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 -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.

[3] In May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QDC 109
Decision Date: 7 May 2009

CaseChat Overview and Summary

In the case of Barbour v Black & Anor, the plaintiff, Barbour, sought damages for battery against the defendant, Black. The dispute also involved a third party, an insurance company, which Black sought to be indemnified for any liability to Barbour. The case was heard in the Federal Circuit Court of Australia. The primary issue before the Court was whether the third party insurer was obligated to indemnify Black for his liability to Barbour, despite the insurance policy excluding coverage for intentional or criminal acts.

The court was required to determine if section 54 of the Insurance Contracts Act 1984 (Cth) prevented the insurer from refusing the claim. Additionally, the court had to consider whether the defence that Black relied on against Barbour's claim could also be used to establish the insurer's liability. The Court also examined whether the evidential onus lay with Black, the defendant, to prove his case against the insurer. The policy in question was a liability policy, not a claims-paying policy, and the Court needed to assess whether Black could fail in his defence against Barbour but still succeed against the insurer.

The Court found that the evidential onus was on Black to establish his defence against Barbour's claim. However, Black failed to provide adequate particulars or lead any evidence to support his defence. The Court concluded that section 54 of the Insurance Contracts Act 1984 (Cth) did not prevent the insurer from denying the claim, as the policy explicitly excluded coverage for intentional or criminal acts. Therefore, the Court granted the third party's application for summary judgment. The final orders were that judgment was entered for the third party against Black, and Black was ordered 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.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 -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