FEDERAL COURT OF AUSTRALIA

OnePath Life Limited, in the matter of OnePath Life Limited [2022] FCA 406

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 the requirements of 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) be given to:

(a)    each owner of a policy issued by OPL, the First Applicant (OPL Policy Owners); and

(b)    each owner of a policy issued by ZAL, the Second Applicant (ZAL Policy Owners),

provided that the Applicants comply with order 2 below.

2.    The Applicants carry out (or cause to be carried out) the following steps:

PUBLICATION OF NOTICE OF INTENTION

(a)    on or shortly after 27 April 2022, publish the notice of intention to make an application to the Court for confirmation of the Scheme (Notice of Intention), in the form, or substantially in the form of Annexure A to these orders and approved by APRA, in:

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

(ii)    the newspapers approved by APRA as listed in Annexure B to these orders (Newspapers);

NEWSPAPER ADVERTISEMENT, MEDIA RELEASE AND TRADE ADVERTISEMENTS

(a)    on or shortly after 18 May 2022, publish an advertisement about the Scheme, in the form, or substantially in the form of Annexure C to these orders, in the front section of the Newspapers;

(b)    on or shortly after 28 April 2022, issue and publish on the webpages www.zurich.com.au/news and www.onepath.com.au/about-us, a media release about the Scheme, in the form, or substantially in the form of Annexure D to these orders (Media Release);

(c)    on or shortly after 28 April 2022, send, by email, a copy of the Media Release to the following publications:

(i)    investor daily;

(ii)    IFA;

(iii)    Risk Adviser;

(iv)    Money Management; and

(v)    Risk Info;

POSTAL AND EMAIL NOTIFICATION

(a)    between 2 May 2022 and 3 June 2022 (or shortly after), send, by email, the summary of the Scheme approved by APRA in the form, or substantially in the form of Annexure E to these orders (Scheme Summary) to each OPL Policy Owner:

(i)    for whom OPL, the First Applicant, holds a current email address; and

(ii)    who has not notified OPL of a preference to receive communications by post,

as at 5pm AEST on 19 April 2022;

(b)    between 2 May 2022 and 3 June 2022 (or shortly after), send, by regular pre-paid post, the Scheme Summary to OPL Policy Owners:

(i)    for whom, OPL, the First Applicant, does not hold a current email address; or

(ii)    who have notified OPL of a preference to receive communications by post),

as at 5pm AEST on 19 April 2022, except for those OPL Policy Owners for whom OPL, the First Applicant, has no record of a current postal address;

(c)    on or before 2 May 2022, to the extent reasonably practicable, follow the 'data wash' processes (as described in paragraphs 29 to 32 of the affidavit of Hilary Bates affirmed 24 March 2022 and paragraph 3 of the affidavit of Hilary Bates affirmed 8 April 2022);

(d)    for persons who become OPL Policy Owners:

(i)    on and from 5.01pm AEST on 19 April 2022 up to and including 5pm AEST on 28 April 2022, send, by regular pre-paid post or by email (in accordance with the preference nominated by each such policy owner) the Scheme Summary to these policy owners between 2 May 2022 and 3 June 2022 (or shortly after); and

(ii)    on and from 5.01pm AEST on 28 April 2022 up to and including 25 days prior to the date of the confirmation hearing of the Scheme (Confirmation Hearing), send, by regular pre-paid post or by email (in accordance with the preference nominated by each such policy owner) the Scheme Summary in the 'Welcome Packs' issued to those policy owners in accordance with OPL's normal operating procedures, within 1 business day (or shortly after) of OPL accepting that policy owner's application for cover;

(e)    in the event that any emailed material referred to in order 2(e) or 2(h) above is returned undelivered up to and including 25 days prior to the date of the Confirmation Hearing, to the extent reasonably practicable, follow OPL's email bounce back procedure for the Scheme (as described in paragraph 47 of the affidavit of Hilary Bates affirmed 24 March 2022) to identify a new email or postal address for the relevant policy owner(s) and, if identified following that procedure, resend the Scheme Summary to that new address;

(f)    in the event that any posted material referred to in order 2(f) or 2(h) above is returned undelivered up to and including 25 days prior to the date of the Confirmation Hearing, to the extent reasonably practicable, follow OPL's returned mail procedure (as described in paragraph 25 of the affidavit of Hilary Bates affirmed 24 March 2022) to identify a new email or postal address for the relevant policy owner(s) and, if identified following that procedure, resend the Scheme Summary to that new address;

WEBPAGES AND DEDICATED EMAIL ADDRESS

(a)    from on or shortly after 28 April 2022 (but not before the Notice of Intention has been published in both the Gazette and the Newspapers), up to and including the Effective Date (as defined in the Scheme document) (Effective Date), make copies of the following documents available for viewing and download via a link to dedicated webpages on the following websites: www.zurich.com.au and www.onepath.com.au (Webpages):

(i)    The Notice of Intention;

(ii)    the Scheme Summary;

(iii)    the Scheme document;

(iv)    the joint actuarial report of Mr Stuart Turner, the Appointed Actuary of ZAL, the Second Applicant and Mr Ian Wong, the Appointed Actuary of OPL, the First Applicant dated 23 March 2022; and

(v)    the actuarial report of Mr Martin Paino of KPMG, an independent actuary dated 23 March 2022,

(together, the Inspection Documents);

(b)    from on or shortly after 28 April 2022 up to and including the Effective Date, include links to the Webpages on the login pages of the Zurich Customer Portals for OPL Policy Owners and ZAL Policy Owners;

(c)    from on or shortly after 27 April 2022 up to and including the date of the Confirmation Hearing, establish dedicated email addresses as specified in the Notice of Intention and Scheme Summary to receive enquiries about the Scheme;

CALL CENTRE

(a)    from on or shortly after 27 April 2022, up to and including the date of the Confirmation Hearing, establish a dedicated call centre to handle calls about the Scheme made to the dedicated toll free phone numbers specified in the Notice of Intention and Scheme Summary (Call Centre);

(b)    train Call Centre staff to handle calls to the Call Centre relating to the Scheme;

PUBLIC INSPECTION

(a)    from 23 May 2022 to 24 June 2022 (inclusive), make a copy of the Inspection Documents available for public inspection from 9:00am to 5:00pm on weekdays (other than public holidays) at each location approved by APRA and specified in the Notice of Intention;

OTHER NOTIFICATION

(a)    on request, from on or shortly after 27 April 2022, until the date of the Confirmation Hearing, as soon as reasonably practicable, provide a copy of the Inspection Documents to OPL Policy Owners and ZAL Policy Owners free of charge;

(b)    publish a general announcement about the Scheme, including details of how affected policy owners can access further information about the Scheme in the newsletter issued to ZAL Policy Owners in June 2022;

(c)    on or shortly after 28 April 2022 (but not before the Notice of Intention has been published), publish a general announcement about the Scheme, including details of how affected policy owners can access further information about the Scheme through the LinkedIn page maintained by Zurich Financial Services Australia Limited ABN 11 008 423 372 (ZFSA), accessible at https://www.linkedin.com/company/zurich.australia/ in the form, or substantially in the form, of Annexure F to these orders;

(d)    publish a general announcement about the Scheme to independent financial advisers and financial advice licensees registered with the Applicants (Advisers and Licensees) in the first monthly newsletter to Advisers and Licensees following publication of the Notice of Intention and at least one other subsequent monthly newsletter in the period following publication of the Notice of Intention and up to and including the Confirmation Hearing;

(e)    on or shortly after 28 April 2022 send, by email, the Scheme Summary and other information about the Scheme to Advisers and Licensees in the form, or substantially in the form of Annexure G to these orders;

3.    In the event that any of the locations referred to in order 2(p) above is situated in a State or Territory affected by a public health order made in response to the COVID-19 pandemic (COVID-19 Health Order) which restricts the movement of persons from their place of residence, or restricts the ability of persons to attend their place of work, or restricts the movement through or entry into that area, the Applicants are not required to comply with order 2(p) above in the affected State or Territory, provided that until the date of the Confirmation Hearing, they publish notification on the Webpages referred to in order 2(k) above, which provides that certain locations for public inspection of the Inspection Documents are closed by reason of a COVID-19 Health Order and that policy owners can contact the Call Centre, or email the dedicated email addresses referred to in order 2(m), or otherwise access an electronic copy of the Inspection Documents on the Webpages referred to in order 2(k) above.

4.    The application be adjourned to 6 July 2022 at 10.15am AEST for a confirmation hearing.

5.    ZFSA pay APRA’s costs of the proceedings to date, as agreed or, if agreement cannot be reached, as assessed.

6.    There be liberty to apply on 2 days’ notice.

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

Annexure A

Notice of Intention to make an application to the Federal Court of Australia for confirmation of a Scheme for the transfer of the life insurance business of OnePath Life Limited to Zurich Australia Limited under Part 9 of the Life Insurance Act 1995

Notice is given that OnePath Life Limited ABN 33 009 657 176 (OnePath Life) and Zurich Australia Limited ABN 92 000 010 195 (Zurich) propose to make a joint application to the Federal Court of Australia seeking confirmation of a scheme under Part 9 of the Life Insurance Act 1995 (Cth) to transfer the life insurance business of OnePath Life to Zurich (Scheme). On 31 May 2019, OnePath Life was acquired by the Zurich group from the Australian and New Zealand Banking Group and the Scheme is being undertaken as part of an internal reorganisation of the group.

Should the Scheme be confirmed by the Federal Court of Australia:

    all of the life insurance business of OnePath Life will be transferred to Zurich; and

    Zurich will be substituted for OnePath Life under policies underwritten by OnePath Life,

on or about 1 August 2022.

The date fixed for the hearing of the application is 6 July 2022 at 10.15am AEST or on such other date and time as the Federal Court appoints. The hearing will be held at the New South Wales Registry of the Federal Court of Australia, which is located at the Law Courts Building, Queens Square, Sydney NSW 2000.

Any person who may be affected by the Scheme (Affected Policy Owners) can attend the Federal Court hearing and request to be heard by the Federal Court on the application.

If you'd like to be heard at the hearing, it would assist if you could please contact our lawyers, MinterEllison (Attention: James Beaton), Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 (telephone 02 9921 8888) between 9am and 5pm Monday to Friday, at least three business days before the hearing date.

Affected Policy Owners aren’t required to take any action if they have no objection to the Scheme.

A copy of this notice, the Scheme, a summary of the Scheme approved by the Australian Prudential Regulation Authority (Scheme Summary), the actuarial report prepared jointly by the appointed actuary of OnePath Life (Mr Ian Wong) and Zurich (Mr Stuart Turner) on which the Scheme is based and an independent actuarial report prepared by Mr Martin Paino of KPMG on the Scheme (Actuarial Reports) will be available free of charge to view or download at www.zurich.com.au/scheme and www.onepathinsurance.com.au/scheme from 28 April 2022.

Any person may also obtain a copy of these documents free of charge by calling or emailing the OnePath Life and Zurich contact centre teams during the hours 8.30am to 5pm AEST Monday to Friday during the period 27 April 2022 to 6 July 2022 (except public holidays in New South Wales) using the details below:

Copies of these documents will also be available for inspection during the hours of 9am to 5pm (local time) Monday to Friday during the period 23 May 2022 to 24 June 2022 (except public holidays in the relevant State or Territory) at the following locations. You can also request a free copy of the scheme documents at these locations during these times.

A Scheme Summary will be sent to policy owners who hold a OnePath Life policy, including any owner of a OnePath Life policy that is a group policy.

If you are a Zurich policy owner, or an insured under either a OnePath Life policy or a Zurich policy but are not the owner of that policy, you may also obtain a copy of the Scheme and associated documents in the manner described above. To assist you in assessing whether you are an insured person, but not a policy owner, of a OnePath Life or Zurich group policy, please note that OnePath Life and Zurich issue policies with life insurance cover, investment benefits and/or annuities to:

    trustees of superannuation funds, who are the policy owners, for the benefit of fund members, who are the insureds; and

    group policies to entities such as employers, who are the policy owners, for the benefit of their employees, who are the insureds.

If you are a member of a superannuation fund or an insured under a group policy, we recommend you check whether the insurer is either of OnePath Life or Zurich.

There are currently two class actions commenced against OnePath Life. While the outcome of these actions is currently unknown, after the Scheme takes effect the class action proceedings (if still on foot) will be continued against Zurich rather than OnePath Life. No costs and expenses associated with the class actions will be charged to OnePath Life or Zurich policy owners. Any such costs and expenses will be met by Zurich and will be borne by the Zurich Shareholder Fund.

Should you require further information or have any concerns about the proposed Scheme, please contact OnePath Life’s Scheme Contact Centre on 1800 161 163 or Zurich’s Scheme Contact Centre on 1800 161 164.

We recommend that each Affected Policy Owner obtain a copy of and review the Scheme, the Scheme Summary and the Actuarial Reports, which contain a discussion of the impact of the Scheme on policy owners.

Signed by the Company Secretaries, OnePath Life and Zurich.

Cathy Manolios and Joong Harrison

Annexure B – Newspapers for notification

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

2.    In Victoria, The Age and The Herald Sun;

3.    In Queensland, The Courier Mail;

4.    In Western Australia, The West Australian;

5.    In South Australia, The Advertiser;

6.    In Tasmania, The Mercury and The Examiner;

7.    In the Northern Territory, The Northern Territory News;

8.    In the Australian Capital Territory, The Canberra Times; and

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

Annexure C – Newspaper advertisement

Annexure D – Media Release

Proposed transfer of the life insurance business of OnePath Life Limited to Zurich Australia Limited

OnePath Life Limited (OnePath Life) and Zurich Australia Limited (Zurich) announce their intention to make a joint application to the Federal Court of Australia (the Court) seeking confirmation of a scheme (the Scheme) under Part 9 of the Life Insurance Act 1995 (Cth) to transfer the life insurance business of OnePath Life to Zurich. The confirmation hearing is scheduled for 6 July 2022, or such other date as the Court determines. It is intended that the proposed transfer take effect on 1 August 2022.

Should the Scheme be confirmed, OnePath Life policies will be treated as if they had been issued and administered by Zurich rather than OnePath Life. OnePath Life will, however, retain assets to meet regulatory capital requirements.

Three years ago, OnePath Life became part of the Zurich group. The proposed transfer is a key milestone and the final step in the process of formally bringing together the businesses of our two Australian life insurers. This consolidation will also assist us in managing our regulatory requirements more efficiently and simplify financial, operational and administrative processes.

For further information, and to access the Scheme documents, visit www.onepath.com.au/scheme and www.zurich.com.au/scheme.

Annexure E – Scheme summary

Scheme summary

We're proposing to transfer the life insurance business of OnePath Life Limited to Zurich Australia Limited

1.    About this scheme summary

OnePath Life Limited ABN 33 009 657 176 (OnePath Life) is proposing to transfer its life insurance business to Zurich Australia Limited ABN 92 000 010 195 (Zurich).

The proposed transfer is to be made under a scheme that requires confirmation by the Federal Court of Australia under Part 9 of the Life Insurance Act 1995 (Cth) (Life Act). The scheme will not take effect unless it is confirmed by the Federal Court.

This summary, which has been approved by the Australian Prudential Regulation Authority (APRA), explains:

•    the proposed transfer;

•    how the transfer will occur;

•    your rights as a policy owner; and

•    how the proposed transfer will affect you,

and other aspects of the proposed transfer that you should know about.

A copy of this summary must be given to every owner of a OnePath Life policy that is affected by the scheme. You are receiving this summary because you are the owner of a OnePath Life policy.

2.    Proposed transfer

In 2019, OnePath Life became part of the Zurich group. We're now proposing to transfer OnePath Life's life insurance business to Zurich. OnePath Life and Zurich are both companies incorporated in Australia which are registered by APRA under the Life Act to carry on life insurance business in Australia.

We're proposing to consolidate these businesses so we can manage our regulatory requirements more efficiently and simplify financial, operational and administrative processes.

3.    How the transfer will occur

Before the proposed transfer can go ahead, the Federal Court must confirm the scheme under Part 9 of the Life Act. If the Federal Court confirms the scheme, the life policies and insurance liabilities of OnePath Life will be transferred to Zurich in accordance with the terms of the scheme, and OnePath Life policies will be treated as if they had been issued by Zurich rather than OnePath Life.

The scheme will become binding under the Life Act on all persons if it's confirmed by the Federal Court.

4.    Your rights as a policy owner

As a policy owner affected by the proposed scheme you have the right to:

•    obtain a copy of this scheme summary, the scheme, the notice of intention, the actuarial report and the independent actuarial report (Scheme Documents) free of charge (see section 11 below for details); and

•    attend the Court hearing and request to be heard on the application for confirmation of the scheme (see below for details).

If you’d like to ask further questions or provide feedback about the proposed scheme, you can do this by submitting your questions or comments to us via email or telephone using the details set out in section 11 below. Further, you may wish to exercise your right to attend the Federal Court hearing and request to be heard by the Federal Court on the scheme.

A joint application by OnePath Life and Zurich for confirmation of the scheme will be made to the Federal Court in Sydney on 6 July 2022 at 10.15am AEST, or on such other date and time as the Court appoints. If you’d like to appear before the Court, it would assist if you could please contact James Beaton, MinterEllison (02 9221 4063), between 9am and 5pm, at least three business days before the hearing date.

5.    Effective date of the scheme

The Federal Court will determine the exact time and date of the transfer which we propose will be 12:01am on Monday, 1 August 2022 or such other date agreed between the parties and approved by the Federal Court.

6.    Who pays for the scheme

Any costs and expenses associated with the proposed transfer under the scheme will be met by Zurich Financial Services Australia Limited, the Australian parent company of each of OnePath Life and Zurich. No costs will be charged to OnePath Life policy owners or Zurich policy owners.

7.    Opinions of the actuaries

An actuarial report has been prepared jointly by the appointed actuary of OnePath Life (Mr Ian Wong) and Zurich (Mr Stuart Turner) (Appointed Actuaries) and an independent actuarial report has been prepared by Mr Martin Paino of KPMG (Independent Actuary).

Both the Appointed Actuaries and the Independent Actuary considered the impact of the scheme on the policy owners of OnePath Life and Zurich, including:

a)    the contractual benefits and other rights of existing policy owners;

b)    the reasonable benefit expectations of policy owners; and

c)    the benefit security provided to policy owners after the scheme takes effect, having regard to the investment strategy, capital position and reinsurance arrangements of OnePath Life and Zurich.

Findings of the Appointed Actuaries

The Appointed Actuaries have concluded, in respect of the effect of the scheme on existing Zurich policy owners and OnePath Life policy owners (whose policies are proposed to be transferred to Zurich), to the effect that:

a)    there will be no effect on their contractual benefits or other rights;

b)    there will be no adverse effect on their reasonable benefit expectations;

c)    each of the statutory funds of Zurich, and Zurich as a whole, will be in a sound financial position immediately following the scheme taking effect; and

d)    their benefit security after the scheme takes effect will continue to be appropriate.

Findings of the Independent Actuary

The Independent Actuary has concluded, in respect of existing Zurich policy owners and OnePath Life policy owners (whose policies are proposed to be transferred to Zurich), to the effect that:

a)    the scheme will have no impact on their contractual rights and benefits;

b)    the scheme will not have a material impact on their reasonable benefit expectations; and

c)    the scheme will not result in a material adverse change to their benefit security.

8.    How the scheme affects you as a policy owner?

Effect on OnePath Life policy owners

    The scheme won’t change the terms and conditions of any policy or affect any right, benefit, liability or claim under any policy issued by OnePath Life (other than that Zurich will become the insurer and your policy will become a Zurich policy rather than a OnePath Life policy).

    Each OnePath Life policy will be made referable to the corresponding statutory fund of Zurich, as shown in the statutory fund changes summary table in section 9. The Life Act requires life insurance companies to establish statutory funds for various types of life insurance business and imposes strict requirements regarding how those funds are to be managed. Every life insurance policy issued by OnePath Life or Zurich is referable to a statutory fund.

    All outstanding claims-related rights and liabilities of OnePath Life under policies will be transferred to Zurich. This will mean that any claims arising under or in connection with any policy must be made against Zurich, rather than OnePath Life.

    All premiums and other amounts payable to or recoverable by OnePath Life under the policies will be payable to and recoverable by Zurich.

    Zurich will be entitled to enforce all rights and remedies previously enforceable by OnePath Life before the scheme under the policies.

    Any claim in relation to a policy being transferred under the scheme that has not been finalised by OnePath Life on the effective date will be transferred to Zurich on that date and will continue to be assessed by Zurich. You will not be required to resubmit your claim.

Effect on Zurich policy owners

    The scheme won’t change the terms and conditions of any policy or affect any right, benefit, liability or claim under any policy issued by Zurich.

Considerations for both OnePath Life and Zurich policy owners

Following completion of the transfer, Zurich will maintain policies and practices designed to enable it to conduct the business in a manner which satisfies the contractual rights and benefits and reasonable benefit expectations of policy owners and provides adequate benefit security. Zurich will also be required under the Life Act to continue to comply with APRA prudential standards and all other laws applicable to it.

9.    Statutory find changes summary

10.    Class actions

There are currently two class actions commenced against OnePath Life. While the outcome of these actions is currently unknown, after the scheme takes effect the class action proceedings (if still on foot) will be continued against Zurich, rather than OnePath Life. No costs and expenses associated with the class actions will be charged to OnePath Life or Zurich policy owners. Any such costs and expenses will be met by Zurich and will be borne by the Zurich Shareholder Fund.

11.    How to find out more

We recommend you read the Scheme Documents to learn more about the Scheme and what it means for policy owners.

The Scheme Documents will be available free of charge to download at www.zurich.com.au/scheme and www.onepathinsurance.com.au/scheme from 28 April 2022.

You can also request copies of the scheme documents free of charge by emailing or by calling us as set out below:

OnePath Life Scheme Contact Centre

-    Telephone:     1800 161 163

-    Email:        part9scheme@onepath.com.au

Zurich Scheme Contact Centre

-    Telephone:     1800 161 164

-    Email:        part9scheme@zurich.com.au

These contact numbers and email addresses are for scheme enquiries only and will close on confirmation of the scheme by the Federal Court. For policy or claim enquiries please contact us using the usual contact details for One Path Life and Zurich (as applicable) set out on your policy or claim documents.

The Scheme Documents will also be available for inspection during the hours of 9am to 5pm (local time) Monday to Friday during the period 23 May 2022 to 24 June 2022 (except public holidays in the relevant State or Territory) at the following locations. You can also request a free copy of the Scheme Documents at these locations during these times.

Annexure F – LinkedIn Post

OnePath Life Limited (OnePath Life) and Zurich Australia Limited (Zurich) give notice of their intention to make a joint application to the Federal Court of Australia seeking confirmation of a scheme under Part 9 of the Life Insurance Act 1995 (Cth) to transfer the life insurance business of OnePath Life to Zurich. The confirmation hearing is scheduled for 6 July 2022, with the proposed effective date of the transfer being 1 August 2022.

Policy owners will be able to inspect documents about the proposed scheme in person, subject to current public health orders across each State or Territory. For more information on how to view the scheme documents online or in person, or to provide feedback on the scheme, please visit www.zurich.com.au/scheme or www.onepath.com.au/scheme

Annexure G – Advisers and Licensees Notification

Proposed transfer of the life insurance business of OnePath Life Limited to Zurich Australia Limited

Dear <First name>,

Thank you for partnering with us to protect the lives of your clients.

OnePath Life Limited (OnePath Life) has now been part of the Zurich Group for more than two years and, over that time, we have been busy transitioning OnePath Life systems and processes from former owners ANZ Banking Group and integrating them with Zurich’s operations.

The final step in the process of integrating OnePath Life with the Zurich Group is to bring together our two life insurers in Australia, OnePath Life and Zurich Australia Limited (Zurich). To complete this final step, OnePath Life and Zurich intend to transfer the OnePath Life life insurance business to Zurich by means of a ‘Scheme’ requiring confirmation of the Federal Court (Court) under Part 9 of the Life Insurance Act 1995 (Cth) (Life Act).

We are writing to provide you with important information about the transfer and a copy of the policy owner communications (including a scheme summary approved by APRA) which you may wish to share with your affected OnePath Life and Zurich clients. Please note, it is to keep policy owners informed, they are not required to do anything. However, should a policy owner believe the Scheme may be detrimental to the interests of policy owners, the person has the right to attend the hearing and request to be heard on the Scheme (as set out in the approved Scheme Summary).

Approvals required

As the transfer is to occur by way of a Scheme under Part 9 of the Life Act, the Scheme will require the confirmation of the Court before this transfer can take effect. An application will be made to the Court at 10.15am AEST on 6 July 2022. The Court will also determine the exact time of the transfer, which Zurich and OnePath Life propose will be 12.01am on Monday, 1 August 2022.

To obtain the required Court approval, a “Scheme” document has been prepared which outlines the proposed transfer. It is supported by an actuarial report on which the Scheme is based and an independent actuarial report on the Scheme.

What does this mean for you and your clients?

If confirmed by the Court, the Scheme will transfer OncePath Life’s assets and liabilities, including all life insurance policies issued by OnePath Life, to Zurich. OnePath Life will, however, retain assets to meet regulatory capital requirements.

For you and your clients, the OnePath brand and products will remain in market, alongside Zurich products, as we continue to draw on the strengths and best practice of two of Australia’s leading insurance brands. Importantly, existing clients will continue to hold OnePath branded policies, and the Scheme will not affect or change the terms and conditions of their policy, other than that Zurich will become the insurer and their policy will become referable to a Zurich statutory fund.

Additionally, any income payments, claims in progress, active requests, applications or complaints that have been submitted by your clients, and how your clients are serviced, will not be impacted.

While the Scheme completes the important process of integrating OnePath Life with the Zurich group, a major milestone for our business, it will not change the way in which you do business with us, including the relationship you have with our teams.

Communications and tools for your clients

To assist in answering any questions you or your clients may have, please access the following linked documents:

    a copy of the communication and importantly a Scheme Summary (approved by APRA) that will be sent to all OnePath Life policy owners from 2nd May 2022; and

    Frequently Asked Questions.

The Scheme Summary includes important details of the Scheme, including information on the designated sites throughout Australia that have been established to enable your clients to view or obtain a copy of the Scheme, Scheme Summary, the actuarial report on which the Scheme is based and the independent actuarial report on the Scheme. The Scheme Summary also provides information on how to provide feedback on the Scheme and details of the Court hearing, including how to attend. Policy owners have the right to attend the hearing and request to be heard on the Scheme, if they wish to do so.

These documents can be found on <www.onepath.com.au/scheme / zurich.com.au/scheme>.

We’re here to help

If you have any questions about the Scheme, please contact your business development manager. You can also visit <www.onepath.com.au/scheme / zurich.com.au/scheme> for more information about the Scheme.

Yours sincerely,

<INSERT SIGNATURE>

Justin Delaney

Chief Executive Officer, Life & Investments Australia

REASONS FOR JUDGMENT

JAGOT J:

1    The substantive application in this matter is for an order to confirm the transfer of the life insurance business of OnePath Life Limited, the first applicant, referred to as OPL, to Zurich Australia Limited, the second applicant, referred to as ZAL, under Pt 9 of the Life Insurance Act 1995 (Cth). The hearing today concerns an interlocutory application for the making of orders under s 191(5) of the Life Insurance Act dispensing with the need for compliance with the requirements of s 191(2)(c) of that Act. Section 191(2)(c) requires that a summary of the scheme approved by the Australian Prudential Regulation Authority (APRA) be given to each owner of a policy issued by OPL and by ZAL. Dispensation is sought on the basis that the applicants will comply with the requirements proposed in order 2. Order 2 specifies a range of steps and processes by which I can be satisfied that the proposed scheme should come to the attention of those policy owners or a sufficient number of them to ensure that an adequate opportunity to be heard about the scheme has been provided to policy holders.

2    I have been assisted in this matter by a comprehensive set of written submissions prepared by the legal representatives for the applicants and the oral submissions made on behalf of the applicants and APRA today. The effect of the orders sought, as noted, is to dispense with the need for the summary of the scheme to be given to the affected policy owners, provided that a detailed series of steps and processes are satisfied. Those steps and processes have been formulated following extensive consultation between the applicants and APRA.

3    The relevant facts may be summarised in a brief compass. OPL and ZAL are authorised under the Life Insurance Act to conduct life insurance businesses and do so through their various statutory funds, as prescribed under that Act. The proposed scheme involves an intra-group transfer of the life insurance business of OPL within the operation of the Zurich Group in Australia. Zurich Financial Services Australia Limited (ZFSA) is the ultimate parent company of both OPL and ZAL. OPL became part of the Zurich Group on 31 May 2019 as a result of ZFSA’s acquisition of the entire issued capital of OnePath Life Australia Holdings Pty Limited. Since that time, both OPL and ZAL have been conducting their life insurance businesses as separate life insurance companies, under the umbrella of the Zurich Group.

4    Since the acquisition, there has been a detailed program undertaken to facilitate the integration into the Zurich Group’s Australian operations of personnel who serviced the OPL business, OPL’s business functions, records and processes, and OPL’s policy data. It is expected that this program of integration will be finalised in April 2022. As a consequence, many policies, processes and systems are already shared as between OPL and ZAL. There is evidence from the actuaries for both OPL and ZAL and an independent actuary that the proposed scheme will result in the rationalisation of the Zurich Group’s Australian life insurance business into a single life insurance entity with a single statutory fund structure, which is expected to benefit policy owners of OPL and ZAL.

5    The scheme is intended to effect the transfer of the entire life insurance business of OPL to ZAL, pursuant to a transfer agreement dated 24 March 2022. It is not necessary for me to discuss the details of the scheme at this stage, given that what is sought presently is interlocutory relief which will enable effective consideration of the scheme by those affected by it and, if they wish to do so, the opportunity for any of those persons to appear and be heard at the confirmation hearing fixed before me on 6 July 2022 at 10.15 am.

6    I should note, however, that the detailed orders proposed, and the approved summary of the scheme, will be given to all OPL policy owners other than those for whom there is no record of a current address (albeit subject to the proposed steps and processes intended to ensure that, to the extent reasonably possible, the approved summary of the scheme comes to the attention of OPL policy holders). There are approximately 418,778 OPL policy owners. OPL does not have a record of a current postal address for about two per cent of the total. Further, it is not proposed to give the approved summary of the scheme to the ZAL policy owners (whose policies will remain with ZAL). Again, however, the proposed steps and processes are intended to ensure that, to the extent reasonably possible, the approved summary of the scheme comes to the attention of ZAL policy holders.

7    Section 191(2)(c) of the Life Insurance Act requires that an approved summary of the scheme be given to every “affected policy owner”, which is defined in s 191(1) to mean:

…the owner of a policy that is referrable to a statutory fund affected by a scheme.

8    The Court may dispense with the need for compliance with this provision under s 191(5). The relevant principles have been conveniently addressed in the written submissions provided by the applicants. In particular:

(1)    the object of the Life Insurance Act is to protect policy owners, prospective and current, in a manner which is consistent with the development of a competitive and innovative life insurance industry, as set out in s 3(1) of that Act;

(2)    it is the purpose of s 191(2)(c) to give every affected policy owner, if they so wish, an opportunity to make submissions to the Court in respect of any application for confirmation of a scheme; and

(3)    the granting of dispensation is a matter of importance and care must be taken for the requirements of the provision to be dispensed with: see QBE Insurance Australia Limited, in the matter of QBE Insurance Australia Limited [2012] FCA 1127 at [16], and Asteron Life & Superannuation Limited, in the matter of Asteron Life & Superannuation Limited (No 3) [2021] FCA 1148 at [82] and [87].

9    In Macquarie Life Limited, in the matter of Macquarie Life Limited [2016] FCA 973 at [26] Allsop CJ said:

The considerations which have been taken into account in the exercise of the discretion to grant dispensation include the nature of the scheme and whether it involves changes to the contractual benefits or entitlements and security of policy owners in respect of whom dispensation is sought; evidence by qualified actuaries as to whether policy owners in respect of whom dispensation is sought will be detrimentally affected by the scheme; the practical difficulties and the costs involved in providing approved summaries of the scheme to policy owners in respect of whom dispensation is sought; the extent to which the proposed scheme may be brought to the notice of policy owners by means other than the scheme summary being sent to each individually; and the involvement and attitude of APRA to the application.

10    There are six considerations to which I should refer, as identified in the written submissions for the applicants.

11    First, the proposed scheme will involve a transfer of business within the Zurich Group that will not result in any change to the terms and conditions of the life policies for any of the policy owners.

12    Second, ZAL and OPL already adopt a common governance framework and share a common board-based approved risk management strategy document and internal capital adequacy assessment process for the management of capital. Following the transfer, claims management and underwriting processes will be aligned, subject to the extent that particular processes are required by the terms of particular policies or underlying reinsurance arrangements.

13    Third, the scheme is based on the report of the actuaries to the effect that no policy owners, be it of OPL or of ZAL, will be adversely affected by the implementation of the scheme. The actuaries for OPL and ZAL have both expressed the view that the simplification, efficiency, and risk benefits resulting from the scheme will benefit both OPL and ZAL policy owners.

14    Fourth, the actuaries’ reports disclose the expected impact of the scheme on the capital of OPL and ZAL to the effect that: (a) the minimal capital required by regulatory capital standards would continue to be met, (b)  he amount of surplus above the minimum capital required in dollar terms would be greater than before the scheme, and (c) the minimum capital required coverage ratio would be within the normal operating range as set out in the ZAL internal capital adequacy assessment process for the management of capital.

15    Fifth, although a scheme summary will not be sent to each ZAL policy holder, I accept that the detailed steps and processes set out in the proposed orders are aimed at and should be effective in notifying those policy owners of the scheme. It is submitted, and I accept, that the proposed notification is such that a sufficiently large number of affected policy owners, including ZAL policy owners, will be provided with the required meaningful opportunity to bring forward any viable objection to the confirmation of the scheme.

16    Sixth, on 24 March 2022, APRA indicated that it had reviewed the documents, including the scheme summary and notice of intention, and was satisfied no changes were required to the contents of those documents. APRA has approved the scheme summary, the form of the notice of intention, the publication of the notice of intention being the newspapers, and the locations for persons to carry out an in person inspection of the scheme. On 25 March 2022, APRA also indicated that it had reviewed the final draft versions of all of these documents with which it had been provided and was satisfied that no further changes were required.

17    Those six matters, in combination, lead me to the view that I should make the orders sought.

18    There are only two other aspects of the orders which require comment.

19    The first is that the proposed orders provide for relief from the requirement to enable public inspection of the approved scheme in the event of any public health order which restricts the movement of persons, thereby affecting the capacity of members of the public to physically inspect the documents (but provided the documents are published on webpages and information is otherwise available as to how policy owners can obtain access to them). I am satisfied that an order to this effect should be made, even though there is not currently in place any such public health orders. I note that in Asteron Life at [105], similar orders were made but after public health orders had been promulgated.

20    The second is that the proposed orders provide that APRA’s cost of the proceedings are to be paid by ZFSA as agreed, or if agreement cannot be reached, as assessed. ZFSA is not a party to the proceedings. In Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; 200 FCR 154 at [73]-[90], the Full Court explained the power and discretion of the Court to make an order for the payment of costs by a non-party. In this matter, there can be no doubt that ZFSA is aware of the proposed order and has a sufficient connection to the proceedings to be the subject of an order as proposed.

21    Orders will be made as sought.

Associate:

Dated:    19 April 2022