Other actuarial reports are to the same effect.
8 I think that some care needs to be taken before an order is made dispensing with the requirements of s 191(2)(c) of the Act. Clearly enough, the policy underlying the statutory requirement, when read in conjunction with s 191(2)(b), is to give every affected policyholder a summary of the scheme and, an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme. A right to be heard in relation to a proposed scheme may be of little value if a person does not know of the proposal.
9 Subject to one issue that I shall mention, I think the matters pointed to by Dr Flick justify the making of an order dispensing with the requirement to provide an approved summary of the scheme to every CMLA policyholder. In particular, the nature of the scheme is one which, according to the evidence, involves no change in the entitlements or security of CMLA policyholders. The substance of the scheme is to provide for the transfer of policies held from one insurer within a group to another. The actuarial evidence indicates that CMLA policyholders will experience no change in their contractual benefits or entitlements and, more importantly, that the scheme will have no impact on policyholder security.
10 I think that I can also take into account, as a circumstance attending the preparation of the scheme, the fact that notices have been published in the press which advise CMLA policyholders of the scheme and of their entitlement to appear before the Court on the application for confirmation of the scheme. Other relevant circumstances are APRA's approval of the proposed course and the fact that the actuary responsible for preparation of the scheme provided a copy of his report on the scheme to APRA on 14 March 2003 in which the view was expressed that CMLA policyholders will not be prejudiced by the scheme.
11 The remaining issue to which I have referred is this. On the first return date, when Dr Flick sought to move on the motion, I raised with him a concern I had that CLL policyholders (numbering about 278,800) had each received a notice of summary of the scheme. I asked why the applicants distinguished between the CLL policyholders and the CMLA policyholders in terms of individual notification of the scheme.
12 The answer that has been provided to that question is as follows:
- It is the CLL policyholders whose policies are being transferred, while the CMLA policyholders will experience no change in their relationship with their insurer. All of the statutory funds to which the CMLA policies are referable remain intact.
- CLL policyholders, in any event, must be informed of the proposed transfer and of the statutory fund maintained by CMLA to which their respective policies will be referable after the transfer, assuming confirmation of the scheme.
- The interests of CMLA policyholders have been considered by a number of actuaries, including an independent actuary and the conclusion has been reached that their interests are not prejudiced by the scheme.
13 In the circumstances I have outlined, I am satisfied, both by reason of the nature of the proposed scheme and also by reason of the circumstances attending its preparation, that it is not necessary that an approved summary of the scheme be given to every CMLA policyholder. Accordingly, I dispense with the need for compliance with s 191(2)(c) of the Act insofar as it requires an approved summary of the scheme to be given to the CMLA policyholders.
14 Since there are obvious difficulties in tracing policyholders for whom CLL has no record of a current mailing address, I think it appropriate also to make an order dispensing with compliance with s 191(2)(c) of the Act, insofar as it requires an approved summary of the scheme to be given to holders of CLL policies for whom CLL has no record of a current mailing address.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.