Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CAS v TAL Life Limited [2015] NSWCATAD 51 Decision date: 23 March 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy, LCM Deputy President Decision: CAS's application for the three summonses to be set aside is refused. Catchwords: PRACTICE and PROCEDURE – application for summonses to be set aside – apparent relevance to issues in the proceedings Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 Portal Software v Bodsworth [2005] NSWSC 1115 Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 Category: Procedural and other rulings Parties: CAS (Applicant) TAL Life Limited (Respondent) Representation: Solicitors: HIV/AIDs Legal Centre Inc (NSW) (Applicant) Turks Legal (Respondent) File Number(s): 1410042 Publication restriction: The publication of the name of the applicant including the publication of any information picture or other material that identifies him or is likely to lead to his identification is prohibited. decision Introduction 1. The applicant, CAS, has applied to set aside three summonses that TAL Life Ltd served on a treating doctor, a medical centre and CAS's employer. As there is a suppression order in relation to the applicant's name, I have not identified the people or organisations to whom the summonses are addressed because identifying them may reveal CAS's identity. The summonses request documents that relate to CAS's health status and employment history. 2. The Registrar has power to issue a summons and the Tribunal has power to set it aside: Civil and Administrative Tribunal Act 2013 (NSW), s 48 and s 29(2)(a). CAS has standing to apply for the summonses to be set aside even though the people named in the summonses have produced the documents without objection. 3. The summonses relate to proceedings that CAS has brought under the Anti-Discrimination Act 1977 (NSW). CAS alleges that TAL discriminated against him on the ground that he is HIV positive by refusing to provide him with a service or providing him with a service on certain terms: Anti-Discrimination Act, s 49M. The service has been identified as the provision of income protection insurance. A person with such insurance is entitled to receive monthly payments if he or she becomes temporarily unable to work because of illness or injury. It is not in dispute that TAL's policy is to refuse to provide that kind of income protection insurance to people who are HIV positive. 4. If the complaint is substantiated, CAS does not seek an order requiring TAL to provide him with the insurance cover. While the remedy that CAS is seeking is not entirely clear, the Amended Points of Claim state that, as a direct result of the TAL's policies, CAS has suffered significant humiliation, anxiety and stress. No specific amount of damages is claimed. Legitimate forensic purpose and abuse of process 1. A summons must only be issued for a legitimate forensic purpose. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25] The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. Issues in the proceedings 1. The complaint is brought under s 49M of the Anti-Discrimination Act: (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. 1. 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. 1. 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 1. As well as the exception in s 49M(2), there is a defence 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. 1. 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. . 1. CAS submits that any other disability he may have is irrelevant because the income protection insurance was refused solely on the basis of his HIV status. According to CAS, the decision was made without reference to any other information about his health or employment history. In those circumstances, the documents requested in the summonses have no legitimate forensic purpose and it is an abuse of process for the summons to be issued. 2. TAL submits that the documents requested in the summonses are 'apparently relevant because: 1. CAS has filed evidence from his treating doctor which includes the following assertions; 1. that he commenced treatment for the HIV virus in 1993 and has continued to take daily medication since then; 2. his viral load has been undetectable for over 10 years; 3. that he began a 48 week treatment plan in early 2005 for Hepatitis C and was cleared of the virus; 4. that he suffered from mild to severe depression for a few years but had ceased any treatment four months prior to completing his application for insurance; 5. that he had been working consistently since 2008 after being on Centrelink benefits and that apart from a fracture to his elbow and foot he has not had any health conditions that have impacted on his ability to work. 1. they are part of the circumstances that are "the same or not materially different" when comparing the treatment afforded to CAS with the treatment that was or would have been afforded to a person who was not HIV positive; 2. they are relevant to the unjustifiable hardship and actuarial data exceptions or defences; and 3. any damages to which CAS may be entitled depends on establishing a causative relationship between TAL's conduct and the loss. Nature and extent of CAS's disabilities and work history 1. CAS has filed and served evidence relating to his health status and work history. CAS now says that this evidence is irrelevant because at the time of the alleged discrimination TAL did not have any information about his health or employment apart from the fact that he was HIV positive. The insurance cover was refused on that basis. 2. CAS now says that those matters are not relevant to any issue in dispute. If they are not, there is no legitimate forensic purpose in summonsing document which relate to those matters. Circumstances when making comparison 1. When comparing the way CAS was treated with the way a person who is not HIV positive was treated, or would have been treated, all the relevant circumstances must be taken into account. 2. 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. 1. The respondent submitted that, in this case, those circumstances include CAS's health status and work history. 2. I accept that when comparing the way TAL treated CAS all the relevant circumstances must be taken into account. But if CAS is correct, and TAL applied a blanket policy that any person who was HIV positive would be denied coverage, any other circumstances are irrelevant. Unjustifiable hardship and s 49Q defence 1. None of TAL's submissions in relation to unjustifiable hardship or the s 49Q defence persuade me that the documents sought in the summonses have any 'apparent relevance'. The question would be whether the provision of the service to people who are HIV positive would impose "unjustifiable hardship" on TAL. While all relevant circumstances must be taken into account, the applicant's health or employment history does not appear to me to be such a circumstance. Similarly, I do not accept TAL's submission that 'relevant factors' when assessing whether it was reasonable to refuse the cover include the applicant's health or employment history. Remedy to which CAS may be entitled 1. The Amended Points of Claim state that, as a direct result of the TAL's policies, CAS has suffered significant humiliation, anxiety and stress. No specific amount of damages is sought. In oral submissions CAS stated that, if the complaint is substantiated, he does not seek an order requiring TAL to provide him with insurance cover. According to CAS, the detriment that he has suffered is the fact that he does not know whether, if he was not HIV positive, he would have been eligible for the insurance cover. The only way he can find out if he has been discriminated against was for him to lodge a complaint. 2. If CAS relies only his HIV status as the ground for discirmination, TAL submitted that he would not be entitled to damages. That is because a person with CAS's health and employment history, but who was not HIV positive, would also have been refused the insurance cover. CAS's response to that submission was that the relevant guidelines note that for the three other conditions identified, (hepatitis C, depression and fractures) TAL would seek further information before deciding whether to provide the insurance. Because TAL did not seek further information from CAS in relation to those other conditions, CAS reasons that the insurance could not have been refused on those grounds. 3. There is a dispute of fact as to whether TAL would have refused to provide insurance to CAS anyway because of his other health conditions and/or employment history. If CAS is claiming damages, an issue if the complaint is substantiated will be whether any loss or damage suffered was "by reason" of TAL's conduct; Anti-Discrimination Act, s 108(2)(a). TAL has submitted that CAS would not be entitled to damages because his other health conditions and possibly his employment history mean that any loss or damage was not 'by reason' of TAL's conduct. That is an issue which may have to be determined in the proceeding. If it does have to be determined, CAS's health and employment history is "apparently relevant" to that issue. 4. 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. TAL had a legitimate forensic purpose in summonsing the documents. For that reason, CAS's application for the three summonses to be set aside is refused. 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: 23 March 2015