Federal Court of Australia

OnePath Life Limited, in the matter of OnePath Life Limited (No 2) [2022] FCA 811

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 194 of the Life Insurance Act 1995 (Cth), the scheme for the transfer of all of the life insurance business of OnePath Life Limited, the First Applicant, to Zurich Australia Limited, the Second Applicant (Scheme) in the form of Annexure A to these orders, be confirmed without modification.

2.    The Scheme is to take effect on and from 12:01am AEST on 1 August 2022.

3.    Zurich Financial Services Australia Limited pay the costs of the proceeding of the Australian Prudential Regulation Authority as agreed or, if agreement cannot be reached, as assessed.

4.    There be liberty to apply.

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

REASONS FOR JUDGMENT

JAGOT J:

Background

1    This is an application by the applicants, OnePath Life Limited, referred to as OPL, and Zurich Australia Limited, referred to as ZAL, under s 193 of the Life Insurance Act 1995 (Cth) (Life Insurance Act) for an order under s 194 of that Act confirming a scheme for the transfer of the life insurance business of OPL to ZAL (the Scheme).

2    In respect of this hearing, I have been provided with considerable assistance by the legal representatives of the applicants in particular who have provided comprehensive written submissions outlining all of the relevant evidence and identifying the relevant statutory and related considerations. I have also been assisted by the appearance of counsel on behalf of the Australian Prudential Regulation Authority (APRA). There has been an appearance today in addition by a policyholder, Dr Gheorghe-Mircea Timofticiuc, who has objected to the confirmation of the Scheme. I will return to Dr Timofticiuc’s objection later in these reasons for judgment.

The Scheme

3    The summary of the relevant matters which I provide below (leaving aside the objection of Dr Timofticiuc) is based upon the written submissions which the legal representatives for the applicants provided.

4    The Scheme contemplates the transfer to ZAL of all of OPL’s life insurance business, including the assets and liabilities referenced to each of its statutory funds, other than an amount of $12 million to allow OPL to satisfy its prudential capital requirements.

5    The Scheme is based on an actuarial report prepared jointly by an actuary appointed by OPL and an actuary appointed by ZAL. The Scheme is also supported by a report of an independent actuary.

6    On 12 April 2022, I made orders under s 191(5) of the Life Insurance Act (Dispensation Orders), dispensing with the need for compliance with s 191(2)(c) of that Act to the extent that it requires a summary of the Scheme as approved by APRA to be given to owners of policies issued by the applicants: see OnePath Life Limited, in the matter of OnePath Life Limited [2022] FCA 406.

7    The background to the Scheme is that both OPL and ZAL are authorised under the Life Insurance Act to conduct life insurance businesses, and do so through their various statutory funds. The evidence discloses that the ultimate Australian holding company of both OPL and ZAL is Zurich Financial Services Australia Limited, referred to as ZFSA. ZFSA’s immediate parent company is Zurich Insurance Company Limited, referred to as ZIC. ZFSA, OPL and ZAL are part of Zurich’s global insurance group. OPL became a wholly owned subsidiary of ZFSA on 31 May 2019. Since that time, both OPL and ZAL have been conducting life insurance businesses as separate life insurance companies and as members of the Zurich Group.

8    The evidence establishes that since the acquisition of OPL in May 2019, a detailed transition program has been undertaken to integrate OPL’s life insurance business into the Zurich Group’s Australian operations, including the transition and integration of personnel who serviced the OPL business before the acquisition date, the transition and integration of OPL business functions, records and processes, and the migration of OPL policy data to the administration system used to administer ZAL policies. This is referred to as the OPL Transition and Integration Project.

9    The evidence is that the OPL Transition and Integration Project was substantially completed by 11 April 2022, with the migration of the last remaining policy dataset and the change in platforms used to administer the policies issued by OPL.

10    Accordingly, all OPL policies are now administered on the relevant policy administration system used to administer the ZAL policies, other than a limited category of legacy products which, according to the evidence, are still administered on third party systems.

11    The evidence is to the effect that the Scheme has been formulated by management common to ZAL and OPL, and has been approved by their respective board subcommittees, the proposal being that, if confirmed by the Court, the Scheme will take effect on 1 August 2022.

12    The commercial rationale for the Scheme is that it will result in the rationalisation and consolidation of the Zurich Group’s life insurance business in Australia, currently conducted by OPL and ZAL, into a single legal entity with a simplified structure for the statutory funds that aligns more closely with the existing management structure.

13    The key elements of the Scheme have been identified in the written submissions provided on behalf of the applicants. Those key elements are as follows:

(1)    all OPL policies and policy liabilities (as defined) will be transferred to ZAL on the effective date and ZAL will assume and take over and indemnify OPL from and against all claims under or in respect of the policies or policy liabilities;

(2)    the rights, benefits and liabilities of owners of OPL policies on the one hand, and ZAL on the other hand, will be the same in all respects as they would have been if the policy had been issued or entered into by ZAL instead of OPL;

(3)    any policy owner will, as from the effective date, have the same claim on or obligation to ZAL in substitution for that person’s claim on or obligation to OPL, irrespective of when the claim or obligation arose;

(4)    ZAL will be entitled to enforce all rights and remedies as against any policy owner or third party arising under or by virtue of any policy and receive premiums which would have been enforceable or recoverable by OPL;

(5)    all business assets (as defined), including OPL’s right, title and interest in the business contracts, will be transferred to ZAL, and all business liabilities (as defined) will also be transferred to and assumed by ZAL;

(6)    on and from the effective date, ZAL is beneficially entitled to the benefit of the business assets and ZAL assumes responsibility for the business assets and will indemnify OPL from and against all claims under or in connection with the business assets;

(7)    any proceedings by or against OPL will be continued by or against ZAL and the parties agree to take all necessary action to effect a change of the name of the party in those proceedings from OPL to ZAL; and

(8)    ZAL will maintain after the effective date, subject to periodic review, policies and practices, including investment policies and strategies, underwriting and claims management and remediation in a manner which satisfies the contractual rights and expectations and security benefits of owners of policies.

14    It is apparent from the provisions of the Scheme that the terms and conditions of the OPL life policies and business contracts will not change as a result of the confirmation and implementation of the Scheme, other than that references to OPL will be replaced with references to ZAL and references to the OPL statutory fund will be read as a reference to the relevant ZAL statutory fund. Further, the terms and conditions of life policies issued by ZAL will also not change as a result of the Scheme.

15    All stamp duty and other costs and expenses incurred in connection with the Scheme will be met by ZFSA and not by policyholders of OPL or ZAL. Further, on 23 March 2022, the board of ZAL approved a transfer of a surplus from a statutory fund of ZAL to the ZAL shareholder fund.

16    The Scheme is to be effected through a transfer agreement which is conditional upon the satisfaction of a number of conditions. One of these conditions is confirmation of the Scheme transfer by the Court. The transfer is also conditional upon the approval of the Treasurer of the Commonwealth of Australia under s 41(1) of the Insurance Acquisitions and Takeovers Act 1991 (Cth) and ZAL receiving written notice from the Treasurer that there are no objections under the Foreign Acquisitions and Takeovers Act 1975 (Cth) to ZAL acquiring OPL. The evidence is that each of these conditions has been satisfied.

Court’s discretion

17    Under s 194 of the Life Insurance Act, the Court has a discretion to confirm the Scheme with or without modification, or to refuse to confirm it. This function of confirmation is no mere formality, as is apparent from the terms of s 194(2) of the Life Insurance Act which, in particular, require the Court to have regard to the interests of the policy owners of a company affected by the Scheme.

18    Accordingly, the principal relevant consideration is the protection of the interests of policy owners and prospective policy owners in a manner consistent with the objects of the Life Insurance Act, specifically as set out in s 3(1)(a) of that Act and the reference to the need to “protect the interests of the owners and prospective owners of life insurance policies in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry”.

19    As the written submissions for the applicants said, there are two main dimensions to the protection of the interests of policy owners. The first dimension is, in effect, one of procedural fairness to ensure that the process has been undertaken in accordance with the relevant statutory requirements. The second dimension is that it is the concern of the Court to ensure that the Scheme will not be prejudicial to the interests of policy owners, and that their interests are properly safeguarded. The relevant issue in this regard is whether the Scheme is likely to involve any material detriment to policy owners affected by the Scheme. As noted by the applicants, this latter question is largely actuarial in that it involves a comparison of the contractual and other rights of the policy owners, the security of their benefits, and their reasonable benefit expectations as they stood before the implementation of the Scheme, and as they will stand after implementation of the Scheme.

Notification of Scheme to policyholders

20    As I have mentioned, on 12 April 2022, I made orders dispensing with the requirement for compliance with s 191(2)(c) of the Life Insurance Act, and otherwise made orders, the purpose of which was to ensure that the proposed Scheme would be brought to the attention of policyholders. The written submissions for the applicants have provided a summary of the requirements of the orders that I made in the following terms, which I adopt:

(1)    publish a notice of intention to make an application to the Court for confirmation of the Scheme in the Commonwealth Government Notices Gazette and a number of newspapers approved by APRA (Dispensation Order 2(a), s 191(2)(b) of the Life Insurance Act, reg 9.02(1) of the Life Insurance Regulations 1995 (Cth) (Life Insurance Regulations));

(2)    publish an advertisement about the Scheme substantially in the form of Annexure C to the Dispensation Orders in the front section of the newspapers approved by APRA (Dispensation Order 2(b));

(3)    publish on the OPL and ZAL websites a media release substantially in the form of Annexure D to the Dispensation Orders and send by email a copy of the media release to several investor and adviser publications (Dispensation Orders 2(c) and (d));

(4)    send by email, or by regular pre-paid post a summary of the Scheme approved by APRA substantially in the form of Annexure E to the Dispensation Orders (Scheme Summary) to OPL Policy Owners, having first completed a “Data Wash” of policy owner contact information, including to new OPL Policy Owners, and then to follow a described procedure in the event that such email or posted material was returned undelivered (Dispensation Orders 2(e)–(j), s 191(2)(c) and s 191(5) of the Life Insurance Act);

(5)    make available on dedicated webpages on the OPL and ZAL websites a copy of the notice of intention, the Scheme Summary, the Scheme document and the actuarial reports (the Inspection Documents) (Dispensation Order 2(k));

(6)    include links to those webpages on the login pages of the Zurich Customer Portals for OPL Policy Owners and ZAL Policy Owners (Dispensation Order 2(l));

(7)    establish dedicated email addresses as specified in the notice of intention and Scheme Summary to receive enquiries about the Scheme (Dispensation Order 2(m));

(8)    establish a call centre with trained staff to handle calls about the Scheme made to the dedicated toll-free numbers in the notice of intention and Scheme Summary (Dispensation Orders 2(n)–(o));

(9)    from 23 May 2022 to 24 June 2022, make a copy of the Inspection Documents available for public inspection from 9am to 5pm on weekdays (excluding public holidays) at each location approved by APRA and specified in the notice of intention (Dispensation Order 2(p), reg 9.02(4) of the Life Insurance Regulations);

(10)    provide on request a copy of the Inspection Documents to OPL and ZAL Policy Owners free of charge (Dispensation Order 2(q), s 191(4) of the Life Insurance Act);

(11)    publish a general announcement about the Scheme, including details of how affected policy owners can access further information about the Scheme; in:

(a)    the newsletter issued to ZAL Policy Owners in June 2022; and

(b)    through the LinkedIn page maintained by ZFSA substantially in the form of Annexure F to the Dispensation Orders (Dispensation Orders 2(r)–(s)); and

(12)    send the Scheme Summary and other information about the Scheme to independent financial advisers and financial advice licensees registered with the applicants (Advisers and Licensees) substantially in the form of Annexure G to the Dispensation Orders, and publish a general announcement about the Scheme to Advisers and Licensees in the first monthly newsletter to them following publication of the notice of intention and at least one subsequent newsletter prior to the Confirmation Hearing (Dispensation Orders 2(t)–(u)).

21    The applicants have identified the circumstances where there has not been strict compliance with the orders made on 12 April 2022. The submission of the applicants is that those occasions of non-compliance are not of a nature which would have adversely affected policy owners in a material way, or otherwise are not such as to affect the exercise of the discretion of the Court to confirm the Scheme. It is not necessary that I set out in detail the instances where there has been non-compliance by the applicants with the strict terms of the orders which I made on 12 April 2022. I will return later to the issue of Dr Timofticiuc’s objection which is, in part, based on his allegation that he did not receive a summary of the Scheme as required under my orders.

22    Otherwise, the evidence confirms that the procedural requirements of the Life Insurance Act and the associated Life Insurance Regulations have been satisfied, in particular, a copy of the Scheme and the actuarial reports upon which it is based have been given to APRA in accordance with s 191(2)(a) of the Life Insurance Act. The time at which the Court has been moved for the making of orders confirming the Scheme has otherwise complied with reg 9.03 of the Life Insurance Regulations.

Impact of the Scheme

23    The appointed actuaries’ report gives detailed consideration to the impact of the Scheme on policy owners. The overall conclusion of the appointed actuaries is set out in their report as follows:

1.2    Purpose of the Scheme

The Scheme will result in the rationalisation of ZFSA’s life insurance businesses into a single life insurance legal entity, with a simplified Statutory Fund structure. This rationalisation is expected to provide a range of benefits, including:

•    simplified corporate structure and administrative processes, reducing risk and facilitating future operational efficiency improvements;

•    increased efficiency of capital use through improved risk diversification within the Statutory Funds; and

•    greater scale in the combined Statutory Funds resulting in increased stability of the capital position.

The simplification, efficiency and risk benefits resulting from the Scheme will benefit both ZAL Policy Owners and OPL Policy Owners.

24    The independent actuary has also confirmed that the Scheme will consolidate the life insurance businesses of OPL and ZAL into a single entity with a simplified statutory fund structure having these benefits: first, improved risk diversification; secondly, simplification of administrative processes; and, thirdly, facilitation of future operational improvements.

25    The submissions for the applicants note that the owners of participating policies are entitled to share in the profits arising from those policies. OPL participating policies are currently maintained in a series of separate sub-funds which will not change as a result of the Scheme. Separate sub-funds will be established in ZAL for the participating business transferred from OPL. This participating business will remain distinct from the existing participating businesses in the relevant ZAL statutory fund. The result is that policy owners from a ZAL participating fund cannot benefit from retained profits of an OPL participating fund, and, similarly, a policy owner of an OPL participating fund cannot benefit from retained profits of a ZAL participating fund.

26    Further, the evidence is that no changes are proposed to the investment strategies, profit allocation approach, bonus policy, or the bases used to determine any discretionary benefit entitlements in respect of OPL participating policies. There are also no changes proposed to the operation of the ZAL participating policies.

27    In respect of non-participating policies, as the Scheme will not lead to changes to any individual product or product portfolios it will have no impact on pricing for transferring OPL policy owners.

28    It is also relevant that the appointed actuaries have observed that no changes are proposed to administration systems or management policies or practices in respect of transferring OPL policy owners as a result of the Scheme.

29    As the written submissions for the applicants further note, the appointed actuaries have addressed the investment strategy and capital position of the statutory funds before and after the Scheme, the change in the scale of the business, reinsurance, and any bespoke risks. Amongst other things, they have given detailed consideration to the financial position and capital adequacy reserves, the requirements for which are set out in a series of life prudential standards issued by APRA. The actuaries have analysed the impact of the Scheme on the capital position of each of ZAL and OPL, first as at 31 December 2021. The result of that analysis was that for each of the ZAL and OPL statutory funds, the prescribed capital amounts required under the applicable life prudential standards would continue to be met, and the prescribed capital amount coverage ratio would be within the normal operating range as set out in the applicable OPL and ZAL internal capital adequacy assessment processes. The appointed actuaries have also prepared updated capital positions for OPL and ZAL including as at 31 March 2022. Ultimately, their conclusion after detailed consideration of the changed circumstances between December 2021 and June 2022 was in these terms:

After considering this information, it remains the case that the expected capital position of ZAL after the transfer will be within the operating range provided for in the ICAAP. Each of the ZAL Statutory Funds and the ZAL Shareholder Fund are expected to have a PCA Coverage Ratio exceeding 100% and to meet APRA’s prudential requirements.

30    I also note in this regard that the independent actuary was provided with this updated analysis by the appointed actuaries, and his advice is that nothing has come to his attention which would affect the opinions, comments and conclusions which he expressed in his independent actuarial report.

31    The appointed actuaries also considered the fact that there will be a larger pool of participating and non-participating life insurance businesses in ZAL following the transfer than in OPL before the transfer. The transfers are expected to diversify the risks in the relevant ZAL statutory fund. According to the appointed actuaries, none of these changes in the ZAL or OPL statutory funds will result in any adverse effects on the benefit security of policy owners in any material respect.

Other matters for consideration

32    Consideration has also been given in the evidence to the reinsurance position. Both of ZAL’s and OPL’s reinsurance arrangements are managed in accordance with the ZSFA risk management framework and Zurich Group risk policy framework. There are some differences in reinsurance arrangements and exposures. Both have reinsurance exposures to APRA regulated reinsurers and an offshore reinsurer, which is ZIC, being OPL’s largest reinsurance counterparty.

33    Under the Scheme arrangements, all rights and obligations of OPL under reinsurance treaties to which it is a party will become rights and obligations of ZAL on their current terms, and will continue for the benefit of ZAL if the Scheme is confirmed. There is also evidence that, as a matter of abundant caution, written consent has been obtained from OPL’s reinsurers (other than ZIC) to the transfer of their respective treaties from OPL to ZAL under the Scheme. The reinsurers have confirmed that they will not seek to take any action under or in respect of their reinsurance treaties with OPL or ZAL as a result of, or in connection with, the Scheme.

34    In addition, in order to formalise arrangements with ZIC after the Scheme, OPL, ZAL and ZIC have entered into novation deeds in respect of the transfer to ZAL of all of OPL’s reinsurance treaties with ZIC. The effect of the deeds is that if the Scheme is confirmed, ZAL will be substituted for OPL under each of the reinsurance treaties between OPL and ZIC, and those treaties otherwise will continue.

35    The written submissions for the applicants also address remediation programs. The Scheme requires ZAL to maintain policies and procedures relating to remediation to enable it to conduct the assumed business of OPL in a manner which is consistent with its legal and regulatory obligations, and which satisfies the contractual rights and benefits of OPL policy owners.

36    The appointed actuaries noted that the remediation programs underway are supported by existing provisions in the OPL statutory funds which will transfer to ZAL. Further, any residual risks transferred to ZAL are not expected, according to the appointed actuaries, to be material so as to adversely impact on the benefit security of ZAL policy owners.

37    The applicants have submitted, and I accept, that the Court should be satisfied as a result that customers of OPL, who are participating in remediation activities in relation to OPL products, will not be adversely affected by the Scheme. As OPL policy owners are already exposed to risks associated with these OPL remediation programs, it follows that the Scheme will not adversely impact the benefit security of OPL policy owners as a whole.

38    The written submissions for the applicants also identify that there are two class actions on foot, in which OPL has been joined as one of several respondents. Those class actions are at a relatively early stage, and OPL is defending them. If the Scheme is confirmed it is intended that the class actions will be continued against ZAL rather than OPL, as set out in clause 6 of the Scheme. No costs and expenses associated with the class actions will be charged to policy owners of OPL or ZAL. All of the contingent liabilities relating to these class actions will be transferred to and borne by the ZAL shareholder fund, as proposed in clause 11.3(f) of the Scheme.

39    I accept that, as a result, any liabilities of ZAL ultimately arising from the class actions would be funded from the ZAL shareholder fund. The appointed actuaries consider that these arrangements provide additional protection to ZAL policyholders because the ZAL statutory fund assets can be used only to meet liabilities to those policy owners, and any transfer of such assets to the ZAL shareholder fund is subject to the regulation of the Life Insurance Act.

40    The independent actuary has also considered the transfer of the class action liabilities to the ZAL shareholder fund, and has expressed the view that the benefit security of both policyholders of ZAL and OPL will not be adversely impacted by these arrangements.

41    My attention has otherwise been drawn to certain communications between the solicitors for the applicants and for the applicants in the class actions, and none of those communications give rise to any issue of concern.

42    The submissions for the applicants note that concepts such as customer experience and corporate culture are not readily accommodated within the framework of Pt 9 of the Life Insurance Act. However, they submit that, in any event, there will be no material changes to the manner in which OPL policies are administered or OPL policyholders are serviced as a consequence of the Scheme, and that there should be no adverse changes to the customer experience of such policyholders in the management and administration of their policies. They note that in circumstances where the life insurance business of OPL has been operating under the ZFSA Group since 2019, that is, a period of over three years, and the process of integration of that business with the business of ZAL has been substantially completed, there is no basis to conclude that confirmation of the Scheme would bring about any perceptible change in corporate culture or values adversely impacting policyholders. I accept this submission.

43    In terms of feedback and inquiry from policy owners and others, the evidence discloses that five complaints were received where a policy owner expressed some dissatisfaction or concern regarding the Scheme, not involving any substantive submission about or challenge to the Scheme. There were another 227 instances where a policy owner or other persons sought information or clarification about the Scheme. Further, as I have already mentioned, Dr Timofticiuc has appeared today in order to object to the Scheme.

44    As I have also mentioned, APRA appeared at the confirmation hearing. It is apparent from the evidence that APRA has played an active role in respect of the Scheme and in this proceeding. APRA was consulted as to the form of the Dispensation Orders and appeared at the dispensation hearing. It has closely monitored the preparation of all of the relevant documents, specifically the Scheme documents and actuarial reports. It did not require a report from an independent actuary under s 192 of the Life Insurance Act. APRA has had an adequate opportunity to consider all of the material and to convey to the Court its views, which it has done in its oral submissions. I accept that I should be satisfied that APRA itself is satisfied from the material that there is adequate evidence that policy owners will not be adversely affected by the Scheme.

Dr Timofticiuc

45    I come now to the position of Dr Timofticiuc, who has objected to the confirmation of the Scheme. In doing so, Dr Timofticiuc has referred in particular to ss 191(2)(c), 194(2)(a) and 194(2)(c) of the Life Insurance Act which provide as follows:

191    Steps to be taken before application for confirmation

…

(2)    An application for confirmation of a scheme may not be made unless:

...

 (c)    an approved summary of the scheme has been given to every affected policy owner.

194    Confirmation of scheme

…

(2)    In deciding whether to confirm a scheme (with or without modifications), the Court must have regard to:

(a)    the interests of the policy owners of a company affected by the scheme;

…

(c)    any other matter the Court considers relevant.

46    Dr Timofticiuc’s objections to the confirmation of the Scheme fall into two parts. The first part is his assertion that he has not received a summary of the Scheme as required by s 191(2)(c) of the Life Insurance Act, or as otherwise required by the orders I made on 12 April 2022. These objections by Dr Timofticiuc are therefore based on what are said to be procedural non-compliances by the applicants, by reason of which Dr Timofticiuc alleges that he has been prejudiced in his preparation of his objection to the confirmation of the Scheme.

47    The other part of Dr Timofticiuc’s objection is based on a wide range of grievances which he has against OPL over a number of years in respect of his dealings with OPL and various statutory authorities relating to his claim or claims for cover under his policy for alleged total and permanent disability. It is apparent from the documentary material which Dr Timofticiuc has tendered, and which I have had an opportunity to review during the course of the hearing, and from his oral submissions, that he holds deeply felt grievances against OPL and individuals within OPL, as well as against various statutory authorities and individuals within those statutory authorities who he believes not only have not appropriately dealt with his claims, but in his view have committed a wide range of alleged crimes against him which might be summarised under the rubrics of both “fraud” and “torture”. The wide-ranging nature of his grievances is apparent from the many statutory provisions which he alleges various persons have breached, including such matters as s 48(3) of the Life Insurance Act concerning the duty of directors in relation to statutory funds; s 31 of the Insurance Contracts Act 1984 (Cth) concerning the insurer’s duty of good faith; the definition of “dishonest” in s 9 of the Corporations Act 2001 (Cth); as well as multiple references to obligations under other provisions of the Corporations Act 2001 (Cth), and of various provisions of State and Commonwealth criminal laws.

48    I should immediately record that, irrespective of the depth and sincerity of Dr Timofticiuc’s beliefs, there is no evidence which substantiates the objective existence of the allegations of serious misconduct which he has made.

49    Dealing with the first part of Dr Timofticiuc’s objection, the evidence is that an email was sent to him with the approved summary of the Scheme on 31 May 2022. After that email bounced back, pursuant to the orders of 12 April 2022, he was posted the approved summary. He says that he did not receive the postal or email notification. It is not necessary for me to decide whether or not this is accurate. As the applicants have submitted, I made orders dispensing with compliance with s 191(2)(c) of the Life Insurance Act, and instead made orders which I am satisfied have been substantially complied with, whether Dr Timofticiuc as one individual policy holder received a copy of the approved summary of the Scheme or not.

50    I do not accept that there has been any material procedural irregularity in respect of the steps required to be taken in advance of this hearing, such as to warrant any refusal to confirm the Scheme. I am also not satisfied that the circumstances in which the matter has come before me today for hearing where, for example, Dr Timofticiuc has said that he did not have time to complete his notes of his proposed oral submissions, and did not have the court book to which reference was made in the applicant’s submissions, involves any material procedural unfairness of a kind which would justify refusal of confirmation of the Scheme.

51    The fact is that, one way or another, Dr Timofticiuc did become aware of the Scheme in time to prepare a relatively lengthy written document, and to provide in electronic form a bundle of documents. Redacted versions of such documents (pursuant to confidentiality orders discussed below), once received, will become exhibits 4 and 5 in these proceedings. Dr Timofticiuc was also able to make oral submissions, both in-chief for an hour and in reply, and has not indicated any substantive matter where he has been unable to put what he wishes before the Court.

52    In terms of Dr Timofticiuc’s wide-ranging and deeply held grievances, as the applicants say, whether real or perceived, they are not material to my discretion to confirm the Scheme. This is because whatever rights and liabilities might exist on the part of Dr Timofticiuc, they will continue as against ZAL. If Dr Timofticiuc does have any rights as against individuals, those rights, whatever they be, will also continue unaffected by the Scheme. It follows that nothing Dr Timofticiuc has said relating to his lengthy and hostile dealings with OPL or various statutory authorities is a reason material to my decision whether or not to confirm the Scheme.

53    Rather, in making that decision, the focus is the matters set out in s 194(2) of the Life Insurance Act. Based on the matters to which I have referred, and the extensive evidence and written submissions on behalf of both the applicants and on behalf of APRA, whose legal representative also heard all of Dr Timofticiuc’s objections to the Scheme and the position of which remains that the making of the orders for confirmation of the Scheme are appropriate, I am satisfied that the proposed orders should be made.

Confidentiality

54    There is the outstanding issue of confidentiality orders. I have invited the applicants to send me a consolidated confidentiality order which will be entered separately to the substantive confirmation orders I have made. The applicants can then provide the redacted versions of exhibits 4 and 5 in accordance with those orders.

Associate:

Dated:    12 July 2022