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