ASIC Challenges Federal Court's 'Fair Term' Ruling

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ASIC's appeal is grounded in the assertion that the Federal Court, presided over by Justice Ian Jackman, made an error in judgment. The regulator argues that the clause does indeed represent an unfair contract term because it unfairly allows HCF Life to deny insurance coverage. This denial could occur if a consumer failed to disclose a pre-existing condition at the time of entering the contract, even when a diagnosis had not been made and the consumer was unaware of the condition.

The contentious term implies that HCF Life can refuse coverage based on a medical assessment identifying signs or symptoms that existed prior to the consumer engaging in the contract. This is considered misleading by ASIC, as it places an unreasonable burden on policyholders who may not have been aware of their condition, and it conflicts with the expectations of a reasonable person in similar circumstances.

Earlier, in May, the same court fined HCF Life $750,000 for the misleading nature of the clause, highlighting the ongoing controversy surrounding its fairness and transparency.

This appeal by ASIC is significant for consumers, insurers, and the broader financial sector. For consumers, the outcome could redefine the protections against terms perceived as unjust in insurance contracts, potentially leading to improved transparency and fairness in policy wordings. Insurers, on the other hand, are closely monitoring the case as it may lead to stricter guidelines and scrutiny on how contract terms are constructed and communicated to policyholders.

Furthermore, the appeal underscores ASIC's commitment to enforcing consumer protection laws in Australia and emphasises the role of regulatory bodies in ensuring that financial products are equitable and not misleading.

The industry is watching for the outcome of this appeal, which could set a precedent for how unfair contract terms are defined and contested in the future. If ASIC's challenge is successful, it may lead to widespread revisions of existing insurance policies, requiring insurers to modify their terms to comply with heightened standards of fairness and transparency.

Experts predict that this case might also prompt a broader review of the legal frameworks governing consumer contracts across various financial products in Australia. This could ultimately lead to legislative changes, aiming to strengthen protections and improve the clarity of contract language.

As the appeal progresses, insights and opinions from legal and financial experts will likely provide further understanding of its implications, guiding stakeholders in adjusting their practices to enhance consumer trust and satisfaction in financial services.

Published:Wednesday, 9th Jul 2025
Source: Paige Estritori

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