Metcalf v Cerberus Special Risks Pty Ltd
[2018] QCAT 175
•14 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Metcalf v Cerberus Special Risks Pty Ltd & Anor [2018] QCAT 175
PARTIES:
WILLIAM JAMES METCALF
(applicant)v CERBERUS SPECIAL RISKS PTY LTD
(first respondent)
SURESAVE PTY LTD
(second respondent)APPLICATION NO/S:
ADL002-17
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
14 June 2018
HEARING DATE:
3 May 2018
HEARD AT:
Brisbane
DECISION OF:
Member A Fitzpatrick
ORDERS:
1. The contents of the following material may not be published to any person:
(a) the attachments to the report of David Goodsall dated 2 May 2018 and filed in this Tribunal;
(b) the attachments to the draft report of David Goodsall filed in this Tribunal;
(c) paragraphs 42, 43, 44, 50, 52, 53, 60 and 70 of the report of David Goodsall dated 2 May 2018 and paragraphs 42, 43, 44, 50, 52, 53, 60 and 70 of the draft report of David Goodsall, both filed in this Tribunal
2. On the basis of the respondents’:
(a) non-admission to a contravention of the Anti-Discrimination Act 1991 (Qld);
(b) agreement that they have discriminated against the applicant on the basis of age;
(c) agreement that the data summaries provided in the proceeding have not satisfied the applicant that they are reasonable; and
(d) desire to ensure they do not discriminate on the basis of age except where allowed for by law,
it is ordered by consent that:
(a) the respondents review their policies and procedures, by 30 September 2018;
(b) the respondents keep the applicant informed by 30 November 2018 of the review and responses that have been undertaken; and
(c) pay the applicant’s costs in the sum of $7,000.00.
CATCHWORDS:
EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – OTHER ORDERS – where application made for non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether information in question is confidential or publication of information would be contrary to the public interest
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON BASIS OF AGE – where respondents agree that they have discriminated against the applicant on the basis of age – where non-admission by respondents that they have contravened the Anti-Discrimination Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17
Russell v Russell (1976) 134 CLR 495APPEARANCES & REPRESENTATION:
Applicant:
Mr S Sheaffe
Respondents:
Mr J Dwyer instructed by Landers and Rogers
REASONS FOR DECISION
Background
On 27 April 2018 the Queensland Civil and Administrative Tribunal (the Tribunal) granted a non-publication order in relation to ‘the contents of the report/draft report of David Goodsall, including any attachments’. The order was made until commencement of the hearing.
Shortly after commencement of the hearing on 3 May 2018, the parties reached a compromise.
Prior to the hearing, the respondents filed an application for miscellaneous matters seeking a non-publication order in relation to the report of David Goodsall, the attachments to the report and evidence given by David Goodsall in the hearing.
At the hearing, I raised with Counsel for the respondents whether the respondents sought a broader non-publication order than that already granted. I noted that material referred to in the report of David Goodsall also appeared in some forms in other material already filed in the Tribunal.
I was informed by Counsel for the Respondents that the critical information was contained in the report of David Goodsall, and in particular in the attachments, which were in expanded form, not in summary form. The applicant agreed that the spreadsheets attached to the report may justify a non-publication order but did not think the report itself should be subject to any such order.
The parties were directed to make submissions in relation to the matter and the earlier non-publication order was extended pending a decision in relation to the respondents’ application.
Upon receipt of the submissions made by the respondent, I note that a broad non-publication order is sought.
In considering this matter, I have referred to the further amended submissions of the respondents dated 10 May 2018 including the attached affidavit of Jacky Hin Lung Poon sworn 27 April 2018, and the applicant’s submissions in response dated 11 May 2018.
Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act)
Section 66 of the Act provides that the Tribunal may make an order prohibiting the publication of the contents of a document produced to the Tribunal or evidence given before the Tribunal. The order may only be made if the Tribunal considers the order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice.
Orders sought
The respondents seek non-publication orders in relation to the following documents or parts of documents:
(a)the attachments to the report of David Goodsall dated 2 May 2018 and any draft report;
(b)paragraphs 42, 43, 44, 50, 51, 52, 53, 60, 66 (including graph), and 70 of the report of David Goodsall dated 2 May 2018 and any draft report (including if content appears at different paragraph numbers of any draft report);
(c)the tables of data contained within a letter from the respondents to the Tribunal, dated 11 April 2017;
(d)the annexure to the statement of evidence filed 11 August 2017, in particular the tables of data and the sentence prior to the table on page 1 of the annexure;
(e)Associate Professor Chaseling’s first report dated 28 February 2018 to the extent that it discusses, reproduces or analyses the annexures to the statement of evidence filed 11 August 2017;
(f)the graphs/tables contained at pages 5 and 6 of the report of Associate Professor Chaseling dated 1 May 2018;
(g)
pages 8-11 (inclusive) of the report of Associate Professor Chaseling dated
1 May 2018; the table at page 11 of the report of Professor Chaseling dated 1 May 2018;
(h)paragraph 5 of the statement of Jeremy Ooi dated 9 November 2017;
(i)annexure A to the statement of Jeremy Ooi dated 9 November 2017, in particular the tables of data and the sentence commencing with ‘The claims frequency for a 70 year old…’ in the second half of the paragraph just prior to the first table on page one of the annexure;
(j)annexure A to the statement of Andre Sliwka dated 13 April 2018, in particular the tables of data and the sentence commencing with ‘The claims frequency for a 70 year old…’ in the second half of the paragraph just prior to the first table on page one of the annexures;
(k)paragraph 6, 16-21 (inclusive), paragraph 19 and the graph with paragraph 20 of the statement of Andre Sliwka dated 13 April 2018;
(l)annexure A and B (in particular the summaries of data) to the statement of Andre Sliwka dated 9 November 2017;
(m)annexure A and B (in particular the summaries of data) to the statement of Andre Sliwka dated 10 November 2017;
(n)the sentence contained in paragraph 7 of the statement of Andre Sliwka dated 9 November 2017 commencing ‘The claims frequency for a 70 year old..’;
(o)the sentence contained in paragraph 7 of the statement of Andre Sliwka dated 10 November 2017 commencing ‘The claims frequency for a 70 year old…’;
(p)the statements of Dr Metcalf, to the extent that they have referred to, analysed and evaluated the statements, data, annexures and data summaries as referred to above. Specific paragraphs are not isolated for my consideration.
Respondents’ submissions
The respondents submit that claims, exposure data and Generalised Linear Modelling accessed by their expert Mr Goodsall and attached to his report include details of the number of claims made, the nature of the claims, the costs to the respondents of paying out those claims and the pricing of policies in respect of those claims. It is submitted that this information is, particularly with respect to the cost and pricing of claims, extremely sensitive in the competitive insurance market. It is said that the information is not publically available and is, without doubt, confidential information.
Reliance is placed upon an affidavit of Mr Poon sworn 27 April 2018. Mr Poon is an actuary employed by WNG Services Pty Ltd, a related entity to the respondents.
Mr Poon swears that the data relied upon by the respondents in the proceeding is commercially sensitive and would cause harm if disclosed.
In particular, Mr Poon says that the data provides a detailed understanding of claim frequency and average claim cost which are the main drivers of price. Access to this information would enable competitors to enter the market without needing to invest in research. He swears that pricing is a competitive advantage in insurance and that the data allows any competitor to gain insights into the respondents’ internal strengths and weaknesses. He swears that data is costly to gather and is valuable, sensitive information. Mr Poon says that the respondents have incurred expenses in collecting this information and invested significant resources to produce detailed insights and models.
As I understand the respondents’ submissions, they wish to protect from publication any record of claims frequency and claims cost. That information is said to have been referred to in correspondence with the Tribunal and statements filed with the Tribunal, and subject to a degree of conjecture as between the experts in their reports.
The respondents express a concern that the applicant intends to continue to agitate his complaint in a public manner and to use part or all of the information contained in the material before the Tribunal the subject of this application.
It is submitted that this is a risk of misuse of the information and it is in the interests of justice to ensure confidential information of the respondents is protected.
Applicant’s submission in response
The applicant objects to the respondents’ submissions being considered by the Tribunal because they were delivered almost a day after the time limit provided in the directions. I reject that submission. The Tribunal is prepared to extend time for the provision of the submissions and accepts the submissions.
Broadly, the applicant objects to the orders being made because the material sought to be included is not confidential information and it is not in the interests of justice that the order be made.
The applicant submits that at the time of the order made on 27 April 2018, he was prepared to agree to a non-publication order in relation to the excel spreadsheets Mr Goodsall tendered with his report.
Dr Metcalf submits that the material now sought to be protected is not confidential. It is general and in the public domain. It is material which could be found in any insurance journal or textbook. However, no references are provided to me.
The applicant makes the fair point that the statements of Mr Ooi, Mr Sliwka and Associate Professor Chaseling were filed many months before the Goodsall report. No communication or application was then made that they contained confidential material and should not be disclosed.
Dr Metcalf submits that the respondent is seeking to suppress almost all the germane evidence and learned opinion that has been presented, to stifle further discussion and action about age discrimination.
Dr Metcalf submits that the respondent seeks to suppress summaries of the data. He says that the summaries do not provide a clear insight into the relevant and confidential information as the respondent alleges. He says the data is simply historically based summaries, already in the public realm. Dr Metcalf says all the data tendered is historical, not up to date. The most recent is two years old. It might give a hint as to how the respondents were pricing their services two to five years back, but reveals nothing about today’s pricing.
Dr Metcalf says that suppression would work directly against the public interest in challenging age and other forms of discrimination.
In summary, Dr Metcalf says that the various reports and submissions referred to by the respondent do not contain any primary data which would in any way help a reader, even an actuary or statistician, understand the pricing mechanisms used by the respondent.
Discussion
The Tribunal is vested with a discretionary power to prohibit publication of confidential information or information that would be contrary to the public interest.
The discretion is not to be exercised lightly and only if the Tribunal considers the order is necessary.
The discretion is underpinned by the principle of open justice, which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.[1]
[1]Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024 at [23]; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 467 per McHugh JA (as His Honour then was).
When other courts have considered the matter of a non-publication or suppression order they have held that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order.
Perram J in Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 said that there are cogent reasons for finding commercial sensitivity is an appropriate basis for making a non-publication order and went on to say at [9]:
… but they are generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit. That said, it is important to recall that the order must be necessary to protect the administration of justice. It can readily be imagined that a carte blanche approach to applications for s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court.
The onus is on the applicant to show special circumstances justifying the making of the order. It is necessary for the applicant to demonstrate the material in question is, in fact, confidential. I am not satisfied on the evidence of Mr Poon that the extent of information sought to be protected by the non-publication order is in fact confidential or has a high degree of commercial sensitivity.
Mr Poon’s affidavit speaks in generalities in relation to the ‘data’ relied upon by the respondents. He does not isolate any particular table, summary or information in the material, by way of explanation. Mr Poon suggests that the data is the main driver of price. That may be the case, but the price of travel insurance is a matter of public record. Mr Poon suggests a competitor having access to the data may ‘possibly’ be able to formulate a more predictive pricing algorithm than the respondents to better target the respondents’ more profitable customers. The risk is not sufficiently clear to me on Mr Poon’s affidavit to justify non-publication. Mr Poon also says that the information provided makes it clear which are the more profitable segments of the market enabling competitors to directly attack the respondents’ source of profit. Mr Poon does not address the age of the data and its current relevance to the business of the respondents. He does not address what can be drawn from mere summaries of data. Given that the data is more than two years old, I doubt its relevance to competitors who might seek to damage the business of the respondents. I am not sufficiently satisfied as to the degree of confidentiality and commercial sensitivity of summaries of the data and discussion of summaries of data, so as to displace the Tribunal’s primary interest in open and transparent justice.
In particular, I note the comment by Mr Goodsall at paragraph 32 of his report that it is correct that summaries generally do not provide a full explanation to allow a third party to validate the results, but they are useful in presenting the conclusions of more detailed analysis.
I accept the submissions of the applicant that summaries of data and discussion of those summaries which were not made the subject of any application for a non-publication order at the time of their filing should not form part of any non-publication order made by this Tribunal. Given the length of time which has elapsed since filing, the material is now in the public domain and may have already been more widely published, in which case a non-publication order would be futile.
I was told at the hearing that the annexures to Mr Goodsall’s report represent an expanded record of the respondents’ data. On my reading of his report the annexures appear to be the more detailed analysis he refers to. Some description of this information is given in the body of the report at paragraphs 42, 43, 44, 50, 51, 52, 53, 60 and 70. On the basis that more; and more relevant information is provided in those annexures, I am prepared to make a non-publication order because of the possibility that access to more detailed information may give a competitor an unfair advantage over the respondents. I do not think it is in the interests of justice that this should be the case merely because of the respondents’ involvement in this litigation. Further, the respondents acted promptly upon filing of the report to protect its contents, unlike the earlier material.
Doing the best I can it appears the paragraphs set out in the preceding paragraph are repeated at the same numbered paragraphs in the draft report of Mr Goodsall, which forms part of the Tribunal file.
I am not satisfied that Associate Professor Chaseling’s reproduction of data in the form of high level graphs; or her critique of the data amounts to confidential information. I am not satisfied that the statements of Dr Metcalf contain sufficiently detailed examples of the respondents’ data to justify a non-publication order.
Orders
I order that the contents of the following material may not be published to any person:
(a)the attachments to the report of David Goodsall dated 2 May 2018 and filed in this Tribunal;
(b)the attachments to the draft report of David Goodsall filed in this Tribunal;
(c)paragraphs 42, 43, 44, 50, 52, 53, 60 and 70 of the report of David Goodsall dated 2 May 2018 and paragraphs 42, 43, 44, 50, 52, 53, 60 and 70 of the draft report of David Goodsall, both filed in this Tribunal.
At the hearing the applicant read into the record the agreement reached with the respondents. The parties require the agreement to form part of the Orders of the Tribunal in disposing of the matter.
The respondents say that without admitting to a contravention of the Anti-Discrimination Act 1991 (Qld), the respondents:
(a)agree that they have discriminated against the applicant on the basis of age;
(b)agree that the data summaries provided in the proceeding have not satisfied the applicant that they are reasonable;
(c)agree to review their policies and procedures, by 30 September 2018, to ensure they do not discriminate on the basis of age except where allowed for by law;
(d)will keep the applicant informed by 30 November 2018 of the review and responses that have been undertaken; and
(e)will pay the applicant’s costs in the sum of $7,000.00
By consent, it is ordered accordingly.
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