Kalimnios v Ewen

Case [2011] QDC 264


DISTRICT COURT OF QUEENSLAND

CITATION:

Kalimnios v Ewen [2011] QDC 264

PARTIES:

KARLA MARIE KALIMNIOS
(plaintiff/respondent)

v

WILLIAM JOHN EWEN AS ADMINISTRATOR OF THE ESTATE OF JASON WILLIAM EWEN
(defendant/applicant)

FILE NO:

2006/2011

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2011

JUDGE:

Rafter SC DCJ

ORDERS:

1.   The defendant’s application for summary judgment is dismissed.

2.   That each party’s costs of the application be costs in the proceeding.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – SUMMARY JUDGMENT – application for summary judgment under r 293 Uniform Civil Procedure Rules 1999 (Qld) – whether the plaintiff has no prospect of succeeding – where the plaintiff’s personal injuries arose from her vehicle colliding with a pedestrian – where the pedestrian died from the injuries he sustained in the collision – where the collision arose out of the deceased’s negligence – where the plaintiff seeks damages from the deceased pedestrian’s estate – where the deceased pedestrian’s estate has been completely administered and the defence of plene administravit has been pleaded by the defendant – where the plaintiff argues the deceased was covered by a contract of insurance – where the insurer has not been joined as a party – where the defendant argues that an exclusion clause in the contract of insurance applies precluding liability – whether the exclusion clause applies

SUCCESSION – EXECUTORS AND ADMINISTRATORS – ADMINISTRATION – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – whether the defence of plene administravit should succeed

INTERPRETATION – PARTICULAR WORDS AND PHRASES – INSURANCE – EXCLUSION CLAUSE – where the defendant argues that an exclusion clause in the policy of insurance applies precluding liability – where the exclusion clause states that the insurer will not be liable for damage arising from any act or omission that is dishonest, fraudulent, criminal, wilful or malicious – where the deceased threw a knife at another party shortly before running onto the road causing the collision – where the defendant argues that the throwing of the knife constitutes an assault and clearly falls within the exclusion clause – whether the exclusion clause applies on the facts

Criminal Code, ss 3, 69, 245, 260, 268, 269, 328 and 335
Transport Operations (Road Use Management – Road Rules) Regulation 1999, ss 230 and 236
Uniform Civil Procedure Rules 1999, rr 69, 192 and 293

Vagrants, Gaming and Other Offences Act 1931, s 7AA

Agar v Hyde (2000) 201 CLR 552, cited
Bolton Properties P/L v JK Investments (Australia) P/L [2009] QCA 135, cited
Levy v Kum Chah (1936) 56 CLR 159, cited
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, cited
Samways v WorkCover Queensland & Ors [2010] QSC 127, cited

COUNSEL:

R S Ashton for the plaintiff

R F King-Scott for the defendant

SOLICITORS:

MurphySchmidt for the plaintiff

Bell Dixon Butler for the defendant

Introduction

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Details
AGLC
Kalimnios v Ewen [2011] QDC 264
Case
[2011] QDC 264
Decision Date

CaseChat Overview and Summary

In the case of Kalimnios v Ewen, the plaintiff sought damages for personal injuries she sustained when her vehicle collided with a pedestrian, who later died from the injuries he sustained. The deceased pedestrian's estate, administered by the defendant, had been completely administered, and the defence of plene administravit was raised. The plaintiff argued that the deceased was covered by a contract of insurance, although the insurer was not joined as a party. The defendant contended that an exclusion clause in the contract of insurance applied, precluding liability for the deceased's negligent actions, specifically the throwing of a knife that the defendant argued constituted an assault and fell within the exclusion clause.

The court had to decide whether the plaintiff had any prospect of succeeding in her action against the deceased's estate, given the defence of plene administravit, and whether the exclusion clause in the insurance policy applied to the circumstances of the case. The court examined the nature of the deceased's actions and whether they fell within the exclusion clause, which precluded liability for any act or omission that was dishonest, fraudulent, criminal, wilful or malicious. The court needed to assess if the deceased's actions constituted an assault, and if so, whether this act fell within the exclusion clause.

The court found that the plaintiff had a prospect of succeeding in her action, and therefore dismissed the defendant's application for summary judgment. The court held that the deceased's actions, while they may have constituted an assault, did not necessarily fall within the exclusion clause. The court determined that the exclusion clause's application was not clear-cut and required further evidence and argument. The court ordered that each party bear their own costs of the application.

The court dismissed the defendant's application for summary judgment and ordered that each party bear their own costs of the application. The court held that the plaintiff had a prospect of succeeding in her action, and that the application of the exclusion clause in the insurance policy required further evidence and argument. The case will proceed to trial to determine the liability of the deceased's estate and the insurer's potential liability under the policy.

Orders

Orders of the court

1. The defendant’s application for summary judgment is dismissed.

2. That each party’s costs of the application be costs in the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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