Federal Court of Australia

Asteron Life & Superannuation Limited, in the Matter of Asteron Life & Superannuation Limited [2021] FCA 708

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to subsection 191(5) of the Life Insurance Act 1995 (Cth) (the Act), the need for compliance with paragraph (c) of subsection 191(2) of the Act be dispensed with insofar as it requires that a summary of the Scheme approved by the Australian Prudential Regulation Authority (APRA) (Scheme Summary) be given to:

(a)    each owner of policies issued by Asteron Life & Superannuation Limited, the first applicant (Asteron Life) referable to its Statutory Funds 1 and 2 (Asteron Life Policy Owners); and

(b)    each owner of policies issued by TAL Life Limited, the second applicant, (TAL Life) referable to its Statutory Funds 1, 2 and 3 (TAL Life Policy Owners),

provided that the applicants comply with order 2 below.

2.    The applicants carry out the following steps:

Publication

(a)    on or shortly after 8 July 2021, publish the notice of intention to make the application to the Court for confirmation of the Scheme (Notice of Intention), in the form of Annexure A to these orders and approved by APRA, in:

(i)    the Commonwealth Government Notices Gazette (Gazette); and

(ii)    the company announcements section of the newspapers approved by APRA as listed in Annexure C to these orders;

Webpages and email

(b)    from on or shortly after 9 July 2021 (but not before the Notice of Intention has been published), up to and including the Effective Time (as defined in the Scheme document), make copies of the following documents available for viewing and download on the dedicated webpages set out in order 2(c) (webpages):

(i)    the Notice of Intention;

(ii)    the Scheme document;

(iii)    the Scheme Summary;

(iv)    the actuarial reports of Joshua Corrigan, the Appointed Actuary of the first and second applicants; and

(v)    the actuarial report of John Nicholls, an independent actuary,

(together, the scheme documents);

(c)    from on or shortly after 9 July 2021, up to and including the Effective Time, include links to the scheme documents at the following webpages on the “Asteron Life” and “TAL Life” branded websites of TAL Dai-ichi Life Australia Pty Limited:

(i)    www.asteronlife.com.au/scheme-transfer (Asteron Life Website); and

(ii)    www.tal.com.au/scheme-transfer (TAL Life Website);

(d)    from on or shortly after 8 July 2021 until the date of the confirmation hearing of the Scheme, establish a dedicated email address as specified in the Scheme Summary to receive enquiries about the Scheme;

Mail out

(e)    on or shortly after 16 July 2021, send, by regular pre-paid post, the Scheme Summary to Asteron Life Policy Owners, except for those Asteron Life Policy Owners for whom the first applicant has no record of a current mailing address;

(f)    in the event that any posted material referred to in order 2(e) is returned undelivered up to and including 15 days prior to the date of the confirmation hearing, to the extent reasonably practicable, follow the returned mail procedure (as described in the affidavit of David Lees sworn on 15 June 2021) for the posted material referred to in order 2(e);

(g)    for persons who become Asteron Life Policy Owners on and from 11 June 2021 up to the Effective Time, provide a copy of the Scheme Summary by regular pre-paid post after the mail out described above in order 2(e);

Call Centre

(h)    from on or shortly after 8 July 2021 up to and including the date of the confirmation hearing, establish a call centre to handle calls about the Scheme made to the dedicated toll free phone number in Australia specified in the Notice of Intention (call centre);

(i)    train call centre staff to handle calls to the call centre relating to the Scheme;

Other Notification

(j)    on request, from on or shortly after 16 July 2021 until the date of the confirmation hearing, as soon as reasonably practicable, provide a copy of the scheme documents to the Asteron Life Policy Owners and TAL Life Policy Owners free of charge;

(k)    from on or shortly after 16 July 2021, send, by email, a general overview of the Scheme and links to the Scheme Summary and other scheme documents on the TAL Life Website to the trustees of registrable superannuation entities who are TAL Life Policy Owners;

(l)    from on or shortly after 16 July 2021, send, by email, a general overview of the Scheme and links to the Scheme Summary and other scheme documents on the Asteron Life Website or the TAL Life Website to financial advisers, brokers and financial advice licensees on a distribution list maintained by Asteron Life and TAL Life before or after the publication of the Notice of Intention;

(m)    from on or shortly after 9 July 2021 (but not before the Notice of Intention has been published), publish a short notification about the Scheme, including details of how affected policy owners can access further information about the Scheme, through the following social media channels maintained by Asteron Life and TAL Life:

a.    a Facebook page maintained by Asteron Life, accessible at https://www.facebook.com/AsteronLifeInsurance;

b.    a Facebook page maintained by TAL Life, accessible at https://www.facebook.com/TALaustralia;

c.    a LinkedIn page maintained by TAL Life, accessible at https://www.linkedin.com/company/talaustralia/;

d.    a Twitter feed maintained by TAL Life, accessible at https://twitter.com/talaustralia; and

Public Inspection

(n)    from 23 July 2021 to 20 August 2021, make a copy of the scheme documents available for public inspection from 9.00am to 5.00pm on weekdays (excluding public holidays) at each location approved by APRA and set out in Annexure B to these orders.

3.    The application be adjourned to 10 September 2021 at 10:15am AEST for a confirmation hearing.

4.    The plaintiffs pay APRA’s costs of the proceedings to date, as agreed or assessed.

5.    Liberty to apply on 2 days’ notice.

Annexure A – Notice of Intention

Annexure B – Locations for Public Inspection

1.    In New South Wales, at the offices of Herbert Smith Freehills (level 34, ANZ Tower, 161 Castlereagh Street, Sydney NSW 2000);

2.    In Queensland, at the offices of Herbert Smith Freehills (level 31, 480 Queen Street, Brisbane QLD 4000);

3.    In South Australia, at the offices of DMAW Lawyers (level 10, 81 Flinders Street Adelaide SA 5000);

4.    In Victoria, at the offices of Herbert Smith Freehills (level 42, 101 Collins Street, Melbourne VIC 3000);

5.    In Western Australia, at the offices of Herbert Smith Freehills (level 36, 250 St. Georges Terrace, Perth WA 6000);

6.    In Tasmania, at the offices of Dobson Mitchell Allport (59 Harrington Street Hobart, Tas 7001);

7.    In the Australia Capital Territory, at the offices of King & Wood Mallesons (level 12, 1 Constitution Avenue, Canberra, ACT 2601); and

8.    In the Northern Territory, at the offices of HWL Ebsworth (level 9, Mitchell Centre, 59 Mitchell Street, Darwin NT 0800).

Annexure C – Newspapers for notification

1.    In New South Wales, The Sydney Morning Herald and The Daily Telegraph;

2.    In Queensland, The Courier Mail;

3.    In South Australia, The Advertiser;

4.    In Victoria, The Age and the Herald Sun;

5.    In Western Australia, The West Australian;

6.    In Tasmania, The Mercury and The Examiner;

7.    In the Australia Capital Territory, The Canberra Times;

8.    In the Northern Territory, The Northern Territory News; and

9.    Nationally, The Australian and The Australian Financial Review.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    In this matter, orders are sought for dispensation with the need for compliance with s 191(2)(c) of the Life Insurance Act 1995 (Cth) in relation to the matter of a transfer of life insurance business from Asteron Life and Superannuation Limited to TAL Life Limited (the Scheme). Having read and considered the evidence filed in the dispensation hearing, being the affidavits of David Lees of 15 June 2021, Anne Clark of 23 June 2021 and Joshua Corrigan of 24 June 2021 and the other exhibits filed today, and having considered the submissions of counsel, Mr Hollo of senior counsel on behalf of the applicant companies and Ms Laing appearing for the Australian Prudential Regulation Authority, I am prepared to make orders for dispensation in the form to which I will come in a moment.

2    There are some issues of principle in relation to a consideration of dispensation under s 191 which should be dealt with and I will deal with these and my detailed reasons for dispensation in the future judgment after the confirmation hearing. For now I am persuaded on that evidence and from those submissions that the Court may dispense with the need for compliance with s 191(2)(c) in relation to the Scheme because I am satisfied that because of the nature of the Scheme, and all the circumstances attending its preparation, it is not necessary that s 191(2)(c) be complied with as long as there is compliance with Order 2 that I will make.

3    The matter will be listed for the confirmation hearing on Friday, 10 September 2021 at 10:15am and I grant liberty to apply on two days’ notice.

Associate:

Dated:    25 June 2021