High Court agrees to hear arguments in second BI test case

The High Court of Australia has confirmed it will hear arguments on the applications for special leave to appeal the Full Court of the Federal Court of Australia’s (Federal Court) judgement on the interpretation of policy wordings in business interruption (BI) insurance policies regarding COVID-19.

The Federal Court delivered its judgement on February 21, 2022, upholding insurers’ arguments in four of five matters in the test case that were appealed. It found that insurers were not liable to indemnify the policyholders in four matters.

In March 2022, two policyholders filed applications for special leave to appeal to the High Court. IAG also filed an application to confirm if JobKeeper payments should be considered when calculating any insurance payment.

Now, the High Court announced that an oral hearing will take place from October 2022, at the earliest.

Read more: Business interruption the “overarching umbrella” for top 10 business risks

The Insurance Council of Australia (ICA) has acknowledged the High Court’s announcement. ICA CEO Andrew Hall said: “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 judgement of the Full Court of the Federal Court of Australia.

“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.”

Some insurers’ battle against BI lawsuits remains unfinished. Most recently, IAG confirmed that it is facing a class action lawsuit in the Supreme Court of Victoria regarding its disclosure of the impact of COVID-19-related BI claims.