Wiseman v American Express Australia Limited [2014] NSWCATAD 15

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wiseman v American Express Australia Limited [2014] NSWCATAD 15 Hearing dates: 18 September 2013 Decision date: 24 February 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the Applicants' complaint of discrimination to proceed. Catchwords: ANTI-DISCRIMINATION - complaint of homosexuality and disability discrimination declined as lacking in substance - whether leave should be granted for complaint to proceed - merit of complaint considered Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Jones v Ekermawi [2009] NSWCA 388 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Interlocutory applications Parties: Bryan Wiseman (Applicant) Matthew McCarthy (Applicant) Representation: K Edwards (Applicants) M Lee (Respondent) File Number(s): 131067

reasons for decision

Introduction 1Mr McCarthy and Mr Wiseman, who are in a same sex relationship, have alleged that the treatment American Express Australia Ltd afforded them as Centurion Black cardholders, breaches the Anti-Discrimination Act 1977. The 'black card' is available by invitation only to existing Platinum card members. Mr McCarthy was the principal card holder and Mr Wiseman was a supplementary card holder. 2The Applicants say that various complaints they made about the services provided by Amex were either not addressed at all or were not addressed quickly and fairly. After approximately 7 years as 'Centurion Black' members, Amex cancelled their cards. According to the Applicants, the unfavourable treatment was on the ground of their homosexuality and/or Mr Wiseman's disability or assumed disability (mental illness). 3The President of the Anti-Discrimination Board (ADB) declined the complaints on the following grounds: The information provided by the parties does not support the complainants' allegations that Amex staff refused to communicate with the complainants. However, even on the basis that this was the case, the complainants have not demonstrated that any delay or failure to communicate was because of the complainants' homosexuality or any presumed disability. In relation to the 1 page undated, unsigned document titled Bi polar, the complainants have not demonstrated that this document is attributable to the respondent and that it contravenes the Anti-Discrimination Act 1977. 4The Applicants need the Tribunal's permission or 'leave' before the complaints can go ahead: Anti-Discrimination Act, s 96. The Tribunal has a discretion to grant or not to grant leave. In exercising that discretion, the Tribunal must be guided by what is fair and just in the circumstances of each case. The bases on which the President of the ADB may decline a complaint are relevant but not determinative of the matters the Tribunal is able to take into account: Jones v Ekermawi [2009] NSWCA 388. 5The onus is on the Applicants to persuade the Tribunal to grant leave. Contrary to the Applicants' submission, the fact that there is 'no evidence' that Amex treated heterosexual couples in the same way as they treated the Applicants, does not advance their case. If this matter were to go to hearing, the Applicants, not the Respondent, would have to prove that there has been a breach of the Anti-Discrimination Act. While I am not determining that question now, the merits of their complaint is relevant to the question of whether it is fair and just to grant leave. 6Only events that occurred during the period 23 June 2011 to 16 July 2012 are part of the complaint. The President accepted and referred the complaints for that period: Anti-Discrimination Act, s 89B. The Applicants complain of 'direct' and 'indirect' discrimination on the ground of homosexuality and Mr Wiseman complains, as well, of direct discrimination on the ground of presumed or actual disability (mental illness).