FEDERAL COURT OF AUSTRALIA
NSD 1201 of 2015
Date of judgment:
New South Wales
National Practice Area:
Commercial and Corporations
Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:
Solicitor for the Applicant:
Clyde & Co
Solicitor for the Australian Prudential Regulatory Authority:
Mr D Tran, APRA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The Applicant causes a copy of the summary of the Scheme approved by the Australian Prudential Regulation Authority (Approved Summary) to be sent by pre-paid post to:
(a) each of the policyholders identified in the Policyholder Register as described in the affidavit of Christopher Richard Flanagan sworn on 7 April 2016 (Flanagan Affidavit) and the supplementary affidavit of Christopher Richard Flanagan sworn on 8 April 2016 (Flanagan Supplementary Affidavit);
(b) each of the brokers, coverholders, managing general agents and master policyholders as described in the Flanagan Affidavit, the Flanagan Supplementary Affidavit and the further supplementary affidavit of Christopher Richard Flanagan sworn on 14 April 2016 (Further Flanagan Affidavit); and
(c) the National Insurance Brokers Association, Steadfast and Austbrokers.
3. The Applicant causes a page to be created on its website (accessible at www.berkleyinaus.com.au) that will contain a statement indicating that an application has been made to the Court for the approval of the Scheme and a link to the following documents:
(a) the Notice of Intention to make the application as required under APRA Prudential Standard GPS 410 Transfer and Amalgamation of Insurance Business for General Insurers (July 2002) (in the form to be approved by APRA) (the Approved Notice), in the form of Annexure A to these orders;
(b) the Scheme, as described in the Flanagan Affidavit;
(c) the Approved Summary, as described in the Flanagan Affidavit; and
(d) the Actuarial Report, as described in the Flanagan Affidavit.
4. The Applicant causes a copy of the Approved Notice to be published on two separate occasions (no less than one week apart) in the following publications:
(a) the Government Gazette; and
(b) The Australian, being a newspaper circulating in each State and Territory in which an affected policyholder resides; and
(i) The Sydney Morning Herald
(ii) The Age
(iii) The Canberra Times
(iv) The Mercury
(v) The Advertiser
(vi) The Northern Territory News
(vii) The West Australian
(viii) Courier Mail
5. The Applicant makes a copy of the Scheme, Approved Summary and Actuarial Report available for public inspection from 9:00am to 5:00pm (local time) everyday (except weekends and public holidays), for a period of at least 15 days at locations approved by APRA in each State and Territory in which an affected policyholder resides.
6. The Applicant provides a copy of the Scheme on request to any affected policyholder free of charge.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 On Monday of this week, 11 April 2016, in this matter, I delivered reasons which explained the nature of this application and this interlocutory application. Briefly, this is an application under Division 3A of Part III of the Insurance Act 1973 (Cth) and an interlocutory application for dispensation of compliance with s 17C(2)(c).
2 I indicated in my reasons on Monday that I had two particular problems. The first was that it was not clear to me that Segment D business had not resulted in English or UK resident or domiciled insureds. The significance of that was that the publication of the notices may have to go into English newspapers.
3 The second aspect was my concern that the notice to be put in those newspapers did not draw attention to W. R. Berkley clearly enough in circumstances where the ultimate insureds might consider that they were really doing business with an intermediary.
4 Mr Flanagan, who has already sworn two affidavits to which I refer, has sworn another further supplementary affidavit in which he goes through the Segment D business and, with one exception, makes it clear that there were no insureds other than Australian insureds. The qualification was that there were some risks written in New Zealand but all through the same broker. The consequence of Mr Flanagan’s further supplementary affidavit is that there is no need to advertise or distribute the notice in United Kingdom or English newspapers but notice can be given to the brokers in question for the New Zealand risks under other orders that are proposed.
5 As to the notice for the newspapers, a section has been inserted in the notice which satisfies my concern. The inserted notice commences with the paragraph, ‘In order to assist’ and concludes with the paragraph in bold immediately below (d) and whatever appears adjacent to that.
6 I am satisfied that with those changes and with ensuring that W.R. Berkley Insurance (Europe) Limited is not referred to by an acronym but as W.R. Berkley and Berkley Insurance Company is not referred to by an acronym but as Berkley Insurance, that the notice is adequate for the purposes sought to be made of it. Adopting the reasons that I gave on Monday and for those additional reasons, I will make orders in accordance with those propounded by the applicant. I will make those formally in chambers but for this record, they are in the form that have been provided to me with the exception that the notice will not contain acronyms but the names of the two companies as I have indicated.
7 [Subsequent to the hearing, the parties agreed upon a date for hearing which was incorporated into the notice.]