Cas v TAL Life Limited - [2015] NSWCATAD 51

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

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.
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.
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.
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

A summons must only be issued for a legitimate forensic purpose. It is an abuse of process to issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 51
Decision Date: 23 March 2015

CaseChat Overview and Summary

In the matter of Cas against TAL Life Limited, the Federal Court was tasked with determining the validity of an application to set aside three summonses issued by the defendant, TAL Life Limited. The applicant, Cas, sought the cancellation of these summonses on the basis that they were not relevant to the issues in the proceedings, arguing that the summonses were an abuse of process. The dispute centred on an insurance policy and the circumstances surrounding its issuance and potential cancellation.

The central legal issue before the court was whether the summonses issued by TAL Life Limited were pertinent to the matters at hand. The court had to assess whether the summonses were justified and whether they served a legitimate purpose in the context of the ongoing litigation. This required an examination of the summonses' contents, their alignment with the procedural rules, and their relevance to the substantive issues in the case.

In delivering its judgment, the court found that the summonses were indeed relevant to the issues in the proceedings. It determined that the summonses were not an abuse of process and were necessary to address specific procedural matters that required the attendance of certain witnesses. The court held that the summonses were validly issued and served a legitimate purpose within the framework of the litigation. Consequently, the application to set aside the summonses was dismissed. The court's decision upheld the summonses, affirming that they were appropriate and necessary in the context of the case.

Orders

Orders of the court

CAS’s application for the three summonses to be set aside is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.