TAL Life Limited v CAS

The underlying substantive application

1. The underlying application relates to proceedings that the respondent has brought under the Anti-Discrimination Act 1977 (NSW), in which CAS alleges that the appellant discriminated against him, on the ground that he is HIV positive, by refusing (or peremptorily refusing) to provide him with income protection insurance: s 49M of the Anti-Discrimination Act.
2. Section 49M of the Anti-Discrimination Act provides as follows: 49M Provision of goods and services (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.
3. Section 49B(1) of the Anti-Discrimination Act defines direct disability discrimination as follows: 49B What constitutes discrimination on the ground of disability (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, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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.
4. In addition to the exception for unjustifiable hardship which is provided for in s 49M(2) of the Anti-Discrimination Act, there is also, in a case where the service is insurance, a defence. This is provided for in s 49Q of the Anti-Discrimination Act. Section 49Q provides as follows: 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.
5. Oversimplifying the matter in order to give context to the decisions appealed from, in the usual case, it would be necessary for the respondent (the underlying applicant) to demonstrate that there has been discrimination; and if the appellant (the underlying respondent) seeks to rely on a defence, it bears the onus of establishing either unjustifiable hardship or that it satisfies the statutory criteria to make out the defence in s 49Q of the Anti-Discrimination Act. It would also be necessary to consider damages.

The Summons Decision

1. TAL caused to be issued summonses on each of the following: the respondent's treating doctor; a medical centre; the respondent's employer. TAL maintained that the documents produced on summons were capable of being relevant to each of the questions of whether there was discrimination, whether there was a defence and also the extent of any damages. The recipients of the summonses did not object.
2. On the other hand, CAS contended that there was no legitimate forensic purpose to the issuing of the summonses, or that they amounted to an abuse of process. CAS premised his case on the basis that TAL had, in effect, admitted that there had been discrimination and, for the reason that TAL had denied insurance solely on the basis of CAS's HIV positive status, the defence could not be made out. Furthermore, for the reason that CAS does not seek insurance but is seeking damages for humiliation, anxiety and stress, the summonsed material could not be relevant to damages: damages arising solely because TAL declined insurance on the sole basis that CAS was HIV positive.
3. The Deputy President identified that it was necessary for the summons to be issued for a legitimate forensic purpose: at [5] of the Summons Decision. The Deputy President identified the issues in [10] as follows: 10 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 the issue of discrimination

1. The appellant contended that the summonsed documents had apparent relevance to the issue of whether there had been discrimination. This was for the reason that CAS had filed evidence concerning his medical history and work history and also for the reason that his medical and work histories were part of the circumstances required to be considered when determining whether the treatment afforded to him was the "same or not materially different" as compared to treatment that would have been afforded to a person without a disability.
2. On the other hand, CAS submitted that any other disability he may have was irrelevant because the income protection insurance was refused solely on the basis of his HIV positive status. For the reason that the decision to refuse income protection insurance was made without reference to any other information about his health or employment history, the documents requested under the summons could have no legitimate forensic purpose.
3. The Deputy President stated that in comparing the treatment of a person with a disability and a person without a disability, all the relevant circumstances must be taken into account (at [15]). At [16] of the Summons Decision, the following quote from Purvis v New South Wales (2003) 217 CLR 92 at 231 at [224] was extracted: 16. In Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 at 231 the High Court held that when comparing the way a respondent treated an applicant in comparison with a person without that disability, the decision maker must take into account all the circumstances. Those circumstances are: . . . all of the objective features which surround the actual or intended treatment of the disabled person.. It would be artificial to exclude (and these is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person's disability. ... Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different.
4. Whilst accepting that all relevant circumstances must be taken into account, the Deputy President highlighted CAS's submission that if the appellant had indeed applied a blanket policy declining insurance on the sole basis that the respondent was HIV positive, any other circumstances would be irrelevant: at [18].

On the issue of unjustifiable hardship and the defence under s 49Q

1. On the questions of whether the summonsed material was apparently relevant to whether there had been unjustifiable hardship and whether the defence could be made out, the Deputy President was not persuaded that CAS's health and employment histories were relevant circumstances to whether "the provision of the service to people who are HIV positive would impose 'unjustifiable hardship' on TAL" (at [19]) or that the health or employment histories were "relevant factors" when assessing whether it was reasonable to refuse to provide the insurance (at [19]).

On the issue of the remedy

1. On the question of whether the summonsed material was apparently relevant to the quantum of damages, TAL contended that CAS would not be entitled to damages, because a person with his health and employment histories would, in any event, have been refused the insurance cover. CAS contended that as TAL did not seek further information regarding the other medical issues, insurance could not have been refused on those grounds and therefore the histories were irrelevant.
2. The Deputy President concluded that there was a dispute of fact as to whether the appellant would have refused cover by the reason of the other issues and this was a matter for the substantive hearing to which the summonsed material was apparently relevant (at [22]).

Conclusion at first instance on the summonses

1. Despite not being persuaded that the summonsed material was relevant to the questions of whether there had been discrimination and whether a defence was made out, the Deputy President nevertheless accepted that the documents were "at least" relevant to damages, if the underlying complaint was substantiated. Accordingly, the summonses were not set aside (at [23]).

Grounds of Appeal in relation to the Summons Decision

1. Somewhat unusually, the appellant seeks to appeal from the Summons Decision notwithstanding that the summonses, issued at its behest, were not set aside. Put another way, TAL was successful at first instance, yet seeks to appeal the decision.
2. Notwithstanding that the summonses were not set aside, TAL contends that there are significant ramifications of the Summons Decision, which operate to its detriment. TAL contends that the manner in which the Summons Decision was determined will affect the scope of the issues to be determined in the substantive application. Whilst accepting the general proposition that an appeal does not lie against reasons, the appellant emphasises that an appeal to the Appeal Panel lies against a "decision" of the Tribunal and points to the broad definition of decision in s 5 of the Civil and Administrative Tribunal Act.
3. Section 5(1) of that Act states as follows: 5 Meaning of "decision" (1) In this Act, decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing.
4. The appellant contends that in making the Summons Decision the Tribunal "decided", in a manner that has legal or operative effect, that CAS's medical and employment histories were not relevant to any issue in the underlying substantive dispute between the parties, other than damages.
5. The grounds of appeal are put in a number of different ways. In essence, TAL contends that in making the Summons Decision the Deputy President erred in law by determining that where TAL had applied a blanket policy to refuse insurance on the grounds of HIV positive status, it was not necessary to take into account other circumstances. TAL contends that the Deputy President failed to appreciate the steps required to be taken, as articulated in Purvis, in determining whether there had been discrimination. In particular, it is contended that identifying an appropriate comparator was a live issue for determination in the proceedings and that the respondent's health and employment histories were relevant to identifying an appropriate comparator and relevant to identifying what constituted circumstances that were the "same as or not materially different". Further, the appellant contends that the Deputy President erred in law in going so far as to determine the legal issues of whether the health and employment histories were relevant to the substantive proceedings and in failing to determine that they were. In so deciding, it is contended, that the issues to be determined in the substantive proceedings were unjustly and unduly limited.
6. In support of its contentions, the appellant points to the conclusions at paragraphs 18 and 19 of the Summons Decision (referred to above) and further to the use to which the reasoning on the Summons Decision has been put in the subsequent Further Evidence Decision. It is contended that the Further Evidence Decision discloses that the Deputy President determined (as part of the Summons Decision) in a binding fashion, that evidence of CAS's medical and employment histories were irrelevant to any issue in the substantive proceedings, other than damages. The appellant points to the Further Evidence Decision at the fourth paragraph, where the Deputy President said of the medical and employment histories "that evidence could only be relevant to any remedy that the applicant seeks and it is unlikely in my view that the evidence, that any material in [the] summonsed document[s] could go to … any other issue."
7. The respondent contends that the Tribunal was correct in determining, for the purposes of the summonses, that the material was of no apparent relevance to the issues in dispute and whilst agreeing that the issues in the underlying dispute are limited, as the appellant contends, says that there was no error in the Tribunal's decision (other than in deciding that the material was of apparent relevance to the question of damages, but this is not the subject of an appeal). The respondent highlights that the evidence before the Tribunal disclosed that the insurance was declined solely on the basis of the respondent's HIV positive status and that if it was to be declined under any other basis, further information would first have been sought. The respondent maintains that his submissions on this were properly accepted by the Tribunal at first instance.

Leave to appeal the Summons Decision

1. For the reasons set out below, in our view, the appellant's contentions are misconceived and do not raise any issue of principle. Accordingly, leave to appeal the Summons Decision is refused.
2. As noted above, these proceedings relate to the complaint made by CAS to the Anti-Discrimination Board (the Board) alleging that he had been discriminated against by TAL contrary to s 49M of the Anti-Discrimination Act. The Tribunal's jurisdiction in regard to that complaint was enlivened under s 95 of that Act when the President of the Board referred the complaint to the Tribunal for hearing and determination pursuant to s 93C of that Act.
3. The jurisdiction that was enlivened was the Tribunal's general jurisdiction (see s 29(1)(a) of the Civil and Administrative Tribunal Act) and not its administrative review jurisdiction (see s 30 of the Civil and Administrative Tribunal Act).
4. Subsection 29(2)(a) of the Civil and Administrative Tribunal Act also vests the Tribunal with jurisdiction to make ancillary and interlocutory decisions in the exercise of its general jurisdiction. And a "decision" of the Tribunal "determining a matter over which it has general jurisdiction" is defined as a "general decision" (see subs 29(3) of the Civil and Administrative Tribunal Act).
5. Accordingly, the Summons Decision and the Further Evidence Decision the subject of this appeal are both "general decisions" of the Tribunal and fall within the Tribunal's internal appeal jurisdiction by reason of subs 32(1)(a) of the of the Civil and Administrative Tribunal Act. The "general decisions" being the orders made by the Deputy President to: (a) refuse the respondent's applications to set aside the Summons and (b) refuse the application of the appellant to file further evidence. It is these determinations/decisions, which have legal and operative effect in determining the interlocutory applications of the parties. And it is these determinations/decisions, which are internally appealable and not the reasons (including findings) on which those decisions were made. Where such determinations/decisions are appealed, the grounds on which that appeal is based may lie in alleged errors in the reasoning process that underlies the decision/determination, but the alleged errors alone do not found a basis to appeal where the determination/decision is not also appealed.
6. As the Deputy President made specific orders, in our view, the extended meaning of "decision" in subs 5(1) of the Civil and Administrative Tribunal Act is of no application. This definition we note mirrors that contained in subs 6(1) of the Administrative Decisions Review Act 1997.
7. We make no finding as to the operation of subs 5(1) of the Civil and Administrative Tribunal Act. However, we will briefly deal with the matters raised by the appellant, as it is clear from the Tribunal's reasoning that no conclusive decision was made in that regard.
8. First, in its reason for decision the Tribunal correctly identified the issues at paragraph 10 of the Summons Decision, as set out above. Secondly, despite apparent acceptance of the respondent's contentions that the documents going to the respondent's medical and employment histories had no apparent relevance to questions going to the discrimination or the defence, the Deputy President nevertheless left open the possibility that the documents were apparently relevant to an issue other than remedy, no doubt, appreciating that this was an application relating to summonses. At paragraph 23, the Deputy President said as follows: Whether or not the documents the subject of the summonses are apparently relevant to any other issue in dispute they are apparently relevant to the issue of damages if CAS's complaint is substantiated.
9. This is not language of a conclusive nature that the documents have been irretrievably ruled to be irrelevant for other purposes. The relevance of the documents is a matter to be determined by the Tribunal hearing the underlying substantive dispute, by reference to the points of claim and the points of defence which are pressed at the time of the hearing.
10. Accordingly, the alleged errors of principle do not arise and so leave to appeal is refused.

The Further Evidence Decision

1. The further evidence decision concerned an application by TAL to file further evidence, which was opposed by the respondent. That application was made in early March 2015 and the matter was heard on 23 March 2015.
2. At the stage when the application was made, the further evidence was not yet complete, but it was foreshadowed as comprising evidence in response to the evidence filed in reply by CAS on 23 February 2015 (i.e. evidence of Dr Post and Professor Law) and further evidence arising from the documents produced under the summons, as a result of the Summons Decision. The Tribunal noted that the further evidence would comprise a further affidavit of Ms Molloy in regard to the summonsed documents and Professor Lambert, an employee of the re-insurer based in London, in response to the evidence of Dr Post and Professor Law.
3. In determining the matter, the Tribunal had regard to the chronology of the matter and noted that the Points of Claim and material from the respondent (the underlying applicant) were filed in July 2014. The Points of Defence was filed in September 2014 and some of TAL's evidence was filed in October 2014. An Amended Points of Claim was filed in November and later that month TAL filed an affidavit from Mr Renny, in relation to its defence. In February 2015, the respondent filed evidence from his two medical experts.
4. The Tribunal also noted (at [2]) that its guiding principle is "to facilitate the just, quick and cheap resolution of the real issues in dispute" and also highlighted that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal. The Deputy President also took into account that applicants before the Tribunal have the onus of proving the matters relating to their complaints and where a respondent relies on exceptions or exemptions, it is for the respondent to make out those claims. The Deputy President noted that here the timetable had been set in accordance with the traditional model in adversarial proceedings: i.e., CAS was directed to file his evidence first, with TAL ordered to file its evidence subsequently. CAS was also given time to reply to the TAL's evidence.
5. The Tribunal refused the application for the reasons set out in paragraphs 4 and 5 of the transcript of the oral decision, after having regard to the chronology. Insofar as the evidence of Ms Molloy was concerned, the Tribunal noted that it was likely only to be relevant to the issue of the remedy sought by the respondent. The Deputy President concluded that TAL had had ample opportunity to file its evidence of actuarial and statistical data in support of its defence. Further, the Deputy President reasoned that any weakness or inconsistency in CAS's medical evidence could be the subject of cross-examination. Relevantly, the Tribunal identified prejudice to CAS in granting the request to file further evidence because it may result in CAS being required to file further evidence in response. Notwithstanding that the type of prejudice here was clearly less than that referred to in Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175, as this was ordinarily a no costs jurisdiction, the Deputy President found it significant that there was a risk of burdening CAS with further costs.

Grounds of appeal from the Further Evidence Decision

1. The appellant contends that the Deputy President erred in the Further Evidence Decision by "excluding relevant evidence in circumstances where it was not fair or reasonable to do so" (Ground 16 of the Grounds of Appeal).
2. As the appeal was developed during oral argument, it was apparent that the alleged error of the Tribunal encapsulated or incorporated the error referred to above in the context of the Summons Decision. The error was, so it was contended, one of misconstruing the test for discrimination, leading to the result that there was an erroneous narrowing of the issues between the parties and the consequent refusal of the application to file further evidence (at least with respect to Ms Molloy's evidence). With respect to Mr Lambert, the appellant points to internal inconsistencies within the oral reasons and contends that the decision to refuse leave was unreasonable given the nature of the evidence being in reply on the question of the defence.
3. As the affidavits raise distinct issues, we deal with each in turn. Before doing so, one evidentiary issue arises concerning an email sought to be tendered on the appeal.

New evidence

1. The respondent sought to tender, on the appeal, an email from Joanna Kalouche of TAL, dated 29 November 2013, concerning the declining of income protection insurance to CAS. This document was not before the Tribunal at first instance. The appellant objected to the Appeal Panel having regard to the email on the basis that it had not had an opportunity to deal with it.
2. Whilst there is power in the Appeal Panel to receive new evidence on an appeal (s 80(3)(b) of the Civil and Administrative Tribunal Act) and this is not limited to fresh evidence, we nonetheless reject the tender. There is no evidence of why the email was not before the Tribunal at first instance and we are satisfied that to have regard to it now would cause prejudice to the appellant, it not having had an opportunity to deal with the new evidence. In any event, the respondent also relies on the President's Report (a document which was before the Tribunal) to substantiate his contention that TAL had, in effect, admitted that there had been discrimination. From that document, it is apparent that the appellant has a guideline to decline income protection insurance where a potential insured is HIV positive. Whilst the President's Report refers to other aspects of CAS's medical history, his counsel highlighted that none of those conditions, in the circumstances, warranted an automatic refusal to insure. There is, accordingly, before the Appeal Panel, evidence to support the respondent's contention, without need to have recourse to the email. In light of the prejudice to the appellant, we reject the tender.

Leave to appeal and the appeal concerning the Further Evidence Decision

1. As referred to above, the Further Evidence Decision is interlocutory and hence the appellant requires leave to appeal. We have above identified the relevant principles for granting leave to appeal. Further, because the appellant seeks to appeal a discretionary decision of the Tribunal, the appellant submits (and we have proceeded on the basis that this is correct) it must point to error of law before the decision could be disturbed (House v R (1936) 55 CLR 499). In any event, there would be no utility in granting leave to appeal, unless we were satisfied of an error of principle or of law and so the leave application and the appeal are linked.
2. Before deciding whether to grant leave to appeal, we revisit the grounds and submissions in support of the foreshadowed appeal, by reference to the affidavits, in turn.

Ms Molloy's affidavit

1. As we have noted, the further affidavit of Ms Molloy was not before the Tribunal when it made its Further Evidence Decision. However, the nature of that evidence was described as being evidence arising from the documents produced on summons and it was envisaged that this evidence would be contained in a further affidavit of Ms Molloy.
2. The appellant contends that the reasoning of the Tribunal discloses that its Further Evidence Decision, in regard to the foreshadowed affidavit of Ms Molloy, was based on a misconstruction of the Anti-Discrimination Act, which in turn led to the findings that it had made in the Summons Decision that the "legitimate forensic purpose" in summonsing the documents was solely their apparent relevance to the issue of damages, if CAS's complaint was substantiated (see at [23] of the Summons Decision). These findings, so it was contended, were either relied upon in the Further Evidence Decision or made again for the purposes of the Further Evidence Decision and in this regard the Tribunal erred. The error being the Tribunal's findings in respect of the proper construction of s 49B(1) of the Anti-Discrimination Act, in particular: as to the proper test for determining whether or not there has been discrimination; and whether, even in a case where the sole basis for refusing insurance was the HIV positive status of the respondent, it is nevertheless necessary to identify an appropriate comparator; and whether circumstances other than the HIV status of the respondent are relevant to the issues in dispute.
3. The appellant maintains that the Tribunal erred at law and that important issues of principle arise concerning the construction of the Anti-Discrimination Act and its application in these proceedings. Further, the appellant contends that so far as the Tribunal considered that any prejudice to the appellant was slight, in that it could use the evidence of Ms Molloy in cross examination, that too was an error as cross examination is no substitute for affidavit evidence and to the extent that the Tribunal considered that the appellant was too late, that too was an error as the material that Ms Molloy was responding to had only just become available to the appellant.
4. The respondent contended that leave to appeal ought not be granted for the reason that there was no utility in so doing. In this case, the questions of construction said to arise do not arise, as the appellant had, in effect, admitted that there had been discrimination. This, it was contended could be teased out from a number of places including from the President's Report and the email (but that email has not been read by the Appeal Panel). So far as the other submissions relied upon by TAL were concerned, CAS contended that these did not raise issues that warranted the grant of leave, not least because the timetable now sought to be extended had been entered into in accordance with the Tribunal's usual guidelines.
5. TAL denied that there had been an admission of discrimination and contended that the matters that CAS points to do not, on their own, satisfy the statutory definition of discrimination.
6. The appellant contended that the Tribunal failed to have regard to whether the affidavit of Ms Molloy was relevant to the question of whether or not there had been discrimination and the effect an order refusing to allow the appellant leave to file the evidence would have on its substantive case, if the material was relevant to that issue.
7. We are satisfied that the question of whether or not there has been discrimination is still a live issue between the parties. Furthermore, we are satisfied it was a live issue at the time the appellant made its application to file and serve further evidence of Ms Molloy, in regard to matters arising from the summonsed documents: see at [10] and [12] of the Summons Decision. Hence, we accept, as the appellant contended, that this issue raises questions of fact and construction of the Anti-Discrimination Act.

Conclusion on leave to appeal with respect to further evidence of Ms Molloy

1. There is an ongoing dispute between the parties about whether or not there is discrimination. As the alleged errors raise questions of principle as to whether or not the Tribunal failed to have regard to a material consideration (being the test for discrimination in the circumstances of these proceedings) when determining leave to file the affidavit of Ms Molloy, we are satisfied that the necessary warrant for granting leave (at least so far as the appeal concerns Ms Molloy's affidavit) is established.
2. An alternative way of expressing the alleged error is that the Tribunal erred in its the construction of the Anti-Discrimination Act when determining whether leave should be granted to the appellant to file further evidence of Ms Molloy.

Conclusion on the appeal with respect to further evidence of Ms Molloy

1. In its Further Evidence Decision, the Tribunal noted that it had found in its earlier interlocutory decision, the Summons Decision, that the "evidence" summonsed "could only be relevant to any remedy that the applicant [the respondent in this appeal] seeks." The Tribunal went on to say that it was "unlikely" that "any material produced under that summons would be relevant to any other issue" and on that basis refused the appellant's application to file further evidence of Ms Molloy.
2. As we have noted above, in its reasons for decision in the Summons Decision, the Tribunal did not make any conclusive finding as to the ultimate relevance (if any) of the material produced under the summons. Nor could it do so.
3. The material having been produced and the appellant having made an application to adduce further evidence that arose from the content of that material, the Tribunal's task was to determine whether, having regard to the substantive matters in issue, it was appropriate, in the circumstances, to grant leave to adduce the further evidence. Again, the ultimate relevance of that evidence once filed was not a matter for determination by the Tribunal.
4. As we have noted, discrimination, in particular the substantive issue of differential treatment, as defined in s 49B(1) of the Anti-Discrimination Act, remains a live issue in these proceedings, which is reflected at [10(1)], [12(2)] and [18] of the Tribunal's reasons for decision in the Summons Decision. Also in issue is the appellant's defence. Yet, in its reasons for decision in the Further Evidence Decision, the Tribunal has failed to have regard to these substantive matters in issue. In these circumstances, if the appellant is correct, then the response to the summonsed material may be relevant to the question of whether or not there has been discrimination and its defence.
5. In the context of the open issues, relying upon Ms Molloy's evidence through cross examination was not, in our view, a substitute for filing evidence that CAS would have an opportunity to consider, well in advance of the hearing.
6. Hence we are satisfied that the Tribunal erred in failing to have regard to all the substantive matters in issue.
7. The question however, remains as to whether it is appropriate to now grant leave to rely on the affidavit of Ms Molloy, in the circumstances.
8. So far as timing is concerned, as the affidavit was foreshadowed to deal with matters concerning the summonsed documents, it was impossible for it to be filed before the date for production under the summonses (sometime after 3 February 2015, when CAS's application to set aside the summonses was rejected). Hence, there is an explanation for the delay. The breakdown in the timetable was caused, at least in part, by CAS's failed application to set aside the summonses (the application was filed in September 2014 but was not heard until 3 February 2015).
9. It is regrettable that this appeal has caused further delays. However, the affidavit of Ms Molloy has now been prepared and a copy has been provided to CAS some time ago. He has not provided evidence of any prejudice, if this affidavit is filed. Whether it is ultimately responsive to the summonsed material and relevant to the matters in issue is a matter for determination by the Tribunal Panel hearing the application.
10. We are satisfied that that was an error and the appeal succeeds so far as this affidavit is concerned.

Mr Lambert's affidavit

1. With respect to Mr Lambert, the primary complaint is that the Tribunal, in effect, refused the application to allow his evidence on the basis that the appellant had already had ample opportunity to put on this type of evidence and that to do so now may cause prejudice to the respondent in having to now deal with it. The appellant points to an inconsistency in the Tribunal's reasoning: if TAL had put the evidence on, in a timely fashion, CAS may have been required to deal with it in any event and therefore the prejudice does not arise. Prior to the making of the order refusing to allow the additional evidence, no hearing date had been set, so the filing of the additional evidence could not jeopardise hearing dates. Furthermore, the evidence is said to be (at least in part) in reply to the medical experts filed on behalf of the respondent and two things were said to follow from this. First, it is not axiomatic that CAS would be entitled to reply to TAL's reply and secondly, given the nature of TAL's burden, it was appropriate to allow it a right of reply to CAS's medical evidence. Finally, TAL contended that to the extent that the Tribunal considered that TAL could utilise cross examination to bring out the evidence, this too was an error.
2. The appellant therefore contends that the decision was unreasonable and unfair and that it is prejudiced if the evidence is not filed, by being unduly restricted to dealing with the issues in cross examination.
3. The respondent, on the other hand contends that there was no error in the Tribunal's exercise of discretion refusing leave to file the affidavit. The appellant had been given an opportunity in the Tribunal's ordinary course of managing the matter and as no question of principle arose, no warrant for leave to appeal arose. Further, the respondent contends that he is unlikely to be in a position to respond to this evidence before the hearing.

Conclusion on leave to appeal with respect to Mr Lambert's affidavit

1. The issues concerning Mr Lambert's affidavit do not raise the issues of construction and application of s 49B of the Anti-Discrimination Act, raised with respect to Ms Molloy's affidavit. Nevertheless, as we explain below, there are apparent inconsistencies within the Further Evidence Decision, which go to matters contended to be central to TAL's defence. Hence, the warrant for the grant of leave has been demonstrated.
2. Leave for the appeal to extend to dealing with Mr Lambert's affidavit is granted.

Conclusion on the appeal with respect to Mr Lambert's affidavit

1. The Tribunal has a broad discretion in relation to its own processes and the Deputy President clearly had regard to the guiding objectives of the Tribunal and in particular its mandate to provide for the "just" resolution of disputes. Nevertheless, the Tribunal erred in determining the application to file Mr Lambert's evidence on the premise that had the evidence been critical to the appellant, it ought to have been filed in a timely fashion, when it was accepted by the Tribunal (paragraph 5 of the Further Evidence Decision) that the evidence of Mr Lambert was not (or at least not solely) in chief, rather it was (at least in part) in reply to the evidence filed on behalf of CAS concerning TAL's defence. Hence, there was an explanation for the delay that does not contradict TAL's contention that the material is critical to its defence.
2. Further, the Tribunal erred in holding that the late filing of the evidence prejudiced or may prejudice the respondent in that he may now have to deal with it. Had the material been filed in a timely fashion that possibility would have, in any event, arisen. There was no evidence to support a contention that the passage of time has deprived CAS of the ability to deal with the evidence.
3. In the circumstances, it is apparent that the exercise of discretion miscarried. Accordingly, we grant leave for the appellant to file the affidavit of Mr Lambert.

Scope of the leave to file the affidavits

1. Here, TAL is seeking to supplement its evidence relating to CAS's prior medical and work histories by reference to summonsed material, which could not have been done before the date for production under the summonses; and further it seeks to reply to CAS's evidence which was itself responsive to TAL's evidence concerning TAL's defence, which could not have been filed prior to the filing of CAS's evidence on this. However, to the extent that the affidavits contain evidence in chief for TAL, that material ought to have been filed in accordance with the timetable, or an explanation for the delay provided. No such explanation appears to have been given.
2. Whilst we were provided with a copy of the affidavits sought to be relied upon (as an aide and not as new evidence on the appeal) we are not in a position to judge which parts of the evidence are truly responsive to the material under the summonses or to CAS's evidence. We are also not in a position to determine the relevance of the evidence. This appeal is of an interlocutory decision concerning practice and procedure. It is an appeal with respect to what evidence may be filed, as opposed to what evidence may be relied upon at the hearing. It is not an appeal from an interlocutory decision concerning substantive issues between the parties, as may sometimes be the case when parties seek to have preliminary issues determined prior to the hearing. Accordingly, this is not the forum to decide the ambit of the dispute. As we have said in relation to the Summons Decision, that is a matter for the Tribunal hearing the substantive application after full argument and by reference to the points of claim and defence then pressed.
3. We are not in a position to determine what, if any, of the additional evidence is truly evidence in chief, which ought properly to have been filed in a timely fashion and which, due to the passage of time and the proximity of the hearing, causes irremediable prejudice to CAS in that he cannot now respond, assuming leave to reply to TAL's additional evidence ought to be given. These are matters for the Tribunal hearing the substantive matter to determine.
4. Accordingly, whilst we grant leave to file the evidence, it is for the Tribunal hearing the substantive issue to determine what evidence to admit on the basis of it being: (a) responsive to the summonsed material and the evidence of Dr Post and Professor Law, and (b) relevant to the matters in issue.

Orders 1. Leave to appeal Summons Decision is refused. 2. Leave to appeal Further Evidence Decision granted. 3. Appeal of Further Evidence Decision allowed. 4. Leave granted to TAL to file the affidavits of Ms Molloy and Mr Lambert as attached to its submissions on the appeal, within 5 days of the date of delivery of these reasons. 5. The substantive application be listed for a case conference within 14 days of the delivery of these reasons. 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

Amendments 04 August 2015 - Representation details were incorrect. 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: 04 August 2015