BI test case appeal decision set for Monday

The Full Court is scheduled to deliver an appeals decision on the Insurance Council of Australia (ICA) second covid business interruption test case on Monday morning.

Justices Mark Moshinsky, Roger Derrington and Craig Colvin are due to hand down their judgments at 9.30am, court details show. An expedited appeals hearing was held in November and a decision had been expected by the end of December or early this year.

The justices considered five cases appealed from the ICA second test case hearings related to pandemic cover, as well as an appeal from The Star Entertainment Group against Chubb and other insurers.

“The ICA in consultation with its members will review the judgment after it has been delivered by the Full Court of the Federal Court,” a spokeswoman told insuranceNEWS.com.au today.

“ICA will release a detailed statement once we have had the opportunity to fully consider the judgment.”

Insurers have argued their policies did not provide cover for claims related to covid lockdowns and disruptions, but ambiguities left the door open for legal action.

In the initial decision in October, Federal Court Justice Jayne Jagot delivered a judgment largely in favour of insurers in the 10 cases heard.

The Star case was separately heard by Federal Court Chief Justice James Allsop, who also found in favour of the insurers.

Herbert Smith Freehills says whoever loses the Full Court decision will inevitably apply to the High Court for special leave to appeal.

“It would be a strange result if the High Court did not consider the issues to be of sufficient importance for special leave to be granted,” the legal firm says in a report.

“On that basis we doubt there will be any finality to the Covid-19 business interruption cover issues in Australia until late this year.”

The six cases awaiting the appeal decision on Monday are:

LCA Marrickville v Swiss Re International;

Meridian Travel (Vic) v Insurance Australia Limited;

The Taphouse Townsville v Insurance Australia Limited

Market Foods v Chubb Insurance Australia;

David Coyne as Liquidator of Educational World Travel (in liquidation) & Anor v QBE Insurance (Australia);

The Star Entertainment Group v Chubb Insurance Aust.