CITATION: Nadis v Insurance Australia Group Limited trading as NRMA Insurance Limited [2008] NSWADT 134 DIVISION: Equal Opportunity Division APPLICANT Angelos Nadis PARTIES: RESPONDENT Insurance Australia Limited trading as NRMA Insurance Limited FILE NUMBER: 081003 HEARING DATES: 26 February 2008 SUBMISSIONS CLOSED: 13 March 2008 DATE OF DECISION: 9 May 2008 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : N/A Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 CASES CITED: O'Callaghan v Loder [1983] 3 NSWLR 89 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT K Edwards, barrister ORDERS: Leave is refused. REASONS FOR DECISION Introduction 1 Mr Nadis is requesting the Tribunal's permission for a complaint under the Anti-Discrimination Act 1977 (AD Act) to proceed despite the fact that the President of the Anti-Discrimination Board declined the complaint as lacking in substance: AD Act, section 96. Mr Nadis, who is Greek, complained of race discrimination in relation to the manner in which NRMA Insurance provided him with services after he lodged an insurance claim. He says that he was involved in a motor vehicle accident on 16 May 2007 and that in subsequent telephone calls and face to face meetings employees laughed at him, asked him about his nationality and intimidated him. NRMA Insurance denies that any such harassment occurred. 2 The respondent advised that the legal entity that underwrites Mr Nadis' policy is Insurance Australia Limited trading as NRMA Insurance. Although the people about whom Mr Nadis complained are employees of another entity, Insurance Manufacturers of Australia Pty Ltd, the respondent did not take issue with the identity of the respondent for the purpose of these proceedings. Leave application 3 Mr Nadis needs to obtain leave before his complaint can go ahead. In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]. In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. The Tribunal also pointed out a [16] of Xu that: It is not generally appropriate for the President to decline a complaint as lacking in substance where there is a serious question of fact to be determined or where a serious question of credit is involved. ( Spellson v George (1992) 26 NSWLR 666.) Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1.) Evidence 4 Although it is not the Tribunal's role to make findings of fact at this stage, I must assess the evidence in order to form a view as to the merits of the complaint. The evidence consisted of the President's Report and the oral and written evidence from the parties. 5 Mr Nadis said that when driving his car on 16 May 2007, he collided with the rear end of another vehicle. The following day he telephoned NRMA Insurance and spoke to Miss Smith. Subsequently, he spoke by phone to Ms Gibbs and Mr Zangari. He and his solicitor met with Mr Zangari on 11 July 2007. Following investigation of his claim, NRMA Insurance denied indemnity on the ground that the claim was not genuine. Since then, Mr Nadis says that he has been to the Department of Consumer Affairs to complain about the non-payment of his claim. His version of events is that he has received a letter from NRMA Insurance apologising to him and paying the amount of the claim in full. The respondent's version is that the claim was paid following the authorised vehicle repairer advising the NRMA that the vehicle had been lost and not because it recognised Mr Nadis' claim as genuine. In any event, Mr Nadis says that he is satisfied with the outcome and is not complaining about the non-payment of his claim. However, there was some dispute between the parties as to precisely which incidents constitute Mr Nadis' complaint. 6 In his complaint to the Anti-Discrimination Board, Mr Nadis complained about the following incidents: 1st incident: 17 May 2007: "When I rang the NRMA to report the accident the person who answered laughed at the way I spoke with an accent and said, 'We call you back in 3-4 days.' I was very offended but said nothing." The person Mr Nadis spoke to on this occasion was Ms Smith. 2nd incident: 24 May 2007: "When Linda (Gibbs) from the NRMA rang me . . . regarding the accident, together with normal questions she also asked me personal questions in an abrupt, rude, harsh and derogatory manner raising her voice and being repetitive insinuating that I was lying." 3rd incident: 6 June 2007: ". . . (Ms Gibbs) rang me again asking the same questions. When I said to her, "Can you not understand me, I'm sick and I try to talk to you" she replied, "We don't give a stuff about your sickness. What nationality are you?" several times in the same abrupt high voice to me. 4th incident: 8th June 2007: ". . . I spoke to Mr Vince Zangari investigator for NRMA, who apart from being also abrupt, harsh toned and stubborn not wanting to accept my explanation, also refused to speak with my solicitor trying to force me to sign some papers, without anyone else present." 5th incident: 8th July 2007 (actually 11th July): ". . . I, together with may solicitor met Mr Zangari and one other man from the NRMA at my solicitor's office, where Mr Zangari proceeded to ask me more questions regarding not only the accident but also irrelevant questions about who I associate with, where I go, and some other questions which I found very intrusive, rude, and derogatory not only to me but also because of my health. . . . Mr Zangari persisted for me to sign certain documents without agreement and because of advice I refused. The meeting was terminated and I had to quickly go to see my doctor because I suspected with this intimidation my blood pressure went up." 7 In a further letter to the Anti-Discrimination Board dated 11 July 2007, Mr Nadis complained of an incident that took place on 11 July 2007. Because that incident closely resembles what Mr Nadis said had occurred on 8th July, I have assumed that this is the same incident. That assumption is supported by Mr Zangari's summary of interview with Mr Nadis at pages 50 to 51 of the President's Report. 8 At the hearing on 26 February 2008, Mr Nadis said that the only matters about which he is continuing to complain are being asked about his nationality and being 'mocked' by Ms Linda Gibbs and Mr Zingari. In a letter to the Tribunal responding to NRMA Insurance's submissions, Mr Nadis clarified that it was the 3rd, 4th and 5th incidents about which he was continuing to complain. He withdrew the allegation about the first incident. Ms Edwards, representing NRMA Insurance, said that the phone conversation referred to in the first incident was recorded and as it shows that Ms Smith was not laughing at Mr Nadis, the Tribunal should take into account that evidence as reflecting adversely on Mr Nadis' credibility. I was given a copy of the recording of the conversation complained of in the first incident. Ms Smith did not laugh at Mr Nadis' accent in that conversation. I have taken this evidence into account in assessing Mr Nadis' credibility. I have set out below additional evidence in relation to the three incidents that Mr Nadis presses. 9 Third incident. After the hearing, Mr Nadis sent a copy of a letter apparently from "Jimmys Soulis", addressed "to whom it may concern". The letter stated that this person was at Mr Nadis' home on 6 June 2007 when he received a phone call from the NRMA. He said that the person on the phone "kept asking him several times for the nationality. I saw Mr Angelos Nadis he was very angry after that." This was not evidence that was before the Anti-Discrimination Board or the Tribunal at the hearing. It would not be procedurally fair to take it into account and, in any event, its weight is slight. Ms Gibbs' file note of the phone call on 6 June 2007 was as follows: ". . . rang insured to confirm time of accident. Angelo confirmed that it was 11.30 pm night time. He also stated his new home number is (deleted). I told him that Vince, our internal Investigator, will be in contact with him shortly, and he will be asking him to set some time aside for an interview to take place, he was OK with this." 10 Fourth incident. Mr Zangari's response to this allegation is that he does not know the exact date of the telephone call he had with Mr Nadis to organise an interview, but that the information would be included in his Run Sheets. Mr Nadis does not allege that Mr Zangari made any reference to his race in this phone conversation. 11 Fifth incident. The fifth incident, which occurred 11th July, was a meeting with Mr Nadis, his solicitor (Mr Stathis), Mr Zangari and an observer from NRMA Insurance. In his letter of complaint to the Anti-Discrimination Board and in his subsequent correspondence to the Board on 11 July 2007, there is no mention of Mr Zangari referring to Mr Nadis' nationality or making any harassing or derogatory comment about his race at that meeting. However, at the hearing Mr Nadis said that he was asked about his nationality and about the nationality of the panel beater. The fact that he did not make any allegation of such a comment being made in his complaint to the Anti-Discrimination Board reflects adversely on his credibility. Mr Zangari's report of the interview on 11 July contains the following comments: On 11 July 2007 I travelled to the office of Mr Stathis with Mr Steven Wilson as an observer. I commenced taking a statement from Mr Nadis in relation to his claim. Mr Nadis read from pre-scripted typed notes as to the events of the collision on 17 May 2007. Mr Stathis suggested that I put the allegation to his client in order to expedite the process, which was eventually done. Mr Nadis was notified of the allegation, which is attached to the forensic report. (The allegation was that Mr Nadis did not tell the truth regarding the circumstances giving rise to the claim.) Mr Nadis admitted that the incident was reported as occurring at night time. Forensic evidence concludes that the damage profiles are consistent with the accident description. The concern relates to the lights, which were not on at the time of impact. Mr Stathis stated that this would be disputed in court once he obtains forensic evidence that contradicts the evidence of the NRMA. Mr Nadis stated in an abusive manner that he is also a technician, which is outlined in the statement, which was not signed. I included this comment in the statement and based on my refusal to retract the comment made by Mr Nadis the interview was terminated and he declined to sign the statement. (Words in brackets added.) Legislative requirements 12 In order to prove that he has been unlawfully discriminated against on the ground of his race, Mr Nadis would have to establish, pursuant to section 19 and section 7 of the AD Act, that: a) NRMA is providing him with a service; b) NRMA has treated him unfavourably either by refusing to provide him with that service or in relation to the terms on which the service has been provided; c) the treatment consists of treating Mr Nadis less favourably than in the same circumstances, or in circumstances which are not materially different, NRMA treats or would treat a person of a different race;(the differential treatment requirement) and at least one of the reasons for that treatment is Mr Nadis' race (the causation requirement). 13 The question of whether harassing behaviour can amount to unlawful discrimination was first addressed in New South Wales by Mathews DCJ in O'Callaghan v Loder [1983] 3 NSWLR 89. In that case her Honour found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment. Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These general principles apply equally to harassment on the ground of race when providing a service. Merits of race discrimination complaint 14 Provisions of services. NRMA admitted that it was providing Mr Nadis with a service and that it had provided those services on certain terms. 15 Unfavourable treatment. Mr Nadis is complaining about the manner in which he was treated, not about the fact that his claim was declined. The unfavourable treatment about which Mr Nadis complains is essentially that: 1) Ms Gibbs said to him, "We don't give a stuff about your sickness. What nationality are you?" and that she repeated that question several times in the same abrupt high voice. 2) Mr Zangari spoke to him in an abrupt, harsh toned and stubborn way and did not want to accept his explanation. Mr Zangari also refused to speak with his solicitor and tried to force Mr Nadis to sign papers, without anyone else present. 3) At a face to face meeting Mr Zangari asked irrelevant questions about the people Mr Nadis associates with and other questions, which he found to be intrusive, rude, and derogatory. In addition, Mr Zangari insisted that he sign a statement and he refused. 16 Was the treatment racially discriminatory ? Apart from the allegation that Ms Gibbs repeatedly asked him what nationality he was and the belated assertion at the hearing that Mr Zangari asked him his nationality at the meeting on 11 July, there is nothing in the complaint, which connects the treatment, Mr Nadis said he was subjected to, with his race. Even if all his evidence is accepted, it is highly unlikely that questions about nationality, however offensively asked, would constitute proof that NRMA Insurance failed to respond appropriately to an environment permeated by racial harassment. Furthermore, although it is not generally appropriate to refuse leave to proceed where there is a serious question of fact to be determined or where a serious question of credit is involved, Mr Nadis has very little credibility. He withdrew his complaint relating to the first incident after NRMA Insurance produced a recording of the conversation which did not support his version of events. Furthermore, the first mention Mr Nadis made of any reference to his nationality at the 11th July meeting was at the Tribunal hearing. Given that the complaint lacks merits and Mr Nadis' credibility is seriously in doubt, I am not persuaded that there is a substantive reason for granting leave for the complaint to proceed. Order Leave is refused. 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.