Cas v TAL Life Ltd (No2) - [2015] NSWCATAD 118

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CAS v TAL Life Ltd (No2) [2015] NSWCATAD 118
Hearing dates: 23 March 2015
Decision date: 23 March 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: N Hennessy LCM, Deputy President
Decision:
The Respondent’s application to file further evidence after the Applicant has filed its evidence in reply is refused.

Catchwords: PRACTICE AND PROCEDURE – directions for the filing and service of evidence – whether a respondent should be permitted to file further evidence after the timetable has been completed – insufficient justification for the filing of further evidence – prejudice to the applicant
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Category: Procedural and other rulings
Parties: CAS (Applicant)
TAL Life Limited (Respondent)
Representation:
Counsel:
J Oakley (Respondent)
Solicitors:
HIV/AIDS Legal Centre (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.

REASONS FOR DECISION

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…

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 118
Decision Date: 23 March 2015

CaseChat Overview and Summary

Cas brought proceedings against TAL Life Ltd, challenging a decision to terminate a life insurance policy. The dispute reached the court, which had to determine whether the respondent should be allowed to file additional evidence after the completion of the timetable for evidence filing. The court was tasked with assessing whether there was sufficient justification for the respondent's request and evaluating the potential prejudice to the applicant if the respondent's application were to be granted.

In its decision, the court carefully considered the respondent's application to file further evidence. It noted that the respondent had not provided a compelling reason for the delay in filing the additional evidence and that such a delay could cause significant prejudice to the applicant. The court was mindful of the need to maintain the integrity of the legal process and to prevent unnecessary prolongation of the proceedings.

After weighing the factors, the court determined that there was no sufficient justification for the respondent to file further evidence after the completion of the timetable. Consequently, the court refused the respondent's application. The court emphasised that allowing the respondent to file additional evidence would undermine the fairness of the proceedings and cause undue prejudice to the applicant.

The court's final orders were that the respondent's application to file further evidence after the applicant had filed its evidence in reply was refused.

Orders

Orders of the court

The Respondent’s application to file further evidence after the Applicant has filed its evidence in reply 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 Ltd (No2) [2015] NSWCATAD 118
Hearing dates:	23 March 2015
Decision date:	23 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The Respondent’s application to file further evidence after the Applicant has filed its evidence in reply is refused.
Catchwords:	PRACTICE AND PROCEDURE – directions for the filing and service of evidence – whether a respondent should be permitted to file further evidence after the timetable has been completed – insufficient justification for the filing of further evidence – prejudice to the applicant
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Category:	Procedural and other rulings
Parties:	CAS (Applicant) TAL Life Limited (Respondent)
Representation:	Counsel: J Oakley (Respondent) Solicitors: HIV/AIDS Legal Centre (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.