Federal Court of Australia
Federal Court of Australia
Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 2) [2023] FCA 1654 File number: WAD 399 of 2018
Judgment of: JACKSON J
Date of judgment: 21 December 2023
Catchwords: INSURANCE - business interruption insurance policy - failure of seawall between ocean and mine - claim under policy for business interruption - would applicant have continued operations under existing mine plan, or adopted a revised mine plan? - extent to which mine plan would have been achieved - consideration of mining operations - hypothetical board paper - additional expenditure to diminish reduction in output not proved - no adjustment for stock on hand - adjustment for redundancies - foreign exchange hedging arrangements not to be taken into account INSURANCE - interest on claim - s 57 of the Insurance Contracts Act 1984 (Cth) - time from which was unreasonable for insurer to withhold payment CONTRACTS - construction of business interruption policies - adjustments clause - common sense approach to evidence - adjustments not to be made for entirely hypothetical trends, variations and other circumstances - taking account of revised mine plan not permitted under policy CONTRACTS - meaning of words - 'adjustments' - 'trend of the business' - 'variations' and 'other circumstances' EVIDENCE - establishing hypothetical past events - malleability of recollection of events - dangers of hindsight evidence - reliance on objective facts, contemporaneous materials and observable behaviour
Legislation: Evidence Act 1995 (Cth) s 135, 279B Insurance Contracts Act 1984 (Cth) s 57 Judiciary Act 1903 (Cth) s 39B Insurance Contracts Regulations 1984 (Cth) reg 38
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