Asteron Life & Superannuation Limited, in the Matter of Asteron Life & Superannuation Limited (No 2)

[2021] FCA 880

FEDERAL COURT OF AUSTRALIA

Asteron Life & Superannuation Limited, in the Matter of Asteron Life & Superannuation Limited (No 2) [2021] FCA 880  

File number:	NSD 575 of 2021
Judgment of:	ALLSOP CJ
Date of judgment:	29 July 2021
Catchwords:	INSURANCE – application for transfer of life insurance business – application for variation of dispensation orders due to COVID-19 restrictions
Legislation:	Life Insurance Act 1995 (Cth)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	3
Date of hearing:	29 July 2021
Counsel for the Applicants:	Mr R Hollo SC
Solicitor for the Applicants:	Herbert Smith Freehills
Counsel for the Australian Prudential Regulatory Authority:	Ms N Laing

ORDERS

NSD 575 of 2021

IN THE MATTER OF ASTERON LIFE & SUPERANNUATION LIMITED

BETWEEN:

ASTERON LIFE & SUPERANNUATION LIMITED ABN 87 073 979 530

First Applicant

TAL LIFE LIMITED ABN 70 050 109 450

Second Applicant

ORDER MADE BY:	ALLSOP CJ
DATE OF ORDER:	29 JULY 2021

THE COURT ORDERS THAT:

1.Order 2 of the orders made on 25 June 2021 (June Orders) be varied nunc pro tunc by adding the following words to Order 2(n):

"…except insofar as this is rendered impracticable because any such location is situated in an area affected by a public health order made in response to the COVID-19 pandemic (COVID-19 public 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."

2.Order 2 of the June Orders be varied by making a new order 2(o) in the following terms:

"from on or shortly after 28 July 2021 until the date of the confirmation hearing, publish notification on:

(i)the Asteron Life Website and the TAL Life Website; and

(ii)the social media channels referred to in order 2(m),

which provides that certain locations for public inspection of the scheme documents are closed by reason of a COVID-19 public health order and that Asteron Life Policy holders and TAL Life Policy holders can contact the call centre, email the dedicated email address referred in order 2(d) or complete a webform available on the webpages to request a copy of the scheme documents, or otherwise access an electronic copy of the scheme documents on the webpages."

3.The applicants pay APRA's costs of the application as agreed or assessed.

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, on 25 June 2020, I made interlocutory orders dispensing with the rigours of the operation of s 191 of the Life Insurance Act 1995 (Cth). I have not as yet given reasons, which will be given with my reasons in relation to any confirmation of the proposal, after that confirmation hearing.

2. The resurgence of the COVID-19 pandemic in New South Wales, Victoria and South Australia has made it impossible, while restrictions are in place, to comply with one of the orders made as a condition of the dispensation: that scheme documents be available for public inspection in each capital city.  The circumstances are described in the unsworn affidavit of Shan-Verne Liew and the need for the variations to the orders are explained in the helpful submissions of Mr Hollo SC which will remain with the papers.

3. In the light of that evidence and those submissions, the Court orders that:

   (1)Order 2 of the orders made on 25 June 2021 (June Orders) be varied nunc pro tunc by adding the following words to Order 2(n):

   “…except insofar as this is rendered impracticable because any such location is situated in an area affected by a public health order made in response to the COVID-19 pandemic (COVID-19 public 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.”

   (2)Order 2 of the June Orders be varied by making a new order 2(o) in the following terms:

   “from on or shortly after 28 July 2021 until the date of the confirmation hearing, publish notification on:

   (i)the Asteron Life Website and the TAL Life Website; and

   (ii)the social media channels referred to in order 2(m),

   which provides that certain locations for spublic inspection of the scheme documents are closed by reason of a COVID-19 public health order and that Asteron Life Policy holders and TAL Life Policy holders can contact the call centre, email the dedicated email address referred in order 2(d) or complete a webform available on the webpages to request a copy of the scheme documents, or otherwise access an electronic copy of the scheme documents on the webpages.”

   (3)The applicants pay APRA’s costs of the application as agreed or assessed.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable  Chief Justice Allsop.

Associate:

Dated:       29 July 2021