The List is aimed at insurers, reinsurers, brokers and insureds,
who want to resolve matters of policy interpretation more quickly.
Potentially, the List could achieve this. But it is the first of
its kind and no one knows how effective it will be. Feedback from
users will be sought once the List is in operation.
The National Court Framework reforms (NCF
reforms) have brought about a re-organisation of the
Federal Court. The Federal Court's case load is now managed
under eight National Practice Areas.
As part of the NCF reforms, the Federal Court of Australia
continues to look for ways to promote the efficient, flexible and
cost-effective handling of matters. The latest proposal from the
Chief Justice is the introduction of an insurance list for short
matters (the List) within the commercial
contracts, banking, finance and insurance sub-area of the
Commercial and Corporation National Practice Area.
The List will run from March 2016 in Melbourne, Sydney, Perth,
Brisbane and Adelaide.
Why introduce the List?
According to the Federal Court, the List will cater for a quick
resolution of discrete legal issues before trial. The stated aim is
to provide the insurance community with a prompt and efficient
mechanism to resolve disputes without the need for a full hearing.
Inevitably, it will also be directed at freeing up the Court's
resources to hear an increasing number of more complex cases and
enabling the Court to meet its time goals for the disposition of
Who will use the List?
The List will cover marine and non-marine insurance matters and
will deal with 'short' matters. These are not defined, but
examples given by the Court include questions of policy
interpretation and the operation of insurance legislation. In other
words, legal issues which do not involve a significant dispute on
the facts. A party will need to say why it considers that the
matter should be heard in the List. Ultimately, the Chief Justice
will decide what goes into the List.
How will the List operate?
A party wanting to use the List must provide a statement of up
to half a page setting out why the matter should be heard in the
List. The request can be made at the time of filing the matter or
What preparation will be required before a hearing in the List
has not yet been specified. However, it is anticipated that it will
be similar to what is needed for an interlocutory application. In
other words, an application will need to be filed in writing, with
the necessary supporting evidence, and served on the other parties
at least three days before the date fixed for the hearing.
Also not specified is how judgments will be delivered and
whether they may be reserved. It will be possible to appeal.
Appeals will be arranged expeditiously, to be heard by Judges of
the commercial contracts, banking, finance and insurance sub-area
of the Commercial and Corporation National Practice Area, without
the need to wait for a Full Court sitting period.
How many matters will go to the List?
Nobody knows how busy the List will be. This will depend on
whether parties decide to use it and whether matters are
appropriate for it. Initially, the Chief Justice will run the list,
but the administration of the List will likely change over time
according to the type and volume of matters being heard.
Will the List be effective?
The main objective seems to be to expedite the determination of
insurance matters involving discrete questions of policy
interpretation and avoid full hearings.
No assumption is made that resolving a question in the List will
dispose of the matter, but in some cases, a preliminary
determination of a critical issue may make it easier and quicker to
resolve the claim without a trial.
Whether sufficient use is made of the List, how the Chief
Justice will administer it and how frequently the Chief Justice
will sit are all difficult to predict. Also difficult to predict is
how the List's effectiveness will be measured and how long it
will take to determine whether it is operating effectively, both in
terms of helping to resolve matters more efficiently for court
users and in freeing up the Court's resources to hear other
When will the List be heard?
The List will start in March 2016. Current dates for the List
are as follows:
Melbourne: 10 and 11 March 2016
Sydney: 21 and 22 March 2016
Perth: 5 and 6 April 2016
Brisbane: 19 and 20 April 2016
Adelaide: 26 and 27 April 2016
The Chief Justice will nominate later fixture days for the List.
The intention will be to provide regular availability of hearing
dates. If necessary, a matter may be fixed for a day outside the
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