Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases) [2021] FCA 1206

Federal Court of Australia

Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases) [2021] FCA 1206 File number(s): NSD 132 of 2021, NSD 133 of 2021 NSD 134 of 2021, NSD 135 of 2021 NSD 136 of 2021, NSD 137 of 2021 NSD 138 of 2021, NSD 144 of 2021 NSD 145 of 2021, NSD 308 of 2021

Judgment of: JAGOT J

Date of judgment: 8 October 2021

Catchwords: INSURANCE – business interruption insurance – COVID-19 – test cases – pandemic cover – hybrid clause – prevention of access clause – disease clause – catastrophe clause – competent government or statutory authority – outbreak – occurrence – discovery of an organism – at the premises – within a specified radius of the premises – by order of authority – competent authority – as a result of order of an authority – order – insured peril – causation – proximate cause – uninsured peril – same underlying cause or fortuity – interruption or interference – loss – adjustments – trends in the business – third party payment – indemnity for loss – reduction of loss – interest – utmost good faith. STATUTORY INTERPRETATION – s 61A Property Law Act 1958 (Vic) – application to Acts of the Commonwealth – whether Biosecurity Act 2015 (Cth) a re-enactment with modifications of Quarantine Act 1908 (Cth) – s 61A applies to Victorian Acts only – Biosecurity Act 2015 (Cth) not a re-enactment with modifications of Quarantine Act 1908 (Cth). STATUTORY INTERPRETATION – s 54(1) of the Insurance Contracts Act 1984 (Cth) – meaning of "some act of the insured or of some other person" – requires some act of a person who – has a relevant connection to the insured or the policy – Director of Human Biosecurity is a stranger to the policy under the Biosecurity Act 2015 (Cth) Director of Human Biosecurity is a stranger to the policy and the insured – s 54(1) does not apply.