Commercial and Corporations Practice Note (C&C-1)
Schedule 2: Insurance List
Scope of List - Insurance Matters
1. The expression "insurance matters" applies to matters in the Commercial Contracts, Banking, Finance and Insurance Sub-area and includes matters arising under or in relation to:
whether by way of construction and interpretation of the policy or otherwise.
2. Insurance matters will be allocated to the Insurance List on filing by the Chief justice and the National Operations Registry, subject to possible allocation (if appropriate) to the Admiralty and Maritime NPA (see para 16(c) below).
Operation of Sub-area
3. The Commercial and Corporations Practice Note (C&C-1) (to which this schedule is attached) applies to all insurance matters.
Insurance List Judge and Insurance Registrars
4. There is one Insurance List Judge responsible for the case management of all matters nationally allocated to the Insurance List (the Senior Insurance List Judge). The contact details for the Senior Insurance List Judge are set out on the Court's website.
5. Other judges from the Court's Commercial and Corporations – Commercial Contracts, Banking, Finance and Insurance Sub-area will be allocated cases from time to time.
6. There are a number of Registrars with expertise in the Insurance Sub-Area who are Insurance Sub-Area Registrars. Their contact details are set out on the Court's website.
Insurance List
7. The aim of the Insurance List is to provide to the insurance community (underwriters, reinsurers, brokers and insureds) a method for the prompt and efficient resolution of insurance matters, including applications for leave to appeal and appeals.
8. This aim is proposed to be achieved by consolidating the case management of insurance matters generally under a single Insurance List Judge (the Senior Insurance List Judge) and the allocation of insurance matters to Commercial Contracts, Banking, Finance and Insurance Judges and Insurance Registrars. It is anticipated that, to the extent possible, the Senior Insurance List Judge managing the List will hear many of the cases, otherwise they will be allocated by the Chief Justice to a Judge in the Contracts, Banking, Finance and Insurance Sub-Area.
9. The Insurance List will be case managed as a separate list on a day or days to be allocated by the Senior Insurance List Judge. The current listing days and times for the Insurance List are on the Court's website.
Schemes
10. Practitioners seeking interlocutory and final hearing dates relating to schemes concerning the transfer of insurance or life insurance businesses may contact the National Operations Registry (email: NORTeam@fedcourt.gov.au) to obtain potential hearing dates before the Senior Insurance List Judge or another judge before the filing of an application.
Urgent interlocutory applications
11. Practitioners seeking an urgent interlocutory hearing relating to an insurance matter may contact the National Operations Registry (email: NORTeam@fedcourt.gov.au) to obtain potential hearing dates before the Senior Insurance List Judge or an Insurance Sub-Area Judge before the filing of an application, provided that the interlocutory and originating application will be ready to be filed within 72 hours of the contact.
12. Any urgent interlocutory hearing relating to an insurance dispute or matter to be filed in accordance with paragraph 9 must be accompanied by a short statement (not exceeding half a page) explaining why the application is urgent.
13. If the Senior Insurance List Judge or another Commercial Contracts, Banking, Finance and Insurance Judge is not available to deal with the urgent interlocutory application, the interlocutory application will be referred to the Commercial and Corporations Duty Judge or Commercial and Corporations Judge for hearing.
Other applications
14. When filing an originating application in an insurance matter, an originating process should be used (Form 15).
15. The originating application must be accompanied by an affidavit, concise statement or a statement of claim (as appropriate under the Federal Court Rules) preferably a concise statement and such other documents as required to be filed with the originating application by the Federal Court Rules.
16. The originating application must also be accompanied by a short statement (not exceeding one page) which identifies:
(a) why the matter is an insurance matter;
(b) the basis of the Court's jurisdiction in respect of the matter;
(c) whether it is more appropriate for the matter to be allocated to the Insurance List or the Admiralty and Maritime NPA;
(d) whether the matter is or may be suitable for any order under rule 30.01(1) of the Federal Court Rules (an order that a question arising in the proceeding be heard separately from any other questions);
(e) if so, the terms or subject-matter of the potential separate question(s);
(f) the utility of the making of any order under rule 30.01(1) of the Federal Court Rules;
(g) the estimated length of the hearing if an order is made that a question arising in the proceeding be heard separately from any other questions;
(h) the urgency or otherwise of the resolution of the matter;
(i) whether mediation or case management by an Insurance Registrar before the matter is listed for a case management hearing before the Insurance List judge would be useful and, if so, why; and
(j) whether any aspect of the proceeding would be suitable for a report by a referee and s54A of the Federal Court of Australia Act 1976 (Cth).
17. If relevant to the insurance matter, the applicable insurance policy documents and claim must be filed with the originating application. If a respondent contends that other policy documents and claims are relevant the contending respondent must file those additional or different documents, if possible, before the first case management hearing or the making of the first case management orders. If this is not possible, those documents should be filed within seven days from the first case management hearing or the making of the first case management orders.
18. All insurance matters will be referred to the Senior Insurance List Judge or, if requested by a party and/or considered appropriate by the Senior Insurance List Judge, to an Insurance Registrar for case management.
19. Before any case management, the parties should confer and seek to agree orders for the efficient and timely resolution of the matter. Agreed proposed orders may be sent to the Senior Insurance List Judge at any time.
20. In proposing and negotiating proposed case management orders for matters in the Insurance List practitioners should consider the orders which will best enable achieving the aims of the Insurance List.
21. Parties and practitioners have a duty to conduct proceedings in a way that is consistent with the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
22. Amongst other things (including the provisions of the Central Practice Note: National Court Framework and Case Management (CPN-1)) parties should consider:
(a) the utility of declarations to resolve the whole or part of the dispute (see for example, National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; (2019) 377 ALR 627);
(b) identification and determination of separate question(s) as provided for in rule 30.01(1) of the Federal Court Rules;
(c) statements of facts including statements identifying (by colour or otherwise):
(i) agreed facts;
(ii) competing versions of disagreed facts;
(iii) facts contended by one or other party to be irrelevant to the issues to be resolved
That is, a dispute as to relevance is not a proper reason not to include an agreed or disagreed fact in a statement of facts. Rather, the issue of relevance should be included in the statement of facts;
(d) use of concise statements or points of claim and defence including such documents confined to facts material to any declarations sought or proposed separate question(s);
(e) use of an Insurance Registrar or other person as a referee, particularly in respect of complex disputed factual issues; and
(f) use of agreed and jointly appointed experts or Court-appointed experts or a referee, particularly in respect of complex disputed factual issues; and
(g) the appropriateness of any request for the Chief justice to make a direction under s 20(1A) of the Federal Court Act that the matter or part be heard by a Full Court exercising original jurisdiction ("If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court").
23. The Senior Insurance List Judge may refer any insurance matter to an Insurance Registrar for case management and/or the National Operations Registry for substantive allocation by the Chief Justice to another senior judge in the Commercial Contracts, Banking, Finance and Insurance Sub-area for case management and hearing. In so doing the Insurance List Judge will particularly consider:
(a) if the hearing of the matter (or part) will be greater than five days – in which event case management by an Insurance Registrar or substantive allocation may be appropriate;
(b) the degree of expedition required for the resolution of the matter – if expedited resolution is not required or able to be achieved, substantive allocation may be appropriate; and
(c) the extent of co-operation between the parties – if the parties are unable to co-operate effectively to achieve the aim of the Insurance List, case management by an Insurance Registrar or substantive allocation may be appropriate.
Test cases
24. The Court will facilitate the expedited case management, hearing and delivery of judgment (including in respect of applications for leave to appeal and appeals) of any insurance matter which will have broader application than the immediate matter. But there must be a "matter", that is a "justiciable controversy" which requires a real and not a hypothetical controversy raised by a person with a real and not a hypothetical interest in the resolution of the controversy: see National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; (2019) 377 ALR 627 at [77]-[120].
Leave to appeal and appeals
25. Leave to appeal is required to appeal against any interlocutory order: s 24(1A) of the Federal Court Act.
26. Parties should be aware of the difference between:
(a) the determination of separate question(s) under rule 30.01(1) of the Federal Court Rules enabling a consequential order or declaration to be made determining the whole or any part of the proceeding (which, in the latter case, may be an interlocutory order); and
(b) a staged hearing of issues (which may result in the making of interlocutory orders).
27. In the case of (a) (determination of separate question(s)), the parties should consider requesting the judge deciding the separate question(s) to grant leave to appeal against any substantive order or declaration made as a consequence of the answer to the separate question(s). This request should be made before the judge makes orders as a result of the answer to the separate question(s). In making the request or subsequently making any formal application for leave to appeal (if leave is not granted by the judge deciding the separate question(s)) the parties should consider whether or not it would be more time and cost effective to enable determination of all issues in the matter before any appeal is brought.
28. In the case of (b) (staged hearing of issues):
(a) the purpose of a staged hearing of issues (generally, the orderly conduct of the hearing as a whole) may be undermined by interlocutory appeals; and
(b) in making any request of the deciding judge for leave to appeal or subsequently making any formal application for leave to appeal (if leave is not granted by the judge deciding the separate question(s)) the parties should consider whether or not it would be more time and cost effective to enable determination of all issues in the matter before any appeal is brought.
9 November 2022
