High Court to hear arguments on second test case appeal

4 August 2022

The High Court of Australia will hear oral arguments on special leave to appeal applications arising from the second insurance industry test case on business interruption cover during the pandemic.

The Insurance Council of Australia (ICA) said today the High Court has indicated the hearing will not be listed before October at the earliest.

“The Insurance Council and insurers acknowledge the High Court’s request to hear oral arguments on the applications for special leave to appeal parts of the judgment of the Full Court of the Federal Court of Australia,” CEO Andrew Hall said.

“We recognise this has been a particularly difficult time for many small businesses and we sought the courts’ determinations to establish the principles necessary to minimise disputes.”

The Full Court’s judgment on February 21 substantially upheld the arguments of insurers in four of the five matters in the test case that were appealed, ICA says.

Following that decision applications for special leave to appeal to the High Court were filed by two policyholders in March and an application was also filed by IAG over whether JobKeeper payments should be taken into account when calculating any payment.

The High Court last June heard oral arguments after insurers appealed the outcome of the first test case over exclusions citing the repealed Quarantine Act. In that case, special leave to appeal was refused after a brief hearing.

In considering special leave applications the High Court takes into account whether there is sufficient importance and public interest elements for an appeal to proceed at a later date before the court.

ICA says the industry will meet the costs of the policyholders in the special leave applications and any resulting appeals as agreed as part of the decision to obtain an outcome through test cases.