Insurance List for Short Matters
The introduction of the National Court Framework reforms, are part of the Court's commitment to the provision of commercial dispute resolution mechanisms that emphasise flexibility, efficiency and cost-effectiveness. As part of the reforms the Court has established an insurance list within the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations National Practice Area.
The aim is to provide to the insurance commercial community: underwriters, reinsurers, brokers and insureds a list which caters for the prompt and efficient resolution of legal issues to enable the parties to otherwise resolve their disputes without the need for full-blown hearings where a crucial issue could be decided discretely and swiftly.
The list is not intended to deal with all insurance claims, but principally short matters, in particular, of policy interpretation and concerning the operation of insurance legislation. The list will cover marine as well as non-marine insurance. Further, transfers of insurance schemes under the relevant federal legislation may be placed on the list.
The list has been running successfully since March 2016, and has dealt with over 40 matters (as at April 2018). The Chief Justice has conducted initial case management of all matters in the List and has heard the majority of matters that have proceeded to a hearing. Some matters have been referred to other judges in the NPA Sub-area for hearing. Other matters have been successfully settled at mediation.
The types of matters that have been heard in the List have included:
- Questions of policy construction, claims made under insurance policies and issues involving the Insurance Contracts Act 1984 (Cth): Jones v AAI Limited trading as Vero Insurance  FCA 1244; Aftermarket Network Australia Pty Ltd v Certain Underwriters at Lloyd’s subscribing to Policy No 6842/13(C)-13087  FCA 1402; AIA Australia Ltd v Richards  FCA 84;  FCA 539;  FCA 1069;  FCA 1100; Sheehan v Lloyds Names Munich Re Syndicate Ltd  FCA 1340; Global Constructions Pty Ltd (in liq) v AIG Australia Ltd  FCA 98;  FCA 100;  FCA 432.
- Approval of schemes for transfer of insurance business under Div 3A of Part III of the Insurance Act 1973 (Cth): In the matter of an application by WR Berkley Insurance (Europe) Ltd  FCA 374;  FCA 393;  FCA 1497; In the matter of an application by QBE Insurance (Australia) Ltd  FCA 288; In the matter of Gordian Runoff Limited  FCA 344;  FCA 687; In the matter of an application by Atradius Credit Insurance NV  FCA 1107;  FCA 1495; In the matter of ACE Insurance Ltd  FCA 997;  FCA 1258; In the matter of Gordian Runoff Ltd  FCA 1190;  FCA 1498; In the matter of AXIS Specialty Europe (Australia Branch)  FCA 1594;  FCA 276; In the matter of an application by Progressive Direct Insurance Company  FCA 1106;  FCA 9; Sunderland Marine Insurance Company Ltd, in the matter of Sunderland Marine Insurance Company Ltd  FCA 565.
- Applications in relation to life insurance proceeds under s 215 of the Life Insurance Act 1995 (Cth):Westpac Life Insurance Services Ltd v Mahony  FCA 1071;  FCA 277; Swiss Re Life & Health Australia Ltd v The Public Trustee of Queensland  FCA 963;  FCA 1146; MLC Limited v Crickitt  FCA 898;  FCA 937.
- Disqualifications under s 26 of the Insurance Act 1973 (Cth): Burroughs v Australian Prudential Regulatory Authority  FCA 775.
- Appeals from the Superannuation Complaints Tribunal: Carrette v Superannuation Complaints Tribunal  FCA 640; AIA Australia Ltd v Lancaster  FCA 962.
- Applications for preliminary discovery relating to insurance: Mornington Peninsula Shire Council v Jardine Lloyd Thompson Pty Ltd  FCA 1545.
Two matters have also had separate questions referred for hearing by a Full Court in June 2018.
- The Court established an insurance list in March 2016 within the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations National Practice Area.
- The list is not intended to deal with all insurance claims, but principally short matters, in particular, of policy interpretation and concerning the operation of insurance legislation.
- The list will provide, primarily, a forum for the determination of questions of construction of policies or questions of law, especially statutory construction, the hearing of which will take no more than about two hours. The resolution of such questions may not resolve the totality of the particular dispute, but may provide a greater opportunity for the resolution of the balance of the dispute by agreement or mediation. It will also provide a streamlined and expeditious method of policy interpretation where such is important for the wording or pricing of policies more generally.
- To the extent that leave to appeal is sought from judgments, such will be arranged expeditiously before judges of the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations NPA, not necessarily being required to await a Full Court sitting period.
- The aim is to provide to the insurance commercial community, including underwriters, reinsurers, brokers and insureds a list which caters for the prompt and efficient resolution of legal issues to enable the parties to otherwise resolve their disputes without the need for full-blown hearings where a crucial issue could be decided discretely and swiftly.
- The list will cover marine as well as non-marine insurance. The Court's jurisdiction in relation to marine insurance is wide within its Admiralty and maritime jurisdiction and does not necessarily depend upon the matter arising under the Marine Insurance Act 1909 (Cth). The Court's jurisdiction in relation to non-marine insurance is also wide, but is based usually on the matter arising under a law of the Commonwealth Parliament, generally relevantly in this context a Commonwealth insurance statute, such as is often the case with the Insurance Contracts Act 1984 (Cth). But two things should be noted: First, the word and phrase "matter" and "arising under a law of the Parliament" and drawn from s 76(ii) of the Constitution are very broad: see Allsop, "Federal jurisdiction and the jurisdiction of the Federal Court of Australia" (2002) 23 Australian Bar Review 29 at 34-41; and Lindgren and Branson Federal Civil Litigation Precedents: Tab 1 Introduction to the Jurisdiction of the Federal Court of Australia; secondly, once the matter, that is the whole controversy, is in federal jurisdiction, any question in the matter can be heard in the Federal Court, including any question such as the construction of an insurance policy that does not, of itself, raise any issue of a federal statute.
- Practitioners who wish to file a matter to be heard in the list, should provide a statement of no more than half a page, lodged as correspondence at the time of filing, outlining why the application should be heard in the list. Where applicable, practitioners should attach to that statement copies of any insurance policies relevant to the proceeding. A decision will be made by the Court as to the suitability of the matter for the list.
- Alternatively, matters may be placed on the list at the discretion of the Court.
- The list will no longer be called over on nominated days. Instead, parties will be informed of a time and date for initial case management after the filing of an originating application.
- Practitioners are invited to comment on the effectiveness and utility of the list.
The Chief Justice has conducted information sessions in Sydney, Melbourne, Perth, Brisbane and Adelaide to explain the List, its aims and how it is expected to run.