Sumaru v Australian and New Zealand Banking Group Ltd [1996] HREOCA 39 (18 December 1996)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975 (Cth)

No: H96/118

Between:

Dennis Mukesh Kumar Sumaru

Complainant

And

Australian and New Zealand Banking Group Limited

Respondent

REASONS FOR THE DECISION OF INQUIRY COMMISSIONER

THE HON. ROBERT NETTLEFOLD

Date of Decision: 18 December 1996

Hearing: Melbourne

Dates: 13 November 1996

Appearances: Complainant:

Mr C. C. Sharkey, of Sharkeys Barristers & Solicitors

Respondent:

Ms F. Hampel of Counsel, instructed by the respondent

1. INTRODUCTION

This is an inquiry pursuant to 25A of the Racial Discrimination Act 1975 (Cth) ("the Act") into a complaint by Mr Dennis Mukash Kumar Sumaru against the Australia and New Zealand Banking Group Limited ("the ANZ Bank").

Mr Sumaru lodged his complaint with the Equal Opportunity Commission of Victoria by letter from his solicitor dated 30 September 1994. The Complaint Form attached to that letter contains a statement from Mr Sumaru which alleges, in summary, that he was refused banking services by the ANZ Bank because of his Indian Fijian origin.

After attempts to conciliate the complaint proved to be unsuccessful, the matter was, on 31 May 1996, referred by the Race Discrimination Commissioner to the Human Rights and Equal Opportunity Commission ("the Commission") for an inquiry under sections 9, 13 and 18 of the Act.

The Inquiry was held in Melbourne on 13 November 1996. Mr C.C. Sharkey appeared for Mr Sumaru and Ms F. Hampel for the ANZ Bank.

2. THE RELEVANT LEGISLATION

Sections 9, 13 and 18 of the Act read as follows:

9.(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4) The succeeding provisions of this Part do not limit the generality of this section.

Section 13 states:

13. It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a) to refuse or fail on demand to supply those goods or services to another person; or

(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he would otherwise supply those goods or services; by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

Section 18 states:

18. Where:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done for that reason.

3. DISCUSSION OF THE EVIDENCE

The Referral Report of the Race Discrimination Commissioner dated 31 May 1996 contains an outline of complaint and an outline of defence. Although these "outlines" may differ in a few of the details, from the evidence given by the parties at the inquiry they are sufficient to indicate, in a general way, the nature of the dispute, and consequently they are set out below:-

OUTLINE OF COMPLAINT:

Mr Sumaru, who is of Indian Fijian origin, states he was a customer of the ANZ Bank (38 Playne Street, Frankston) till September 1994.

Mr Sumaru states that in the 8 months prior to September 1994, he had deposited $2,500 on a weekly basis in the ANZ Bank. Mr Sumaru states that he also had a $16,000 term deposit placed in the Bank on 13 September 1994.

Mr Sumaru states that on 19 September 1994, he went to the ANZ Bank to see about getting an overdraft. Mr Sumaru states that when he asked the receptionist for the Manger, she telephoned the Manager and said "Dennis from the Fijian restaurant is here about an O.D." Mr Sumaru states the Manager, Greg, arrived 5-10 minutes later. Mr Sumaru states he then introduced himself and informed the Manager that he had placed $16,000 in the ANZ Bank and asked about the overdraft.

It is alleged that the Manager said "I have not decided anything". Mr Sumaru states he then asked "Do I have to put in an application?" and he alleges the Manager replied "No, not from you lot". Mr Sumaru states he took this to refer to his racial origin and was upset and embarrassed. Mr Sumaru states he closed all his accounts with the ANZ Bank after he told the Manager that "It's not very nice talking to him."

OUTLINE OF DEFENCE:

The respondent denies the allegations.

The respondent states that Mr Sumaru called at the Frankston Lending Centre on 19 September 1994 without an appointment and wanted to speak with the Lending Manager, Mr Greg Payne. The respondent states that, on being introduced to Mr Payne, Mr Sumaru told him that he had $16,000 on term deposit and required an overdraft of $16,000. The respondent states that Mr Payne told the complainant he was "... welcome to apply for an overdraft". The respondent states the complainant appeared to take offence at this, turned around and left. The respondent states that no opportunity to assess the complainant's credit worthiness arose and the complainant closed all his accounts with the respondent by 26 September 1994.

The respondent states its Group Regulatory Affairs Department later received a telephone call from the complainant stating that he had called at the Frankston Lending Centre wishing to apply for an overdraft but that the Manager had refused to make an appointment. The respondent states the complainant said he felt there was no other reason but racial discrimination. The respondent states numerous attempts were made to contact the complainant but without success. It is stated that a letter was sent to the complainant on 23 September 1994 inviting him to contact the respondent.

At the hearing of the matter, Mr Sumaru relied on his own evidence - affidavit evidence and oral evidence - and on the evidence of a Clinical Psychologist, Ms Christine Brown, also given in part by affidavit but also orally.

The outline of complaint shows that the precise act of the ANZ Bank's employee which is alleged to ground liability is uttering the words "No, not from you lot" in reply to the question "Do I have to put in an application?"

Mr Sumaru carries the burden of proving, on the balance of probabilities, that Mr Payne did utter those words. In considering whether that finding should be made, justice requires that the seriousness of the allegation should be assessed carefully. A finding that the ANZ Bank is liable would involve my finding:

(a) that the employee concerned committed an unlawful act, an act which was in breach of basic community standards.

(b) that, despite 26 years banking experience and a fair degree of seniority in the bank, he exposed his employer to liability in circumstances which show a remarkable lack of restraint, insight, decorum and concern for his own future.

A finding involving those implications should not be made lightly. Giving due weight to the elementary notion of proportionality, some restraint is appropriate (c.f. Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336).

Mr Sumaru faces a further difficulty: the version of the transaction given by the ANZ Bank's employee is not inherently improbable and he was not shaken by cross-examination. His demeanour was satisfactory.

It is clear that Mr Sumaru does believe that a racist remark was made to him. It is also clear that he was upset because of what he believes happened. He is still upset to some extent.

But, on the essential point, namely, whether those words were uttered, it is simply a case of word against word. A careful reconsideration of the evidence since the inquiry finished leaves me with the belief that the words were not uttered. It follows, of course, that Mr Sumaru has failed to discharge the onus of proof.

4. CONCLUSION

It is unfortunate that Mr Sumaru did not ask for clarification and did not check to see whether there might have been some misunderstanding. It is also unfortunate that he declined offers to discuss the matter. The position he now finds himself in is that he is left with his own impression of a very brief exchange. That impression amounts to an unlikely version of what occurred. For these reasons, the complaint is dismissed.

DATED at Hobart this day of December 1996

...............................

R. Nettlefold

Hearing Commissioner