Cuna Mutual Group Ltd v Bryant

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

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

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 inquiry (s 77(2)).

The decision of the Inquiry Commissioner relates to a number of preliminary issues debated before him. Those issues are, in effect:

(a) whether the complaint which had given rise to the matter referred to the Commission had been lodged with the Commission by, or on behalf of, a person or persons authorised by s 69 of the Act to lodge a complaint; and

(b) whether the conduct of which complaint had been made was capable of constituting "an act that is unlawful under a provision of Part 2" within the meaning of s 69 of the Act.

The applicant contends that the decision of the Inquiry Commissioner involves errors of law being errors as to the proper construction of the Act.

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 ONLY It 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 MEMBER To The Credit Union and The Credit Union's Insurer From Time To Time I declare that:

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 BENEFIT On the death of a Member CUNA Mutual will pay to the Credit Union in reduction of the Member's loan debts the amount of:

Mr Nagy died of an AIDS related illness between 17-18 June 1996 (ie less than four months after his application for the loan). By letter dated 1 October 1996, the Credit Union advised the solicitor for the first respondents that it had lodged a claim with its loan insurers for the outstanding amount of Mr David Nagy's loans with the Credit Union. It further advised:

"Due to the nature of the illness however, our insurers require a letter from the treating doctor, stating the date that he was first advised of his illness."

By letter dated 25 October 1996, the Credit Union informed the solicitors for the first respondents:

"We now advise that our claim on our insurers' (sic) for the outstanding loans conducted by the deceased has been rejected as the member did not meet the eligibility conditions as required by the Member Care Loan Protection Contract. We have therefore asked Mr John Strydom of Qantas Superannuation Limited to forward us a cheque for $39,418.25 from the deceased's death benefit so that the loans may be cleared."

The entitlement of the Credit Union under its loan agreement with Mr David Nagy to require repayment by Qantas Superannuation Limited, from monies otherwise payable to Mr David Nagy's estate, of the balance outstanding on the loan is not in dispute. As a result of the payment to the Credit Union of the outstanding balance of the loan, the amount payable to the beneficiaries of Mr David Nagy's estate was reduced.

The first respondents, respectively the sister and brother of Mr David Nagy, are the only beneficiaries of his estate. Mr Mark Leslie Nagy ("Mr Mark Nagy"), one of the first respondents, was granted administration of the estate of Mr David Nagy by Letters of Administration dated 1 November 1996.

THE COMPLAINT

It is accepted that the complaint in writing in this case, purportedly made under s 69 of the Act, is to be found in a letter dated 3 February 1997 from the first respondents' solicitors to the Disability Discrimination Commissioner. The applicant has disavowed any reliance on the failure of the respondents personally to lodge a complaint.

The critical parts of the letter of 3 February 1997 read as follows:

"We act for Michelle Bryant and Mark Nagy, sister and brother respectively of the late David Thomas Nagy. David Nagy's estate, or more specifically, the Qantas Credit Union on his (sic) behalf, was refused insurance cover under the loan protection contract he signed with CUNA Mutual Group on the basis that he was aware at the time that he sought cover that he had tested positive to HIV tests. We have been instructed to lodge a complaint with you to the effect that this act by CUNA constituted an unlawful act of discrimination within the meaning of the Disability Discrimination Act 1992 (Cth). The standing of the complainants – why they are persons aggrieved Ms Bryant and Mr Nagy are aggrieved by the act of discrimination as they are

There is a dispute between the parties as to the act or acts allegedly done by the applicant ("CUNA") concerning which the above letter makes complaint. It seems plain that the first respondents' solicitors understood that they were instructed to lodge a complaint concerning the act of CUNA described by them in the final sentence of the second paragraph of the letter as "this act by CUNA". That act must, in my view, by understood as the act referred to in the previous sentence, namely the act by which "David Nagy's estate, or more specifically, the Qantas Credit Union on his (sic) behalf, was refused insurance cover under the loan protection contract he signed with CUNA." What the author of the letter meant by the reference to a refusal of insurance cover is explained by the final sentence of the extract from the letter set out above. It was the refusal to pay the benefit for which the insurance cover provided in the event of David Nagy's death. There is no suggestion that CUNA refused to enter into a contract of loan protection insurance in respect of Mr David Nagy's loans from the Credit Union.

The first respondents, both before the Commissioner and this Court, sought to rely on other alleged acts of discrimination by CUNA. They pointed to the terms of the "Eligibility Declaration by Primary Member" contained in the Loan Application Form and to the terms of clause 3 of the Policy. In my view, the letter of 3 February 1997 cannot be construed as containing an allegation that CUNA committed an act of discrimination against Mr David Nagy at the time that he signed the "Eligibility Declaration by Primary Member" or at the time that the Policy issued. The letter unequivocally makes complaint about CUNA's failure to make any payment under the Policy and makes no reference to the terms of either the Loan Application Form or the Policy.

This is not a case in which a complainant has failed to provide any details of the alleged act of discrimination (cf Merkel J's analysis of s 50 of the Sex Discrimination Act 1984 (Cth) in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 95 and my consideration of his Honour's approach in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 187-188). Here the first respondents by their solicitors did provide details of the alleged act of discrimination.

May the first respondents nonetheless rely on the allegedly discriminatory conduct of CUNA at or about the time that the Policy was issued as being part of the "matter" referred by the Commissioner to the Commission (s 76)? In Commonwealth v Sex Discrimination Commissioner at 189 I gave consideration, in the context of the Sex Discrimination Act, to the distinction between an act of which complaint is made and the matter to which the act relates. In that case I said:

"The matter to which the act relates will ordinarily be broader that the act itself. As Lockhart J pointed out in Johns v Connor (1992) 35 FCR 1 at 11 the meaning to be attributed to the word 'matter' has been considered in more than one statutory context including the context of the Constitution of the Commonwealth. Little assistance, in my view, is to be gained by a detailed consideration of earlier cases which have given consideration to the meaning of the word 'matter'. Its meaning in the Act is to be determined by reference to the context in which it is there found. I see no reason to conclude that in this context the word 'matter' is not used in its common meaning of 'a thing, affair or business': see the Macquarie Dictionary. The matter to which an act relates will comprehend, in addition to the act itself, the factual circumstances relevantly attendant upon the act."

I consider that the word "matter" in the Act is to be construed in the same way. In the context of this case, the matter referred to the Commission will encompass not only the alleged act of discrimination but also the factual circumstances surrounding the refusal of CUNA to make payment under the Policy and the impact of such refusal on the first respondents. The referral of the matter to the Commission will not, however, bring before the Commission, as the subject matter of its inquiry, additional acts claimed by the first respondents to be discriminatory but concerning which they have not lodged a complaint in writing under s 69 of the Act. It is to be remembered that the respective dates upon which an alleged unlawful act was done, and upon which a complaint is made alleging that a person has done an act that is unlawful under a provision of Part 2 of the Act, can be of critical importance. Section 71(2)(c) of the Act provides that a Commissioner may decide not to inquire into an act, or not to continue to inquire into an act, where "a period of more than 12 months has elapsed since the act was done and the complaint was made to the Commission."

STATUTORY FRAMEWORK

One of the objects of the Act is to eliminate, as far as possible, discrimination against persons on the ground of disability in the area of the provision of services (s 3(a)(ii)). Another object of the Act is to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community (s 3(c)).

It is not in dispute that an HIV positive person has a "disability" within the meaning of the Act (s 4). Section 4 of the Act provides, amongst other things, that in the Act, unless the contrary intention appears, "services" includes "services relating to … insurance … and the provision of … loans …."

Section 5(1) of the Act provides:

"5.(1) For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability."

The Act does not proscribe discrimination on the ground of disability generally. It specifies within Part 2 of the Act (which consists of ss 15-58) the circumstances in which it will be unlawful for a person, authority or body to discriminate on the ground of disability.

Section 24 of the Act is concerned with discrimination on the ground of disability in the provision of goods, services and facilities. The section provides:

"24.

For the purposes of s 24 of the Act an "associate" of a person includes a relative of the person (s 4).

The Act has recently been amended by the coming into operation of the Human Rights Legislation Amendment Act (No 1) 1999 (Cth). However, s 13 of that Act has the effect that the complaint the subject matter of this proceeding is to be dealt with as though the amendments had not come into operation. The now repealed s 69 of the Act thus remains of importance so far as the complaint is concerned. Section 69(1) provided:

"69.

REASONS OF THE INQUIRY COMMISSIONER

The Inquiry Commissioner noted that the first respondents asserted a right to lodge a complaint pursuant to s 69 of the Act on three alternative bases. First, on the basis that they are the only beneficiaries of the estate of Mr David Nagy. Secondly, on the basis that Mr Mark Nagy is the administrator of the deceased estate of Mr David Nagy. Thirdly, on the basis that they were entitled to lodge a complaint on behalf of another person, and that they had done so on behalf of Mr David Nagy.

The Inquiry Commissioner concluded that each of the first respondents was a "person aggrieved" by the alleged act of discrimination by CUNA. He did so on the following basis:

"In my view, in the context of a loan protection policy, it is quite clear that the beneficiaries of an estate will be aggrieved if such a policy is not paid out. Whilst the reasonable foreseeability test is normally applicable in the area of negligence, it seems to me an appropriate way in this context to determine if a person is 'aggrieved' for the purposes of the Act. Allowing the term 'aggrieved' to 'take its colour' from this context, the potential beneficiaries of the policy are aggrieved for the purposes of the Act."

On the above basis, the Inquiry Commissioner held that the first respondents were entitled to lodge a complaint on their own behalf under s 69(1)(b) of the Act.

The Inquiry Commissioner considered that Mr Mark Nagy's status as administrator of Mr David Nagy's estate did not qualify him to lodge a complaint under s 69 of the Act. The first respondents have not sought to challenge this aspect of the Inquiry Commissioner's reasons.

The Inquiry Commissioner further considered that the first respondents were entitled to lodge a complaint on behalf of Mr David Nagy under s 69(1)(c) of the Act. In this regard the Inquiry Commissioner said:

"The objects of the Act are broad and societal, and intended to address general issues of discrimination. If the actions of the respondent in this case are found to be on the grounds of Mr David Nagy's disability, then the righting of such an alleged wrong should not be prevented by his death which was, in fact, the trigger to the complaint itself."

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.

CUNA contends that the first respondents cannot be "persons aggrieved" within the meaning of s 69(1)(b)(i) of the Act as they have no relevant disability within the meaning of Act. It was submitted that a "person aggrieved" for the purposes of s 69(1) of the Act must be an "aggrieved person" within the meaning of s 5(1) of the Act.

In this regard, the first respondents placed reliance on the reasoning of the Full Court of this Court in Cameron v Human Rights and Equal Opportunity Commission (1993) 119 ALR 279. That case concerned s 22 of the Race Discrimination Act 1975 (Cth) which contains no provision analogous to s 5 of the Act. For this reason it provides little assistance with respect to the interpretation of the Act. For the same reason, decisions concerning the proper ambit of the expression "person aggrieved" in the Administrative Decisions (Judicial Review) Act 1977 (Cth) provide little assistance in this case. The meaning of the expression "person aggrieved" in s 69(1) of the Act is to be determined having regard to the context in which the expression is used and the evident purpose of the Act.

So far as the complaint under consideration is concerned, it is agreed that the act of CUNA which is the subject of the complaint will be unlawful under a provision of Part 2 of the Act, if at all, because it is unlawful under s 24 of the Act. Section 24 renders unlawful certain acts of discrimination against a person on the ground of that person's disability or on the ground of a disability of any of that person's associates. The reference in s 24 to a disability of an associate of a person is also to be found in the other provisions of the Act which render conduct unlawful. It can thus be seen that s 5 of the Act provides only a partial definition of disability discrimination: it is concerned only with discrimination against a person on the ground of a disability of that person. For this reason, s 5 cannot be understood as constraining the meaning to be ascribed to the expressions "a person aggrieved by the act" and "persons aggrieved by the act" in s 69 of the Act. Plainly a person discriminated against on the ground of the disability of one of his or her associates in one of the ways proscribed by s 24 is "a person aggrieved" by that act of discrimination within the meaning of s 69(1) of the Act. In my view the terms "discrimination" and "aggrieved person" are defined and used in s 5(1) of the Act for the purpose of simplifying the drafting of that subsection. Had the drafters intended thereby to define the terms for the purposes of the Act as a whole, one would expect the definitions to appear with the other definitions in s 4 of the Act.

I reject the contention that because neither of them has a relevant disability, the first respondents were not entitled to lodge a complaint alleging that CUNA had done an act that is unlawful under s 24 of the Act.

In determining the class of persons intended to fit the description of persons "aggrieved" for the purposes of s 69(1) of the Act, it is important to notice that the Act confers a number of functions on the Commission which may be exercised without a complaint being lodged with the Commissioner under s 69 of the Act. There is, for this reason, considerable scope for the Commission to promote the objects of the Act independently of the exercise by it of functions relating to complaints. It is also important to consider how the operation of the Act would be affected were a wide class of persons found to be able to lodge complaints under s 69 of the Act. In this regard it is revealing to consider the terms of paragraph

Other provisions of the Act provide support for a narrow construction of s 69(1) of the Act. For example s 71(2)(b) allows the Commissioner to decide not to inquire into, or not to continue to inquire into, an act, if:

"The Commissioner thinks the person aggrieved by the act does not desire, or no other person aggrieved by the act desires, that the inquiry be made or continued."

Unless, within the meaning of the Act, only persons directly discriminated against by reason of their own disability or a disability of one of their associates are persons aggrieved by an alleged act of discrimination, the task of the Commissioner in seeking to determine that "no other person aggrieved by the act, desires that the inquiry be made or continued" would be a formidable one.

I conclude that only persons discriminated against on the ground of their disability or a disability of one of their associates may lodge a complaint under s 69(1)(a) and (b) of the Act. The first respondents have not suggested that they have any relevant disability. Their complaint is to be construed, as I have found, as a complaint that CUNA has refused to make any payment under the Policy. The Policy was issued in relation to Mr David Nagy's borrowings from the Credit Union. In this context it is Mr David Nagy who relevantly had a disability.

The Inquiry Commissioner did not seek to answer the question whether, as so construed, the complaint alleges that CUNA discriminated against the first respondents in a way made unlawful by s 24 of the Act.

Section 24(1) of the Act relevantly makes it unlawful for a person who provides services relating to insurance or the provision of loans to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates in one of the ways identified in paragraphs (a), (b) and (c) of the subsection. Does the complaint allege that CUNA discriminated against the first respondents in any of the ways identified by s 24(1)(a), (b) or (c)?

Section 24(1)(a) of the Act is concerned with discrimination manifest by a refusal to provide a person with services. I did not receive submissions as to the circumstances in which a person will provide "services" to another person within the meaning of the Act. It is therefore inappropriate for me to seek to define those circumstances. However, whatever those circumstances are, can it be said that CUNA has refused to provide the first respondents with any services relating to insurance or the provision of loans? It is not suggested that CUNA has refused to provide any insurance product or any product in relation to the provision of loans to the first respondents: the first respondents have not sought any such products from CUNA. Nor is it suggested that CUNA has refused to meet any contractual obligation to the first respondents: the first respondents are not parties to any contract with CUNA. Indeed, it seems that Mr David Nagy himself was not a party to any insurance contract with CUNA: it appears that no consideration moved from him to CUNA as the premiums on the policy were paid by the Credit Union (however, as to his capacity to enforce the insurance contract, see Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1998) 165 CLR 107). The first respondents were neither persons insured nor named beneficiaries under any contract of insurance issued by CUNA.

The only connection between the first respondents and anything provided by CUNA arose in the following way. Had CUNA made a payment under the Policy to the Credit Union, the Credit Union would not have exercised its right, under its loan agreement with Mr David Nagy, to look to Mr David Nagy's superannuation entitlements for repayment of his loans. Had the Credit Union not been repaid from Mr David Nagy's superannuation entitlements, his deceased estate would have been better off in an amount equivalent to the amount of his outstanding loans from the Credit Union. In such circumstances, as the only beneficiaries of their deceased brother's estate, the first respondents would have inherited a larger amount from their brother than they in fact inherited. This connection between the first respondents and the conduct of CUNA is, in my view, too remote to amount to a refusal by CUNA to provide services relating to insurance or the provision of loans to the first respondents within the meaning of s 24(1)(a) of the Act.

It has not been suggested that CUNA has discriminated against the first respondents in the terms or conditions on which CUNA provides services to the first respondents (s 24(1)(b)), or in the manner in which CUNA provides services to the first respondents (s 24(1)(c)). CUNA has not relevantly provided any services to the first respondents.

I conclude that the act of CUNA in not making a payment under the Policy is not an act that is unlawful under s 24 of the Act as an act of discrimination against the first respondents. For this reason, it is not necessary for me to determine whether a deceased person can be an "associate" of another person within the meaning of the Act.

I turn to consider s 69(1)(c) of the Act which authorises a person to lodge a complaint on behalf of another person. In holding that the first respondents were entitled to lodge a complaint on behalf of their deceased brother, the Inquiry Commissioner placed weight on the broad societal objects of the Act and the fact that it was Mr David Nagy's death which triggered the complaint.

I am not persuaded that the Act discloses an intention that a person may lay a complaint on behalf of a deceased individual where the alleged act of discrimination occurred after the death of that individual. I have referred above to the evident purpose of s 69(1)

The Inquiry Commissioner expressed the view that if the actions of CUNA were discriminatory of Mr David Nagy, then the righting of the wrong should not be prevented by his death which triggered the complaint. The weight to be attached to this consideration is limited, in my view, by the fact that the conditions of eligibility for cover under the Policy are apparent on the face of the Policy. Moreover, Mr David Nagy signed the "Eligibility Declaration by Primary Member" in the terms set out above. It was open to Mr David Nagy, had he considered that the eligibility conditions were discriminatory in a way which fell outside the terms of ss 24(2) and 46 of the Act, to lodge a complaint under the Act at or about the time that he applied for the loan from the Credit Union. Moreover, CUNA is bound by the Insurance Contracts Act 1984 (Cth) so far as it may seek to avoid a contract of insurance for reasons of non-disclosure or misrepresentation.

My conclusion that s 69(1)(c) of the Act did not authorise the first respondents to lodge the complaint on behalf of Mr David Nagy makes it unnecessary for me to determine whether the conduct of CUNA identified in the complaint involved discrimination against "another person" (ie Mr David Nagy) on the ground of that person's disability, or whether, if it did, such discrimination would fall within any of s 24(1)(a), (b) or (c).

The decision of the Inquiry Commissioner will be set aside. It will be declared that the letter dated 3 February 1997 from Stephen Blanks & 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 Act.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: