Federal Court of Australia introduces Insurance List for short matters

The List is aimed at insurers, reinsurers, brokers and insureds, who want to resolve matters of policy interpretation more quickly.  Potentially, the List could achieve this.  But it is the first of its kind and no one knows how effective it will be.  Feedback from users will be sought once the List is in operation.

The National Court Framework reforms (NCF reforms) have brought about a re-organisation of the Federal Court. The Federal Court’s case load is now managed under eight National Practice Areas.

As part of the NCF reforms, the Federal Court of Australia continues to look for ways to promote the efficient, flexible and cost-effective handling of matters.  The latest proposal from the Chief Justice is the introduction of an insurance list for short matters (the List) within the commercial contracts, banking, finance and insurance sub-area of the Commercial and Corporation National Practice Area.

The List will run from March 2016 in Melbourne, Sydney, Perth, Brisbane and Adelaide.  

According to the Federal Court, the List will cater for a quick resolution of discrete legal issues before trial.  The stated aim is to provide the insurance community with a prompt and efficient mechanism to resolve disputes without the need for a full hearing.  Inevitably, it will also be directed at freeing up the Court’s resources to hear an increasing number of more complex cases and enabling the Court to meet its time goals for the disposition of cases.

The List will cover marine and non-marine insurance matters and will deal with ‘short’ matters.  These are not defined, but examples given by the Court include questions of policy interpretation and the operation of insurance legislation.  In other words, legal issues which do not involve a significant dispute on the facts.  A party will need to say why it considers that the matter should be heard in the List.  Ultimately, the Chief Justice will decide what goes into the List.  

A party wanting to use the List must provide a statement of up to half a page setting out why the matter should be heard in the List.  The request can be made at the time of filing the matter or later.  

What preparation will be required before a hearing in the List has not yet been specified.  However, it is anticipated that it will be similar to what is needed for an interlocutory application.  In other words, an application will need to be filed in writing, with the necessary supporting evidence, and served on the other parties at least three days before the date fixed for the hearing.  

Also not specified is how judgments will be delivered and whether they may be reserved.  It will be possible to appeal.  Appeals will be arranged expeditiously, to be heard by Judges of the commercial contracts, banking, finance and insurance sub-area of the Commercial and Corporation National Practice Area, without the need to wait for a Full Court sitting period.

Nobody knows how busy the List will be.  This will depend on whether parties decide to use it and whether matters are appropriate for it.  Initially, the Chief Justice will run the list, but the administration of the List will likely change over time according to the type and volume of matters being heard.

The main objective seems to be to expedite the determination of insurance matters involving discrete questions of policy interpretation and avoid full hearings.  

No assumption is made that resolving a question in the List will dispose of the matter, but in some cases, a preliminary determination of a critical issue may make it easier and quicker to resolve the claim without a trial.  

Whether sufficient use is made of the List, how the Chief Justice will administer it and how frequently the Chief Justice will sit are all difficult to predict.  Also difficult to predict is how the List’s effectiveness will be measured and how long it will take to determine whether it is operating effectively, both in terms of helping to resolve matters more efficiently for court users and in freeing up the Court’s resources to hear other cases.

The List will start in March 2016.  Current dates for the List are as follows:
Melbourne: 10 and 11 March 2016
Sydney:  21 and 22 March 2016
Perth: 5 and 6 April 2016
Brisbane: 19 and 20 April 2016
Adelaide:  26 and 27 April 2016

The Chief Justice will nominate later  fixture days for the List.  The intention will be to provide regular availability of hearing dates.  If necessary, a matter may be fixed for a day outside the list days.

Please contact us if you require advice or assistance in this area.

This Alert is for general information only and is not legal advice. It should not be regarded as a comprehensive statement of the law and practice in this area. You should take specific legal advice on any particular matter which concerns you.