Ritchie v Intersuisse Ltd
[2009] NSWADT 57
•13 January 2009
CITATION: Ritchie v Intersuisse Ltd [2009] NSWADT 57 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Alan Ritchie
Intersuisse LimitedFILE NUMBER: 081128 HEARING DATES: 13 January 2009 SUBMISSIONS CLOSED: 13 January 2009 EXTEMPORE DECISION DATE: 13 January 2009 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13REPRESENTATION: APPLICANT
REPSONDENT
In person
D BathORDERS: Leave is refused
Introduction
1 Mr Ritchie has asked for written reasons for a decision to refuse leave for his complaint to be heard.
2 Mr Ritchie complained to the President of the Anti-Discrimination Board (ADB) that a conversation he had with Mr Durack from Intersuisse Ltd, a financial firm offering stockbroking and investment advice, breached the disability discrimination provisions of the Anti-Discrimination Act 1977 (AD Act). Mr Ritchie says he has a psychiatric disability. The President of the ADB declined the complaint as lacking in substance. When that happens, s 96 of the AD Act requires the applicant to obtain the Tribunal’s permission (or leave) before the complaint can proceed.
Approach to leave applications
3 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:
17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.
18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.
4 In a summary, the relevant principles are:
a) if the complaint has been declined as lacking in substance the Tribunal may consider all relevant material and ask whether:
(i) there is a serious question of fact to be determined; or
(ii) there is a serious question of credit involved; or
(iii) there is a factual issue that is likely to be affected by evidence in the respondent’s possession;
(b) on the material available, the claim lacks merit so that it is not in the public interest to permit it to proceed; or
(c) the applicant is able to show a substantial reason for leave being granted which generally includes that the applicant has reasonable prospects of success.
5 Mr Ritchie complains of two conversations he had with employees of Intersuisse. The first conversation with Mr Durack occurred on the 27 March 2008. The second conversation was with Ms Harris in about June 2008. While Mr Ritchie referred to the second conversation in his letter to the ADB dated 11 July 2008, that conversation was not part of his original complaint as it occurred after the date the complaint was lodged. The President did not refer the July complaint to the Tribunal as the period of complaint was defined as 27 March 2008 to 25 May 2008. As the second conversation was not accepted by the President as being part of Mr Ritchie’s complaint, the Tribunal does not have jurisdiction to determine whether to grant leave in relation to those allegations: AD Act, s 95(3).
6 On 26 March 2008 Mr Ritchie bought 22,000 shares in Sundance Resources at 17.5 cents a share, for a total of $3,938. He rang Mr Durack the following day and asked him during the course of that conversation how the share price was going. When Mr Durack told him the share price, Mr Ritchie said that it might be a good time to sell. Mr Ritchie said that “all of a sudden” Mr Durack manipulated him into a sale. He said that Mr Durack immediately said, "take profits". He said Mr Durack made that comment as if he had his hand on a button ready to execute an order. Mr Durack then said “you'll have to take 25". Mr Ritchie said he thought he might put the shares on at 28 cents but when Mr Durack said he would have to take 25 he “buckled” and told Mr Durack to put them on for 25 ½. Mr Ritchie admits that he gave clear instructions to Mr Durack to sell the shares at 25 ½ cents. According to Mr Ritchie, after a minute or two, Mr Durack told him the shares had been sold. Mr Ritchie made a profit of $1,579.43. Over the next week the shares in Sundance Resources fluctuated between 21.5 cents and 31.5 cents.
7 On 6 April 2008 Mr Ritchie complained to Intersuisse that he should have been advised to hold on to the shares because they subsequently rose in price. As a gesture of good will, Intersuisse agreed to re-purchase 22,000 shares and give them to Mr Ritchie.
8 Mr Ritchie complained that Mr Durack discriminated against him on the ground of his disability because if his client had been a person without a disability, Mr Durack would have encouraged that person to wait for an even higher price. Mr Ritchie also commented on the fact that Mr Durack did not sell his shares in Sundance Resources at that time. Intersuisse says that Mr Ritchie appears to be holding the company responsible for normal market fluctuations on a highly speculative share.
Legislative requirements
9 Being self-represented, Mr Ritchie was not able to articulate the legal character of his complaint. I understand that Mr Ritchie alleges a breach of section 49M of the AD 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.
10 To substantiate a complaint of direct disability discrimination as defined in section 49B(1)(a) Mr Ritchie would have to:
1. prove that he has a disability within the meaning of that term in section 4 and section 49A;
2. define the nature of the services that Intersuisse was providing to him;
3. establish that those services come within the meaning of services in the AD Act;
4. prove that the services were refused or provided on less favourable terms than they were provided or would have been provided to a person without his disability; and
5. prove that at least one of the reasons for refusing the services or providing them on less favourable terms was his disability.
Merits of disability discrimination complaint
11 Does Mr Ritchie have a disability? Mr Ritchie says that he was diagnosed with schizophrenia in 1972 and also has a severe back problem. An undated letter from Mr Parkinson, a consultant psychiatrist, says:
Mr Allan Ritchie has been my patient for more than 20 years. He suffers from anxiety disorder with severe obsessional symptoms. He is vulnerable to stress and is sensitive to shock and intimidation.
12 3 I accept for the purposes of these proceedings that Mr Ritchie has a disability within the meaning of that term in the AD Act, namely an anxiety disorder with severe obsessional symptoms.
13 Identification of the service. Section 4 of the AD Act defines “services” to include “services relating to banking, insurance and the provision of grants, loans, credit or finance”. Intersuisse offers stockbroking and investment advice. I accept for the purposes of these proceedings that offering that advice and buying and selling shares on behalf of clients constitutes a service.
14 Refusal of service or terms on which service is provided. Were those services refused or provided on less favourable terms? Intersuisse did not refuse to provide Mr Ritchie with a service, nor did Mr Ritchie identify the terms on which he said the service had been provided. The highest it could be put is that Mr Durack responded quickly to Mr Ritchie’s inquiry about selling the shares and that Mr Ritchie felt pressured into selling. Even if the phrase “the terms on which he or she provides the person with those goods or services” is interpreted broadly, it is unlikely that carrying out instructions quickly could be regarded as providing services on unfavourable terms. Since that conclusion is not free from doubt, for the purpose of these proceedings, I have assumed that the manner in which Mr Durack responded to Mr Ritchie’s inquiry relates to the terms on which the services were provided.
Direct discrimination
15 Two elements. In order to determine whether Intersuisse’s conduct through Mr Durack, 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 there was no actual 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. Before that comparison can be made the second element needs to be addressed, that is, causation.
16 Causation. In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that the test was:
... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability ? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.
17 The AD Act uses the words “on the ground of”, rather than “because of” but no different meaning is intended.
18 The basis for Mr Ritchie’s view that Mr Durack treated him unfavourably was that Mr Durack did not like him. He said he could tell from the way Mr Durack ended telephone conversations that he did not like Mr Ritchie’s behaviour. He said that Mr Durack had a sour voice and it was clear that he regarded him, not necessarily as having a disability, but as “dirty and inferior”. Mr Ritchie agreed that Mr Durack had never met him face-to-face but said that Mr Durack knew that he is was an invalid pension. Mr Ritchie said that he has never claimed that Mr Durack regarded him as having a psychiatric disability.
19 Intersuisse said that when Mr Ritchie opened an account with Intersuisse on 29 February 2008, he completed a document called “Know Your Client” in which he was asked to tick one of five boxes relating to his investment objective or risk tolerance. The five alternatives ranged from “Capital Preservation” to “Aggressive”. Mr Ritchie ticked the box entitled “Aggressive” which was described as “Trade in shares with a view to profiting from short term price movements in the stock market.” Mr Ritchie said that he ticked that box because it was the only box which related to an investment period of less than 6 months.
Conclusion
20 Mr Ritchie felt that Mr Durack pressured him into selling his shares when it would have been wiser to wait for a higher price. After he complained, as a gesture of good will, Intersuisse agreed to re-purchase 22,000 shares and give them to Mr Ritchie. Mr Ritchie was not satisfied with that response. The way Mr Ritchie was treated was consistent with the profile he nominated, that is, an aggressive investor. Even if Mr Ritchie misunderstood the question about the level of risk he was prepared to accept, that does not support his assertion that he was treated unfavourably because of his disability. In my view, Mr Durack would have treated a person who did not have Mr Ritchie’s disability in exactly the same way as he treated Mr Ritchie. There is nothing to suggest otherwise. Given that Mr Durack had no knowledge of Mr Ritchie’s disability and that the entire complaint relates to a single conversation in which Mr Durack carried out Mr Ritchie’s instructions to sell his shares at a certain price, it is extremely unlikely that a Tribunal would find Mr Ritchie’s complaint to be substantiated. Furthermore, as a gesture of good will, Intersuisse agreed to re-purchase 22,000 shares and give them to Mr Ritchie. In my view a Tribunal would not find that Intersuisse was in breach of the AD Act.
Order
- Leave is refused.
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