Policyholders press issues in High Court BI appeal
High Court appeal applications have been filed by two policyholders and one insurer participating in the industry business interruption test case, while separately The Star Entertainment Group is also seeking to overturn a previous decision.
Only a small number of appeal applications are accepted by the High Court, which may reject a case “on the papers” or hear oral arguments before deciding if it will further consider a matter.
“We do not anticipate that any decision on the special leave applications will be made for approximately three months from the date the applications were made,” the Insurance Council of Australia (ICA) said last week.
Key issues in The Taphouse Townsville v Insurance Australia and LCA Marrickville v Swiss Re International relate to the way the contracts are read as a whole, while the restaurant’s application also looks at the causation link between a local outbreak and state government orders.
On the overall reading of contracts, insureds are looking to overturn lower court judgments so cover may be available under a clause, such as prevention of access, even if it is ruled out by disease exclusions elsewhere in a separate clause.
“What the insureds are trying to argue is that you need to look at each individual cover on its own merits,” Clyde & Co Partner Gareth Horne said. “They are asking for those clauses to be read in isolation, basically.”
The Townsville case also considers the link between covid cases near the business in the regional city and Queensland March 2020 lockdown restrictions. The issue relates to causation under the policy’s hybrid clause.
Berrill and Watson Principal John Berrill says a significant additional portion of hybrid policies that had outdated Quarantine Act exclusions could respond if the High Court decision favours insureds.
The only test case issue where an appeal is sought from the insurers’ side 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.
“This is an important issue for policyholders and insurers throughout the industry given the number of businesses that participated in the JobKeeper program,” ICA says.
Casino group The Star Entertainment is seeking leave to appeal after lower courts found in favour of Chubb and other insurers, which had declined cover under a tailored industrial special risks policy.
The Full Court last month pointed to an exclusion citing the Biosecurity Act and the policy structure in ruling on the side of insurers, while noting the policy is “something of a collage” with “mental gymnastics required to put together the manner in which the agreed terms operate and which terms prevail over others”.
