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Under Cover – February 2023

Privacy Reform

It what can only be described as comprehensive, the Federal Government has revealed its proposals to overhaul privacy laws (and, probably, how we think about privacy) in Australia bearing in mind that so many Australians ‘live much of their lives online and their information is collected and used for a myriad of purposes in the digital economy’.

The Federal Government has taken the next step in that process by issuing a report which extensively outlines its proposals in the context of an underlying intention ‘to better align Australia’s laws with global standards of information privacy protection and properly protect Australians’ privacy.’

While the scope of this report is incapable of being reduced to a paragraph or two, there are some eye-catching ideas touching:

· improved clarity about what the privacy legislative regime offers and excludes;

· greater transparency and individual control around how personal information is

handled; and

· more effective powers to enforce the regime’s provisions.

Going forward, the next major streps involve bringing Federal, State and Territory Governments together to align the privacy legislation across those platforms and implement a timeline for review after the regime has been fully implemented.

Trade Credit Insurance

The New South Wales Court of Appeal[1] recently returned to the nuances of trade credit insurance in the world of international trade.

The Insured decided to fund the purchase by two third parties of pulse and grains pursuant to the terms of a very specific purchase agreement. Repayment of the funding had been guaranteed by the purchasers’ parent company, but the guarantor collapsed leaving the Insured unable to recover the funding which it had advanced. It sought indemnity under its trade credit policy but was rejected by that policy’s insurer because the terms of the purchase agreement had not been observed (a fact which was common ground).

The Insurer was appealing from the decision of the Supreme Court (Rees J) that the policy responded.

The majority of the Court of Appeal dismissed the appeal. They took a broad perspective to the construction of the policy agreeing that it responded in the circumstances where the guarantee failed, and the funding was otherwise irrecoverable even if the terms of the purchase agreement had not been observed.

Justice Basten, in the minority, took a narrower view, identifying the role of the purchase contract in the terms of the policy and, therefore, the significance to the operation of that policy where the terms of the purchase agreement had not been observed.

While not a beacon of principle, this case demonstrates that policy construction remains an area where great minds (and, therefore, outcomes) can differ.

Life Insurance Challenges

Life insurance is not always easy.

The Life Insured and his former wife were insured under the relevant policy. They had two teenage children on the cusp of turning twenty. The Life Insured’s de facto wife was a nominated beneficiary under the same policy. The Life Insured and his de facto wife had a young daughter, a minor.

The Life Insured murdered his de facto wife and then committed suicide.

The Life Insurer was satisfied that it had a liability to the minor but could not find anyone (including the relevant Government Department) to make a claim on the minor’s behalf. In addition, the potential claims by the former wife and two older children risked further complications.

The Life Insurer made an application to the Federal Court for orders that payment of the benefit be made into Court and that that payment be treated as a full discharge of the Life Insurer’s obligations under the relevant policy.

The Federal Court of Australia[2] carefully reviewed the evidence of the steps which the Life Insurer had taken to identify and locate the parties to whom it believed the benefits under the policy should be made and was satisfied that, all reasonable efforts having been made, it was appropriate for payment of the benefit to be made into Court and for the Life Insurer’s reasonable legal costs to be deducted from that benefit.

The Federal Court has yet to tackle the interesting question of what to do with the funds now that they are in its control.

Mark Sheller

February 2023

DISCLAIMER This newsletter is intended to provide a general summary only and does not purport to be comprehensive. It is not, and not intended to be, legal advice. © Sans Limitations Services Pty Limited

[1] BCC Trade Credit Pty Ltd v Thera Agri Capital No 2 Pty Ltd [2023] NSWCA 20 (20 February 2023) [2] Hannover Life Re of Australasia Ltd v Minister for Families and Communities [2023] FCA 80 (10 February 2023)

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