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Full Court backs insurers on BI appeal

The Full Court has largely upheld the findings of an earlier Federal Court decision in the appeal over business interruption cover during the covid pandemic.

Justice Mark Moshinsky says the Full Court has “substantially agreed” with the findings of Federal Court Justice Jayne Jagot, who heard the Insurance Council of Australia (ICA) second test case last October.

Justice Jagot had for the most part found in favour of insurers, with five of the 10 cases heard appealed by the policyholders. The hearing today largely upheld her decision.

“In particular, the Full Court agreed that in each of the cases other than Meridian Travel, the insuring clauses did not apply,” Justice Moshinsky said. “In relation to Meridian Travel, the Full Court substantially agreed with the conclusions of Justice Jagot.”

The court also agreed with the findings of Chief Justice James Allsop who found in favour of underwriters in the dispute between The Star Entertainment Group and Chubb and other insurers.

The appeal by The Star Entertainment Group should be dismissed with costs, the Full Court found.

The Full Court comprised Justices Moshinsky, Roger Derrington and Craig Colvin.

Justice Moshinsky said the appeal court had come to a different view to Justice Jagot in relation to “certain subsidiary issues”.

“In particular, the Full Court came to a different view as to whether, if an insured was entitled to recover, it would need to account for certain payments or benefits received from third parties, such as JobKeeper payments,” he said.

“The Full Court also came to a different view as to the payment of interest by an insurer, in the event that an insurer were liable to provide indemnity.”

As has previously reported, it is possible that the appellants could take the case to the High Court.