Civil and Administrative Tribunal New South Wales Medium Neutral Citation: El Kassir v Commonwealth Bank of Australia [2024] NSWCATAD 316 Hearing dates: 09 October 2024 Date of orders: 24 October 2024 Decision date: 24 October 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member Decision: Leave to proceed with complaint refused. Catchwords: Human Rights – leave – disability discrimination – termination of banking relationship due to aggressive behaviour towards branch staff. Legislation Cited: Anti-Discrimination Act, 1977 (NSW) Cases Cited: Jones & Anor v Ekermawi [2009] NSWCA 388 Ekermawi v ADT & Ors [2009] NSWSC 143 Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v NSW [2003] HCA 62; 217 CLR 92 Texts Cited: None cited Category: Procedural rulings Parties: Hani El Kassir (Applicant) Commonwealth Bank of Australia (Respondent) Representation: Applicant (Self-Represented) A Teggins (Commonwealth Bank of Australia) (Respondent) File Number(s): 2024/00297001 Publication restriction: Nil REASONS FOR DECISION 1. This was an application for leave to proceed with a complaint of disability discrimination made under the Anti-Discrimination Act 1977 (NSW) ('the Act'). 2. A complaint was made by the applicant of disability discrimination in the provision of goods and services in relation to conduct that is said to have occurred between 21 March 2024 to 17 April 2024. . 3. The complaint was declined by a delegate of Anti-Discrimination NSW ('ADNSW') under s92(1)(a)(i) of the Act, because it was "lacking in substance". 4. The applicant alleges that in 2017 the respondent wrongfully terminated his banking relationship due to an allege incident of abusive behaviour by him towards a branch staff member. 5. The applicant has made repeated requests to the respondent to review its decision to terminate its banking relationship with him and accept him as a customer. However, his application has been refused. 6. On 23 March 2024 the applicant contacted the respondent and provided it with a copy of a letter from his treating psychologist, Ms Amina Ahmed, Forensic Psychologist dated 8 December 2023. The letter stated that he is receiving treatment for psychological symptoms and a history of mental health issues that has led to his "behaving in a disruptive manner and being banned from certain organisations in the past". The letter states that part of his treatment is "to address his anger and behaviour issues", that he is making good progress and has expressed remorse and regret "for his past aggressive behaviours and has made a commitment to rectify his behaviour. As part of this process Hani has composed apology letters to the organisations that have been impacted by his past behaviour". 7. The respondent was provided with this letter from Ms Ahmed and a communication from the applicant, but reiterated its refusal to accept the applicant as a customer on the basis of what it alleged were "multiple instances of intimidating and harassing conduct towards CBA staff." It noted that CBA "has an obligation to protect the health and safety of staff and customers" and declined to change its determination. 8. The applicant then lodged his claim of disability discrimination with Anti-Discrimination NSW. 9. In response, the respondent stated more specifically that on 11 November 2017 the applicant acted aggressively towards branch staff in the Bankstown Central branch and in April 2021 "used intimidating language directed to CBA's complaints team in early 2021". 10. On the basis of this conduct, the respondent declined to alter the decision it had made not to accept the applicant as a customer. Statutory Framework 1. Sections 49A, B, C and M of the Act may be relied on in this matter. There does not appear to be a dispute in relation to the application of either ss49A or M. 2. Section 49B of the Act provides as follows: (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. Section 49C of the Act provides that: In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including-- (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 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. Consideration 1. The Tribunal considered the oral and written submissions in the matter and the contents of the President's Report from Anti-Discrimination NSW. 2. The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]. 3. The applicant bears the onus of proof that was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to the disability: Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56] and/or race. 4. Section 96(1) of the Anti-Discrimination Act 1977 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors [2009] NSWSC 143 at para 25. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at 57 and Ekermawi v ADT & Ors [2009] NSWSC 143 at [32]. 5. The question of leave involves evaluating whether it is fair and just to grant or refuse leave in the particular circumstances of the case. Again, again those two cases Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors [2009] NSWSC 143 are cited in support of that proposition. 6. The applicant argues that any poor, aggressive behaviour on his part with CBA branch staff or other CBA staff was due to his mental health disabilities and because of that, the respondent cannot choose to terminate its relationship with him without disability discrimination occurring. 7. At the hearing considering the question of whether or not to grant leave to proceed with this complaint in the NSW Civil and Administrative Tribunal, the Tribunal drew the attention of the applicant to the decision of the High Court in Purvis v NSW [2003] HCA 62; 217 CLR 92, in which the complainant had a physical and a mental disability that produced unacceptable conduct, including outbursts of offensive language and violence in a classroom setting. The High Court determined in that case that where the conduct of a person occurred due to a disability, if the conduct was treated by the respondent no less favourably than it would have been if the person did not have a disability, then the fact of the disability will not be sufficient to render the response to the conduct discriminatory. In other words, if conduct occurred that would be unacceptable if the person did not have a disability, then even if the person does have a disability, the conduct can be responded to in the same way as it would be if the person did not have a disability and behaved in the same or a similar way. Such a response will not be held to constitute disability discrimination. 8. The applicant sought to distinguish this case from his own, but the Tribunal is bound by this case, which is applicable in NSW to the fact situation in this matter. 9. There is no evidence before the Tribunal that the applicant was treated less favourably than any other person who behaved in a similar or same way. 10. In this case, taking the evidence at its highest, for the reasons set out above, the Tribunal is not satisfied that the applicant will be able to establish disability discrimination occurred in the decision of the respondent to terminate a commercial relationship with him in 2017 and in it maintaining that refusal when called upon to reconsider in 2024. 11. For those reasons, it is fair and just to refuse leave to proceed with this application. ORDER 1. Leave to proceed with the Complaint is refused. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2024