In March 2016 the Chief Justice of the Federal Court of Australia established an Insurance List for short matters (List). While the List did not see much activity in the first six months, the flurry of recent decisions gives some clue as to how the List has been operating.
The List operates across all registries and was initially directed at “short” insurance matters, particularly matters of policy interpretation and statutory construction. The stated aim was to provide the insurance community with an avenue for the swift resolution of legal issues capable of being decided at an early stage.
By the end of November the Chief Justice had determined nine matters on the List: three in Victoria, four in New South Wales and two across Queensland and Tasmania. They arise mostly from applications made by insurers, rather than insureds, and are of varying interest and complexity. Not all of them could be described as “short” or related to matters of policy interpretation.
The shortest proceeding lasted three weeks – this was an unopposed application for dispensation from the requirement to give a summary of a proposed transfer scheme to every affected policyholder, under s17C(2)(c) of the Insurance Act 1973 (Cth). The dispensation was granted – see Gordian Runoff Limited, in the matter of Gordian Runoff Limited.
The longest proceeding appears to have taken about nine months from application to judgment and related to a claim against an insurer under s51 of the Insurance Contract Act 1984 (Cth) arising out of a professional negligence claim against a solicitor’s estate. See Jones v AAI Limited trading as Vero Insurance.
Perhaps surprisingly, that case was neither “short” nor about a question of policy interpretation. The Chief Justice heard the whole of the claim of negligence, over two days in June 2016, and delivered his judgment on 25 October 2016.
Other cases have involved hearings of less than a day and resulted in judgments being delivered within four to five months of the filing of the applications.
In Aftermarket Network Australia Pty Ltd v Certain underwriters at Lloyd’s the insured made an application (which was dismissed) for a declaration regarding the interpretation of a change of control provision in a buyer warranty and indemnity insurance policy. The Chief Justice granted leave to the applicant to appeal the decision with an order that any such appeal be arranged expeditiously (i.e. appeal books and submissions to be filed within two weeks of the judgment with the appeal to be heard as a half day appeal two to four months later).
In Westpac Life Insurance Services v Mahony, the insurer made an application for a declaration allowing it to make a payment into Court under s215 of the Life Insurance Act 1995 (Cth).
Not all the cases have resulted in a substantive determination. In Guild Insurance Limited v Pham the Chief Justice decided it was not appropriate for the matter to be on the List. The insurer sought declarations that there was no cover under the policy and to recover moneys said to have been paid by mistake. The respondent opposed the application but did not comply with the Chief Justice’s orders requiring her to set out her position. The Chief Justice was unable to identify any costs saving from retaining the matter in the List and sent it back to Justice Beach.
Amcor Flexibles Group v AIG Australia Limited took just over two months to reach a hearing at which the Chief Justice directed the parties to go to mediation. This was another case involving a buyer’s warranty and indemnity insurance policy. The insurer had admitted liability under the policy more than a year before, but the parties had been unable to agree quantum.
Recognising the commercial nature of the dispute and the limitations of the List, the Chief Justice ordered the parties to attend a mediation to resolve the quantum issue and indicated that if the mediation did not resolve the matter, he would refer it to a referee to report.
These cases demonstrate an intention to resolve disputes quickly, but also some recognition that the List has its limitations and not every matter may be suitable for the List or for determination by the Chief Justice. How the Chief Justice will decide whether a matter is suitable remains unclear. Even where he does, there is no guarantee that the matter will be resolved in the List. Nor is it clear that the List will necessarily be restricted to “short” matters or to matters that are capable of being resolved quickly.
Overall, the number of matters decided since March is relatively modest, and while there may be more in the pipeline, this may suggest some reluctance to refer matters to the List. Some matters appear to fit neatly within the List, especially if unopposed.
However, it is still unclear why judges already seized of proceedings may not deal with, say, a question of policy construction, as a preliminary issue. The Chief Justice’s comments in the Guild Insurance case – that there was no reason why Beach J should not hear a separate issue – suggest that in some instances this may be the better course. At the same time, though still early days, the List appears to be providing a useful route to judgment for some parties.