Power v Markel Capital Ltd - [2006] QSC 341

SUPREME COURT OF QUEENSLAND

CITATION: Power v Markel Capital Ltd [2006] QSC 341
PARTIES: DAVID LESLIE POWER
(applicant)
v
MARKEL CAPITAL LIMITED
(respondent)
FILE NO/S: 6482 of 2006
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT: Supreme Court of Queensland
DELIVERED ON: 13 November 2006
DELIVERED AT: Brisbane
HEARING DATE: 10 October 2006
JUDGE: Philip McMurdo J
ORDER: Application dismissed
CATCHWORDS: INSURANCE – GENERAL – POLICIES OF INSURANCE – CONSTRUCTION – applicant is a councillor of the Gold Coast City Council – applicant’s conduct as a councillor was investigated by the Crime and Misconduct Commission (CMC) and an inquiry was held in 2005 – applicant was required to give evidence to the inquiry – applicant was charged with breaching s 218(1) of the Crime and Misconduct Act 2001 (Qld) – where magistrate found no case to answer on one charge and acquitted on the other charge – construction of insurance policy – whether the provision of information to the CMC was in the course of the applicant’s duties as a councillor – whether applicant is entitled to be indemnified for legal expenses under his insurance policy
Crime and Misconduct Act 2001 (Qld), s 218(1)
Power v ACE Insurance Ltd [2005] QSC 327, cited
COUNSEL: P J Dunning SC for the applicant
R S Ashton for the respondent
SOLICITORS: Nyst Lawyers for the applicant
Ebsworth & Ebsworth for the respondent

PHILIP McMURDO J: The applicant is a councillor of the Gold Coast City Council. The respondent is the representative of Markel Syndicate 3000 at Lloyd’s which has underwritten a policy which insures the Council, its councillors, employees and certain others. The applicant seeks a declaration that he is entitled to be indemnified for his legal expenses in successfully defending certain criminal proceedings.
In July through December 2005, the Crime and Misconduct Commission conducted an inquiry into suspected official misconduct by councillors of the Gold Coast City Council concerning the election of councillors in March 2004 and other matters. The applicant was one of those whose conduct was being investigated. He was required by the CMC to give a written statement to the inquiry and to produce documents and he gave oral evidence.
In April 2006 the applicant was charged with breaches of s 218(1) of the Crime and Misconduct Act 2001 (Qld) in that he gave the CMC a document containing information which he knew to be false or misleading in material particulars. The applicant engaged his own solicitors and counsel to defend the prosecution. On 22 September 2006, a magistrate found that he had no case to answer on one charge and acquitted him on the other charge. As at the hearing of this application, the magistrate had left open the question of whether the prosecution should pay his costs of defending the charges.
The applicant claims that he is entitled to be reimbursed for those costs by the respondent. That claim is disputed upon one ground, which involves a question of construction of the policy. The applicant seeks a…

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: [2006] QSC 341
Decision Date: 13 November 2006

CaseChat Overview and Summary

The applicant, Power, a councillor for the Gold Coast City Council, sought a declaration that his legal costs were covered by his insurance policy. The dispute arose from an investigation into his conduct by the Crime and Misconduct Commission (CMC) in 2005. Power was charged with breaching a section of the Crime and Misconduct Act 2001 (Qld), but was acquitted on one charge and found to have no case to answer on another. The core issue before the court was the interpretation of the insurance policy to determine if the provision of information to the CMC fell within the scope of his duties as a councillor, and consequently, if he was eligible for indemnity of his legal expenses under the policy.

The court considered whether the information provided to the CMC was given in the course of Power’s duties as a councillor. The policy in question contained a provision that covered legal costs if the insured incurred them in the course of their duties. The court had to assess if the duties mentioned in the policy included actions taken during the CMC inquiry. It was also necessary to determine whether the provision of information to the CMC was an act performed within the scope of Power's role as a councillor. The court examined the specific language of the insurance policy and the context in which the information was provided to ascertain if it fell under the coverage described.

The court concluded that the provision of information to the CMC did not fall within the scope of Power's duties as defined by the insurance policy. Consequently, the court held that Power was not entitled to the indemnity of his legal costs. The court's reasoning hinged on the interpretation of the policy terms and the specific nature of the duties that were covered. As a result, the application for a declaration regarding the coverage of legal costs was dismissed.

Orders

Orders of the court

Application dismissed

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:	Power v Markel Capital Ltd [2006] QSC 341
PARTIES:	DAVID LESLIE POWER (applicant) v MARKEL CAPITAL LIMITED (respondent)
FILE NO/S:	6482 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	13 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2006
JUDGE:	Philip McMurdo J
ORDER:	Application dismissed
CATCHWORDS:	INSURANCE – GENERAL – POLICIES OF INSURANCE – CONSTRUCTION – applicant is a councillor of the Gold Coast City Council – applicant’s conduct as a councillor was investigated by the Crime and Misconduct Commission (CMC) and an inquiry was held in 2005 – applicant was required to give evidence to the inquiry – applicant was charged with breaching s 218(1) of the Crime and Misconduct Act 2001 (Qld) – where magistrate found no case to answer on one charge and acquitted on the other charge – construction of insurance policy – whether the provision of information to the CMC was in the course of the applicant’s duties as a councillor – whether applicant is entitled to be indemnified for legal expenses under his insurance policy
Crime and Misconduct Act 2001 (Qld), s 218(1) Power v ACE Insurance Ltd [2005] QSC 327, cited
COUNSEL:	P J Dunning SC for the applicant R S Ashton for the respondent
SOLICITORS:	Nyst Lawyers for the applicant Ebsworth & Ebsworth for the respondent