A new dawn for insurance scheme transfers
The Federal Court of Australia has made significant changes to the process for insurance scheme transfers of general and life insurance portfolios.
These changes involve taking a simpler, streamlined approach to the evidence required for confirmation hearings. They mark the most significant procedural developments to the regimes under the Insurance Act 1973 (Cth) and Life Insurance Act 1995 (Cth) in over 20 years.
Background
On 18 August 2023, Justice Jackman made orders confirming a scheme for the intra-group transfer of general insurance within the Allianz group under Division 3A of Part III of the Insurance Act 1973 (Cth) (Act).[1] Hall & Wilcox acted for Allianz.
Conventionally, insurance scheme transfers involve a detailed set of preliminary court orders that an applicant obtains and complies with to publicise the proposed scheme to affected policyholders to identify any concerns or objections.
Producing confirmatory evidence of compliance with these orders at the final confirmation hearing is often a voluminous process of extensive affidavit evidence, much of which can add little of value or relevance to the merits of the scheme in question. Many practitioners over the years have felt there must be a better, more efficient way.
Decision
The new approach has been modelled on that which Justice Jackman recently endorsed for Corporations Act scheme matters in Re Vita Group Ltd.[2] While this case involved a very different type of scheme to an insurance scheme, both are ex parte applications and share similar evidentiary requirements.
Justice Jackman explained the position as follows:
‘There is a question of principle as to the extent to which evidence is required of compliance with the earlier orders of the Court, bearing in mind the overarching purpose of the civil practice and procedure provisions expressed in s 37M of the Federal Court of Australia Act 1976 (Cth), namely to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible.
In applying s 37M in the context of members’ schemes of arrangement under s 411, I said in Re Vita Group Ltd… the Court is entitled to assume that its orders have been complied with, except to the extent that evidence is given as to any areas of non-compliance.
Any non-compliance would have to be raised at the second Court hearing in discharge of the responsibility of the plaintiff in an ex parte hearing of bringing to the Court’s attention all matters that are material to the exercise of its discretion…. In my view, that reasoning is equally applicable to applications for confirmation of insurance schemes pursuant to the Act.
In the present application, the applicants have provided evidence of compliance with the Court orders…, but have done so in a more economical way than has typically been the case in past applications….That evidence also establishes that the procedural requirements under the Act and GPS 410 have all been complied with.’ [3] [emphasis added]
Implications
This new ‘economical’ approach is available to be used for all insurance scheme transfers involving general or life insurance since the respective statutory regimes are largely identical.
It will avoid the need for detailed evidence to be produced to demonstrate compliance with court orders to publicise the proposed scheme to policyholders, and will result in significant savings of time and costs for applicants.
This decision may also open the way for the modernisation of other elements of the statutory process for insurance schemes, such as requiring facilities for policyholders to physically inspect documents that were created in the pre-internet age.
Please contact us if you would like to discuss these changes.
[1] In the matter of Allianz Australia General Insurance Limited [2023] FCA 994.[2] [2023] FCA 400
[3] Allianz at paragraphs [18] to [19].