Federal Court - Insurance List for short matters

The Federal Court has established an Insurance List for short matters (the List), which commenced in Sydney on 21 March 2016.  

The List is intended to provide a forum for questions of construction of policies or questions of law, the hearing of which will take no more than approximately 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. The List will be run, at least initially, by Chief Justice Allsop.

Background to the List

The List is an attempt to introduce flexibility into insurance litigation, allow prompt resolution of core issues, and improve case management.

Allsop CJ has highlighted the potential for practitioners to be purely responsive to the timetable and process set by the Court. It is his Honour's hope that the List will encourage practitioners to think proactively about their matters, and to seek early resolution of controversies or disputes within matters that can be separately determined. While his Honour acknowledges that there may be difficulties associated with the separate hearing of issues, Allsop CJ considers these should be manageable if parties are alive to them.

The operation of the List

The following points were made regarding the operation of the List:

  • It is intended to deal with "short" matters, being those which can be heard within approximately two hours.
  • Should practitioners wish to file a matter to be heard in the List, they are to 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.

In the case of doubt, the matter will be called over by the Chief Justice either before or at the next List.

  • Inclusion of a matter in the List is more likely to occur where both parties consent, although it may be possible for the matter to be included in the List despite the objection of one of the parties.
  • There is no current restriction on the types of matters that the List may attract, but there are certain matters that lend themselves to separate issue determination, including:
    • disputes relating to non-disclosure;
    • cases involving s 54 Insurance Contracts Act 1984 (Cth) (ICA); and
    • discrete issues of policy construction and policy response within broader disputes.
  • For a controversy or dispute within a matter to be referred to the List, it need only be "a matter arising under a law of the [Federal] Parliament". Allsop CJ has made two points in respect of this:
    • The word "matter" and phrase “arising under a law of the Parliament”, drawn from s 76(ii) of the Constitution, are very broad1.
    • Once the "matter" 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 an issue under a law of the Federal Parliament. In other words, the referred issue does not, of itself, need to raise Federal law issues, as long as the "matter" from which it arises does.
  • If the matter is not referred to the List at the time of filing, practitioners are entitled to alert the matter's allocated judge to any elements which may be suitable for referral to the List.
  • The List will not offer any restriction on the publication of reasons.

Allsop CJ suggested that matters listed in the States' Supreme Courts could also potentially have issues referred to the List. It will be interesting to see how this plays out in practice.

1 Allsop, Federal jurisdiction and the jurisdiction of the Federal Court of Australia (2002) 23 Australian Bar Review 29 at 34-41

Louise Cantrill

I provide solutions that matter to client success through collaboration, innovation and excellence.

Louise Cantrill Partner

Louise has specialised in liability litigation and insurance advice since 1996, combining technical excellence with a commercial approach to deliver client focused outcomes. She is highly regarded by her insurer and insured clients (including government agencies, corporates and self-insureds) across a wide range of claims litigation and technical insurance advice.

Louise is highly regarded for both her insurance advisory work with insurer, government and corporate clients, and her claims expertise in the areas of professional negligence (including medical, financial services and construction) and directors & officers.

Louise manages civil matters and appears at Coronials across a wide range of professional negligence and directors and officers claims, including catastrophic injury, multi-party, complex commercial, and high profile claims.

Louise's advisory practice focuses on policy interpretation and multi-contract transactional advice. She advises on policy interpretation and coverage, including multilayer programmes and re-insurance issues. Her insurer clients seek her out for policy wording reviews.

Louise's clients include NSW Ministry of Health, Transport for NSW, W.R. Berkley Insurance Australia, Allied World Assurance Company, Macquarie Bank, Insurance Council of Australia, Sydney Water Corporation, Westfield, PPB Advisory and McGrathNicol.

One of her career highlights was advising Transport for NSW on insurance issues arising from the 'fixing the trains' project, which was one of the most significant  corporate and operational restructures in Australia. This included transactional advice and drafting as well as policy analysis and negotiation.

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Rebecca Whittle

My clients' business interests are front of mind for me every day.

Rebecca Whittle Partner

Rebecca is an expert in commercial litigation and insurance and has 27 years' experience advising a wide range of clients including major Australian general and life insurers and the government sector, both State and Federal. Rebecca is recognised as a leading insurance and government litigation lawyer.

Rebecca's breadth of expertise covers:

  • Defending government agencies from claims in negligence
  • Defending professional indemnity claims including medical negligence
  • Acting in complex insurance litigation
  • Advising general insurers and life insurers on coverage issues including non-disclosure and misrepresentation
  • Advising on insurance product wordings

Rebecca's government sector clients include NSW Health and NSW Police. Her reputation as a highly skilled litigation lawyer is testament to her ability to protect her public sector and financial services clients from public scrutiny through achieving out of court settlements in hundreds of litigation cases.

Rebecca represents a number of Australia's major life insurers. One of her career highlights was success in the Court of Appeal in Manglicmot v The Commonwealth Bank Officers Superannuation Corporation Limited, involving group life insurance and an examination of the duties owed by a trustee of a superannuation fund to its members when entering into a new policy of life insurance.

Rebecca also acts for a number of the firm's significant government, corporate and banking clients on a wide range of commercial litigation which, has resulted in a depth of expertise in mining and construction litigation, defamation, negligence and breach of contract.

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Catherine McAdam Special Counsel

Catherine is an insurance law specialist. Her expertise covers all aspects of life insurance, including claims (including TPD, Income Protection, personal accident and sickness, and group life policies), PDS reviews, and disputes.

Catherine's insurance law expertise covers all aspects of life insurance, including claims (including TPD, Income Protection, personal accident and sickness, and group life policies), PDS reviews, and disputes.

Her clients include Westpac Life Insurance Services Limited, Colonial Mutual Life Assurance Society Limited, TAL Life Limited, MLC Ltd, OnePath, Challenger Life Company Ltd as well as superannuation trustees.

Catherine acted on behalf of the trustee in the July 2011 NSW Court of Appeal decision of Manglicmot v CBOSC. This case considered whether a person who can only work part time is TPD as well as the duties imposed on trustees by s. 52 Superannuation Industries (Supervision) Act.

Catherine advises life insurers on non-disclosure and misrepresentation issues, as well as policy coverage. She has defended claims for insurers in NSW, Victoria, the ACT and Adelaide, including in the NSW Court of Appeal. Catherine has provided extensive advice regarding the impact of the 2014 changes to the Insurance Contracts Act and the implications for policy wordings. She also drafts submissions on behalf of insurers to FOS.

Catherine has a high rate of success in resolving matters using ADR techniques, including mediation.

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