Power v. Markel Capital Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Power v Markel Capital Ltd [2007] QCA 284

PARTIES:

DAVID LESLIE POWER
(Appellant/Applicant)
v
MARKEL CAPITAL LIMITED AS DULY AUTHORISED REPRESENTATIVE OF MARKEL SYNDICATE 3000 AT LLOYDS
(Respondent)

FILE NO/S:

Appeal No 10671 of 2006
SC No 6482 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal   

ORIGINATING COURT:

Supreme Court at Queensland

DELIVERED ON:

31 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2007

JUDGES:

Jerrard JA, Fryberg and Philippides JJ
Separate reasons for judgment of each member of the Court
Jerrard JA and Fryberg J concurring as to the orders made
Philippides J dissenting

ORDER:

1.   Appeal allowed

2.   Set aside the orders of the trial judge made herein on 13 November 2006

3.   In lieu thereof:

a. Declare that upon the true construction of policy No. B0621PGOL00405 underwritten by Markel Syndicate 3000 at Lloyds, the applicant is entitled to payment by the underwriters on an ongoing basis of all of his reasonable legal fees, costs and expenses incurred in being legally represented with respect to proceedings against him instituted by the complaint of Detective Inspector John Edward Lewis sworn on 11 April 2006;

b. Order that the respondent pay the applicant’s costs of the application to be assessed

4.  Order that the respondent pay the appellant’s costs of the appeal to be assessed

CATCHWORDS:

Insurance – Other indemnity insurance – Advancement of defence costs – Prosecution by Crime and Misconduct Commission – Proviso that prosecution “relates to matters which may give rise to a Claim” – Causal or sequential – Act “in the course of duties” of insured – Duties of city councillor

Kavanagh v The Commonwealth (1960) 103 CLR 547, cited
Power v ACE Insurance Ltd[2005] QSC 327, referred to
Power v Markel Capital Ltd[2006] QSC 341, referred to
R v Rogerson (1991-92) 174 CLR 268, cited
Willkie v Gordian Run-off Ltd (2005) 221 CLR 522, referred to

Crime and Misconduct Act 2001 (Qld) s218
Criminal Code 1899 (Qld) s140
Justices Act 1886 (Qld) s42
Local Government Act 1993 (Qld) s229

COUNSEL:

Appellant: P Dunning SC with P McCafferty
Respondent: R Ashton

SOLICITORS:

Appellant: Nyst Lawyers
Respondent: Ebsworth & Ebsworth

1. JERRARD JA: In this appeal I have read the reasons for judgment and orders proposed by each of Fryberg J and Philippides J, and respectfully agree with the reasons and orders suggested by Fryberg J.  On the two critical matters the subject of argument on the appeal, I agree with both Philip McMurdo J at first instance and Fryberg J in this appeal, for the reasons each gives, that Mr Power’s statement or statements, in a document provided by him to the CMC, was provided in the course of his duties as a Councillor.  It was accordingly a “Wrongful Act”, as defined in the policy. 

1. On the second matter, I agree with Fryberg J that the summary hearing or “Investigation” related to matters which “may give rise to a Claim”, that being…