It's over: High Court refuses second BI test case appeal applications

It’s over: High Court refuses second BI test case appeal applications

14 October 2022

The High Court of Australia has today declined three appeal applications arising from the Insurance Council of Australia second test case over business interruption cover during the pandemic.

Policyholders were seeking leave to appeal in two cases – The Taphouse Townsville v Insurance Australia Ltd and LCA Marrickville v Swiss Re – after the Full Court had largely found in favour of insurers.

The High Court decision against hearing the appeals, made after oral arguments were heard from both sides, means that the Full Court judgment remains effective.

IAG also filed an application to the High Court in the case of Insurance Australia Ltd v Meridian Travel, with the issue confined to whether JobKeeper payments should be taken into account when calculating any payment where a policy did respond.

The Full Court had found that the payments shouldn’t be taken into account.

The second test case, which covered a broad range of issues including definition of a disease, proximity of an outbreak to a business, and prevention of access, first went before the Federal Court in September last year with 10 policyholder claims considered. Appeals on five of the matters were then heard by the Full Court.

The High Court was the last avenue of appeal and its decision brings to an end the test case saga that started in 2020. The first test case, which related to outdated policy wordings, went against insurers.

The High Court is today also considering an appeal application filed by The Star Entertainment Group in its dispute with Chubb and other insurers.

More details in our Daily bulletin this afternoon.