Sturk v SGIO Insurance Ltd - [2002] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: STURK -v- SGIO INSURANCE LTD [2002] WADC 58

CORAM: MARTINO DCJ

HEARD: 13 MARCH 2002

DELIVERED : 28 MARCH 2002

FILE NO/S: CIV 1265 of 2001

BETWEEN: PETER JOHN STURK
Plaintiff
AND
SGIO INSURANCE LTD
Defendant

Catchwords:

Statutes - Interpretation - Action against liability insurer

Legislation:

Corporations Law, s 601AG

Workers' Compensation and Rehabilitation Act 1981, s 93E

Result:

Application to set aside writ of summons dismissed

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr G W Nutt

Solicitors:

Plaintiff: Trewin Norman
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Hutchinson v ASIC (2001) 40 ACSR 198
Suncorp Metway Insurance Limited v Clonmel Pty Ltd [2001] 2 Qd R 94
Thomas v Arimco Mining Pty Ltd & Anor (2000) 24 SR (WA) 142

Case(s) also cited:

Bayswater Car Rental Pty Ltd v Hannell (1999) 10 ANZ Insurance Cases 61‑437
Moltoni Corporation Pty Ltd v QBE Insurance Ltd (2001) 76 ALJR 337
Newcombe v AME Properties Ltd & Anor (1995) 14 WAR 259
Vollstedt & Anor v Calibre Enterprises Pty Ltd & Anor (1999) 10 ANZ Insurance Cases 61-440

MARTINO DCJ: This is an appeal by the defendant against the decision of Deputy Registrar Harman delivered on 27 September 2001 dismissing the defendant's application to set aside the writ of summons. The hearing before me was therefore a fresh hearing of the defendant's application to set aside the writ of summons.
The plaintiff's writ of summons dated 15 May 2001 contains the following indorsement of claim:
"The Plaintiff claims damages against the Defendant, as insurer of Gromark Packaging Pty Ltd a deregistered company, pursuant to section 601AG of the Corporations Law for personal injuries sustained by the Plaintiff on 18 May 1995 in the course of the Plaintiff's employment with the (sic) Gromark Packaging Pty Ltd as a consequence of the negligence of the (sic) Gromark Packaging Pty Ltd, its servants or agents and the Plaintiff further claims interest and costs."
The grounds of the defendant's application are set out in its chamber summons filed on 9 August 2001 as follows:
"This application is brought on the grounds that the Plaintiff has no right or cause of action against the Defendant pursuant to section 601AG of the Corporations Law or otherwise and that the (sic), as a result, this action represents an abuse of process of this Honourable Court."
Section 601AG of the Corporations Law is in the following terms:
"A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:
(a)the company had a liability to the person; and
(b)the insurance contract covered that liability immediately before deregistration."
The defendant did not dispute that at the date of the plaintiff's alleged accident there was in force a workers' compensation and employers' indemnity insurance policy issued by the defendant in favour of Gromark Packaging…

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: [2002] WADC 58
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Peter John Sturk (the plaintiff) brought an action against SGIO Insurance Ltd (the defendant) seeking damages for personal injuries sustained during his employment with Gromark Packaging Pty Ltd, a company that has since been deregistered. The plaintiff's claim is based on the defendant's policy of workers' compensation and employers' indemnity insurance that covered the plaintiff's liability. The defendant applied to set aside the writ of summons, arguing that the plaintiff had no right or cause of action against them pursuant to section 601AG of the Corporations Law or otherwise. The court was required to decide whether the plaintiff's claim against the defendant's insured was valid under section 601AG of the Corporations Law and whether the plaintiff had established a liability against Gromark before its deregistration.

The court found that the plaintiff had a cause of action against the defendant's insured before its deregistration and the insured had a liability to the plaintiff. The court held that if the plaintiff established at trial the facts alleged in the indorsement of claim, he was entitled to recover from the defendant the amount of damages for which Gromark was liable to the plaintiff. The court also noted that the fact that the plaintiff has not yet secured a determination under section 93E(3) of the Workers' Compensation and Rehabilitation Act 1981 did not preclude the plaintiff from bringing this action. The court dismissed the defendant's application to set aside the writ of summons.

Orders