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BI decision awaited as High Court pauses for winter recess

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The High Court winter recess is set to extend the timeframe for decisions on whether leave to appeal will be granted on disputes over business interruption cover during the pandemic, as the industry test case process approaches the two-year mark.

Appeal applications were filed by two policyholders and one insurer on March 21 following a Full Court judgment handed down on February 21 on an industry test case that went largely in favour of insurers. The Star Entertainment Group has also filed a High Court appeal application over its policy dispute.

The Insurance Council of Australia (ICA) previously advised that it didn’t expect any High Court decision for about three months from when the applications were made.

The High Court began its winter recess on Saturday June 18 and is scheduled to hold its next sittings starting Monday August 8.

“The court is now in recess, so no applications for special leave to appeal will be determined until court sits again in August,” a court spokesman told insuranceNEWS.com.au.

Test case policyholders have filed appeal applications in The Taphouse Townsville v Insurance Australia and in LCA Marrickville v Swiss Re International.

From the insurers’ side, the appeal relates to payment calculations if a business interruption claim is ultimately accepted.

In Insurance Australia v Meridian Travel (Vic), IAG is arguing that JobKeeper should be taken into account, a stance that was accepted by the initial trial judge but not by the Full Court.

ICA commenced proceedings in the first test case, related to wordings citing the Quarantine Act, on August 13 2020, with the NSW Court of Appeal hearing the matter in October and handing down a decision in favour of policyholders on November 18. The High Court in March last year agreed to hear oral arguments but rejected the appeal application in June.

The more complex second test case, which covered a broader range of issues, industries and locations, went before the Federal Court in September last year. A Full Court appeal decision was handed down in February.

Class action hearings triggered by business interruption cover disputes during the pandemic are also waiting in the wings after matters were deferred while the High Court application process continued.