Carrington v Sea World Australia Limited

[1997] QSC 186

IN THE SUPREME COURT

OF QUEENSLAND

No 1773 of 1990

Brisbane

Before the Hon. Justice Williams

[Carrington v. Sea World Australia Limited & Ors]

BETWEEN:

GEOFFREY DONALD CARRINGTON
  Plaintiff

AND:

SEA WORLD AUSTRALIA LIMITED
  First Defendant

AND:

GRB ENTERTAINMENT INC
  Second Defendant

AND:

GARY R.  BENZ
  Third Defendant

AND:

MICHAEL BRANTON
  Fourth Defendant

AND:

LIVE STUNTS PRODUCTIONS INC
  Fifth Defendant

AND:

FOX BROADCASTING COMPANY
  Seventh Defendant
AND:
  WORKERS’ COMPENSATION BOARD
  OF QUEENSLAND
  Tenth Defendant

AND:
  SUNCORP GENERAL INSURANCE LIMITED
   Eleventh Defendant

AND:
  SUNCORP GENERAL INSURANCE LIMITED
  Second Third Party

CATCHWORDS:     INSURANCE - joinder of insurer as defendant - application by insurer to be struck out - dismissed.

Counsel:McMurdo QC for applicant insurer

Amerena and Evans for plaintiff/respondent

Solicitors:Barry & Nilsson for applicant

Gilshenan & Luton for plaintiff-respondent

Hearing Date:              24 September 1997

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 08/10/1997

This is an application by the eleventh defendant, Suncorp General Insurance Limited, to have the statement of claim delivered to it on 3 September 1997 (the Fourth Amended Statement of Claim) be struck out.  However, the written submissions by senior counsel for that applicant went further and asked for an order pursuant to O.3r.11 that the applicant eleventh defendant “be struck out” on the ground that the plaintiff, the respondent, had no claim or right enforceable against it.  Counsel for the respondent-plaintiff effectively joined issue with that submission in the course of argument, and in consequence it is necessary to deal with both contentions of the applicant.  However, one argument is really at the centre of the present dispute.

I have already dealt with the broad background of the action in a judgment of even date on an application brought by Suncorp to have third party proceedings against it summarily dismissed.  The joinder of Suncorp as eleventh defendant was really a corollary to the joinder of that insurer as a third party by the U.S. defendants.  In the other judgment I refused to summarily dismiss those third party proceedings and that conclusion is relevant for present purposes.

In the statement of claim the plaintiff seeks a declaration against Suncorp that it is obliged (pursuant to policy BR 851722909) to indemnify the first defendant in respect of any judgment given in favour of the plaintiff against the first defendant.

One of the points taken by counsel for Suncorp was that there had been no claim made by the first defendant against Suncorp pursuant to that policy and that in consequence it could not be alleged that there was a denial by Suncorp that the first defendant was an “insured”; therefore it was said there was no proper basis for the court making that declaration.  It can be accepted as a fact for present purposes that the first defendant has made no claim against Suncorp; but as noted in the other judgment the first defendant is not playing an active role in the proceedings.  The position appears to be that the first defendant accepts it could not meet any judgment given in favour of the plaintiff against it and that it would, if any such judgment was entered, go into liquidation.

The plaintiff waited until after the response of Suncorp to the third party proceedings was known before joining it as eleventh defendant.  Whilst it may well be that Suncorp has not formally denied that the first defendant was an insured pursuant to policy BR 8511722909, it is clear that Suncorp is contending in the third party proceedings that the policy on its proper construction excluded cover for the incident in question.  It is that question which, as I have indicated in the other judgment, will have to be determined at trial.  The policy will have to be construed against the background of the relevant matrix of facts, and findings of fact may well have to be made in order to determine that liability.  If those findings of fact are adverse to Suncorp’s position then the plaintiff, by the declaration, seeks to obtain the benefit of them against Suncorp.  It would be an unfortunate position if those facts had to be relitigated in subsequent proceedings between liquidators of the first defendant and Suncorp.

I accept the argument of counsel for Suncorp that by not opposing the joinder of Suncorp as eleventh defendant (under the rules there was no need to give it notice) Suncorp is not prevented from making submissions at this stage relying on O.3r.11 and invoking the jurisdiction of this court to strike out an added defendant.

What, however, is important is that Suncorp has had the opportunity to admit that the risk insured against by policy B851722909 included the incident in question if that was its position.  Given its response to the third party proceedings and its correspondence with the plaintiff there has been, in my view, at least an implied denial that the policy indemnified the first defendant with respect to the subject incident.

Counsel for the plaintiff referred to the judgment of the South Australian Full Court in JN Taylor Holdings Ltd v.  Bond (1993) 59 SASR 432, and especially the judgment of King CJ at 435-7. There was also extensive reference in argument to my judgment in Interchase Corporation Limited (in liquidation) v.  Colliers Jardine (Qld) Pty Ltd (unreported, No 520 of 1994, judgment 17 April 1997) and the references therein to CE Heath Casualty and General Insurance Ltd v.  Pyramind Building Society (in liquidation) (1997) 9 ANZ Insurance Cases 61-345. I do not find it necessary to refer in any detail to the matters discussed therein. Suffice it to say that in the particular circumstances here there is a proper basis on which the plaintiff is entitled to claim a declaration against the eleventh defendant.

In the circumstances the application should be dismissed, but as with the other application I proposed to reserve costs to the trial judge.  The orders will therefore be:  application dismissed, costs reserved.