CUNA Mutual Group Ltd v Bryant

Case [2000] FCA 970

FEDERAL COURT OF AUSTRALIA

Cuna Mutual Group Ltd v Bryant [2000] FCA 970

DISCRIMINATION LAW – disability discrimination – discrimination against deceased person – scope of the “matter” – whether complaint can be lodged on behalf of deceased – “person aggrieved”

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Disability Discrimination Act 1992 (Cth)
Sex Discrimination Act 1984 (Cth)
Human Rights Legislation Amendment Act (No 1)1999 (Cth)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Racial Discrimination Act 1975 (Cth)
Insurance Contracts Act 1984 (Cth)

Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90, referred to
Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179, referred to
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290, cited
Cameron v Human Rights and Equal Opportunity Commission (1993) 119 ALR 279, cited
Trident General Insurance Co Limited v McNeice Bros Proprietary Limited (1998) 165 CLR 107, cited
Harris, as personal representative of Marcia Andrews (deceased) v Lewisham & Guys Mental Health Trust [2000] 7 EWCA 52, cited

CUNA MUTUAL GROUP LTD v MICHELLE BRYANT, MARK NAGY & HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

N 76 of 2000

BRANSON J
SYDNEY
21 JULY 2000


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 76 of 2000

BETWEEN:

CUNA MUTUAL GROUP LTD
Applicant

AND:

MICHELLE BRYANT & MARK NAGY
First Respondents

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
Second Respondent

JUDGE:

BRANSON J

DATE OF ORDER:

21 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Inquiry Commissioner be set aside.

2.It be declared that the letter dated 3 February 1997 from Stephen Banks & Associates to the Disability Discrimination Commissioner does not allege the doing of an act that is unlawful under a provision of Part 2 of the Disability Discrimination Act 1992 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 76 of 2000

BETWEEN:

CUNA MUTUAL GROUP LTD
Applicant

AND:

MICHELLE BRYANT & MARK NAGY
First Respondents

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
Second Respondent

JUDGE:

BRANSON J

DATE:

21 JULY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This proceeding raises the forensically fascinating issue of the possibility of discrimination against a person already dead.

  2. The proceeding is brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The applicant seeks an order of review in respect of a decision of an Inquiry Commissioner (“the Inquiry Commissioner”) appointed under s 77(1) of the Disability Discrimination Act 1992 (Cth) (“the Act”) to participate in the performance of the functions of the Human Rights and Equal Opportunity Commission (“the Commission”). Following the referral of a matter to the Commission pursuant to s 76 of the Act, the Inquiry Commissioner, at the request of the President of the Commission, participated in the holding of an…

Continue reading CUNA Mutual Group Ltd v Bryant

Sign in free to access the full text

Details
AGLC
CUNA Mutual Group Ltd v Bryant [2000] FCA 970
Case
[2000] FCA 970
Decision Date

CaseChat Overview and Summary

CUNA Mutual Group Ltd v Bryant is a case before the Federal Court of Australia, where the central issue revolves around the validity of a complaint alleging discrimination under the Disability Discrimination Act 1992. The respondent, Mr David Nagy, who was deceased at the time of the complaint, had taken out a loan with Qantas Staff Credit Union Limited, which included a loan protection insurance policy. Upon Mr Nagy's death, the insurance company refused to pay out the loan protection benefits to the Credit Union on the grounds that Mr Nagy had failed to disclose his HIV-positive status in his eligibility declaration. This refusal sparked a complaint alleging discrimination against the insurer, CUNA Mutual Group Ltd, which the insurer contested on various grounds.

The legal issues before the court included whether the complaint was validly lodged under the Disability Discrimination Act, and if the insurer's refusal to pay constituted unlawful discrimination. Central to the argument was the interpretation of the Act and whether the death of Mr Nagy affected the validity of the complaint. The court also had to determine if the insurer's actions constituted a discriminatory act under the Act, particularly given the terms of the insurance policy and Mr Nagy's failure to disclose his health status.

The court found that the complaint was not valid as it did not allege an act that was unlawful under the Disability Discrimination Act. The court held that the insurer's refusal to pay was not discriminatory as it was based on the terms of the insurance policy, which required full disclosure of health status. The court reasoned that the Act's provisions did not apply in this case as the insurer's refusal was not based on Mr Nagy's disability but rather on his failure to comply with the policy's terms. The court also noted that the Act does not provide for a cause of action to survive the death of the complainant, and thus, the complaint was invalid.

In conclusion, the court set aside the decision of the Inquiry Commissioner, declared that the complaint did not allege an act that was unlawful under the Disability Discrimination Act, and found in favour of the insurer. This decision highlights the importance of strict adherence to policy terms and the limited circumstances under which a complaint under the Disability Discrimination Act can survive the death of the complainant.

Orders

Orders of the court

1. The decision of the Inquiry Commissioner be set aside.

2. It be declared that the letter dated 3 February 1997 from Stephen Banks & Associates to the Disability Discrimination Commissioner does not allege the doing of an act that is unlawful under a provision of Part 2 of the Disability Discrimination Act 1992 (Cth).

Background

Background to the litigation

The second respondent has submitted to the order of the Court save as to costs.FACTS For the purposes of this proceeding the following facts are not in dispute. The late Mr David Thomas Nagy (“Mr David Nagy”) was an employee of Qantas Airways Limited. At the time of his death he had an outstanding loan from Qantas Staff Credit Union Limited (“the Credit Union”). A poor photocopy of the form of “Loan Application and Agreement”, (“the Loan Application Form”) apparently completed by Mr David Nagy, was received in evidence. The form includes the following two sections:“LOAN PROTECTION INSURANCE – PRIME MEMBER ONLYIt is the Credit Union’s current policy to insure the primary member’s loans against death (currently [illegible] of $50,000 per member). This coverage is only for the person named in this application.NOTE: This policy may change from time to time and the Credit Union does not assume an [illegible] borrower to insure. To be eligible for the coverage which is provided at no additional cost you [illegible] declaration in a form acceptable to the Credit Union’s Insurer.ELIGIBILITY DECLARATION BY PRIMARY MEMBERTo The Credit Union and The Credit Union’s Insurer From Time To TimeI declare that:(a)I am actively at work and regularly perform all of the duties of a permanent occupation of at least [illegible] week for remuneration; or(b)I am a minor, student or housewife and regularly perform all the usual duties of such; or(c)the sole reason that (a) or (b) does not apply is because of vacation, strike, lay-off or a [illegible] illness and I further declare that(d)I do not suffer from AIDS or an AIDS related disease and have never shown a positive result to an AIDS/HIV test; and(e)I do not have a malignant tumour or disease, including leukaemia and have not been [illegible] during the last two years.” Mr David Nagy signed and dated the “Eligibility Declaration by Primary Member” on the same day that he applied for the loan, namely on 28 February 1996. It is not disputed that Mr David Nagy had learned in or about June 1990 that his blood had tested positively for HIV. The “Membercare Loan Protection Insurance” (“the Policy”) issued by the respondent includes the following provisions:“2. DEATH BENEFITOn the death of a Member CUNA Mutual will pay to the Credit Union in reduction of the Member’s loan debts the amount of:(a)the Member’s Eligible Loan balances at the time of death; and(b)…provided that(i)….(ii)….(iii)the Member was eligible for cover in respect of the loan (Provision 3); …….3.ELIGIBILITY OF A MEMBERA Member may become eligible for cover under any one of the provisions 3.1 to 3.4 below.Once a Member becomes eligible for cover in respect of a loan, then the Member shall continue to be eligible for cover for that loan until it is repaid.3.1….3.2Loans Exceeding $25,000If, when a loan is advanced, the Member’s total loan indebtedness to the Credit Union is greater than $25,000, the Member shall be eligible in respect of that loan to a maximum of $120,000 provided that he/she is not aware that he/she(i)suffers from AIDS or an AIDS related disease, or has ever shown a positive test to an AIDS/HIV test, or(ii)has a malignant tumour or disease, including leukaemia, or has been treated for such during the preceding two yearsand provided further that the Member is physically able to perform, or within a reasonable time to resume, all the usual duties of his/her livelihood.…6.PREMIUMSPremiums are payable by the Credit Union and not the Member.….”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

On the issue of whether the complaint alleges the doing of an act that is unlawful under a provision of Part 2 of the Act, the Inquiry Commissioner said:“The respondent submits than any alleged less favourable treatment by it was only to the Credit Union and not to the complainants. To accept this view would be to accept a very narrow construction of the statutory scheme in section 24 and section 5(1) of the Act. Whilst it is correct to say that the respondent refused to pay the Credit Union, in so doing they failed to carry out their duty under the contract with Mr David Nagy. That duty was, on the occurrence of certain contingencies, that they would pay out his Credit Union loan. They will argue at the final hearing of the matter that their failure to comply with the terms of the contract was not discriminatory. However I do not accept that, just because the money was not going directly to Mr Nagy or his estate, he cannot demonstrate that there was an alleged act of discrimination against him.”CONSIDERATION In Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 Wilcox J, with whom Jenkinson and Einfeld JJ agreed, held that the question of whether a complaint under the Sex Discrimination Act survives the death of the complainant was to be resolved by reference to the terms of the Sex Discrimination Act. His Honour concluded that both the common law rules concerning the survival of causes of action and the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) were irrelevant to the statutory right of action before the Commission created by the Sex Discrimination Act. Wilcox J held that the evident intention of the Sex Discrimination Act is that a complaint lodged under Sex Discrimination Act does not lapse by reason of the death of the complainant. For the reasons identified by Wilcox J in Stephenson’s case, it is similarly appropriate for the issue of the validity of the complaint in this case to be determined by reference to the terms of the Act. The Full Court in Stephenson’s case was not required to consider a circumstance in which a person allegedly discriminated against dies without making any complaint of discrimination. Nor was the Full Court required to consider a circumstance in which the alleged act of discrimination occurred after the death of the target of the alleged act of discrimination. The Sex Discrimination Act does not contain a provision analogous to s 69(1)(c) of the Act. For these reasons Stephenson’s case provides little direct assistance in respect of the issues which I am required to determine. The first basis upon which the Inquiry Commissioner upheld the validity of the complaint lodged on behalf of the first respondents was that each of the first respondents was a person aggrieved by the alleged act of discrimination as a potential beneficiary of the loan protection policy. That is, the Inquiry Commissioner found that the first respondents were entitled by s 69(1)(b)(i) of the Act to lodge the complaint.