Swiss Re Life & Health Australia Limited, in the matter of Swiss Re Life & Health Australia Limited [2025] FCA 1426 (18 November 2025)

[30] As the permissive language of s 194 of the Life Act makes clear, the confirmation of the scheme is a matter for the Court's discretion; however, confirmation is not a matter of course, nor is it a mere formality: St Andrew's Insurance (Australia) Pty Ltd, in the matter of St Andrew's Insurance (Australia) Pty Ltd [2024] FCA 881 at [8] (St Andrew's) (Jackman J); AIA Australia Ltd, in the matter of AIA Australia Ltd (No 2) [2023] FCA 1305 at [30] (AIA Australia Limited No 2) (Derrington J); Asteron Life & Superannuation Ltd, in the matter of Asteron Life & Superannuation Ltd (No 3) [2021] FCA 1148; (2021) 394 ALR 89 at [126] (Asteron Life No 3) (Allsop CJ).

[31] While the Court's discretion is broad, it is not unfettered and must be exercised on the evidence and having regard to the objects of the Life Act, principally the protection of the interests of policy owners in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry: s 3(1) of the Life Act; In the Application of Commonwealth Insurance Holdings Ltd and the Colonial Mutual Life Assurance Society Ltd [2007] FCA 1012 at [12] (Commonwealth Insurance Holdings) (Edmonds J); OnePath Life Ltd, in the matter of OnePath Life Ltd (No 2) [2022] FCA 811 at [17] - [18] (OnePath Life No 2) (Jagot J). The regime for the supervision of the transfer or amalgamation of life insurance businesses by the Court is one of the means adopted to achieve this object: Colonial Mutual Life Assurance Society Ltd, in the matter of Colonial Mutual Life Assurance Society Ltd [2021] FCA 394 at [26] (Colonial Mutual Life) (Allsop CJ); Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259; (2000) 104 FCR 37 at [3] (Royal & Sun) (Katz J); Asteron Life No 3 at [82].

[32] As Allsop CJ explained in Asteron Life No 3 at [127]-[129], drawing upon the reasons of Edmonds J in Commonwealth Insurance Holdings at [13], there are two main dimensions to the protection of the interests of policy owners:

(a) first, the procedural dimension by which the Court considers whether the process undertaken in connection with the scheme has been properly executed in accordance with the requirements of the Life Act, the Life Insurance Regulations 2024 (Cth) (Life Regulations) and any orders made by the Court pursuant to s 191(5) of the Act: see St Andrew's at [9]; and

(b) second, the substantive dimension in which the Court is concerned to see that the scheme will not be prejudicial to the interests of policy owners, and that policy owners are properly safeguarded, ie there is not likely to be any material detriment to policy owners affected by the scheme: see AIA Australia Limited No 2 at [32].

[33] The question as to whether policy owners will be adversely affected is to be answered predominantly by reference to the actuarial evidence. It involves a comparison of the security of those policy owners' benefits and their reasonable benefit expectations as they stood prior to the implementation of the scheme (ie without the scheme), and as they would stand following the implementation of that scheme: Commonwealth Insurance Holdings at [14]; Asteron Life No 3 at [129]; St Andrew's at [10].

1. The applicants have consulted with APRA in relation to the Scheme and the updated Scheme, and APRA has no objection to the orders which the Applicants seek. The Court gives considerable weight to APRA's assessment of the application for an order seeking confirmation: Re St Andrew's Life Insurance Pty Ltd (No 2) [2010] FCA 637 at [21] (Jacobson J).

(2021) 394 ALR 89

(2000) 104 FCR 37