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High Court date set for ICA test case submission

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The High Court will later this month hear the Insurance Council of Australia (ICA) appeal application relating to business interruption exclusion wordings citing the repealed Quarantine Act.

ICA lodged required documentation in December and was notified in March that their case would be considered at a date to be decided. The High Court has confirmed the special leave to appeal application will be heard on June 25.

"The hearing on the 25th of June is a welcome next step in this important process when the insurance industry will be presenting further arguments to the High Court as to why the references to the Quarantine Act in some business interruption policies exclude claims made as a result of the COVID-19 pandemic," ICA CEO Andrew Hall said today.

"The ICA and its members look forward to the decision of the High Court on this issue in which there is a strong public interest as it will provide clarity on the interpretation of this important aspect of business interruption policies.

"Once final rulings have been obtained from the courts, insurers are committed to applying the relevant principles in an efficient, transparent and consistent way when assessing claims."

The NSW Court of Appeal last year ruled in a 5-0 decision that wordings citing the Quarantine Act 1908 and subsequent amendments did not exclude claims related to the COVID-19 pandemic. The legislation was replaced by the Biosecurity Act 2015.

Herbert Smith Freehills Special Council Guy Narburgh says the June 25 hearing will consider whether there is sufficient importance and public interest elements for an appeal to proceed at a later date before the court.

“On one view there is nothing particularly novel about the arguments that are being run,” he tells “I think the thing that might tip it, is the potential importance, in both directions, of the outcome.”

A number of businesses affected by last year’s COVID-19 lockdowns are not waiting for the test case final result as they press ahead with legal actions following the NSW Court of Appeal decision.

Legal firm Gadens Partner Simon Theodore says there’s no reason to delay moving forward with actions, even if ICA is successful in having the High Court appeal heard.

“I would be surprised if the High Court says no to enabling special leave to take place, but I don’t think they will succeed ultimately,” he told “I think the High Court will effectively affirm the decision that was made by the Court of Appeal in NSW.”

Gadens said last week it had launched Supreme Court of Victoria proceedings on behalf of a number of Melbourne hospitality businesses, including pubs and restaurants. The firm has made further filings this week and says there’s more to come.

The High Court has listed seven appeal applications for June 25, with brief oral arguments set to be heard on the insurance matter. A decision on whether the application is successful could be made quickly, but if successful it’s not clear when the appeal would proceed.

ICA is also running a second test case in the Federal Court, to be heard in the first half of September, with any appeal to be dealt with by the Full Court in early November. Federal Court cases can also be taken to the High Court if leave to appeal is granted.