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). Legislation 7It is unlawful for a service provider, such as American Express, to discriminate against a customer on the ground of that person's homosexuality or disability. The provisions which make such conduct unlawful are s 49ZP (in relation to homosexuality) and s 49M (in relation to disability): 49ZP It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality: (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. It is unlawful 49M (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. 8The Applicants rely on 'direct' disability and homosexuality discrimination and 'indirect' homosexuality discrimination. The definition of direct discrimination on the ground of homosexuality is in s 49G(1)(a) and for indirect discrimination on the ground of homosexuality in s 49G(1)(b). The definition of direct discrimination on the ground of disability is in s 49B(1)(a). The following parts of those provisions are relevant to these proceedings: 49G (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person" ) on the ground of homosexuality if the perpetrator: (a) on the ground of the aggrieved person's homosexuality or the homosexuality 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 he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have a relative or associate who is a homosexual person, 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 homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons. 49B (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, 9Disability is defined in s 49A(b) as including a disability "that a person is thought to have (whether or not the person in fact has the disability)". 10There is no dispute that Amex provides financial services to the complainants. There is also no dispute that the Applicants are homosexual or that Mr Wiseman has a disability. 11To prove direct discrimination on the ground of homosexuality and/or disability, the complainants would have to establish that: (1)Amex has refused to provide them with goods or services or provided goods and services on certain terms; (the treatment) (2)that treatment is treatment that is less favourable than the treatment that was or would have been given to a person who was not a homosexual person or who did not have that disability;(differential treatment) (3)at least one of the reasons for that treatment was the applicants' homosexuality (or a characteristic that is generally imputed to homosexual persons) or disability: (causation). 12The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's homosexuality (including the extended definitions of that ground) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the real, genuine or true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 13To prove indirect discrimination on the ground of homosexuality the Applicants would have to establish that: (1)the Respondent has required him to comply with a requirement or condition; (the requirement) and (2)compliance with that requirement or condition relates to the refusal of a service or the provision of a service on unfavourable terms; (the connection) and (3)the Applicant does not or is not able to comply with the requirement or condition; (non-compliance) and (4)a substantially higher proportion of people who are not homosexual comply or are able to comply with the requirement or condition in comparison with people who are homosexual; (disparate impact) and (5)the requirement or condition is not reasonable having regard to the circumstances of the case (unreasonableness). The allegations Summary 14Based on the material in the President's Report and the Applicants' written submissions, the allegations can be summarised as follows: (1)during a phone call an unidentified Amex employee referred to Mr Wiseman as "Mrs McCarthy"; (2)when telephoning at various times both Mr Wiseman and Mr McCarthy were left on hold for periods of between 30 minutes and an hour or more; (3)the Managing Directors, Mr Pierric Beckert and later Ms Lisa Vehrenkamp did not personally reply to emails Mr Wiseman sent to them and others; (4)Amex treated the Applicants unfairly when two unauthorised amounts were charged to the Applicants' account; (5)Amex failed to assist when the Applicants were charged for services on their Amex account which they did not receive; (6)Amex cancelled their membership with 30 days' notice after Mr Wiseman completed an online survey; (7)Mr McCarthy received a letter on Amex letter head about bi-polar disorder addressed to "Ms McCarthy". Being referred to as "Ms McCarthy" 15The Applicants submit that being called "Mrs McCarthy" constitutes 'direct' discrimination on the ground of homosexuality and on the ground of a characteristic imputed to homosexuals, as well as 'indirect' discrimination on the ground of homosexuality. 16This allegation is not mentioned in the Applicants' letters of complaint to the ADB. It is included in letters Mr Wiseman wrote to Amex in January and June 2012 but no time frame is attributed to the alleged comment and the maker of the comment is not identified. It must have occurred prior to January 2012. The period of the complaint is 23 June 2011 to 16 July 2012 so unless it occurred during that period, it cannot form part of the complaint. 17I will proceed on the basis that the Applicants will be able to prove that the alleged comment was made by an Amex employee and that it was made during the relevant period. The claim of direct discrimination on the ground of homosexuality is that Amex treated Mr Wiseman less favourably in relation to the terms on which it provided him with services by presuming that he was a woman. The claim of direct discrimination on the ground of a characteristic is that "femininity, or being effeminate", is a characteristic generally imputed to homosexual men. According to the Applicants, that is either a matter about which evidence can be led or about which the Tribunal can take judicial notice. 18It is highly unlikely that either of these claims would be substantiated. From Mr Wiseman's description of the event, it appears that when he answered the phone, the caller asked him if he was "Mrs McCarthy". This is a case where the motive or purpose of the alleged discriminator is relevant to 'causation'. There are two possibilities. The first is that the person who called Mr Wiseman "Mrs McCarthy" made an incorrect assumption that he was Mr McCarthy's female partner and/or an incorrect assumption that because of the sound of his voice, he was a female. The second possibility is that the person deliberately called him "Mrs McCarthy" knowing that he was Mr McCarthy's same sex partner. It is highly unlikely that the Applicants would be able to prove the second alternative. If the Tribunal hearing this matter finds that the assumption was an innocent mistake, then the comment would not have been made 'on the ground of' Mr Wiseman's homosexuality or a characteristic that is imputed to homosexuals. 19The claim of indirect discrimination is that, in the course of providing Mr Wiseman with a service, Amex required him to comply with a requirement or condition that "Amex would deal with Mr McCarthy's other designated cardholder, Mr Wiseman, on the presumption or expectation that Mr Wiseman was a woman, married to Mr McCarthy and called 'Mrs McCarthy'". This is not a 'requirement or condition' that can form the basis of a complaint of indirect discrimination. The requirement must be worded so that it applies to more than one person. That is because, in order to determine whether the requirement has a disparate impact, a comparison must be made between the proportion of homosexual people who can comply with the requirement and the proportion of heterosexual people who can comply. Given this fundamental problem with the way the complaint of indirect discrimination has been formulated, it is highly unlikely that a Tribunal hearing this matter would find a complaint of indirect discrimination to be substantiated. There is no other formulation of which I am aware that would amount to a 'requirement or condition' for the purposes of proving indirect discrimination. Being left on hold for long periods 20The Applicants complain of being left 'on hold' on the telephone for periods of between 30 minutes and more than an hour. Amex asserts that their records indicate that the average length of time it took to answer the Applicants' 16 calls between 3 January 2012 and 28 June 2012 was 24 seconds. There is a significant factual dispute about the length of time taken to answer calls. I have assumed, for the purpose of these proceedings, that the Applicant will be able to prove that they were left on hold for the periods that they claim. I also assume that these allegations are complaints of direct discrimination on the ground of homosexuality and/or disability. 21In the letter of complaint to the ADB on 14 August 2012, Mr McCarthy mentions complaints of being put on hold for long periods going back for many years. He says that those and other problems have "usually been resolved". Mr McCarthy attributes a dramatic change in the level of service to a time "approximately 3 years ago" when Mr Wiseman revealed to Amex staff that they were a same sex couple. If the Applicants were complaining about being on hold for long periods before Mr Wiseman revealed that they were a same sex couple then it will be very difficult to prove that their homosexuality is a reason for being kept on hold. The evidentiary and legal hurdles persuade me that this aspect of the complaint is highly unlikely to be substantiated if it were to proceed. No response to emails and phone calls 22The Applicants allege that they received no response to various phone calls, emails and letters including: (1)a letter to Pierric Beckert, the Managing Director of Amex, dated 23 June 2011 and an email sent to him on 26 June 2012; (2)an email sent to Lisa Vehrenkamp, the Managing Director of Amex on 29 June 2012 and a letter allegedly sent around June or July 2012 to which Mr Wiseman says there was no reply (copy of letter not provided); (3)a letter to Mr Juan Orfila dated 6 January 2012 about alleged "unauthorised charges"; (4)an email to Leeza Zreika sent on 17 January 2012, a letter sent to her on 20 January 2012 and a telephone call to Ms Zreika in January 2012 during which Mr Wiseman was told that she was unavailable. 23These allegations are said to constitute discrimination on the ground of homosexuality. 24Mr Wiseman wrote to Mr Beckert on 23 June 2011 saying that he and his partner were 'loyal customers' but that recently staff have been 'extremely curt and unhelpful'. He asks whether there is a "do not respond" note on their account and if so, is it because "Amex perceives us to be a couple of psychotic whining gays? Or is it because Mr McCarthy is the MD of Amex's opposition?" There was no response to that letter. 25In relation to emails and letters to Mr Beckert, Mr McCarthy says in his complaint to the ADB that he became so frustrated with the length of time he was being put on hold when telephoning Amex that he emailed Mr Beckert, but there was no response. He says Mr Wiseman also emailed him but received no response. 26Amex responded to this allegation by saying that they decided to manage the Applicants' issues through their Executive Customer Relations (ECR) team. They say that decision was consistent with their internal policy which is that whenever a card member complains to a local or international senior manager, the matter is referred to ECR. 27The internal policy was not provided, but this is one possible explanation for why Mr Beckert did not respond to the Applicants' emails. One way to prove that his decision not to respond was because of the Applicants' homosexuality, would be to provide evidence that Mr Beckert responded personally to letters or emails from other disgruntled Centurion 'black card' members. While it is possible that such evidence, if it exists, could be summonsed and adduced, it is far more likely that Amex's explanation is correct and that Mr Beckert did not respond personally to complaints of this kind. 28The same conclusion applies to communications with Mr Beckert's successor, as of December 2011, Ms Lisa Vehrenkamp. On 29 June 2012 Mr Wiseman wrote to Ms Lisa Vehrenkamp, Managing Director of Amex complaining about the treatment he and his partner had received particularly in relation to the unauthorised charges on their account and being placed on hold for over an hour. Mr Wiseman asks rhetorically whether the reason they are being treated in that way is because they are in a same sex relationship. He added that, "I can assure you I do not like complaining about poor service. I have a very busy and stressful life as it is and I prefer to keep my intake of Valium to a minimum." 29In relation to the allegation that Mr Wiseman did not receive a response to a letter to Mr Juan Orfila dated 6 January 2012, it appears that Mr Wiseman wrote two letters to Mr Orfila on that date. The second letter was in response to Mr Orfila's letter of 3 January 2012. It set out the details of Mr Wiseman's dealings with the company that had made the 'unauthorised' charges. (Those charges are addressed further below.) Amex did not offer a reason that Mr Orfila did not reply to the letter. The Applicants' would have to prove that at least one reason was Mr Wiseman's homosexuality or disability. There is no evidence on which an inference could be drawn that that was the case including no evidence as to whether Mr Orfila responded to similar letters from other black card members. 30In an email Mr Wiseman sent to Ms Zreika on 17 January 2012, he wrote, in part: I don't seem to be getting any response to my emails and phone messages. Whenever I call to speak with you I am told you are unavailable. I hope my bursting into tears and mentioning I am on medication has frightened you off. I do suffer depression and get emotional but even still I think this situation would make any customer frustrated and upset. You promised you would get back to me, even work through your lunch hour if you had to. You also said you would have your managers get onto this, but I have not heard a word since. My messages are ignored and I feel as if I am being treated like I have the plague. 31In relation to the communications with Ms Zreika in January 2012, Mr Wiseman wrote to her again on 20 January 2012 saying that: I have called your office on several occasions and have been told you are unavailable. I have also left messages for you to call me back but have not had any response. . . I am sorry I broke down emotionally over the phone with you and I am embarrassed to admit I was taking medication to calm myself down. But this situation has upset me and I get the impression your management have told you not to respond to my calls and emails. 32Amex did not deny that it had not responded to some of the Applicants emails and letters. In a letter to the ADB, Amex lists several emails sent and received from 1 February 2011 and says either that Amex did reply or that 'no reply was warranted.' If the Applicants were able to prove that a reply to their emails or letters was warranted, they would still have to prove that a reason for not replying was their homosexuality or Mr Wiseman's disability or presumed disability. There is no apparent connection with either of those grounds. Treatment in relation to 'unauthorised charges' 33In September 2011, two charges were made on Mr Wiseman's Centurion 'black card' to the value of $2,750 and $3,500. Mr Wiseman initially did not recognise the name of the company and contacted Amex. The charges were reversed pending investigation. Despite Mr Wiseman providing information to Amex about the source of the disputed charges, Amex upheld the charges. Mr Wiseman was distressed and spoke to an employee in the 'fraud department'. 34Mr Wiseman complained to the Consumer, Trader and Tenancy Tribunal (CTTT), as it then was. Amex reversed the charges and the hearing in the CTTT listed for 25 July 2012, did not go ahead. Mr Wiseman says that the treatment in relation to the unauthorised charges constitutes discrimination on the ground of homosexuality and presumed disability. 35The Applicants suggested another reason for their treatment in an email to a journalist, Kate McClymont on 10 September 2012. In that email the Applicants thanked Ms McClymont for exposing the company which had made the 'unauthorised' charges. Mr Wiseman says in that email that "we got Amex offside after I filed a complaint with the CTTT. Senior management weren't happy. They decided to cancel our account." The Applicants did not mention any connection between Amex's conduct and their homosexuality or Mr Wiseman's disability. While that fact does not necessarily mean that there is no connection, it does not support the Applicants' case. Disputed charge 36The Applicants asked Amex to refund an amount they paid on their Amex card for tickets to the Sydney Resolution Concert on New Year's Eve. Mr Wiseman claimed that they were not offered any of the food that was advertised and the bar staff "denied us basic spirits after 12 am." Mr Wiseman lodged a complaint in the CTTT about this matter and Andrew McManus Entertainment was apparently ordered to refund an amount of $2,200.00. 37Mr Lee, the Manager, Executive Client Relationships, emailed Mr Wiseman on 13 June 2012 clarifying that he now wished to dispute a charge of $2,200.00 on the basis of "goods not received." Mr Lee wrote: We have reviewed your concerns and wish to advise that your claim is a service dispute regarding the quality of the goods and services which were received, rather than the failure to provide the goods and services. . .On this basis we do not consider that American Express is responsible for making this payment to you. 38To substantiate a complaint of homosexuality or disability discrimination, the Applicants would have to prove that the reason Mr Lee gave for refusing to repay the $2,200 was not the real or genuine reason for that decision. Instead they would have to prove that the decision was made on the ground of their homosexuality or disability. The reason that Amex gives is a rational and understandable one. In my view, this aspect of the Applicants' complaint lacks merit. Cancellation of card 39On 26 June 2012 Mr McCarthy emailed Mr Lee, Wanda A Ferrand and Mr Pierric Beckert, the then Managing Director of Amex, about the CTTT hearing. Mr McCarthy said in that email that he telephoned Amex 'last week' to speak to the cancellations department and was on the line for over 30 minutes. As he was being connected to a man called 'George' he said "I was hung up on' and nobody attempted to call him back. Mr Lee emailed Mr McCarthy about this matter on 26 June 2012 saying that he regretted that Mr McCarthy was unable to speak with George. Mr Lee added that if he did not wish to pay the Amex Membership Fee of $4,300 and would like to cancel the Centurion Card, he should let him know. 40On 4 July 2012 Ms Rachel Stocks wrote to Mr McCarthy to advise that Amex was terminating the account effective from 3 August 2012. The reason given was that, "It has become increasingly apparent over the last several months we are not able to meet the expectations of a financial services provider." The cancellation of the card is a complaint of direct discrimination on the ground of presumed disability and homosexuality. 41A Tribunal hearing this case would be likely to find that the cancellation of the black card is the refusal of a service. 42Amex's response to this allegation was to say that they have the right to terminate an agreement to provide financial services at any time, with 30 days' notice. They deny that the decision was related to homosexuality or perceived or actual disability. The reason was that they were unable to meet the Applicants' expectations. Receipt of 'bi polar' letter 43The Applicants say that a letter on Amex letterhead arrived in their letter box shortly after the black card was cancelled in July 2012. The letter is not signed or dated and was addressed to "Ms McCarthy". It purports to describe the symptoms of the mental illness, bipolar disorder. Amex stated that it had no record of that document having been created or sent to Mr McCarthy from Amex. In their view they do not conform to any Amex template for sending letters as it is unsigned and undated. There is a factual dispute about whether this letter originated from a person employed by Amex. While Amex is vicariously liable for the conduct of its employees, it will not be liable if it can prove that it did not, either expressly or by implication, authorise the employee to send the letter. Conclusion 44The basis on which Mr McCarthy told the ADB that they had been discriminated against on the ground of their homosexuality was that: About three years ago, Bryan (Mr Wiseman) revealed to Amex staff we were a same sex couple. After he did this, the general service from Amex changed dramatically. (Words in brackets added.) 45Mr McCarthy did not say precisely when or to whom their homosexuality was 'revealed'. There are at least two possibilities. 46Mr Wiseman produced a letter written some 5 years earlier (dated 20 July 2007) from himself to Ms Martin (whose position at American Express is not apparent from the material) to thank her for her services and to ask if she "could place a note on our file that Matthew and I are same sex partners." That request apparently arose from an incident where a person in the 'travel department' had asked Mr McCarthy if they had his wife's details on file. Mr Wiseman wrote in the letter to Ms Martin that it would make things a lot easier if they could deal with one person who knows them. 47Amex response to this aspect of the complaint was that it does not retain all correspondence received from its customers in one file or location. The 2007 letter was not available to all Amex staff who serviced the Applicants' account or to call centre staff. 48If this letter was the trigger for the so-called dramatic change in the way Amex treated the Applicants, then it did not occur 3 years ago, it occurred 5 years ago. 49When he wrote the complaint to the ADB, Mr McCarthy may have been referring to another incident that triggered the dramatic change. Mr Wiseman says that he was asked, when he answered the phone, whether he was "Mrs McCarthy". While this incident is not referred to in the complaint itself, the Applicants provided copies of two letters to Amex where Mr Wiseman refers to that incident. In a letter to Mr Juan Orfila on 6 January 2012, and again in a letter to the Managing Director of Amex, Lisa Vehrenkamp, on 29 June 2012, Mr Wiseman asks rhetorically why Amex has been treating him unfairly. In the January 2012 letter, Mr Wiseman wrote: When Amex staff have called my home in the past regarding other matters they have asked me if I am "Mrs McCarthy". I have told them Mr McCarthy and I are in a same sex relationship and they told me it would be noted. 50He wrote in the June 2012 letter: I ask you this because previously whilst speaking with Amex staff they referred to me as "Mrs McCarthy". When I corrected them and explained Mr McCarthy was my same sex partner, I was told it would be noted and ever since then Amex started treating us differently. 51These letters appear to be referring to a single incident. No time frame is given as to when this incident took place but it must have been before January 2012. 52I do not know whether it was this incident that Mr McCarthy was referring to in the letter of complaint or the 2007 incident. In addition, the Applicants say that they received 'insider information' some time in 2011. Mr Wiseman says he received information from a source that he is not willing to disclose, that senior management at Amex were deliberately being difficult because they no longer wanted them as members. The basis for that behaviour was said to be that they believed the Applicants were not the 'types' Amex wanted as members and defamatory comments had been made about their sexual preference, Mr Wiseman's mental capacity and the fact that Mr McCarthy is the managing director of Travelex, a company in direct competition with Amex. 53Even if a Tribunal hearing this case admitted this evidence, because the Applicants are not willing to disclose the source of the information, its evidentiary weight would be extremely low. 54Both the Applicants speculate in their correspondence with Amex and others as to the reason for the allegedly unfair treatment. While their homosexuality and Mr Wiseman's mental illness are mentioned, other possibilities are also canvassed. Those possibilities include that Mr McCarthy is the managing director of one of Amex's competitors and that Amex "got offside" after Mr Wiseman lodged an application with the Consumer Trader and Tenancy Tribunal, as it then was, on 6 February 2012. 55The basis for the alleged 'disability' discrimination appears to be that Mr Wiseman became very upset and started to cry when having a conversation with an employee of Amex, Ms Zreika. Mr Wiseman mentions his disability in other correspondence to Amex. He wrote about the stress he was suffering and not wanting to take Valium on 29 June 2012. 56The Applicants feel aggrieved by the way Amex has treated them and are attempting to identify a reason for that treatment. In order to establish the relevant connection between their homosexuality and the treatment, the applicants would have to rely on the 2007 letter, the phone call where Mr Wiseman was asked if he was 'Mrs McCarthy' and the 'insider information'. 57Similarly, the knowledge by Amex staff that Mr Wiseman has a disability and the sending of the 'bi-polar' letter are the only basis on which the Applicants seek to draw a connection between the treatment and Mr Wiseman's disability. In my view a Tribunal hearing this matter is likely to find that Amex has provided other more plausible explanations for the treatment. Orders 58Leave is refused for the Applicants' complaint of discrimination to proceed. 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: 24 February 2014