Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. The dispute underlying this appeal concerns the appellant's complaint (the complaint) made under the Anti-Discrimination Act 1977 (NSW) of disability and age discrimination.

2. The complaint arises in the following context. In 1987 the appellant obtained income protection insurance cover, which was increased in 1991 (the policy). The respondent currently holds rights and responsibilities in relation to the policy. In 2017, the respondent accepted a claim by the appellant and began paying him monthly benefits. However, after a certain age, the monthly benefits paid to him were reduced.

3. The reduction in monthly benefits arises from a "rider" to the policy (the Rider). The Rider relevantly provides:

"This Rider is made part of the Policy to which it is attached. All the provisions, exclusions and limitations of the Policy, not inconsistent with those contained herein, shall apply to this Rider as at the Effective Date of this Rider.

Part 4.7(d) of the Policy shall have no operation in relation to the benefits payable for Total Disability as a result of Sickness and the following additional provision shall apply where the Insured suffers Total Disability as a result of a Sickness.

Notwithstanding the provisions of Part 4.1 of the Policy where the Insured suffers Total Disability as a result of Sickness then the Company will pay a Lifetime Sickness Benefit calculated as follows:

(a) Total Disability up to and including Age 55

Where Total Disability commences prior to the Insured's 56th Birthday, the Company will pay the Monthly Benefit for the lifetime of the Insured subject to the Insured continuing to suffer Total Disability.

(b) Total Disability after Age 55

Where Total Disability commences on or after the Insured's 56th Birthday but before his or her 65th Birthday, the Company will pay the Monthly Benefit up to the Insured's 65th Birthday and a percentage of the Monthly Benefit beyond the Insured's 65th Birthday for the lifetime of the Insured subject to the Insured continuing to suffer Total Disability. The percentage of the Monthly Benefit payable will be determined by the age at which the Total Disability commenced, in accordance with the following table:

[Table omitted]

No benefits are payable where Total Disability commences on or after the Insured's 65th Birthday."

4. Before the substantive matter could be heard, the respondent applied to have the proceedings dismissed on the ground that the Tribunal lacked jurisdiction to determine the matter. The respondent contended that its defence to the complaint raised an issue of federal jurisdiction that the Tribunal, not being a court of a state, was not authorised to determine.

5. The Tribunal recorded, at [6] of the first instance decision (the Decision), that the respondent's original points of defence included the following:

"4. The Respondent asserts that insofar as they purport to relate to:

a) the life insurance business of registered life insurance companies; or

b) to the policy issued by the Respondent to the Applicant,

ss 49M and 49ZYN of the Act are invalid under section 109 of the Australian Constitution.

(For clarity the Respondent relies on Australian Mutual Provident Society v Goulden [1986] HCA 24; (1986) 160 CLR 330 in this regard)".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19714f0087c1c2c8c15811b4)

Disclaimer: Curated by HT Syndication.