Federal Court of Australia Insurance List

Legal Directions

As part of the National Court Framework Reforms, the Federal Court of Australia will establish an Insurance List for short matters within the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations National Practice Area.

The list will be run by Chief Justice Allsop commencing with call overs in Melbourne on 10 and 11 March 2016. The list will be called over in the following cities on the following dates:

  • Sydney – 21 and 22 March 2016
  • Perth – 5 and 6 April 2016
  • Brisbane – 19 and 20 April 2016.

The list is not intended to deal with all insurance claims. It will deal with ‘short matters’, that is, matters in which the hearing will take ‘no more than about two hours’ concerning policy interpretation or questions of law concerning the operation of insurance legislation.

The two-fold aim of the list is to provide those in the insurance community such as underwriters, reinsurers, brokers, and insureds with:

  1. prompt and efficient resolution of crucial issues in the hope that resolution of those issues may facilitate resolution of the balance of the dispute by agreement or mediation; and
  2. a ‘streamlined and expeditious method of policy interpretation where such is important for the wording or pricing of policies more generally’.

The list will cover marine and non-marine insurance. Leave to appeal from a decision will be dealt with expeditiously before judges hearing matters in this sub-area of the Commercial and Commercial and Corporations National Practice Area.

To commence a matter in the list, lawyers should file a short statement (no more than half a page), with the initiating application outlining the reasons why the application is appropriate to be heard in the List. The Court will determine whether the matter is suitable for the List, and if there is any doubt, the Chief Justice will have the matter listed for call-over either before or at the next list in the relevant Registry.

The establishment of the Insurance List for short matters will be of utility in circumstances where questions of policy or statutory construction are very specific, for example, the interpretation of a single exclusion clause or the operation of a specific legislative provision.

Many insurance matters will not be appropriate for the List simply because they will take longer than two hours. Examples include matters in which it is alleged that an insured has been guilty of a material non-disclosure or fraudulent non-disclosure and those in which there is a significant factual dispute. It may be necessary for indemnity disputes to be heard at the same time as the principal claim against the insured so that the insurer has the benefit of the findings of fact in the trial concerning the principal claim.

The effectiveness of the Insurance List can only be assessed after it has operated for a time. The Court will invite lawyers to comment on the effectiveness and utility of the List and will no doubt ‘tweak’ its operation having regard to the feedback.

Insurers should welcome this reform as it may prove to be a cost-effective method of resolving insurance disputes. We will monitor the operation of the List and keep you informed of its operation.

Authored by Susan Reid, Senior Associate, Sydney.

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