Australia: Insurance List for Short Matters established by Federal Court

In brief - Parties may avoid full hearings if case accepted for the list

As part of its process of implementing the National Court Framework, the Federal Court has established an Insurance List for Short Matters to provide underwriters, reinsurers, brokers and insureds with reasonably prompt resolution of core issues in insurance cases. It is not intended to deal with all insurance claims.

Insurance List to deal in particular with policy interpretation and operation of insurance legislation

Established within the commercial contracts, banking, finance and insurance sub-area of the Federal Court's Commercial and Corporations National Practice Area, the aim of the Insurance List is to deal principally with short matters and hopefully to avoid the need for full hearings where crucial issues are able to be decided discretely and swiftly.

The list is intended to deal principally with short matters, which may include policy interpretation and the operation of insurance legislation, and will cover marine and non-marine insurance. Making the method of policy interpretation efficient and prompt may be important for the wording or pricing of policies more generally.

The list will provide a forum for questions of construction of policies or questions of law, especially statutory construction. Hearings are expected to take no more than two hours. While the totality of the particular dispute may not be resolved by the resolution of such questions, the opportunity for resolving the balance of the dispute by agreement or mediation may be greater.

Increased efficiency and improved case management among Federal Court's intentions

The Court's intention is to:

  • deal with separate issues outside of the main trial of the proceeding and mediation. For example, parties may have resolved the majority of their issues at a mediation but there is a discrete issue which they have not been able to resolve. The list may be able to deal with that discrete issue in a time-effective manner.
  • increase the speed and efficiency of judgements being produced for the industry.
  • improve case management.
  • better facilitate the interests of the parties, noting that in most instances it is uneconomical for an insurer to fight all issues to verdict or to appeal when the insurer's interest will generally be limited to a small section of the litigation or rather one small unsettled core issue.

Initially, it is intended that the list will be run by the Chief Justice. The list commenced in Melbourne on 10 and 11 March 2016; it has been called over in Sydney on 21 and 22 March 2016 and in Brisbane on 19 and 20 April 2016.

Frequently asked questions about the Insurance List

  1. What is the process to be placed on the list?

The process for filing remains unchanged and requires an application to be made by party (or parties) for inclusion. There will be no additional fee. The request to enter the list will be considered by Chief Justice Allsop and a National Operations Manager who operates out of Victoria. Not all cases will go on the list (subject to appropriateness and availability), but all cases that apply will be considered for the list.

  1. Do matters on the list need to be placed there by consent?

It would be preferable for matters to come to the list by consent, but that is not required. A matter may stay in the list over the objection of one of the other parties, and the Court could order that the matter or a portion of the matter be placed in the list (i.e. separate issues). However, there will be little utility in such a matter remaining on the list if the parties are unlikely to co-operate.

  1. What types of matters does the Court envisage the list dealing with?

The Court said at an information session that general liability questions will not be dealt with by the list. Any small issue could potentially be on the list. An example given by his Honour was a dispute under section 54 of the Insurance Contracts Act 1984 which operates on a limited basis; non-disclosure disputes; and construction suits.

  1. Is federal jurisdiction required?

Federal jurisdiction or the accrued jurisdiction of the Federal Court is required. 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 on the matter arising under a law of the Commonwealth Parliament. In this context, a Commonwealth insurance statute, such as is often the case with the Insurance Contracts Act, will usually bring the matter within jurisdiction.

An example of a matter that would not enliven federal jurisdiction may be a dispute which is only concerned with the construction of an insurance contract (i.e. it would deal only with common law contract).

  1. Length of the hearings of the matters on the list?

Approximately two hours per matter. However, the Court has said that this time limit is not rigid. The Court will refer questions such as quantum to another Judge to hear and determine.

  1. Will matters with facts in dispute or complex questions of law be suitable for the list?

Yes they will. However, the Court has said that a lack of agreed facts or a higher degree of complexity of law may make it too difficult for such a matter to be dealt with effectively by the list and it may be inappropriate for inclusion.

  1. Can an existing matter be transferred to the list?

Yes. The process of doing so requires parties to speak to the relevant Docket Judge.

  1. How will the list days proceed?

There will be a regular listing day in each jurisdiction, with flexible listings in between if required by the parties. Matters can be given a date outside the list if appropriate.

  1. Timing of judgements?

The Court's aim is to deliver ex tempore judgments, which is in line with the aim for efficiency and prompt resolution.

  1. Timing of appeals?

The Court will attempt for appeal matters to be heard reasonably expeditiously. Matters on appeal from the Insurance List will be given priority, with the intention of being heard within six months if possible. The Justices of the Federal Court will be given standing instructions that matters from the Insurance List going on appeal are to be heard as a matter of priority.

Patrick Tuohey Thanh Bui
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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