DISTRICT COURT OF QUEENSLAND

1. [1]
   In 2005, Mr Black lived in Kingaroy with the mother of two of Mr Barbour’s children. On the evening of 31 May, Mr Barbour returned the children to their mother at Mr Black’s property. The two men argued. Mr Barbour claimed he was injured when Mr Black punched him and bashed his head against the door frame of his car. Mr Black pleaded guilty to the criminal offence of assault occasioning bodily harm.

2. [2]
   Later, Mr Barbour commenced this action to recover damages for wrongful assault and battery. Mr Black denied assaulting Mr Barbour in the manner pleaded and, in defence, claimed that he used reasonable force to repel Mr Barbour, a trespasser on his property.

3. [3]
   In May 2005, Elders Insurance Limited insured Mr Black for liability for personal injury suffered at his property. Mr Black joined Elders as third party and claimed indemnity for his liability to Mr Barbour and his costs of defending Mr Barbour’s claim.

4. [4]
   Elders applied for judgment in its favour on a summary basis^[1] because Mr Black had no real prospect of succeeding in his claim against it and there was no need for a trial.^[2]  It argued the incident was not an occurrence covered by the policy because it was not an act that resulted in personal injury that was “neither expected nor intended to happen”.^[3]  Further, Elders relied on the specific exclusion of liability caused directly or indirectly by any intentional,…or criminal act by the insured.^[4] 

5. [5]
   Mr Black did not contest either of those propositions. On the material now before the court, he had no basis to do so. He did not plead his actions or any injury sustained by Mr Barbour occurred by accident. Nor did he raise that, or any, defence to the criminal charge.

6. [6]
   While Mr Black’s conviction raises only a rebuttable presumption in civil proceedings,^[5] he did bear an evidential onus once Elders established a prima facie defence to his claim. Mr Black then bore the burden of placing evidence before the court to support his claim.^[6]  It is no answer to say, as Mr Black’s counsel did, that the factual dispute is between Mr Black and Mr Barbour. In third party proceedings, Mr Black stands in the shoes of a plaintiff and Elders in those of a defendant.^[7] Findings about the circumstances in which the personal injuries were sustained are a necessary foundation for Mr Black’s claim against Elders.

7. [7]
   Mr Barbour has not made a case in negligence. Inherent in his pleading is that Mr Black intentionally assaulted him. Unless the contrary is proved, a person convicted of a criminal offence is taken to have not only committed the acts but also to have possessed the state of mind which constitutes the offence.^[8]  It fell to Mr Black to demonstrate he had some real prospect of disturbing that presumption. He has not done so. Without more, then, Elders has established Mr Black has no real prospect of succeeding in its claim under the policy.

8. [8]
   Mr Black relied on s 54 of the Insurance Contracts Act 1984 (Cth). In defined circumstances, the provision constrains insurers in refusing a claim because of an act by the insured. Mr Black submitted the effect of s 54(1) & (5)(a) is that Elders cannot rely on his act being intentional as justification for refusing the claim, because that act was necessary to protect the safety of a person or to preserve property.^[9] Mr Black’s prospects against Elders depend on the court accepting that interpretation of s 54.

9. [9]
   Elders denied s 54 prevents it from refusing Mr Black’s claim. The proper approach, it contended, is to first determine whether there was an insured event under the policy. It was only if there was that consideration need be given to s 54. On its case, there was no insured event covered by the policy. Even if there were, Elders submitted s 54(2)^[10] expressly permitted a claim to be refused in reliance on an act by an insured which caused or contributed to the loss claimed.

10. [10]
    How s 54 should be interpreted and applied to this claim is in contest. That section seeks to regulate the contractual relationship of insurer and insured. As such, it raises questions of public policy which reach beyond the interests of these parties. I was referred to some authority which favours the interpretation Elders contended for.^[11]  Mr Black’s arguments are not persuasive but they are not completely devoid of merit and would best be determined after full argument.^[12]  Were the merit of his submissions about s 54 the only justification for entering summary judgment, I would have been minded to allow the matter to proceed to trial.

11. [11]
    Yet there is an inherent contradiction in Mr Black’s case which seems to me to deliver a fatal blow. The insurance policy is a liability, not a claims policy. Mr Black may only succeed against Elders if he is found liable to Mr Barbour. Liability must be founded on Mr Barbour’s case: an intentional assault which did not occur in the circumstances pleaded in defence. In other words, Mr Black will only be liable to Mr Barbour if the court rejects his defence that he used reasonable force to repel a trespasser.

12. [12]
    Mr Black’s defence to Mr Barbour’s claim seems to raise the same matter put up against Elders. If he succeeds in proving that, he will have established his defence and will not be liable to Mr Barbour. Elders, then, will not have to indemnify Mr Black, even for his costs of defending the claim.^[13]

13. [13]
    To escape this conundrum, Mr Black’s counsel envisaged a third path: that after trial, the judge could make findings of fact which would sound in Mr Black’s liability to Mr Barbour as well as call up s 54(5)(a) in his claim against Elders. Regrettably he was unable to enlighten me as to how that path might be constructed.

14. [14]
    Hypothetically, there may well be a defence to this claim which involves additional or different findings of fact to those required to invoke s 54(5)(a). The difficulty for Mr Black is that he has not been able to articulate how that might operate in this case. This would require a degree of particularity lacking in both his defence to Mr Barbour’s claim and his statement of claim against Elders.

15. [15]
    Mr Black’s pleadings are opaque. He may be relying on defences which excuse the use of force at criminal law. The Criminal Code of Queensland excuses the use of reasonable force in defence of a dwelling^[14] and in defence of premises.^[15] Or he may be relying on one or more of the defences to assault in civil law that he used reasonable force to remove a trespasser^[16] or in defence of property or person based upon an immediate necessity to act.^[17] Section 54(5)(a) speaks of an act necessary to protect the safety of a person or to preserve property.

16. [16]
    Presumably, Mr Black seeks to prove his act was necessary to preserve property, although Mr Black’s particulars allege he orally requested Mr Barbour not to enter the property so as to avoid disputes between them or between Mr Barbour and his former wife. This could indicate that he also intends to raise a defence of necessity to defend a person.

17. [17]
    Assuming Mr Black’s interpretation of s 54 is accepted, it is arguable that factual findings could be made which would prevent Elders from refusing to indemnify Mr Black, but which fall short of establishing whichever defence Mr Black might possibly be relying on to resist Mr Barbour’s claim. Whether that hypothetical could be realised necessarily depends on the facts alleged and the defence or defences relied upon. It is for this reason that Elders should succeed in its application.

18. [18]
    It is not sufficient answer for Mr Black to conjure up a possibility without giving it some form and substance.^[18] Mr Black’s pleadings provide no assistance. Because he did not descend into evidence about what he says transpired between the men, the court has no foundation for concluding that Mr Black has any prospect of traversing this third path to indemnity.

19. [19]
    Elders has discharged its onus on this application. As matters stand I am satisfied Mr Black has no real prospect of succeeding in his claim against Elders and there is no need for a trial. Mr Black has not asked for time to further particularise his pleadings or to put on evidence. There is no reason to exercise the court’s discretion against granting the orders sought by Elders, including its costs of and incidental to the application and the proceedings.

20. [20]
    I order:

1. Judgment is entered for the third party against the defendant.

2. The defendant is to pay the third party’s costs of and incidental to the proceedings, including those of this application, on the standard basis, to be assessed.