Federal Court of Australia Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2022] FCAFC 16 Appeal from: Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2021] FCA 907 File number: NSD 879 of 2021 Judgment of: MOSHINSKY, DERRINGTON AND COLVIN JJ Date of judgment: 21 February 2022 Catchwords: INSURANCE - appeal from decision refusing application by insureds for declaratory relief - whether insurers obliged under insurance policy to indemnify for loss from business interruption caused by government orders directed to restricting spread of COVID-19 - where policy includes memorandum directed to extending indemnity to loss resulting from occurrence or discovery of notifiable disease at premises - where memorandum excludes cover for diseases listed in Biosecurity Act 2015 (Cth) - whether memorandum manifests or records full extent of cover for loss resulting from business interruption caused by occurrence of human infectious or contagious disease - whether business interruption loss covered by different memorandum directed to loss caused by action taken by lawfully constituted authority for purpose of retarding any conflagration or other catastrophe - whether reference to 'loss' in insurance policy confined to physical loss - whether COVID-19 pandemic considered a catastrophe for purposes of policy - appeal dismissed Legislation: Biosecurity Act 2015 (Cth) Cases cited: Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 269 CLR 574 Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 CGU Insurance Limited v Porthouse [2008] HCA 30; (2008) 235 CLR 103 Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd [2004] FCA 403 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 Findex Group Ltd v McKay [2020] FCAFC 182 Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2019] NSWCA 53 HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296; (2020) 104 NSWLR 634 Hume Steel Ltd v Attorney-General for Victoria (1927) 39 CLR 455 Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161; (2020) 103 NSWLR 443 Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 Re Media Entertainment & Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases) [2021] FCA 1206 Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) [2016] FCAFC 15; (2016) 239 FCR 12 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Zhu v Treasurer (NSW) [2004] HCA 56; (2004) 218 CLR 530 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 136 Date of hearing: 8-12 November 2021 Counsel for the Appellants: Mr JC Sheahan QC with Mr DH Mitchell Solicitor for the Appellants: King & Wood Mallesons Counsel for the Respondents: Mr B Walker SC with Mr TW Marskell and Mr HR Fielder Solicitor for the Respondents: Wotton + Kearney ORDERS NSD 879 of 2021 BETWEEN: STAR ENTERTAINMENT GROUP LIMITED (ABN 85 149 629 023) First Appellant STAR ENTERTAINMENT SYDNEY HOLDINGS LIMITED (ACN 064 054 431) Second Appellant STAR ENTERTAINMENT QLD LIMITED (ACN 010 741 045) (and others named in the Schedule) Third Appellant AND: CHUBB INSURANCE AUSTRALIA LTD (ABN 23 001 642 020) First Respondent AIG AUSTRALIA LIMITED (ABN 93 004 727 753) Second Respondent XL INSURANCE COMPANY SE (ABN 36 083 570 441) (and others named in the Schedule) Third Respondent AND BETWEEN: CHUBB INSURANCE AUSTRALIA LTD (ABN 23 001 642 020) (and others named in the Schedule) First Cross-Appellant AND: STAR ENTERTAINMENT GROUP LIMITED (ABN 85 149 629 023) (and others named in the Schedule) First Cross-Respondent order made by: MOSHINSKY, DERRINGTON AND COLVIN JJ DATE OF ORDER: 21 FEBRUARY 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The cross-appeal be dismissed. 3. The appellant pay the respondent's costs of and incidental to the appeal and the cross-appeal to be assessed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 In 2019, a policy of insurance was agreed between The Star Entertainment Group Limited and a number of its associated entities (together, Star) as the insureds and eleven insurers each taking a share of the risk (Insurers). The policy is styled as an 'Industrial Special Risks Insurance Policy' (Policy). Each page of the Policy is headed with the name The Star Entertainment Group Limited and the name of a well-known insurance broker. As will emerge, the terms of the instrument appear to have been crafted with some care to meet the particular business circumstances of Star but retain provisions that contemplate more general application. The dispute between the parties 2 A dispute has arisen between Star and the Insurers as to whether the Policy provides indemnity for loss said to have been suffered by Star in consequence of the COVID-19 pandemic. It has led to Star seeking a declaration in this Court that the Insurers are obliged to indemnify Star for loss that was the consequence of interruption to its business caused by government orders and advice directed to restricting the spread of COVID-19. The primary judge has determined that the declaratory relief sought by Star should be refused: Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2021] FCA 907. Star now brings an appeal. 3 The appeal raises issues as to the proper construction of the Policy. The appeal was heard together with a number of other appeals concerning the proper construction of provisions of other insurance policies which were said to provide business interruption insurance cover for various types of loss consequent upon steps taken by government authorities to limit the spread of COVID-19. Those appeals arise from the decision in Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases) [2021] FCA 1206 (Second Test Cases Appeal). The nature of the Policy 4 The Policy is dated 8 December 2019 and applies for a year and a day from 1 November 2019. It begins with a provision to the effect that the Policy incorporates its various parts 'which are to be read together'. The parts are listed as 'Schedule, Sections, Definitions, Conditions, Exclusions, Endorsements, Memoranda and Warranties'. In short, the express intention of the parties is that despite it being composed of distinct parts, the policy is to be given an operation by which all its components form a single coherent commercial instrument. 5 The Policy has a structure that is common for insurance instruments. The operative parts are divided into two sections and take effect by reference to specific provisions stated in a Schedule. Section 1 is headed 'Material Loss or Damage'. Section 2 is headed 'Consequential Loss'. Each of the two sections specifies the extent of an indemnity provided by that Section by reference to the 'Interest Insured' as described in the Schedule. Each of the two sections also has its own 'Basis of Settlement' provision by which claims are to be adjusted and also has its own definitions. Following each of the two sections is a list of Memoranda which modify the operation of the specific provisions. Then there is a list of the Exclusions that apply to both sections. It is followed by a further list of Memoranda that apply to both sections. After that there is a list of Conditions that apply to both sections. Finally, there is a list of Endorsements which alter earlier provisions. 6 Therefore, the Policy is something of a collage by which distinct parts are pasted together with the express intention that the generally expressed parts will apply according to the terms of the Schedule, Memoranda, Exclusions, Conditions and Endorsements. This course presents as a considered one intentionally adopted by the parties. It means that some mental gymnastics are required to put together the manner in which the agreed terms operate and which terms prevail over others. It also tends to compromise the ease with which and the extent to which consistency in grammatical forms can operate to signal the meaning of operative provisions. It also gives particular significance to understanding the instrument as a whole. 7 Discerning the proper construction of a commercial instrument by reference to its terms as a whole requires regard to all of the provisions. In order to perform this task it is necessary to bring all aspects to bear at the same time. Therefore, although exposition for that purpose can only occur sequentially, ultimately the various parts must be held up together in order to gather a true sense of what is meant by particular provisions. Put another way, the nature and extent of the qualifications and extensions expressed by the Memoranda, Exclusions, Endorsements and the like may provide important contextual indications as to the overall commercial objective of the parties as recorded in the whole of the text of the Policy which may in turn be used iteratively to interpret particular provisions. The principles to be applied in construing the Policy 8 The principles to be applied in construing commercial instruments are well established. They require the language used by the parties to be interpreted objectively by considering what the language adopted by them would mean to a reasonable businessperson in the position of the parties. The language used by them is to be considered in the context of the surrounding circumstances known to them at the time of the transaction and the purpose or object of the transaction evident from those matters: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22]; Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35] (French CJ, Hayne, Crennan and Kiefel JJ) ; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46]-[47] (French CJ, Nettle and Gordon JJ) and Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 at [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ). 9 Issues may arise as to the extent to which there may be regard to surrounding circumstances in the absence of any real ambiguity in the text or for the purpose of demonstrating ambiguity: see, Mount Bruce at [48]-[49], [52] (French CJ, Nettle and Gordon JJ) and [111] (Kiefel and Keane JJ) and the most recent reference to the relevant debate in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 at [45] (Allsop CJ, Besanko and Middleton JJ). However, no such matters were raised in the present case. 10 The question for consideration is not what each of the parties meant to say, but rather what is the objective meaning to be attributed to the words they have used to express what they have agreed: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [17] (French CJ), [59] (Gummow and Hayne JJ) and [98] (Heydon and Crennan JJ) and HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296; (2020) 104 NSWLR 634 at [18]-[19] (Meagher JA and Ball J). 11 In the absence of a contrary intention, the construction of a commercial instrument will be approached on the basis that the parties intended to produce a commercial result and constructions that make for commercial nonsense or would work commercial inconvenience should be avoided: Zhu v Treasurer (NSW) [2004] HCA 56; (2004) 218 CLR 530 at [82], Electricity Generation Corporation v Woodside Energy Ltd at [35] (French CJ, Hayne, Crennan and Kiefel JJ) applied in Mount Bruce at [51], Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 at [17] (Kiefel, Bell and Gordon JJ) and Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd at [152] where such an approach was expressed as applying in the context of an insurance policy. However, care must be taken to ensure that it is the evident commercial object that is being given effect recognising that minds may differ as to the commerciality of a particular outcome: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 at [43] (Gleeson, Gummow and Hayne JJ). Therefore, reasoning by reference to commerciality has its limits. 12 Commercial instruments should be construed fairly and broadly without being too astute or subtle in finding defects: Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 at 109‑110. 13 A policy of insurance is a commercial contract and should be given a businesslike interpretation in accordance with the above principles: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 at [22] (Gleeson CJ); as approved in CGU Insurance Limited v Porthouse [2008] HCA 30; (2008) 235 CLR 103 at [43]. 14 The policy should be construed as a whole, by considering the entire text: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited at [46]. Therefore, it should not be approached by isolating particular fragments or disregarding its overall character. There must be due regard to the overall nature of the instrument, the nature of the transaction or dealing that it records and its commercial purpose as evident from considering all of its terms. This also requires consideration of the style, layout, language and structure of the instrument. Some commercial instruments present as having been drafted with the coherence and consistency in terminology and grammatical expression that may be expected of an experienced and expert commercial lawyer. In such cases it is appropriate for the language to be construed by reference to the customary forms adopted in such instruments. Others present as 'a clumsily tailored variation of an ill-fitting off-the shelf precedent': Ecosse Property Holdings at [51] (Gageler J). In such instances, no reasonable business person would interpret the instrument with the same eye to differences in language and terminology as might be appropriate for instruments that have a different form of structure and expression. Some commercial instruments, are relatively informal or are brought into existence to meet the exigencies and necessities of everyday commercial life without time or inclination to ensure neatness of grammar and consistency in terminology. Others present as being carefully considered and settled by those with considerable experience in their drafting. All such characteristics of the instrument as a whole should be brought to account when giving a businesslike construction to the instrument. 15 In the present case, the policy document has aspects that are bespoke and other aspects that indicate the use of standard terminology. It adopts a form common to many insurance instruments whereby separate clauses are deployed to limit, exclude and extend the operation of the principal provisions that describe the nature and extent of the primary cover. This reflects the nature of its subject matter. It deals with the provision of indemnity for the risk of loss arising from particular perils. In order to agree a premium for the particular coverage that is sought, underwriters usually work with policies that provide established and known types of cover for particular types of risk. From that base, they must evaluate the incremental changes to exposure that result from the inclusion of particular limits, exclusions and extensions. The use of known or familiar forms of words as building blocks for such an instrument facilitates evaluation of the extent of the risk for the purpose of settling upon an appropriate premium. The significance for the construction of insurance instruments of these characteristics of the commercial purpose served by insurance instruments was described by Allsop CJ and Gleeson J in Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) [2016] FCAFC 15; (2016) 239 FCR 12 at [35]-[44]. 16 Therefore, although these reasons begin by focussing upon the particular clauses in issue, it will be necessary to then place those provisions in the overall context of the instrument by due regard to its terms as a whole, the manner in which the Policy is structured and what the instrument reveals about its purpose. The claim by Star based on the terms of memorandum 7 The key provisions of the Policy 17 The claim by Star both before the primary judge and on appeal relies upon the terms of the indemnity provided in Section 2 as affected by memorandum 7 in the Memoranda to Section 2. The indemnity itself is expressed in the following terms: In the event of any building or any other property or any part thereof used by the Insured at the Premises for the purpose of the Business being physically lost, destroyed or damaged by any cause or event not hereinafter excluded (loss, destruction or damage so caused being hereinafter termed 'Damage') and the Business carried on by the Insured being in consequence thereof interrupted or interfered with, the Insurer(s) will, subject to the provisions of this Policy including the limitation on the Insurer(s) liability, pay to the Insured the amount of loss resulting from such interruption or interference in accordance with the applicable Basis of Settlement. 18 The above provision is immediately followed by a proviso in the following terms: Provided that the Insurer(s) will not be liable for any loss under this Section unless the Insured's property lost, destroyed or damaged is insured against such Damage and the Insurer or Insurers by which such property is insured shall have paid for, or admitted liability in respect of, such Damage unless no such payment shall have been made or liability shall not have been admitted therefor solely owing to the operation of a provision in such insurance excluding liability for loss below a specific amount. 19 Memorandum 7 of the Memoranda to Section 2 forms part of some twenty memoranda that are introduced by the following words: Except to the extent this Policy is hereby modified under the following Memoranda the terms, Conditions and limitations of this Policy shall apply. It says: The word 'Damage' under Section 2 of this Policy is extended to include loss resulting from or caused by any lawfully constituted authority in connection with or for the purpose of retarding any conflagration or other catastrophe. 20 Star accepts that the principal indemnity provision in Section 2 is confined to business interruption in the event of physical loss, destruction or damage to a building or other property. However, it contends that memorandum 7 modifies the indemnity by expanding it to include instances where there was no physical loss, destruction or damage, in particular where the loss resulted from or was caused by a government authority making orders or directions for the purpose of limiting the spread of COVID-19. It says that the loss covered by the terms of Memorandum 7 for which it is entitled to indemnity under Section 2 for business interruption includes loss of use, loss of custom or financial loss resulting from action by an authority of the kind described in memorandum 7 which, it says, includes action taken in response to the COVID-19 pandemic. 21 Memorandum 8 then provides that loss as insured by Section 2 of the Policy resulting from interruption or interference with the business of Star that is in consequence of 'Damage to property' within a 10 kilometre radius of the business premises 'shall be deemed to be loss resulting from Damage to property used by the Insured at the premises'. It may be noted that the extension applies only where there is damage to property within the specified radius. 22 The next provision, memorandum 9, is important for the case advanced by the Insurers. Like memorandum 7 it extends the term damage as defined in the indemnity provision for Section 2. Amongst other things, it includes in the indemnity damage that results from Notifiable Disease. As will emerge, it does so in a manner that is hedged with a number of qualifications and limitations. Memorandum 9 provides: Damage is extended to include loss resulting from:- 1. a) Any occurrence of a Notifiable Disease (as defined below) at the Premises or a Notifiable Disease attributable to food or drink supplied at the Premises, b) Any discovery of an organism at the Premises likely to result in the occurrence of a Notifiable Disease 2. The discovery of vermin or pests at the Premises, 3. Any accident causing defects in the drains or other sanitary arrangements at the Premises, which causes restrictions on the use of the Premises on the order or advice of the competent Local Authority 4. Any occurrence of murder or suicide at the Premises 23 Memorandum 9 goes on to specify a number of 'Special Provisions' that apply to the provision. They begin by defining 'Notifiable Disease' as follows: Special Provisions (a) Notifiable Disease shall mean illness sustained by any person resulting from 1. Food or drink poisoning or 2. An occurrence of a human infectious or human contagious disease which the competent Local Authority has stipulated shall be notified to them, with the exception of any occurrence, whether directly or indirectly, arising from Quarantinable disease listed in the Bio Security Act 2015, which are all specifically excluded hereunder. 24 It may be especially noted that the term Notifiable Disease has an express exclusion for any occurrence that arises directly or indirectly from a category of disease defined by reference to the Biosecurity Act 2015 (Cth). COVID-19 is such a disease (see the explanation of the statutory provisions in the Second Test Cases Appeal). This was accepted by Star before the primary judge and the same position was taken by Star on appeal. 25 The exclusion at the end of Special Provision (a)2. is doubly expressed. It first excepts from a particular category of disease identified by reference to the Biosecurity Act those occurrences of human infectious or human contagious disease that will be a Notifiable Disease as defined. It then states in addition that such diseases 'are all specifically excluded hereunder'. These additional words emphasise the intention to exclude coverage for loss from the occurrence of such diseases. 26 The Special Provisions in memorandum 9 then provide as follows: (b) For the purpose of the extension Indemnity Period shall mean the period during which the results of the Business shall be affected in consequence of the Damage, beginning with the date from which the restrictions on the Premises are applied (or in the cast of 4, above, with the date of the occurrence) and ending not later than the maximum Indemnity Period thereafter. Maximum Indemnity Period shall mean 3 months. Premises shall mean only those locations stated in the Premises definition situate in Australia. In the event that the Material Damage or Business Interruption sections include an extension which deems Damage at other locations to be Damage at the Premises such extension shall not apply to the Extension. (c) The Insurer shall not be liable under this extension for any costs incurred in the cleaning, repair, replacement and recall or checking of property (d) The Insurer shall only be liable for loss arising at those premises which are directly subject to the Damage (e) The liability of the Insurer shall not exceed the inner Limit of Liability stated in the specification (f) Notwithstanding Special Provision (c), the insurance by this extension extends to include the costs and expenses necessarily incurred with the consent of the Insurer in 1. Cleaning and decontamination of property used by the Insured for the purpose of the Business (other than stock in trade) 2. Removal and disposal of contaminated stock in trade At or from the Premises, the use of which has been restricted on the order or advice of the competent Local Authority solely in consequence of the Damage as defined above. Notifiable Disease - AUD $1,000,000 in the aggregate any one period of Insurance (original emphasis) 27 The emboldened references to the limit on the indemnity period and to the sub-limit at the end of memorandum 9 are quite striking. The first limits any claim to a maximum period of three months. The second is a cross-reference to a Sub-limit for Notifiable Disease of $1 million in the aggregate in the period of insurance that is specified elsewhere in the Policy. No other Sub-limit is highlighted in this way within the Memoranda to Section 2. It reinforces to the reader that when it comes to the memorandum concerned with Notifiable Disease there are specific limits. This is an important contextual feature. It would be brought to account by a reasonable business person in considering whether the Policy, by provisions other than memorandum 9, may allow for a claim based upon the occurrence of a human infectious or human contagious disease. Even more so where the occurrence falls within the exclusion for certain types of human disease expressed by reference to the Biosecurity Act. 28 What is also striking is the extent of the qualifications and limitations expressed in memorandum 9. It presents as a considered and carefully crafted provision addressing the extent to which the Policy will provide cover in respect of human infectious or contagious disease. It takes effect within a Policy that otherwise excludes liability for physical loss, destruction or damage 'occasioned by or happening through … disease': see Perils Exclusion 4(a). Therefore, without specific provision in the Memoranda to Section 2, in order for there to be cover for business interruption there would need to be physical loss, destruction or damage to property used in the business of Star that was not occasioned by and did not happen through disease. Three principal propositions underpinning Star's case on appeal 29 Star's position depends upon two propositions concerning memorandum 7, namely: (1) the reference to 'loss' is not confined to physical loss; and (2) the manifestation of COVID-19 (both as to the risk and the eventuality of its spread) falls within the ambit of the words 'or other catastrophe' such that orders and directions by government authorities made in order to limit the spread of COVID-19 were 'in connection with or for the purpose of retarding' that catastrophe. 30 Star's position on appeal also depends upon the further proposition that despite memorandum 9 setting a number of different types of constraints upon the scope of the extension of cover for human infection and a limit of $1 million in the aggregate on such claims in the period of insurance, nevertheless in the event of action taken in response to the risk or occurrence of human infection that resulted in loss for reasons that fall outside the terms of memorandum 9, a claim to the full limit of liability specified for each address is covered by the policy. In the case of the premises at which The Star Hotel and Casino is located that would allow a claim for up to $4 billion in the period of insurance. 31 The Insurers advance a cross-appeal. It concerns a finding by the primary judge at [202] in the following terms: While the incidence of COVID-19 in Australia may not have been as physically great as it was globally, it nonetheless reached the level of a catastrophe, if only as a consequence of the way in which the Federal, State and Territory authorities approached and responded to it. It led to the further finding by the primary judge at [203] that an inchoate or incipient catastrophe is a catastrophe nonetheless. In consequence, his Honour posed the following question: The question then becomes (again on the hypothesis that the construction advanced by Star is correct) whether the intervention by Federal, State and Territory authorities was done in connection with, or for the purpose of retarding, this incipient catastrophe. 32 Ultimately, his Honour found (on the hypothesis as stated) that there was action taken by relevant authorities in connection with or for the purpose of retarding an incipient domestic catastrophe: at [207]. The cross-appeal challenges the propositions that the concept of catastrophe in memorandum 7 includes an incipient catastrophe or that a catastrophe may exist by reason of the nature of the response to something that was not otherwise a catastrophe. These issues only arise if Star's case as to the proper construction of memorandum 7 is accepted. 33 In its response to the cross-appeal, Star contends that the primary judge ought to have found that the COVID-19 pandemic was a domestic catastrophe (not just an incipient catastrophe). It also contends that the pandemic was a catastrophe irrespective of the nature of the response by the Federal, State and Territory authorities. 34 Before the primary judge the Insurers accepted that the restrictions relied upon by Star were actions of a lawfully constituted authority for the purposes of memorandum 7. However, they did not accept that the advices given by those authorities had that character. 35 The issues raised by Star's contentions in answer to the cross-appeal only arise if Star succeeds in its appeal and the Insurers also succeed in their cross-appeal on the basis that an incipient catastrophe of the kind found by the primary judge was not a catastrophe for the purposes of memorandum 7. Summary of outcome 36 For the reasons which follow, the primary judge was correct to reject Star's position concerning memorandum 7 and its scope. Memorandum 9 expresses the full extent of the liability of the Insurers under the Policy in respect of the subject matter which it addresses. Relevantly for present purposes, that subject matter is loss resulting from the interruption of Star's business by reason of the occurrence of human infectious or contagious disease. Memorandum 9 limits that liability in a number of ways, including by requiring there to be an 'occurrence' of human infectious or contagious disease 'at the Premises', by specifically excluding certain diseases by reference to the Biosecurity Act, by providing for a maximum limit on the period of any claim of three months and by applying the Sub-limit highlighted in the endorsement at the end of memorandum 9. To the extent that the generally expressed terms of memorandum 7 might be said to encompass action taken by a lawfully constituted authority to confine the spread of a disease such as COVID-19 on the basis that it is a 'conflagration or other catastrophe', the scope of memorandum 7 is to be read down so as to avoid inconsistency with the language of memorandum 9 which deals with such matters expressly by setting clear limits on the extent of the indemnity afforded in respect of loss associated with human infectious and human contagious diseases. The appeal should be dismissed on that basis. 37 In any event, we are not persuaded by Star's argument that memorandum 7, construed in context, applies to loss resulting from actions by an authority to prevent or restrict the spread of a human disease such as COVID-19. This is principally because, in context, the term catastrophe is used to refer to a physical phenomenon the course of which may be affected by physical action in the same way that a conflagration may be so affected. A similar conclusion was reached by the primary judge: at [172]. 38 Therefore, it is not necessary to determine the issues raised by the cross-appeal and the matters raised by Star's notice of contention in that cross-appeal which all concern the reasoning by the primary judge as to whether there was a catastrophe for the purposes of memorandum 7 (assuming Star's construction was correct). However, in our view no error has been demonstrated in the approach by the primary judge in concluding (on the hypothesis that Star's construction of memorandum 7 was correct) that there was an incipient domestic catastrophe at the relevant time. 39 In consequence, the points of contention raised by Star in the cross-appeal do not arise. In our view, it is not necessary or appropriate to deal with them. Matters which emerge from reading the Policy as a whole 40 We begin by considering the matters relevant to the construction of memoranda 7 and 9 that emerge from the Policy as a whole. Principal indemnity requires physical loss, destruction or damage 41 The insurance afforded by the Policy is against loss resulting from 'insured events'. In Section 1, the Policy provides for indemnity '[i]n the event of any physical loss, destruction or damage' not otherwise excluded happening at the Situation to the Property Insured (being a term which is defined broadly and, speaking generally, includes all real and personal property belonging to Star or for which it is responsible or in which it has an interest). It may be noted that the indemnity in section 1 is not confined by language of causation. The indemnity is 'in accordance with the applicable Basis of Settlement'. 42 Section 2 of the Policy provides for indemnity '[i]n the event of' any property 'used by' Star at its premises for the purpose of its business being 'physically lost, destroyed or damaged by any cause or event not hereinafter excluded' and the business of Star being 'in consequence thereof interrupted or interfered with'. Further, the loss to be paid is the 'amount of loss, resulting from such interruption or interference' and is to be in accordance with the Basis of Settlement. 43 There are Exclusions that are expressed to apply to 'All Sections'. They begin with a list of types of property which is introduced by the following words: This Policy does not cover physical loss, destruction of or damage to the following property or loss under Section 2 resulting therefrom The list appears to be in standard terms. It includes references to livestock, standing timber and oil and gas drilling rigs. It is not apparent how property of that kind could relate to the nature of the business conducted by Star. However, it emphasises the focus of the principal indemnity provisions upon physical loss, destruction of or damage to property. 44 The Exclusions that apply to All Sections then have a list of provisions introduced by the words: The Insurer(s) shall not be liable under Sections 1 and 2 in respect of … The list that follows has numerous provisions that use the terminology 'physical loss, destruction of or damage [to the Property Insured or specified types of property]'. 45 One item in the list (item 4 of the Perils Exclusions) is expressed in the following terms (insofar as is presently relevant): physical loss, destruction or damage occasioned by or happening through … disease … Provided further that the Insurer will indemnify the Insured for any loss, destruction of or damage to Property Insured caused directly by any circumstances not excluded under this Policy, notwithstanding that these circumstances may in turn have been caused by, or have been followed by, any of the circumstances referred to in this Perils Exclusion 4'. 46 Plainly, the scope of the principal indemnity provisions is upon physical loss, destruction of or damage to property (being the insured peril) and business interruption in consequence of the same. Declared values and limits of liability 47 The Policy has declared values for property. It also has limits and sub-limits for liability under a number of the provisions. All are specified in the Schedule. 48 The Declared Value for Section 1 is more than $4.58 billion and for Section 2 is more than $6.56 billion. Although the Schedule refers to the Declared Values being 'in accordance with the Basis of Settlement', it appears that they are provided for the 'purpose of premium adjustment only': see item 3 of Memoranda to Section 1 (which deals with those values in respect of Section 1 and Section 2). They appear to specify overall values for property covered by each of the two sections. 49 The Limits of Liability specify maximum limits of liability for separate addresses. For example, the limit for The Star Hotel and Casino including The Darling Hotel Sydney is $4 billion. There are detailed Sub-limits specified for particular aspects of the coverage specified in the policy. For example as to Section 1 the coverage for removal of debris is limited to $30 million. For Section 2, there are a number of Sub-limits specified as follows: Section 2(i) - Consequential Loss Claims Preparation Costs-Item no 4 $ 3,500,000 Accounts Receivable -The Indemnity (j) $ 10,000,000 Additional Increase in Cost of Working - Item No. 5 $ 75,000,000 General Area Damage in respect of The Star\The Darling $ 20,000,000 properties in Sydney & Gold Coast - Memorandum no 8 General Area Damage in respect of All Other $ 15,000,000 Situations- Memorandum no 8 Isolation by Landslip or Flood - Memorandum no 10 $ 2,000,000 Utilities Extension -Memorandum no 11 $ 30,000,000 Premises in the Vicinity/Prevention of Access - $ 30,000,000 Memorandum no 15 - in the annual aggregate Severance Pay - Memorandum no 17 $ 30,000,000 Premises Extension - Customers and Suppliers $ 7,500,000 - Specified and Unspecified- Memorandum no 18 Violent Threat of Damage - Memorandum no 19 $ 5,000,000 - in the annual aggregate Infectious Disease Murder Closure $ 1,000,000 - Memorandum no 9 - in the annual aggregate Unspecified Customer's / Supplier's Premises $ 7,500,000 Section 2(ii) - Consequential Loss The Star Benefit Levy and Casino Duty (CCA Levy) $278,000,000 - Memorandum no 4. annual / 36 mth indemnity period aggregate of $825,000,000 Sections 1 & 2 Combined Subsidence, Erosion, Earth Movement & Collapse. $ 5,000,000 This Sub-Limit shall not apply where loss, destruction or damage is caused by or occasioned through an earthquake or seismological disturbance or storm and tempest or rainwater or flood. Flood - The Star Gold Coast - any one event and $ 100,000,000 in the annual aggregate Flood - Waterline Park facility, Brisbane $ 10,000,000 - any one event and in the annual aggregate If more than one Sub-Limit of Liability applies, the greater amount shall be payable. 50 The limit for Section 2(ii) illustrates how bespoke certain of the terms in the Policy are to the nature of the business conducted by Star. 51 It may be noted that for memorandum 7 of the Extension there is no sub-limit, but for memorandum 9 (dealing with infectious disease, vermin, pests, murder and suicide) there is a limit of $1 million in the annual aggregate. As has already been noted, there is a further endorsement to the same effect at the end of memorandum 9 which is expressed in bold typeface as follows: Notifiable Disease - AUD $1,000,000 in the aggregate any one period of Insurance 52 These provisions as to limits and sub-limits are detailed. They provide for different sub-limits for many particular provisions under which cover is afforded. By this mechanism the extent of cover for the particular risks the subject of particular provisions concerning the extent of the indemnity provided in particular circumstances is specified. The sub-limits depend for their operation upon the limits attaching to specific risks. 53 The case advanced for Star would mean that despite the sub-limit for notifiable disease expressed by reference to the detailed provision in memorandum 9, there would no limit where the disease might be described as a catastrophe and the authorities took action of the kind described in memorandum 7. The terminology used in memorandum 9 54 Memorandum 9 does not simply identify a risk or peril that is to be included in the cover by way of extension or expansion. Rather, it is expressed in terms that contain a number of exclusions and limits. Some might be viewed as describing the nature of the risk or peril. However, there are a number of aspects that manifest an intention to limit the extent to which there will be cover for the particular type of peril the subject of memorandum 9. That is to say, the memorandum takes a form that both describes what is covered and what is not covered when it comes to the events addressed by the memorandum. This aspect is significant because it manifests an intention which is inconsistent with other provisions being read in a way that would include cover of the kind that memorandum 9 says is not covered. In short, the form of memorandum 9 indicates an intention that its specific provisions should apply to the exclusion of the application of more general provisions when it comes to the subject matter that it addresses. So, without clear words elsewhere in the Policy, cover that is expressly excluded by memorandum 9 is not provided. 55 The following aspects of memorandum 9 (each of which is addressed separately below) assume significance when it comes to considering the extent of cover afforded by the Policy in connection with human infectious or human contagious disease: (1) paragraph 1 of the memorandum is confined to an occurrence of Notifiable Disease at the Premises or any discovery of an organism at the Premises likely to result in the occurrence of a Notifiable Disease; (2) only Notifiable Diseases are covered; (3) the definition of Notifiable Disease in the Special Provisions excludes a category of human disease defined by reference to the Biosecurity Act; (4) there is a maximum indemnity period of three months from the relevant occurrence (or discovery) at the Premises; (5) other provisions that may expand indemnity to include events that occur outside the Premises do not apply to memorandum 7; (6) the Insurers are only liable for loss arising at the Premises directly subject to the occurrence or discovery; and (7) there is a Sub-limit of $1 million. (1) Occurrence or discovery of Notifiable Disease at the Premises 56 The first qualification to the extent of cover afforded by memorandum 9 in relation to human infectious or contagious disease is to be found in the language in paragraph 1. It confines the cover to loss resulting from an occurrence of disease at the Premises or discovery of an organism at the Premises likely to result in the occurrence of disease. Events and occurrences that occur beyond the Premises or steps taken to deal with the risk of future occurrence or discovery are not covered. This focusses the extent of the insured peril upon what may happen at the Premises. (2) Notifiable Disease 57 Next the definition of Notifiable Disease operates to limit the cover. It is expressed in terms that include an illness resulting from an occurrence of a human infectious or contagious disease 'which the competent local Authority has stipulated shall be notified to them'. Also, paragraph 1 of memorandum 9 should be read as being qualified by the words which follow paragraph 3, namely 'which causes restrictions on the use of the Premises on the order or advice of the competent Local Authority' (a proposition that was in issue before the primary judge but was accepted as correct by Senior Counsel for Star in oral submissions on the appeal). In addition, it may be noted that elsewhere in memorandum 9 there is a provision to the effect that the indemnity period is to be calculated beginning with the date 'from which the restrictions on the Premises are applied'. These aspects of memorandum 9 manifest considered attention being given by the parties to the Policy to the extent to which the consequences of a particular human disease will come within the perils insured. They focus upon whether the disease is one which is notifiable to a competent authority and whether a notification has led to restrictions on the use of the Premises. There are requirements that must be met as to both those aspects. 58 The focus upon action by relevant authorities echoes to some degree the form of memorandum 7 which refers to loss resulting from or caused by any lawfully constituted authority in connection with or for the purpose of retarding any conflagration or other catastrophe. Therefore, the language of memorandum 7 also deals with the extent to which there will be indemnity where loss results from action taken by a competent authority. If indeed the parties intended memorandum 7 to apply to actions taken in relation to disease then the requirement in memorandum 9 that there be action taken which leads to restriction on the use of the Premises would not apply if the disease could be characterised as a catastrophe for the purposes of memorandum 7. The other limits upon the scope of memorandum 9 (as listed above) would also not apply. The detailed specific provisions addressing the extent to which there is cover in relation to the consequences for the insured of human disease could be overtaken by the general terms of memorandum 7 where the incidence of the disease could be encompassed by the term catastrophe. (3) Exclusion by reference to the Biosecurity Act 59 As has been noted, the definition of Notifiable Disease (to which the terms of paragraph 1 of memorandum 9 are confined), itself excludes a category of disease defined by reference to the Biosecurity Act. It is an exclusion which is doubly expressed. It is a statement about what is not covered. In order for it to be given effect, the occurrence of a disease such as COVID-19 must be excluded from the extent of the additional cover provided by memorandum 9. As has been noted, that additional cover is itself limited in a number of respects, notably limited to an occurrence or discovery of a disease that is not an excluded disease at the Premises. As cover for such an occurrence or discovery at the Premises is excluded expressly by the terms of memorandum 9, it is unlikely that some other provision operated in a manner that would allow cover for loss resulting from the occurrence of such an excluded disease (whether at the Premises or elsewhere). Yet, that is the case that Star advances as to the scope of memorandum 7. (4) Maximum indemnity period of three months 60 Memorandum 9 states that the cover for loss resulting from an occurrence or discovery of a Notifiable Disease is limited to three months. Memorandum 7 is not limited in that way. If memorandum 7 was to be construed as affording cover where there was action taken to retard the spread or the risk of spread of a human infectious disease (on the basis that it fell within the words 'or another catastrophe' as Star contends) then there would be no such limitation. It may be accepted that, on the construction for which Star contends, there may be cases covered by memorandum 7 that are not a catastrophe. However, there would be a degree of disconformity in treating those cases as being subject to the three month limit (and otherwise confined to loss in the manner specified in memorandum 7) and allowing coverage for a catastrophic event which, by its very character, would be likely to be productive of greater loss (or at the very least posed that possibility) which was not so limited. 61 It is possible that greater coverage for an event that was assessed as being less likely might be agreed than for one which was assessed as being more likely. However, the Sub-limits are a significant factor to be kept in mind in considering whether that is the way in which a reasonable business person would understand what is expressed by the language of the Policy. The differential is extremely large. Aided by that particular aspect of the context, it appears to be most unlikely that the parties to the Policy would go to the trouble of imposing a Sub-limit of $1 million in the aggregate over the term of the Policy and allow a claim on the basis that memorandum 7 applies to an insured peril of similar character which claim could be in the billions of dollars. 62 The difficulty with Star's construction when it comes to provisions such as the three month limit on loss is that it introduces the potential for overlap such that cases which fall within memorandum 9 might be the subject of a claim to indemnity by Star on the basis of its contention that memorandum 7 applies. In that eventuality, action taken by an authority by reason of the occurrence of disease at the Premises which formed part of what Star would claim to be a catastrophe which caused loss beyond three months would be able to be claimed under memorandum 7 (unconstrained also by the other limits in memorandum 9). This would defeat the carefully worded terms of memorandum 9 (directed expressly to the occurrence of human disease) which concerns not only what was covered but also what was not covered. It would result in a claim for loss from the occurrence of a Notifiable Disease at the Premises (that otherwise conformed to limits expressed in memorandum 7) even though the Policy states in emboldened terms in memorandum 9 that there is a maximum indemnity period of three months from the date of occurrence. (5) Provisions that may expand indemnity to events outside the Premises do not apply 63 As part of Special Provision (b), memorandum 9 provides expressly that the reference to Premises in memorandum 9 are not extended to include damage at other locations even where there is an extension of that kind that applies to other provisions that extend cover. This reinforces the express intention that the provisions in memorandum 9 are confined to what occurs at the Premises. As has been noted, memorandum 8 takes the form of extending loss resulting from Damage to property to Damage to property within a 10 kilometre radius. Memorandum 7 would not allow that provision to be used to expand its scope. (6) Only loss arising at the Premises 64 Special Provision (d) to memorandum 9 specifies a further limit on the coverage afforded if the peril described by its terms was to occur. It says that the Insurers shall only be liable for loss 'arising at those Premises which are directly subject to the Damage'. There is no such limit expressed in memorandum 7. (7) The Sub-limit of $1 million in the aggregate 65 Reference has already made to the significance of the Sub-limit for memorandum 9 of $1 million in the aggregate in any one period of insurance and the absence of any equivalent for memorandum 7. Conclusion 66 On Star's case, the carefully crafted provisions which govern the extent of cover in the case of loss resulting from the occurrence of human infectious or human contagious disease would not apply where the occurrence was of a kind that might be described as a catastrophe for the purposes of memorandum 7 and an authority acted in connection with or for the purpose of retarding the catastrophe. The express statements in memorandum 9 as to what was not covered would not apply despite the risk arising from the same subject matter. The extent of the seven qualifications that we have described as forming part of the description of the extension effected by memorandum 9 count strongly against such a conclusion. They are not simply describing the nature and extent of the insured peril. They are expressing agreement as to certain circumstances that will not be covered. Memorandum 7 67 The merits of Star's case concerning the scope of memorandum 7 depend upon the existence of an overlap in subject matter as between memorandum 7 and memorandum 9. It involves construing memorandum 7 in a manner that would result in memorandum 7 overriding the limitations in memorandum 9 in cases where there was action by an authority in response to a human infection that was a catastrophe for the purposes of memorandum 7. On Star's case, the very general would apply over the very specific. In consequence, despite there being no reference to disease in memorandum 7, it would apply in a case where the peril was in connection with a human infectious or contagious disease. Disease exclusion 68 The general indemnity in Section 2 covers physical loss, destruction of or damage to property used by Star in its business 'by any cause or event not hereinafter excluded'. There are a number of exclusions. As has been noted, one of those is for physical loss, destruction or damage occasioned by or happening through disease (exclusion 4(a)). In that context, if indeed it was intended that the general language of memorandum 7 might apply in a manner that might allow for indemnity where action was taken in connection with disease and thereby cover what was otherwise expressly excluded, it may be expected that language that would manifest that specific intention might be used (especially given the terms of memorandum 9 which address specifically and in considerable detail the extent of cover for a peril connected with human disease). The purpose of the Policy 69 The Policy is a commercial instrument which expresses the extent of risk for which insurance is to be provided by the Insurers. As has been explained, where an instrument of that character is negotiated to arrange coverage that fits the particular circumstances of an individual insured, it is necessary for an underwriter to assess a premium that is an appropriate commercial price for the extent of coverage. In such a context, where, as here, particular memoranda are used to expand or limit the scope of the indemnity afforded by the principal indemnity it may be inferred that the parties have turned their minds to particular topics or types of risk and drafted appropriate memoranda to deal with each such instance. 70 All of which is not to say that there may not be overlap between some memoranda and others. The risk of future events cannot be neatly compartmentalised. Indeed this is reflected in the Sub-limits that apply across Section 1 and Section 2 for particular events. However, the nature of an insurance instrument and its evident purpose is such that where one provision focusses upon a particular type of risk and articulates with considerable precision the extent to which indemnity will be provided by a combination of the use of a key definition (Notifiable Disease), confining language (occurrence at the Premises), exclusions (Premises is not expanded to other locations by any other provisions of the Policy), exceptions (diseases identified by reference to the Biosecurity Act) and a Sub-limit ($1 million in the aggregate in any one period of insurance), those matters together signal to a reasonable business person that the extent of coverage relating to that risk as described (human infectious or human contagious disease) is confined by those express terms and more general terms which might also be said to apply should be read accordingly. Proper construction of memoranda 7 and 9 in the context of the Policy as a whole 71 Memorandum 9 is by far the most comprehensive of the Memoranda to Section 2. It is unique in stating such detailed limitations and exclusions to the scope of the extended cover that it affords. It deals with four distinct categories of cover; occurrence or discovery of human infectious or contagious disease at the Premises, discovery of vermin or pests at the Premises, accident causing defects in the sanitation at the Premises and any occurrence of murder or suicide at the Premises. It has detailed provisions that limit the scope of the cover. 72 Having regard to the matters of context that have been described, even assuming in Star's favour that the terms of memorandum 7 are capable of the breadth of construction for which it contends, a reasonable business person would read the general terms of memorandum 7 as being subject to the detailed and specific provisions of memorandum 9 when it came to the extent of coverage afforded in connection with human infectious or contagious disease. 73 For Star, a number of submissions were advanced against concluding from the specific terms of memorandum 9 an intention that it was to apply to all instances where the claim was for loss consequent upon an event that arose by reason of human infectious or contagious disease by stating both what was and what was not covered in any such instance. 74 First, it was said that memorandum 9 was dealing with instances where there was an occurrence of disease on the Premises. In such cases, so it was submitted, the insured's moral hazard explained the limitations. The point was developed by reference to the cover for the discovery of vermin or pests on the Premises. It was said that there was a moral hazard because the likelihood of occurrence of the event was affected by the manner in which Star was to run its business establishment. It was also said that there was also a moral hazard in how it responded if there is such a discovery. The limitations were said to explain such aspects which were not present in the case of a catastrophe for which Star as the insured would have no responsibility. 75 There are a number of difficulties with the submission. First, if moral hazard (rather than a concern about limiting the extent of the indemnity to be extended for the agreed premium) was the explanation for the limitations in memorandum 9 then there was much clearer language that might be directed towards excluding events that were attributable to the conduct of Star as the insured. Second, cl 13 of the Conditions to the Policy required Star as the insured to 'take all reasonable precautions to prevent loss, destruction or damage to the property insured by this Policy'. Third, the contention does not fit in the same way with the other perils described in memorandum 9 being cover for occurrence of a Notifiable Disease, accident causing defects to sanitation or the occurrence of murder or suicide. Therefore, we are not persuaded that it is a reason to reach a different view concerning the limitation on the scope of memorandum 7 by reason of the terms of memorandum 9. 76 Secondly, it was said that operation of the Memoranda to Section 2 did not require the elimination of overlap or inconsistency. This is a point to which we have already had regard. 77 Thirdly, it was submitted that to reason from the extent of the exclusions and exceptions in memorandum 9 that it operated, in effect, as a statement of the extent to which perils associated with human disease were covered as well as not covered was to apply a form of the Anthony Hordern principle: as to which, see the authorities listed in Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 at [47], fn 72. 78 In that regard, Star placed particular reliance upon the following passage from Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [59] (Gummow and Hayne JJ): Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions. (footnotes omitted) 79 It appears that in doing so, Star seeks to emphasise that, on the case advanced by the Insurers, memorandum 7 was not wholly within the terms of memorandum 9 and rely upon that aspect as a reason for the Anthony Hordern principle not to be applied. However, in the present case we are not concerned with the specific type of statutory construction question to which the Anthony Hordern principle applies but rather the more general principle which underpins that line of cases. As was explained by Edelman J in BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 269 CLR 574 at [206]: The [Anthony Hordern] principle concerns in substance the same general language convention, or 'ordinary usage' of language, that is sometimes expressed as generalia specialibus non derogant and seeks to resolve inconsistency by preferring the specific provision to the general provision. A general provision will usually be interpreted so that it does not contradict a specific power that imposes 'conditions and restrictions which must be observed' in the exercise of the same power. 80 As such, it is a principle that forms part of the conventions and forms of language that a reasonable business person would bring to account in forming a view as to the scope of a general provision in the context of a more specific provision dealing with the same subject matter: Findex Group Ltd v McKay [2020] FCAFC 182 at [156] (Markovic, Banks-Smith and Anderson JJ); Hume Steel Ltd v Attorney-General for Victoria (1927) 39 CLR 455 at 466 (Higgins J); and Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd [2004] FCA 403 at [171] (Wilcox J). 81 Such principles, once viewed as canons of construction, are now properly seen as illustrations of the way in which an instrument is construed as a whole such that its provisions fit together: Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2019] NSWCA 53 at [51]-[52] (Leeming JA, Sackville and Emmett AJJA agreeing); and Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161; (2020) 103 NSWLR 443 at [269]-[270] (Bathurst CJ, Bell P and McCallum JA agreeing). 82 Further, a conflict between apparently inconsistent provisions in the same instrument 'is to be resolved, if at all possible, on the basis that one provision qualifies the other and, hence, that both have meaning and effect': Re Media Entertainment & Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 at 386 (Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ). The conflict arises here if, and to the extent that, the specific terms of memorandum 9 manifest an intention to deal comprehensively with the circumstances in which business interruption due to human infectious or contagious disease is covered by the Policy. 83 For reasons we have given, the detailed terms of memorandum 9, particularly as to its limits and exclusions identify not only what is covered but also what is not covered when it comes to such loss. It is dealing with the full extent of such claims and other provisions of the Policy should be approached on that basis. Memorandum 7 does not in terms refer to human disease. To the extent that its terms might be construed as embracing such an instance they should be read down in favour of the specific terms of memorandum 9. 84 Indeed, in the case of the exclusion expressed by reference to the terms of the Biosecurity Act, memorandum 9 uses language to that effect by saying that all such occurrences are specifically excluded. Likewise, the provision in relation to any extension for Damage that occurs elsewhere than on the Premises. 85 In any event, for the following reasons, memorandum 7 when properly construed in context, does not extend cover in the manner contended for by Star. The effect of memorandum 7 upon the scope of the indemnity provided by Section 2 86 The principal indemnity provision of Section 2 has already been quoted. For convenience of reference, it is restated below: In the event of any building or any other property or any part thereof used by the Insured at the Premises for the purpose of the Business being physically lost, destroyed or damaged by any cause or event not hereinafter excluded (loss, destruction or damage so caused being hereinafter termed 'Damage') and the Business carried on by the Insured being in consequence thereof interrupted or interfered with, the Insurer(s) will, subject to the provisions of this Policy including the limitation on the Insurer(s) liability, pay to the Insured the amount of loss resulting from such interruption or interference in accordance with the applicable Basis of Settlement. 87 As has been noted, the indemnity provision begins by describing an insured event. The event occurs when property used by Star at its Premises for its business is physically lost, destroyed or damaged by any cause not excluded. The provision then states that the loss, destruction or damage 'so caused' is 'hereinafter termed 'Damage' '. Therefore, unless otherwise extended, the term 'Damage' is confined to physical loss, destruction or damage resulting from a non-excluded cause. So, the first reference to loss in the indemnity clause is of that character. Therefore, the term 'Damage' is shorthand for the extent of the perils covered by the indemnity. It is all instances where there is physical loss, destruction or damage to property used by Star at its Premises howsoever caused, unless it is caused by an excluded event. It follows that the defined term 'Damage' is used to refer to the events the occurrence of which give rise to the right to the indemnity provided under Section 2. In that context, the term 'loss' is used as part of the description of the insured event. It is not referring to the loss that may be claimed. In that sense it is inapt to think of the reference to loss and the defined term Damage as a reference to loss and damage respectively in their familiar sense of a loss that is to be claimed. Rather, the term Damage (and the language 'loss, destruction or damage so caused' to which it refers) is describing the extent of the peril that is covered by the Policy. In the case of loss, it is physical loss of property used by Star in its business. 88 The term Damage is defined as referring to loss, destruction or damage 'so caused', namely 'by any cause or event not hereinafter excluded'. There are many exclusions. For example, the Perils Exclusions include in clause 1(b) an exclusion for 'physical loss, destruction of or damage to the Property Insured … resulting from … requisition or damage to property by or under the order of any Government or Public or Local Authority'. The exclusion itself is confined by the following write back provision: Notwithstanding the provisions of Perils Exclusion 1(b) the Insurer(s) shall be liable for loss, destruction of or damage to, or the cost of removal of, sound property at the Premises for the purpose of preventing or diminishing imminent damage by, or inhibiting the spread of, fire or any other peril insured against under this Policy. 89 This deals, at least as to the spread of fire, with a subject matter that is also addressed by memorandum 7. It appears to be concerned with property claims, not with the subject matter of Section 2 which is claims for loss due to interruption to business. Much was sought to be made by the Insurers of the terms of the write back for the purposes of construction of the language used in memorandum 7. However, the exclusion is expressed in terms that engage with the principal indemnity which contemplates that claims will only arise where there is physical loss, destruction or damage to property. On any view, the language of memorandum 7 is making clear the extent to which that indemnity is extended. It may be effecting that extension by over-riding an exclusion or it may be simply providing for an additional peril that is covered or it may be doing both. Therefore, contrary to the contention advanced for the Insurers, the existence of the qualifying language to cl 1(b) of the Perils Exclusions does not provide any real assistance in understanding what was intended by memorandum 7. Whatever it says and however it operates, the nature of the memoranda is such that it has the potential to change the scope of the exclusion. 90 There is also an exclusion in cl 7 of the Perils Exclusions for physical loss, destruction or damage occasioned by or happening through any kidnapping, bomb threat, threat of contamination, hoax or extortion. Further, as has been noted, there is an exclusion for disease (quoted above). These exclusions (and others) operate by reference to the language of the general indemnity provided for in Section 2. Most use the terminology 'physical loss, destruction of or damage to [property]' in describing the perils excluded. By reason of their terms, the defined term Damage in Section 2 must be read as being qualified by these many exclusions. However, they offer little assistance when it comes to interpreting the memoranda to the indemnity in Section 2 because those memoranda can alter the extent of the Perils Exclusions. Also, as we have seen in relation to memorandum 9, they can provide for cover for consequential loss through business interruption as a result of events that do not involve any physical loss, destruction of or damage to property. Memorandum 19 is also of that character (see below). The Perils Exclusions to which we have referred do not engage with perils of that kind. The words in the Policy that introduce the Memoranda to Section 2 support an approach whereby the memoranda can alter the cover that would otherwise be provided by the principal indemnity described in Section 2 which is expressly made subject to the exclusions including the Perils Exclusions. Those introductory words state: Except to the extent this Policy is hereby modified under the following Memoranda the terms, Conditions and limitations of this Policy shall apply. 91 Returning to the text of the indemnity clause, after defining the events covered (to be referred to as Damage) the indemnity clause then refers to 'the amount of loss' that is 'in consequence' of the Damage interrupting or interfering with the business of Star as the insured. This part of the clause is not describing the insured events. Rather, it is describing the extent of the indemnity for loss in consequence of the occurrence of an insured event (namely, Damage) occurring. The loss described at this point in the clause might be described as the consequential loss or the indemnified loss. It is the loss occasioned by interruption to the business of Star. 92 Finally, the clause states that the cover is for the amount of such loss 'in accordance with the applicable Basis of Settlement'. This might be described as the quantified loss. 93 It is within that immediate context that the terminology in the Memoranda to Section 2 must be considered. The terms 'Damage' and 'loss' are deployed throughout the Memoranda to Section 2. 94 The first way in which that occurs is in memorandum 2 which provides that if the business of the insured is conducted in departments then certain of the Basis of Settlement provisions are to be applied 'separately to each department affected by the Damage'. In each of memoranda 3, and 5 there are related provisions dealing with the Basis of Settlement. These three memoranda each refer to calculation of loss due to the Damage. In each case loss is used to refer to the consequential loss and Damage is used to refer to the event giving rise to a claim. In the case of memorandum 2, it has the effect that, despite there being a single peril, the quantified loss is to be calculated separately for different departments of the business. 95 Memorandum 4 deals with the case of a claim to recover The Star Casino Benefit Levy being a type of loss for which there is express provision. It refers to instances in which the levy 'would have been payable in accordance with the above contractual arrangements had the Damage not occurred'. Again Damage is being used in the sense defined in the principal indemnity for Section 2. It is the event giving rise to the loss to be claimed. The memoranda specifies how the Basis of Settlement is to apply in such a case. Then, memorandum 4 states: The sub limits stated in Section 2(i), with the exception of Infectious Diseases, of this policy shall not apply to Casino Weekly Duty, Rebate Player Duty and Responsible Gambling Levy - Sub Limit Section 2(ii). 96 It can be seen that memorandum 4 lifts the Sub-limits in the case of a claim for loss that takes the form of loss of the levy. All limits are lifted except that for Infectious Diseases. As has been noted that limit is for $1 million in the aggregate for the term of the Policy. In our view, the retention of the limit in that case supports our conclusion that the terms of the Policy reflect a considered view that memorandum 9 expresses the full extent to which there would be cover for Infectious Diseases. As the Sub-limit applies only to memorandum 9, a construction which allowed memorandum 7 to apply to disease (and thereby without constraint by the Sub-limit) would mean that the qualification to memorandum 4 would not apply. However, the qualification appears in a context which manifests an intention that loss of the Levy would be subject to the Sub-limit for Infectious Diseases in all instances. That would only be the case if memorandum 9 expressed the full extent of cover for human infectious or contagious disease. 97 Memorandum 6 deals with the way in which information in the books of account of the insured may be treated in investigating or verifying any claim. 98 Then comes the key provision for Star's case, memorandum 7. It adopts the form of extending what is meant by Damage. It says: 'The word "Damage" under Section 2 is extended to include loss resulting from or caused by [the specified act of an authority]'. Therefore, its focus is upon extending the insured event covered by the principal indemnity for Section 2. Notably, it uses the expression 'loss', not the phrase 'loss, destruction or damage'. For the following reasons, the use of the term loss in that manner is ambiguous. 99 On one view, the focus of the opening words on extending the term Damage indicates that the memorandum is expanding the extent of cover by including something more within the defined term. In particular, it is including an instance where the action of an authority in connection with or for the purpose of retarding a conflagration or other catastrophe results in loss. On that approach, loss is not the indemnified loss that may be claimed and assessed according to the Basis of Settlement. Rather, loss is used as part of the terminology to define the kind of event for which indemnity is afforded. Therefore, 'loss' is not referring to loss which is a result of business interruption. Rather, it is referring to loss that causes business interruption (being loss that happens because of the action of an authority). On that approach loss is referring to the immediate consequence of the action of the authority in connection with or for the purpose of retarding any conflagration or other catastrophe. It is pointing to the effect of the action taken by the authority. It must have the effect of 'loss'. Accordingly, it is not referring to the financial or economic loss that flows from that action. 100 If such an approach is taken to the interpretation of the provision then it is difficult to see how the word loss could refer to an action by the authority that did not have some adverse physical consequence. As the primary judge concluded at [169] after considering the above aspects: Thus, there is a clear textual and structural foundation of 'loss' in memorandum 7 to be physical loss, which would practically in any case include destruction. There is no textual reason, other than the similarity (though not identity) of introductory wording of memoranda 7 and 9, to consider that 'loss' means loss of use. 101 The reference at [169] to the possible significance of the similarity with the opening wording of memorandum 9 lies in the fact, already noted, that memorandum 9 by its subject matter expands the scope of Damage to include events that do not result in physical loss. Therefore, when it refers to extending Damage to include loss resulting from the matters there specified it is not confined to physical loss. 102 Despite this, the primary judge concluded at [179] that: The word 'loss' in memorandum 7 means physical loss of (and so destruction of, but not damage to) property, not loss of use, or of custom or financial loss. 103 This further step seems inevitable if the opening words '"Damage" … is extended to include loss' are read as referring to loss as part of the insured event (in the same way that physical loss, destruction or damage are part of the insured event in the main indemnity provision). 104 However, as the extension is only for loss, such a construction produces the odd feature that the extension is only for action by the authority that causes loss, not for action that causes 'physical loss, destruction or damage'. 105 A different view of the references to loss in memoranda 7 and 9 arises if the use of that term is contrasted with the extensive use throughout the Policy of the phrase 'loss, destruction or damage' (or equivalent language) and the use of that terminology in the principal indemnity in Section 2 (which is then reduced to the term Damage). In that context, the use of the term 'loss' instead of the phrase 'physical loss, destruction or damage' presents as a deliberate one. It leads to an alternative view to that described above, which is to treat the reference to loss as a reference to the indemnified loss, namely the loss suffered by reason of interruption to or interference with the business being carried on by Star. This requires some small assault to the grammatical structure of each of memoranda 7 and 9 because they both use the form of extending Damage 'to include loss resulting from'. However, it is possible to read the opening words of each of the two memoranda as meaning the scope of the insured peril (Damage) is extended to include consequential loss that results from the event that is then specified in the memorandum (in the case of memorandum 9, each of the four numbered events). This would treat the opening words of each of memoranda 7 and 9 as providing, in effect, that Damage is extended so as to include loss resulting from specified events (which are insured perils). This approach is strongly supported by the fact that it is not the loss that is the object the extension. Rather, it is the events that are thereafter specified that are the object of the extension. 106 Put another way, in the case of memorandum 7, Damage (the insured event) is extended by the memorandum such that consequential loss resulting from or caused by the action of an authority in connection with or for the purpose of retarding any conflagration or other catastrophe is covered. It is the action of an authority of the kind described in the memorandum that becomes the insured peril. Damage is extended to include that peril with the result that loss resulting from or caused by that peril (that is, consequential loss) is the subject of the agreed indemnity. The same approach may be applied to memorandum 9. 107 This alternative construction sits with the overall structure of the Policy in four respects. First, for memorandum 7 to provide that Damage (being the term used to describe the extent of the insured events) is extended indicates that the provision is expanding the scope of the insured perils for which there will be indemnity for the consequential loss. It does not suggest that there will both be a new peril but also a narrowing of the physical effect that must be established (to exclude damage). Yet this is the consequence of the first construction (as was recognised by the primary judge). Second, as will emerge, most of the memoranda that follow have the effect of identifying an additional insured peril and they do so without consistency in the form of words used. Third, it is unlikely that the same form of words as used in memorandum 7 and memorandum 9 would have different meanings. Both are dealing with the same type of issue and they are proximate in the document. You would expect both to be using 'loss resulting from' in the same sense. Fourth, it would reflect the fact that the Policy uses the term physical loss in many of its provisions when it is referring to loss of that kind. 108 Therefore, the use of the term loss (being the term used for consequential loss that can be claimed) appears to indicate a reference to the indemnified loss not some aspect of the insured peril. 109 Next there is memorandum 8. It is in the following terms: Loss as insured by Section 2 of the policy resulting from interruption or interference with the Business in consequence of Damage to property within a 10 kilometre radius of the Premises which results in cessation or diminution of Business due to temporary falling away of potential custom shall be deemed to be loss resulting from Damage to property used by the Insured at the premises. Property Exclusions 4, 9, 10, 14 shall not apply to the cover granted by this extension. 110 Expressed in those terms, it simply deems the indemnified loss to include loss resulting from Damage occurring within the extended radius of any of Star's Premises. However, it is to be observed that the term loss is used to refer to consequential loss in contradistinction to the term Damage. 111 Then memorandum 9 opens with the words 'Damage is extended to include loss resulting from …'. It goes on to specify certain events (such as occurrence of a Notifiable Disease at the premises). The events as specified are not concerned with property loss, destruction or damage. Therefore, as has been observed, it is clear from that context that memorandum 9 extends the insured events to include those described in memorandum 9 even though they may not involve physical loss, destruction or damage. 112 Then there are memoranda that refer expressly to the loss as insured being extended or deemed to include the loss described (in the same basic structure as memorandum 8). They are memoranda 10, 15, 16, 18 and 19. Memoranda 10, 15, 16 and 18 each refer to loss in consequence of Damage to property (in the case of memorandum 16, registered vehicles and/or trailers at the Premises). Memorandum 19 applies where there is an interruption to the business as a result of a threat of damage to the premises by order of competent Public Authority). It does not use the defined term Damage. No doubt this reflects the fact that the damage described includes damage to persons and is not confined to property. In each case, there is no change to the need for physical loss, destruction or damage (noting the incremental change for threat of such damage to property or persons). Therefore, it makes sense to frame the provisions by reference to the consequential loss that may be claimed. 113 In using the term loss, it is clear that these memoranda are referring to the consequential loss (to be determined in accordance with the Basis of Settlement provisions). However, they retain the focus on the physical nature of the peril. They each refer separately to Damage (or in the case of memorandum 19, damage to property or persons), being the operative event which forms part of the language used to described the insured peril. 114 Memorandum 9 is different to these memoranda. The four events listed in its numbered paragraphs make clear that it is changing the nature of the insured peril to include events that do not have physical consequences. It uses the form of extending what is meant by Damage. Plainly it does not do so by including in Damage only loss of the kind specified. Rather, it extends Damage in a manner that means the consequential loss resulting from any of the four specified events may be claimed under the Policy. Significantly, memorandum 7 adopts the same form. Therefore, the context suggests that they are both identifying events that may lead to consequential loss as a result of a peril that may not involve damage to property. Star's first proposition as to memorandum 7: not confined to physical loss 115 Taking account of the use of the term 'loss' in both memoranda 7 and 9 rather than the phrase 'loss, destruction or damage' and the fact that memorandum 9 uses that form in a provision that necessarily indicates an intention that the term Damage should be extended to include loss other than physical loss, as well as the surrounding context, we are of the view that the reference to loss in memorandum 7 is not confined to physical loss. All that is required is that there be consequential loss resulting from or caused by the action of an authority of the kind described. 116 Therefore, the first of Star's propositions should be accepted. The reference to 'loss' in memorandum 7 is not confined to physical loss. Rather, it refers to the indemnified loss being the loss that can be claimed because Damage is extended to allow such loss to be recovered upon the occurrence of the insured peril described in the memorandum. Star's second proposition as to memorandum 7: ambit of the words 'or other catastrophe' 117 The next issue is whether loss caused by an authority in connection with or for the purpose of dealing with the COVID-19 pandemic falls within the terminology 'in connection with or for the purpose of retarding any conflagration or other catastrophe'. 118 Star claims that memorandum 7 should be read as covering two distinct types of actions by any lawfully constituted authority, namely: (1) action in connection with any conflagration or other catastrophe; or (2) action for the purpose of retarding any conflagration or other catastrophe. 119 The significance of Star's claim is that it leads to the proposition that any action taken by the relevant authority does not have to involve retarding any conflagration or other catastrophe provided it is undertaken in connection with any conflagration or other catastrophe. However, the usual way in which to construe a grammatical form such us 'in connection with or for the purpose of' is to apply both alternatives to the words that follow; in the present case 'retarding any conflagration or other catastrophe'. Further, if it were sufficient for the loss to result from action of the authority in connection with a conflagration then that language would include any case in which the action was for the purpose of retarding the conflagration. The subsequent words would be redundant. On the other hand, if memorandum 7 is taken to refer to action in connection with a particular activity, namely retarding a catastrophe then there is an ambiguity as to whether it includes that particular activity, namely action for the purpose of retarding that catastrophe. To speak of something 'in connection with' another thing is to identify something apart from that other thing. 120 Therefore, as a matter of ordinary language, the focus of memorandum 7 is upon circumstances in which the authority does something that amounts to retarding, not something that is merely 'in connection with', a conflagration or other catastrophe. There is no commercial or other reason advanced as to why Star's more awkward construction should be preferred. Therefore, we do not accept Star's claim in that regard. 121 Otherwise, there are three aspects of the immediate context within memorandum 7 to be kept in mind in considering whether the COVID-19 pandemic might fall within the words 'or other catastrophe'. First, there is the word 'retarding'. The insured peril as described requires that the authority act in connection with or for the purpose of retarding. So, the conflagration or other catastrophe must be of a kind that it is apt to contemplate an authority doing something to retard it. 122 Secondly, there is the word 'conflagration'. It has significance because of the use of the word 'other' in the phrase 'conflagration or other catastrophe'. It indicates the nature of the catastrophe that the parties had in mind. It must include a conflagration. However, it is perhaps less clear that it is appropriate to take the further step of construing conflagration as establishing a category that confines the scope of the term catastrophe: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [126] (Spigelman CJ, Handley and Hodgson JJA agreeing); and Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 at [54] (Meagher JA, Barrett and Sackville JA agreeing). 123 Thirdly, there is the implicit requirement that there be an action by the authority that has the character that it is in connection with or for the purpose of retarding. The memorandum is not directed to any action by an authority. It is confined to one that has a connection with or is for the purpose of retarding a conflagration or other catastrophe. In the case of a conflagration (being the first mentioned case) this contemplates that there has been physical action by the authority. The significance of the term 'retarding' 124 Something must exist and be active in order for it to be retarded by the action of someone. A person or thing (or an action or process of development) may be retarded but only if it is has commenced and is ongoing, not if it is simply threatened or there is a risk of its occurrence. It is not a term that is apt to describe steps taken to prevent an occurrence of something or the possibility of its eventuality. Even when forms of the verb 'retard' are used in respect of an object that is abstract in character, it conjures a sense of physical restraint being imposed upon something that is underway in a manner that indicates its future progression if left unimpeded or it was to follow its usual course. In order for something to be able to be retarded it must be moving in a particular direction or following a particular course such that actions or steps may be taken to interrupt what would otherwise be its progression. 125 Further, where, as here, reference is made to a lawfully constituted authority retarding any conflagration or other catastrophe, the character and usual capacity of such authorities informs the understanding of a reasonable business person as to what is meant. Memorandum 7 is referring to something that can be done by an authority to retard a conflagration or other catastrophe. A conflagration cannot be retarded by the making of directions or orders or the giving of advice. It requires physical steps to be taken. Therefore, the reference to 'or other catastrophe' must take its meaning from that immediate context. The focus of the reader is upon physical actions that can be done to impede, interrupt or slow down the course of a great or destructive fire, not things that might be done to reduce the risk or possibility of one. 126 Steps taken to stop the spread of a human disease such as COVID-19 might be described in a loose way as retarding the disease. However, the term is not apt to describe those steps that might be taken to curtail the risk of spread or prevent the commencement of contagion. Further, the spread of a disease is not interrupted by physically restraining or interrupting its progress. Although the spread of the virus is a physical phenomenon by which individuals are infected with the disease, the steps taken by authorities to contain a viral pandemic are not directed at the virus or the disease. They are directed at the behaviour of people so as to curtail and limit the opportunities for the virus to spread. Therefore, it is somewhat awkward to describe the steps taken by authorities to prevent or abate the spread of the virus as being undertaken for the purpose of retarding COVID-19 or the virus that causes COVID-19. All the more so given the juxtaposition with language concerning retarding a conflagration which is inherently physical in nature and will involve action directed at the conflagration itself as a physical phenomenon. The significance of other matters of context 127 Further, the reference to catastrophe in memorandum 7 must be construed contextually. All of the matters that have been identified in the course of reaching the conclusion that the specific terms of memorandum 9 prevail over the general terms of memorandum 7 are also significant parts of the context when it comes to ascertaining the extent of the indemnity afforded for interruption to the business of Star associated with human infectious or human contagious disease. Those same matters, together with the association with the word conflagration and the need for action by the authority retarding the conflagration or other catastrophe would lead a reasonable business person to conclude that the reference to a catastrophe does not include an occurrence such as the COVID-19 pandemic. Rather, the words 'or other catastrophe' are to be confined to catastrophic events that can be retarded by physical actions directed towards restraining or interrupting the progress of a physical phenomenon. 128 This was the conclusion reached by the primary judge at [172]. It is a conclusion with which we respectfully agree. 129 It is now possible to deal with each of the grounds of appeal and cross-appeal. Appeal ground 1 130 Star's first appeal ground was to the effect that the primary judge ought to have found that the word loss in memorandum 7 is not confined to physical loss and 'includes loss of use, loss of custom and/or financial loss'. For reasons we have given, we accept the contention that the reference to loss in memorandum 7 is not confined to physical loss or indeed to loss that forms part of the insured event. It refers to the consequential loss that can be claimed and is to be assessed according to the Basis of Settlement. Appeal ground 2 131 Star's second appeal ground is to the effect that the words 'or other catastrophe' in memorandum 7 encompasses the COVID-19 pandemic and the response thereto if only because, as the primary judge found at [202] 'as a consequence of the way in which the Federal, State and Territory authorities approached and responded to it'. For reasons we have given, the primary judge was correct to find that the COVID-19 pandemic and the response to it was not a catastrophe for the purposes of memorandum 7. Appeal ground 3 132 By its third ground, Star claims that the primary judge ought to have found that the Insurers were obliged under the indemnity contained in Section 2 of the Policy as extended by memorandum 7 to indemnify Star for economic loss of the kind specified in its claim. For reasons we have given, the primary judge was correct in finding that there was no such obligation to indemnify. Cross-appeal 133 By their cross-appeal the Insurers claim that the primary judge ought to have found, in effect, that an incipient domestic catastrophe (being the finding made by the primary judge as to the extent of the COVID-19 pandemic in Australia at the relevant time) was not a catastrophe for the purposes of memorandum 7. For reasons we have given, unless and until there is something underway there can be nothing to retard. However, the unchallenged finding made by the primary judge, based on the expert evidence was that, at the relevant time, COVID-19 was 'a global catastrophe with at least an incipient existence in Australia': at [202]. Further it had a physical presence in Australia, such that '[w]hile the incidence of COVID-19 in Australia may not have been as physically great as it was globally, it nonetheless reached the level of a catastrophe, if only as a consequence of the way in which the Federal, State and Territory authorities approached and responded to it'. We take this to be a finding that it was the actions taken in response to COVID-19 that manifested its catastrophic effect. We do not interpret the finding of the primary judge as suggesting that there was no catastrophe other than that brought about by some form of unjustifiably extreme response by the relevant authorities. Nor do the Insurers seek to make that case. 134 Significantly, the primary judge concluded that if memorandum 7 applied to human disease then the extension effected by its terms 'would place no limitations upon how evolved that catastrophe must be: it would not need to be fully developed, nor fully realised': at [203]. We agree. Just because a catastrophe may become even more of a catastrophe does not mean that it was not a catastrophe until it was fully fledged. The capacity for the initial spread of the virus to become uncontrolled is what made it a catastrophe in its incipiency. For those reasons, had it been necessary to consider the cross-appeal we would not have upheld the grounds of cross-appeal. Star's contentions in the cross-appeal 135 It follows that the points of contention raised by Star in the cross-appeal do not arise. They require the assumption of a view as to what may amount to a catastrophe that is contrary to that which we have determined was agreed between the parties to the Policy. It would require the expert and other evidence to be considered on the basis of that hypothesis in circumstances where no detailed argument was addressed to that material. Therefore, in our view, it is not necessary or appropriate to deal with those points of contention. Conclusion and costs 136 It follows that both the appeal and the cross-appeal should be dismissed. As it is the Insurers who have been substantially successful as to the subject matter of the appeal and the cross-appeal occupied little of the argument, costs should follow the event and there should be an order that Star pay the Insurers' costs of the appeal and the cross-appeal to be assessed as one set of costs if not agreed. I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Derrington and Colvin. Associate: Dated: 21 February 2022 SCHEDULE OF PARTIES NSD 879 of 2021 Appellants Fourth Appellant: STAR PTY LIMITED (ACN 060 510 410) Fifth Appellant: STAR ENTERTAINMENT SYDNEY PROPERTIES PTY LTD (ACN 050 045 120) Sixth Appellant: STAR ENTERTAINMENT SYDNEY APARTMENTS PTY LTD (ACN 075 423 666) Seventh Appellant: STAR ENTERTAINMENT QLD CUSTODIAN PTY LTD (ACN 067 888 680) Eighth Appellant: STAR BRISBANE CAR PARK HOLDINGS PTY LTD (ACN 610 776 184) Ninth Appellant: STAR ENTERTAINMENT GC INVESTMENTS PTY LTD (ACN 615 401 164) Respondents Fourth Respondent: ZURICH AUSTRALIAN INSURANCE LIMITED (ABN 13 000 296 640) Fifth Respondent: ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) Sixth Respondent: SWISS RE INTERNATIONAL SE AUSTRALIA BRANCH (ABN 38 138 873 211) Seventh Respondent: ASSICURAZIONI GENERALI S.P.A (HONG KONG) Eighth Respondent: LIBERTY MUTUAL INSURANCE COMPANY (ABN 61 086 083 605) Ninth Respondent: HDI GLOBAL SE AUSTRALIA (ABN 55 490 279 016) Tenth Respondent: ALLIED WORLD ASSURANCE COMPANY, LTD (SINGAPORE BRANCH) Eleventh Respondent: PICC PROPERTY AND CASUALTY COMPANY LIMITED Cross-Appellants Second Cross-Appellant: AIG AUSTRALIA LIMITED (ABN 93 004 727 753) Third Cross-Appellant: XL INSURANCE COMPANY SE (ABN 36 083 570 441) Fourth Cross-Appellant: ZURICH AUSTRALIAN INSURANCE LIMITED (ABN 13 000 296 640) Fifth Cross-Appellant: ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) Sixth Cross-Appellant: SWISS RE INTERNATIONAL SE AUSTRALIA BRANCH (ABN 38 138 873 211) Seventh Cross-Appellant: ASSICURAZIONI GENERALI S.P.A (HONG KONG) Eighth Cross-Appellant: LIBERTY MUTUAL INSURANCE COMPANY (ABN 61 086 083 605) Ninth Cross-Appellant: HDI GLOBAL SE AUSTRALIA (ABN 55 490 279 016) Tenth Cross-Appellant: ALLIED WORLD ASSURANCE COMPANY, LTD (SINGAPORE BRANCH) Eleventh Cross-Appellant: PICC PROPERTY AND CASUALTY COMPANY LIMITED Cross-Respondents Second Cross-Respondent STAR ENTERTAINMENT SYDNEY HOLDINGS LIMITED (ACN 064 054 431) Third Cross-Respondent STAR ENTERTAINMENT QLD LIMITED (ACN 010 741 045) Fourth Cross-Respondent STAR PTY LIMITED (ACN 060 510 410) Fifth Cross-Respondent STAR ENTERTAINMENT SYDNEY PROPERTIES PTY LTD (ACN 050 045 120) Sixth Cross-Respondent STAR ENTERTAINMENT SYDNEY APARTMENTS PTY LTD (ACN 075 423 666) Seventh Cross-Respondent STAR ENTERTAINMENT QLD CUSTODIAN PTY LTD (ACN 067 888 680) Eighth Cross-Respondent STAR BRISBANE CAR PARK HOLDINGS PTY LTD (ACN 610 776 184) Ninth Cross-Respondent STAR ENTERTAINMENT GC INVESTMENTS PTY LTD (ACN 615 401 164)