Brought to you by:
CGU
CGU

Just a minute: transcript reveals High Court's swift rejection of industry case

Facebook Twitter LinkedIn Google

Court documents outline the complex legal arguments made by the insurance industry as it sought leave to appeal the outcome of the first COVID-19 business interruption test case, as well as the speed of their dismissal.

As reported by insuranceNEWS.com.au, the Insurance Council of Australia (ICA) was left “disappointed” by Friday’s High Court decision, which means insurers cannot rely on exclusions which reference the Quarantine Act 1908 “and subsequent amendments”. The act was repealed and replaced by the Biosecurity Act 2015.

The transcript of Friday’s proceedings shows that Ian Jackman SC, appearing for ICA, argued that the two acts are “strikingly similar” and the intention was to refer to current legislation.

“What we are doing is arguing for a true intention objectively found in the text, which is that the exclusion should refer to the Commonwealth legislation which is in force during the policy period and the parties have expressed themselves badly in their literal language by the misnomer in the legislation,” he said.

He added that the case has “very large ramifications”.

“We have done our best to quantify that as a quarter of a million policies and a total amount at stake on this issue of some $10 billion and, in our submission, for that reason in addition to the questions of principle involved, we respectfully submit that special leave should be granted.”

John Sheahan QC, acting for the insureds, argued that in its ruling last year the NSW Court of Appeal found that the meaning of the expression “and subsequent amendments” does not encompass “wholesale repeal and replacement”.

“A finding as to the ordinary meaning of language is a factual finding,” he said.

“One does not come to this court to challenge a finding of that kind, particularly when it appears in a judgment of the unanimous Court of Appeal in a case of this kind.”

Justices Keane, Edelman and Gleeson retired from the bench to “discuss the course [the court] will take” at 12.23pm.

According to the transcript the court resumed one minute later at 12.24pm.

“The decision of the Court of Appeal of the Supreme Court of New South Wales is not attended by sufficient doubt to warrant the grant of special leave to appeal,” Justice Keane said.

“The application should be dismissed with costs.”

Click here to read the full transcript.