Barbour v Black & Anor [2009] QDC 109

DISTRICT COURT OF QUEENSLAND CITATION: Barbour v Black & Anor [2009] QDC 109 RUSSELL JAMES BARBOUR (plaintiff) v LEE ANDREW BLACK (defendant) and ELDERS INSURANCE LIMITED ACN 081 106 505 (third party) FILE Nos: 5 of 2008 DIVISION: Applications PROCEEDING: Application for summary judgment ORIGINATING COURT: District Court at Kingaroy DELIVERED ON: 7 May 2009 DELIVERED AT: Warwick HEARING DATE: 1 May 2009 (in Brisbane) JUDGE: Kingham DCJ ORDER: 1. Judgment is entered for the third party against the defendant 2. The defendant is to pay the third party’s costs of and incidental to the proceedings, including those of this application, on the standard basis, to be assessed CATCHWORDS: JUDGMENT - APPLICATION FOR SUMMARY JUDGMENT – Where application for third party insurer to indemnify defendant for liability to plaintiff for damages for battery – Where defendant guilty of criminal offence of assault – Where insurance policy did not cover intentional or criminal acts – Whether s 54 of Insurance Contracts Act 1984 (Cth) prevents insurer refusing claim – Where defence to plaintiff’s claim also relied upon to found liability of insurer to indemnify – Where policy a liability not a claims policy - -- 1 of 6 -- 2 Whether defendant could fail in defence to plaintiff’s claim but succeed against insurer – Whether evidential onus on defendant - Where inadequate particulars and no evidence led by defendant - Where application granted. Criminal Code Act 1899 (Qld), Criminal Code s 267, s 277. Evidence Act 1977 (Qld), s 79. Insurance Contracts Act 1984 (Cth), s 54. Uniform Civil Procedure Rules 1999 (Qld), r 196, r 292, r 293. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, cited. Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, applied. Greyvensteyn v Hattingh [1911] AC 355 (PC), cited. Leasefin Corp Ltd v Clark (Unreported, Supreme Court of South Australia, King CJ, Olsson, Mullighan JJ, 16 October 1992), followed. Queensland Pork Pty Ltd v Lott [2003] QCA 271, applied. Stapleton v NTI Limited [2002] QDC 204, cited. Theseus Exploration NL v Foyster (1972) 126 CLR 57, cited. Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 196, followed. COUNSEL: Mr Holyoak for the third party Mr Nevison for the defendant SOLICITORS: Barry & Nilsson for the third party Gateway Lawyers for the defendant [1] In 2005, Mr Black lived in Kingaroy with the mother of two of Mr Barbour’s children. On the evening of 31 May, Mr Barbour returned the children to their mother at Mr Black’s property. The two men argued. Mr Barbour claimed he was injured when Mr Black punched him and bashed his head against the door frame of his car. Mr Black pleaded guilty to the criminal offence of assault occasioning bodily harm. [2] Later, Mr Barbour commenced this action to recover damages for wrongful assault and battery. Mr Black denied assaulting Mr Barbour in the manner pleaded and, in defence, claimed that he used reasonable force to repel Mr Barbour, a trespasser on his property. -- 2 of 6 -- 3 [3] In May 2005, Elders Insurance Limited insured Mr Black for liability for personal injury suffered at his property. Mr Black joined Elders as third party and claimed indemnity for his liability to Mr Barbour and his costs of defending Mr Barbour’s claim. [4] Elders applied for judgment in its favour on a summary basis1 because Mr Black had no real prospect of succeeding in his claim against it and there was no need for a trial.2 It argued the incident was not an occurrence covered by the policy because it was not an act that resulted in personal injury that was “neither expected nor intended to happen”. 3 Further, Elders relied on the specific exclusion of liability caused directly or indirectly by any intentional,…or criminal act by the insured.4 [5] Mr Black did not contest either of those propositions. On the material now before the court, he had no basis to do so. He did not plead his actions or any injury sustained by Mr Barbour occurred by accident. Nor did he raise that, or any, defence to the criminal charge. [6] While Mr Black’s conviction raises only a rebuttable presumption in civil proceedings,5 he did bear an evidential onus once Elders established a prima facie defence to his claim. Mr Black then bore the burden of placing evidence before the court to support his claim. 6 It is no answer to say, as Mr Black’s counsel did, that the factual dispute is between Mr Black and Mr Barbour. In third party proceedings, Mr Black stands in the shoes of a plaintiff and Elders in those of a defendant.7 Findings about the circumstances in which the personal injuries were sustained are a necessary foundation for Mr Black’s claim against Elders. [7] Mr Barbour has not made a case in negligence. Inherent in his pleading is that Mr Black intentionally assaulted him. Unless the contrary is proved, a person convicted of a criminal offence is taken to have not only committed the acts but also to have possessed the state of mind which constitutes the offence.8 It fell to Mr Black to demonstrate he had some real prospect of disturbing that presumption. He has not done so. Without more, then, Elders has established Mr Black has no real prospect of succeeding in its claim under the policy. [8] Mr Black relied on s 54 of the Insurance Contracts Act 1984 (Cth). In defined circumstances, the provision constrains insurers in refusing a claim because of an act by the insured. Mr Black submitted the effect of s 54(1) & (5)(a) is that Elders cannot rely on his act being intentional as justification for refusing the claim, because that act was necessary to protect the safety of a person or to 1 Uniform Civil Procedure Rules 1999 (Qld), r 292 & r 293. 2 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. 3 Elders Personal Insurance Policy 15 August 2004 section 3 – Legal Liability Cover Personal Liability at p 18 and definition of occurrence at p11. 4 Ibid at p31. 5 Evidence Act 1977 (Qld), s 79. 6 Queensland Pork Pty Ltd v Lott [2003] QCA 271 per Jones J at [45] applied 7 Uniform Civil Procedure Rules 1999 (Qld), r 196 8 Evidence Act 1977 (Qld), s 79(3). -- 3 of 6 -- 4 preserve property.9 Mr Black’s prospects against Elders depend on the court accepting that interpretation of s 54. [9] Elders denied s 54 prevents it from refusing Mr Black’s claim. The proper approach, it contended, is to first determine whether there was an insured event under the policy. It was only if there was that consideration need be given to s54. On its case, there was no insured event covered by the policy. Even if there were, Elders submitted s 54(2)10 expressly permitted a claim to be refused in reliance on an act by an insured which caused or contributed to the loss claimed. [10] How s 54 should be interpreted and applied to this claim is in contest. That section seeks to regulate the contractual relationship of insurer and insured. As such, it raises questions of public policy which reach beyond the interests of these parties. I was referred to some authority which favours the interpretation Elders contended for.11 Mr Black’s arguments are not persuasive but they are not completely devoid of merit and would best be determined after full argument.12 Were the merit of his submissions about s54 the only justification for entering summary judgment, I would have been minded to allow the matter to proceed to trial. [11] Yet there is an inherent contradiction in Mr Black’s case which seems to me to deliver a fatal blow. The insurance policy is a liability, not a claims policy. Mr Black may only succeed against Elders if he is found liable to Mr Barbour. Liability must be founded on Mr Barbour’s case: an intentional assault which did not occur in the circumstances pleaded in defence. In other words, Mr Black will only be liable to Mr Barbour if the court rejects his defence that he used reasonable force to repel a trespasser. [12] Mr Black’s defence to Mr Barbour’s claim seems to raise the same matter put up against Elders. If he succeeds in proving that, he will have established his defence and will not be liable to Mr Barbour. Elders, then, will not have to indemnify Mr Black, even for his costs of defending the claim. 13 [13] To escape this conundrum, Mr Black’s counsel envisaged a third path: that after trial, the judge could make findings of fact which would sound in Mr Black’s 9 Insurance Contracts Act 1984 (Cth), s 54 (1) Subject to this section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim,..by reason of some act of the insured…, being an act that occurred after the contract was entered into but nor being an act in respect of which subsection (2) applies, the insurer may not refuse to pay the claim by reason only of that act… (5) Where (a) the act was necessary to protect the safety of a person or to preserve property;… the insurer may not refuse to pay the claim by reason only of the act. 10 Insurance Contracts Act 1984 (Cth) s 54 (2) Subject to the succeeding provisions of this section, where the act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract, the insurer may refuse to pay the claim. 11 Stapleton v NTI Limited [2002] QDC 204. 12 Theseus Exploration NL v Foyster (1972) 126 CLR 57. 13 Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 196 at [87] to [89]. -- 4 of 6 -- 5 liability to Mr Barbour as well as call up s 54(5)(a) in his claim against Elders. Regrettably he was unable to enlighten me as to how that path might be constructed. [14] Hypothetically, there may well be a defence to this claim which involves additional or different findings of fact to those required to invoke s 54(5)(a). The difficulty for Mr Black is that he has not been able to articulate how that might operate in this case. This would require a degree of particularity lacking in both his defence to Mr Barbour’s claim and his statement of claim against Elders. [15] Mr Black’s pleadings are opaque. He may be relying on defences which excuse the use of force at criminal law. The Criminal Code of Queensland excuses the use of reasonable force in defence of a dwelling14 and in defence of premises.15 Or he may be relying on one or more of the defences to assault in civil law that he used reasonable force to remove a trespasser16 or in defence of property or person based upon an immediate necessity to act.17 Section 54(5)(a) speaks of an act necessary to protect the safety of a person or to preserve property. [16] Presumably, Mr Black seeks to prove his act was necessary to preserve property, although Mr Black’s particulars allege he orally requested Mr Barbour not to enter the property so as to avoid disputes between them or between Mr Barbour and his former wife. This could indicate that he also intends to raise a defence of necessity to defend a person. [17] Assuming Mr Black’s interpretation of s 54 is accepted, it is arguable that factual findings could be made which would prevent Elders from refusing to indemnify Mr Black, but which fall short of establishing whichever defence Mr Black might possibly be relying on to resist Mr Barbour’s claim. Whether that hypothetical could be realised necessarily depends on the facts alleged and the defence or defences relied upon. It is for this reason that Elders should succeed in its application. [18] It is not sufficient answer for Mr Black to conjure up a possibility without giving it some form and substance.18 Mr Black’s pleadings provide no 14 Criminal Code Act 1899 (Qld), s267 “It is lawful for a person who is in peaceable possession of a dwelling…to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds – (a) the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and (b) it is necessary to use that force.” 15 Criminal Code Act 1899 (Qld), s277 “(1) It is lawful for a person who is in peaceable possession of any land,…to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land,…or in order to remove therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person. (2) It is lawful for a person who is in peaceable possession of any land,…to use the force that is reasonably necessary in order to remove therefrom any person who wrongfully conducts himself or herself in a disorderly manner therein, provided that he or she does not do the person grievous bodily harm.” 16 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. 17 Greyvensteyn v Hattingh [1911] AC 355 (PC). 18 Leasefin Corp Ltd v Clark (Unreported, Supreme Court of South Australia, King CJ, Olsson, Mullighan JJ, 16 October 1992). -- 5 of 6 -- 6 assistance. Because he did not descend into evidence about what he says transpired between the men, the court has no foundation for concluding that Mr Black has any prospect of traversing this third path to indemnity. [19] Elders has discharged its onus on this application. As matters stand I am satisfied Mr Black has no real prospect of succeeding in his claim against Elders and there is no need for a trial. Mr Black has not asked for time to further particularise his pleadings or to put on evidence. There is no reason to exercise the court’s discretion against granting the orders sought by Elders, including its costs of and incidental to the application and the proceedings. [20] I order: 1. Judgment is entered for the third party against the defendant. 2. The defendant is to pay the third party’s costs of and incidental to the proceedings, including those of this application, on the standard basis, to be assessed. -- 6 of 6 --