FEDERAL COURT OF AUSTRALIA Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland [2017] FCA 963 File number: NSD 823 of 2017 Judge: ALLSOP CJ Date of judgment: 18 August 2017 Catchwords: INSURANCE – life insurance – application under s 215 of the Life Insurance Act 1995 (Cth) – beneficiary of life insurance policy charged with murder of life insured – applicant seeks to pay death benefit into Court and discharge its liability under the policy – application granted Legislation: Life Insurance Act 1995 (Cth), s 215 Date of hearing: Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Insurance List Category: Catchwords Number of paragraphs: 18 Solicitor for the Applicant: TurksLegal Counsel for the Applicant: Mr JG Duncan Solicitor for the First Respondent: Office of the Official Solicitor of the Public Trustee of Queensland Counsel for the First Respondent: Mr RT Whiteford Counsel for the Second Respondent: The Second Respondent did not appear ORDERS NSD 823 of 2017 BETWEEN: SWISS RE LIFE & HEALTH AUSTRALIA LTD (ABN 28 004 360 909) Applicant AND: THE PUBLIC TRUSTEE OF QUEENSLAND First Respondent AP Second Respondent JUDGE: ALLSOP CJ DATE OF ORDER: 18 AUGUST 2017 THE COURT DECLARES THAT: 1. The sum of $57,881.00, when paid into Court, represents the amount payable by the applicant under policy number 410264209 issued by the applicant to the late MP on or about 22 November 2010 in respect of which the beneficiaries were the late EP and AP and that when such sums (representing what may have been the interest of AP) are paid into Court pursuant to the provisions of s 215(1) of the Life Insurance Act 1995 (Cth), the applicant be discharged from any further liability in relation to that death benefit that may have arisen in respect of the 50 per cent benefit of the policy in favour of AP. THE COURT ORDERS THAT: 1. Within 14 days, the applicant file and serve upon the second respondent a copy of these reasons and an itemised Bill of Costs together with a letter drawing the second respondent's attention to Order 4 below. 2. Stand over the proceedings otherwise until Friday, 24 November 2017 at 9.30am for directions should the first or second respondent wish to deal with the proceeds paid into Court. 3. Until further order, the name of the second respondent and any information on the Court file that would reveal his identity not be made available to anyone other than the parties to the proceedings without leave of a judge of the Court. 4. Grant liberty to the applicant to apply within 14 days for a sum of costs, such application, submissions and any material to be to filed and served on the first and second respondents in furtherance of Order 1 above. The Court will deal with the question of costs thereafter on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ALLSOP CJ: 1 Before the Court is an originating application seeking a declaration under s 215 of the Life Insurance Act 1995 (Cth) (the Act) that the applicant be discharged from any liability under a life insurance policy in relation to the policy moneys. 2 There is also a prayer for an order that the costs of the applicant of the proceedings be paid to the applicant from the life insurance proceeds. 3 The parties have been anonymised in order that the identity of the second respondent not be revealed. He is now over 18, but it is alleged that when under 18 he killed his mother and sister by stabbing them to death. I propose to make a suppression order conformable with the second respondent being a minor when he is alleged to have committed the crimes described and consider it in the interests of the administration of justice to make such an order. 4 Section 215 of the Act is in the following terms: 215 Power to pay money into Court (1) A life company may pay into the Court any money payable by the company in respect of a policy for which, in the company's opinion, no sufficient discharge can otherwise be obtained. (2) Payment of the money into the Court discharges the company from any liability under the policy in relation to the money. (3) Any money paid into the Court under this section is to be dealt with according to the order of the Court. (4) This section has effect subject to the Rules of the Court. 5 Briefly, the applicant issued a life insurance policy insuring the life of MP in respect of which EP and her brother AP (the latter being the second respondent) were equal beneficiaries. MP, the life insured and policy holder, was the mother of EP and AP. 6 MP (the mother) and EP (her daughter) were both killed in their home in Queensland in 2014. The son and brother, AP (the second respondent) has been charged with the murder of his mother and sister. That matter is proceeding through the Queensland justice system and in particular the Mental Health Court. 7 At present, the second respondent is aged 19 and is being held in detention. 8 The policy of insurance commenced on 22 November 2010 and bears policy number 410264209. The policy provided for a life benefit amount of $115,762.00. 9 MP and EP were stabbed to death on 28 January 2014. 10 The Public Trustee of Queensland (the first respondent) is the executor of the estates of both the primary life insured and the daughter. The first respondent has claimed and been paid one half of the benefits of the policy, as legal representative of the daughter, being the sum of $57,881.00. 11 The unpaid balance of life benefit amount being the other 50 per cent, would, in ordinary circumstances, be payable to the second respondent. However, in the circumstances that the second respondent is charged with the murder of his mother, the applicant is of the opinion that it obtains no sufficient discharge in respect of payment of the balance of the life amount. 12 This opinion of the applicant is a reasonable one, given the potential application of the forfeiture rule should criminal liability for the death of the life insured, the second respondent's mother, be attributed to the second respondent. 13 I am satisfied that the applicant should have the proposed declaration in these proceedings. 14 I should add that the proceedings have been served upon the second respondent in a manner that would satisfy the Queensland Uniform Civil Procedure Rules for service upon a prisoner. 15 Thus, I am prepared to make a declaration that the sum of $57,881.00, when paid into Court, represents the amount payable by the applicant under policy number 410264209 issued by the applicant to the late MP on or about 22 November 2010 in respect of which the beneficiaries were the late EP and AP and that when such sums (representing what may have been the interest of AP) are paid into Court pursuant to the provisions of s 215(1) of the Act, the applicant be discharged from any further liability in relation to that death benefit that may have arisen in respect of the 50 per cent benefit of the policy in favour of AP. 16 As to the costs of the application, the usual order is that the insurer obtains its costs from the funds in question. Here, the funds are modest, as is plain from these reasons. The application has been supported by an affidavit sworn by a claims specialist employed by the applicant. It is a short affidavit efficiently dealing with the necessary considerations. There was also a short affidavit from a Matthew Brian Corkhill, who is employed by the solicitors for the applicant. 17 I am prepared to make an order for a modest and appropriate sum in costs to be paid from the proceeds of the policy. I will direct that the solicitors for the applicant provide to me an itemised Bill of Costs that has been or will be rendered to the applicant in these proceedings. 18 Whether or not I provide the full amount of costs will depend upon the relationship between that amount, the work involved, and the modesty of the insurance proceeds. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate: Dated: 18 August 2017