The High Court of Australia will consider oral arguments on the business interruption test case appeal applications, but has indicated a hearing won’t be listed before October at the earliest.

Two policyholders have lodged applications to appeal parts of the decision handed down by the Full Court on February 21 in the second test case, while from the insurer side an application has been lodged over whether payments such as JobKeeper should be taken into account if a claim is accepted.

The Insurance Council of Australia (ICA) and insurers have acknowledged the High Court’s request to hear oral arguments.

“We recognise this has been a particularly difficult time for many small businesses and we sought the courts’ determinations to establish the principles necessary to minimise disputes,” ICA CEO Andrew Hall said.

The High Court mostly declines to take on appeals after receiving applications, and last year rejected an application filed in the insurance industry’s first test case, which centred on exclusions citing the repealed Quarantine Act.

Lawyers say issues in the second test case may have a greater chance of being accepted for further consideration by the High Court.

Herbert Smith Freehills Partner Mark Darwin says the three Full Court judges largely upheld the decision of the primary judge, which goes against the likelihood of leave to appeal.

But the Full Court reached some of its conclusions for different reasons to the primary judge and came to a different conclusion on JobKeeper, and the nature of other issues on which leave is sought, together with the high-profile nature of the case, and the fact that the UK Supreme Court thought it was important enough to look at the issues there, could point to the High Court agreeing to grant leave, he says.

“If they do grant leave, I would not expect the appeal itself to be heard before mid-2023,” he says.

“The parties will need to file new written submissions on the substance of the issues – to date, the submissions have only been about why it is important enough to be given leave – and with the Christmas break and the delay in scheduling the leave application, it seems unlikely it is getting any fast-track treatment.”

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