did not bother to get all the recordings and just accepted CMC Markets' version of events.

1. This part of the complaint relates to the terms on which CMC Markets has provided a service. Depending on the evidence, a Tribunal hearing this complaint may find that CMC Markets had not provided every record that Mr Ritchie had requested in accordance with its privacy statement or in a timely manner. Again, Mr Ritchie would have to link that conduct with his disability. Mr Ritchie has not put forward an actual person without a mental illness whose request had been dealt with in a timely manner where the circumstances are the same or similar to his circumstances. If the Tribunal were to hear this complaint it would have to infer, on the basis of a hypothetical person, that Mr Ritchie's disability was a reason for the delay. There is little or no basis on which the Tribunal could draw that inference and it is unlikely, given that these events occurred in 2009, that such evidence would be adduced at a hearing. In those circumstances it is not fair or just for the complaint to proceed.

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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: 12 November 2014