The respondent, TAL Life Limited, has requested that a direction be made enabling it to file further evidence. I have refused that application.
The applicant, who I will refer to in these reasons by the initials CAS, has complained that TAL Life Limited has discriminated against him on the ground of disability by refusing to provide him with income protection insurance because he is HIV positive. The complaint is brought under s 49M of the Anti-Discrimination Act 1977 (NSW):
(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.
When determining what constitutes "unjustifiable hardship" all the relevant circumstances 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.
Direct disability discrimination is defined in s 49B(1):
(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
CAS v TAL Life Ltd [2015] NSWCATAD 118 | Case summary | Zoe
As well as the exception in s 49M(2), there is a defence relating to actuarial or statistical data in s 49Q which applies to superannuation and insurance:
49Q Superannuation, insurance
Nothing in this Part renders unlawful discrimination against a person on the ground of disability in the terms or conditions appertaining to a superannuation or provident fund or scheme or with respect to the terms on which an annuity, a life assurance policy, an accident or insurance policy or other policy of insurance is offered or may be obtained, where:
(a) the terms or conditions:
(i) are based upon actuarial or statistical data on which it is reasonable to rely, and
(ii) are reasonable having regard to the data and any other relevant factors, or
(b) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained-the terms or conditions are reasonable having regard to any other relevant factors, and the source on which any data referred to in paragraph (a) is based is disclosed to the Tribunal, where the Tribunal so requires, and any other relevant factors to which regard has been had as referred to in paragraph (a) or (b) are disclosed to the Tribunal, where the Tribunal so requires.
TAL does not dispute that it has refused to provide CAS with a service by declining his application for income protection insurance. The remaining issues are:
1. whether TAL discriminated against CAS on the ground of disability;
2. if so, whether the conduct was lawful because the provision of income protection insurance would impose unjustifiable hardship on TAL;
3. alternatively, whether TAL has proven the elements of the defence in s 49Q.
4. what remedies should be awarded if the complaint is substantiated. .
On 2 July 2014, following a failed attempt to resolve the complaint by mediation, the Tribunal made directions for the filing and service of evidence. Points of Claim and a statutory declaration by the applicant as well as material from the applicant's general practitioner were filed on 30 and 31 July 2014. Points of Defence were filed on 9 September 2014. The respondent filed evidence from Ms Helen Molloy (head of Underwriting Risk, Strategy and Development with TAL Life Limited), Mr Ronald Lai and Michael Rennie, in relation to the defence under s 49Q. The respondent also filed two bundles of documents.
On 11 November 2014, the applicant sought leave to file Amended Points of Claim. The respondent did not oppose that application and it was granted.
On 17 December 2014 the Tribunal directed the applicant to file any evidence in reply by 15 February 2014. The matter was re-listed for a case conference on 25 February 2015 to set down for hearing.
On 5 February 2015 the applicant sought an extension of time to file evidence in reply. The respondent consented to the extension of time and, on 23 February 2015, the applicant filed evidence from two medical experts, Dr Jeffrey Post and Professor Matthew Law.
On 10 March 2015 the respondent wrote to the applicant raising "concerns" it had with the affidavits of Dr Post and Dr Law. The respondent considered that that evidence failed to comply with the requirement for expert witnesses to set out the facts on which their opinions were based. The respondent also considered that the opinions expressed was outside their identified area of expertise.
In early March 2015 the applicant objected to a request by the respondent to file further evidence. That matter was set down for hearing on 23 March 2015. In a letter to the applicant dated 12 March 2015, the respondent set out the reason for seeking to file further evidence:
"The evidence served on behalf of your client is opinion evidence from two medical experts. No expert evidence had been served by our client at this stage of the proceedings. Furthermore the two experts have raised fresh matters. We consider that the respondent should be entitled to respond to matters raised by way of expert evidence.
We also advise that the respondent's further evidence will relate to the documents produced under summons. The parties were only granted access to these documents on 3 February 2015 after the applicant had opposed access being granted.
The documents produced by Dr Gowers and Silverdale Medical Centre were however incomplete and these parties have indicated that they will be producing further documents to the Tribunal. Following production, we will seek a further return date so that further access orders can be made.
We anticipate we will be in a position to serve any additional evidence within a reasonable period after 23 March 2015 which, as noted above, we consider will assist with putting before the Tribunal relevant evidence and responding to fresh matters raised in your evidence in reply."
The applicant responded by letter of 16 March 2015 noting that the respondent did not identify the "fresh matters" raised in the applicant's expert evidence and did not identify the issues raised in the summonsed material that required further evidence. The applicant also noted that:
"One of the principal issues for determination in this matter is the Respondent's actuarial or statistical data relating to HIV and insurance risk;
Such data was asserted to exist as early as 30 May 2013
The Applicant has sought such data since at least 16 July 2014…
The respondent identified such data as relevant to its defence;
The respondent was meant to file its evidence in reply on 9 September 2014 and received extensions in the filing of evidence until 25 November 2014."
On 25 March 2015 the respondent filed Amended Points of Defence. Shortly after that time the respondents formally sought to file further evidence from Ms Molloy and from another witness, Professor John Lambert, an employee of the reinsurer based in London.
At the hearing the respondent advised that it was seeking to file "two or three affidavits" responding to the evidence of Dr Post and Professor Law. That evidence would comprise firstly, further evidence from Ms Molloy arising from medical records produced under summons and secondly, evidence from Professor John Lambert, a witness based in London who compiles the underwriting manual. He would respond to the evidence from Dr Post and Professor Law.
The applicant repeated its objection to this evidence being adduced saying that the respondent has had since May 2013 to provide the evidence on which it relies in relation to any 'actuarial and statistical data' defence in s 49Q. It was the respondent's decision not to provide that evidence and it should not be permitted to file that evidence after the applicant's evidence in reply has been provided.
The Tribunal may determine its own procedure: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(1). The principle on which the Tribunal should determine this application is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36. In addition the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2).
These proceedings are adversarial proceedings under the Anti-Discrimination Act. Applicants make complaints to the President of the Anti-Discrimination Board. If the complaint is referred to the Tribunal, the applicant has the onus of substantiating the complaint. A respondent has the onus of proving any exception or exemption: Anti-Discrimination Act, s 104.
It is in that context that directions were given for the filing of Points of Claim, Points of Defence and evidence. In the normal way, the applicant was directed to file their evidence with the respondent filing their evidence after that and then the applicant filing evidence in reply. That is the traditional model in adversarial proceedings.
The respondents sought, after the filing of the applicant's evidence in reply, to file further evidence. The first basis for that request was that Ms Molloy should be able to file evidence responsive to material produced under summons relating to the applicant's disability.
As the tribunal found in an earlier interlocutory decision, CAS v TAL Life Limited [2015] NSWCATAD 51, that evidence could only be relevant to any remedy that the applicant seeks. It is unlikely, in my view, that any material produced under that summons would be relevant to any other issue. I also take the view that any weakness or inconsistency in the applicant's medical evidence can be the subject of cross-examination and that the issue can be dealt with in that way. For those reasons I refuse to direct that the respondent file further evidence from Ms Molloy.
The second and perhaps the more critical application was that further evidence be filed by Mr Lambert which would address assertions made by the applicant's two medical experts, Dr Law and Professor Post. Those experts gave evidence about life expectancy and the ability to work which the respondent says are not properly the subject of expert opinion and which are not credible. On that basis it is submitted that the Tribunal should not accept those opinions. that is a submission which can be made at the hearing. It does not require further evidence to be filed by the respondent.
I accept the submission from the applicant that the respondent has had ample opportunity to file its evidence in support of the actuarial and statistical data defence and it was their choice not to provide evidence from Dr Lambert at that time. If that evidence had been critical to their defence it should have been provided in accordance with the timetable.
Ms Castellas, representing the applicant, submitted that until they were able to see Mr Lambert's evidence, they could not predict whether or not their client would need to file further evidence. Ms Oakley, representing the respondent, conceded that it was possible that the applicant would need to file further evidence in response to any evidence provided by Mr Lambert.
The applicant will be prejudiced if the respondent is given permission to file further evidence because the proceedings will be delayed and expense may be incurred in filing further evidence in response.
Finally, any weakness in the applicant's evidence can be addressed by way of objection or cross-examination.
The principles set out by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 were relied on by the applicant. The High court said at [98] that "[S]peed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings." The Court added that, "[T]his should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account."
The respondent has not applied to re-plead their case but to lodge further evidence when the pleadings have closed.
I am mindful of the fact that this is, as a general rule, a no costs jurisdiction, and that the respondent's application would delay the matter further. The respondent has had ample opportunity to put on their evidence.
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: 11 June 2015