ANZ Life Assurance Company Limited (ABN 63 008 425 652) and ING Life Limited (ABN 33 009 657 176) [2005] FCA 596

REASONS FOR JUDGMENT 1 I have made orders dispensing with certain requirements of s 191 of the Life Insurance Act 1995 (Cth) (the Act) relating to the transfer of life insurance business. The most important effect of those orders is that there will be no summary of the scheme posted to or given to owners of policies issued by ING Life Limited (ING Life). The basic structure of the proposal is that policies issued by ANZ Life Assurance Company Limited (ANZ Life) will be transferred to ING Life, that the statutory funds backing the ANZ Life policies will be transferred to ING Life and there will be some internal rearrangements of the statutory funds which would eventuate from those transfers. 2 Counsel has submitted that when I take account of the joint actuarial report by the actuaries for each of the companies, the independent actuarial report, the approval of the dispensation sought by the Australian Prudential Regulation Authority (APRA) (which is supported by a statement to the Court from its solicitor today), the fact that there has been advertisement of the application which is before the Court and is on the website, I can be satisfied that, although technically the owners of the ING policies are affected, there is no real practical effect in operation so far as any of them are concerned. 3 That may be so and, indeed, it will be one of the principal issues when the matter comes before me for the substantive hearing. I feel some hesitation about, in effect, looking at that issue in advance in order to grant this dispensation. My concern about dispensing with notice to policyholders of the receiving company is not new; I expressed it in Re Challenger Life Limited [2004] FCA 618 (Challenger Life) which in turn picked up some comments of Sackville J in Re Commonwealth Life Limited & Anor [2003] FCA 501. Both statements have been referred to since by Tamberlin J in Re Munich Reinsurance Company of Australasia Limited [2004] FCA 1391. Notwithstanding the expressions of concern by each of the judges, each has gone ahead and granted such a dispensation. It is very close to now being an inbuilt part of the process. That causes me concern. 4 I bear in mind that in the present case the evidence is that there are some 247,000 policies issued by ING which would be technically affected. On the one hand, posting out notices is a very considerable amount of money, something in excess of $177,000 of direct cost. On the other hand, many of those policies will represent a very important part of the assets of the owner and it is not appropriate to take risks with those interests merely to save the shareholders of ING some money. 5 I have been persuaded that I should grant the dispensations sought on terms that there be a further advertisement published, directed, in particular, to the holders of ING policies which will alert those who read the advertisement to the issue. I have indicated to counsel, I hope fairly clearly, where my concerns lie so that when the matter comes back for confirmation before me the applicant or applicants will bear the responsibility of satisfying me in relation to those concerns. As I indicated in Challenger Life (at [6]), the applicants run the risk that I will not be satisfied and there may be no confirmation or there may be a delay in the confirmation. They also run the risk that at that stage I will take some steps to have an amicus curiae or a representative party added so that the matter can be fully agitated. 6 I do not intend to suggest that this is a likely result but, nonetheless, there should be no misunderstanding as to where the risk lies. I have drawn attention to the fact that it is not an easy task for a court without a contradictor to follow and understand all of the nuances and all of the traps for young, or at least uninformed, players. I have reminded counsel of the unhappy experience in relation to the approval of the James Hardie schemes of arrangement in the New South Wales Supreme Court not that long ago. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.