Cobie Ann Moore v Richard McKiernan

Background

1. For the purposes of this application only, the following facts are not in dispute.
2. The plaintiff was born in 1990. She is currently 27 years of age.
3. On 25 December 2011, the plaintiff attended a family Christmas event at a house owned by the Mr McKiernan. The house and land were known as 600 XXXX Creek Road, Glenreagh ("Celtic Mist").
4. At the property an accident occurred following which Ms Moore fell from a balcony and was rendered tetraplegic. On 22 January 2012, Mr McKiernan sent an email to AON Insurance Brokers where he described the accident as follows: "(a) Whilst preparing to line up for a group photo being taken by Leanne Moore (my Partner) at about 5.00 pm a wrestle started between my 19 year old step son Kayden Moore and myself which resulted in us smashing into the veranda handrail and dislodging it. The result of this was that his three sisters XXX fell 2m onto a garden area; and (b) The veranda rail and balustrade were still under construction, I being the owner builder. This was the last project to be completed before the final building inspection from the Clarence Valley Council."
5. The plaintiff sued Mr McKiernan, alleging that his negligence caused her injuries. There were several particulars of negligence, including an allegation that Mr McKiernan was negligent in initiating or participating in the wrestling with his stepson. I shall refer to these allegations in more detail later in this judgment.
6. The evidence is that, in the event that the plaintiff succeeded in her claim against Mr McKiernan, she would attract damages of at least $7,000,000, and possibly as much as $11,000,000, Mr McKiernan has some assets and liabilities, but these have a net value of less than $500,000. (Aff, Christopoulos, Annexures A and D).
7. At the date of the accident, Mr McKiernan was renting premises at 614 XXX Creek Road, Glenreagh ("the rental property"). He also owned land at 600 XXX Creek Road, Glenreagh and was in the process of completing a residential building on Celtic Mist. From 11 September 2011 and at the time of the accident, Mr McKiernan had been living in a fixed caravan shed at the Celtic Mist property.
8. On 30 March 2011, Mr McKiernan entered into a policy of insurance, called the "Rural Insurance" policy ("the policy"), which was underwritten by the insurer. This policy relevantly covered the period of 30 March 2011 to 30 March 2012 and had a policy limit of $20,000,000. The insurance policy covered two properties, the rental property and XX Coramba Road, Glenreagh. (Aff, Stiff, Annexure A). The policy covered Mr McKiernan for any liability arising as owner and occupier of these properties. Both were also insured for domestic contents. The policy did not cover Celtic Mist.
9. At the time of the accident, Mr McKiernan had been completing construction work on the property. The value of those works had been insured for the sum of $200,000 but cover had lapsed prior to the accident.
10. On 25 December 2011 and 22 January 2012, Mr McKiernan made a claim on the policy in respect of the accident.
11. On 13 March 2015, the insurer's lawyers wrote to Mr McKiernan declining Mr McKiernan coverage under the policy. Reasons were given for declining coverage. I shall refer to these reasons later in this judgment.

Pleadings against Mr McKiernan

1. By statement of claim filed 17 December 2014, the plaintiff pleaded: "1 At all material times, the defendant was the owner and occupier of residential premises located 600 XXXX Creek Road, Glenreagh in the State of New South Wales ("the premises"). [Celtic Mist]. … 6 On or about 25 December 2011, the plaintiff was upon the premises at the invitation of the defendant for the purposes of attending a Christmas lunch. … 8 As the plaintiff was seeking to pose for the photograph, the defendant physically took hold of the plaintiff's brother, Kayden Moore, causing Kayden Moore to come into forceful contact with the plaintiff and her two sisters Emma Moore and Briony Moore ('the forceful contact"). … 11 At all material times, the defendant owed the plaintiff a duty of care to take reasonable precautions to ensure that his physical exertions did not injure the plaintiff. 12 Further, at all material times, the defendant owed the plaintiff a duty of care to take reasonable care to ensure that the premises were safe for the use which the plaintiff was invited to make of them. … 15 The injury, loss and damage suffered by the plaintiff was caused by the negligence of the defendant. Particulars of Negligence of the Defendant (a) Carelessly wrestling and/or pushing Kayden Moore so as to cause him to make the forceful contact with the plaintiff which caused the accident. (b) Initiating a wrestling match with another large male in the near vicinity of the plaintiff and her two sisters who were much smaller in stature. (c) Allowing the forceful contact to occur in circumstances where the defendant knew or ought to have known that the railing was not properly secured to the uprights. (d) Allowing the railing to be in a state of dangerous disrepair. (e) Inviting the plaintiff to be in the near vicinity of the railing in circumstances where the defendant knew that it was not properly secured. (f) Failing to secure the railing to the uprights. (g) Failing to warn the plaintiff of the dangerous condition of the railing. (h) Failing to restrict access to the elevated areas of the premises in the knowledge that the railing was not properly secured to the uprights. (i) Failing to barricade the section of railing which gave way so as to prevent the plaintiff coming into contact with it. (j) Failing to take any or any adequate precautions to ensure the safety of the plaintiff. (k) Failing to take adequate care with respect to the plaintiff's safety.
2. The particulars of negligence fall into two broad categories, the first being the "forceful conduct" particulars of [8], [10], [11] and [15] (a) to (c). The second being the "owner/occupier" particulars of [12] and [15] (d) to (i). Particulars [15] (j) and (k) apply to both categories.
3. Three main issues arose for determination. The first issue is which legislation is to apply, the Law Reform (Miscellaneous Provisions) Act or the Civil Liability (Third Party Claims against Insurers) Act. If the latter Act is applicable, the second is what test should be applied by this Court in the exercise of its discretion to grant leave to join the insurer. The third issue is whether in the present circumstances the test has been satisfied for this Court to exercise the discretion.

(1) Which legislation applies?

1. Both parties made submissions to this Court as to the whether it is the Law Reform (Miscellaneous Provisions) Act or the Civil Liability (Third Party Claims against Insurers) Act that applies to the plaintiff's application.

Submissions

1. The insurer submitted that the application could not be brought pursuant to the Civil Liability (Third Party Claims against Insurers) Act due to the combined effect of ss 2 and 12 of that Act.
2. Section 2 reads: "Commencement This Act commences on the date of assent to this Act."
3. Section 12 reads: "Preservation of existing proceedings Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (as in force immediately before its repeal by this Act) continues to apply to actions brought against insurers under that section before the commencement of this Act as if that section had not been repealed."
4. It was argued that because the historical notes to the Civil Liability (Third Party Claims against Insurers) Act provide that the date of assent was 1 June 2017, a date after the plaintiff's notice of motion filed 22 May 2017, s 12 was engaged. This provision therefore preserved the application of s 6 of the Law Reform (Miscellaneous Provisions) Act.
5. Section 6 of the Law Reform (Miscellaneous Provisions) Act reads: "6 Amount of liability to be charge on insurance moneys payable against that liability (1) If any person (hereinafter in this Part referred to as the insured) has, whether before or after the commencement of this Act, entered into a contract of insurance by which the person is indemnified against liability to pay any damages or compensation, the amount of the person's liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance moneys that are or may become payable in respect of that liability. … (4) …. Provided that, except where the provisions of subsection (2) apply, no such action shall be commenced in any court except with the leave of that court. Leave shall not be granted in any case where the court is satisfied that the insurer is entitled under the terms of the contract of insurance to disclaim liability, and that any proceedings, including arbitration proceedings, necessary to establish that the insurer is so entitled to disclaim, have been taken."
6. The plaintiff submitted that to date, no proceedings have been brought against the insurer. The only application that had been made was the notice of motion on 22 May 2017. The plaintiff argued that this was not an action brought against the insurer within the meaning of s 12 Civil Liability (Third Party Claims against Insurers) Act and that the relevant action was the amended notice of motion filed during the hearing on 8 September 2017. The plaintiff argued that the present circumstances attract the operation of the new Civil Liability (Third Party Claims against Insurers) Act, in particular, ss 4 and 5. These provisions read: "Section 4 Claimant may recover from insurer in certain circumstances (1) If an insured person has an insured liability to a person (the "claimant"), the claimant may, subject to this Act, recover the amount of the insured liability from the insurer in proceedings before a court. (2) The amount of the insured liability is the amount of indemnity (if any) payable pursuant to the terms of the contract of insurance in respect of the insured person's liability to the claimant. (3) In proceedings brought by a claimant against an insurer under this section, the insurer stands in the place of the insured person as if the proceedings were proceedings to recover damages, compensation or costs from the insured person. Accordingly (but subject to this Act), the parties have the same rights and liabilities, and the court has the same powers, as if the proceedings were proceedings brought against the insured person. (4) This section does not entitle a claimant to recover any amount from a re-insurer under a contract or arrangement for re-insurance. Section 5 Leave to proceed (1) Proceedings may not be brought, or continued, against an insurer under section 4 except by leave of the court in which the proceedings are to be, or have been, commenced. (2) An application for leave may be made before or after proceedings under section 4 have been commenced. (3) Subject to subsection (4), the court may grant or refuse the claimant's application for leave. (4) Leave must be refused if the insurer can establish that it is entitled to disclaim liability under the contract of insurance or under any Act or law."

Consideration

1. The Law Reform (Miscellaneous Provisions) Act operated to create a statutory charge in favour of the insured over money for which an insurer was liable to pay under an insurance contract following the occurrence of an event which gave the insured a claim for damages. This provision created significant conceptual difficulties and was criticised by Kirby P in New South Wales Medical Defence Union v Crawford (1993) 31 NSWLR 469 at 479 for being 'undoubtedly opaque and ambiguous'. See also Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101 at 113; McMillan v Mannix (1993) 31 NSWLR 538 at 542 (Kirby P).
2. On 1 June 2017, s 6 of the Law Reform (Miscellaneous Provisions) Act was repealed and replaced by ss 4 and 5 of the Civil Liability (Third Party Claims against Insurers) Act. These provisions operate to give the insured a statutory cause of action directly against the insurer to recover the amount of the insured liability under an insurance contract.
3. The provisions relevant for determining which legislation should apply are ss 2 and 12 of the Civil Liability (Third Party Claims against Insurers) Act, which I have set out earlier in this judgment. In summary, s 12 preserves the effect of s 6 of the Law Reform (Miscellaneous Provisions) Act for existing proceedings where an action was brought against the insurer prior to the commencement of the Civil Liability (Third Party Claims against Insurers) Act. Section 2 provides that this date of commencement for the Act is the date of assent, which according to the historical notes is 1 June 2017. Therefore, the effect of s 12 of the Civil Liability (Third Party Claims against Insurers) Act is to preserve the operation of s 6 of the Law Reform (Miscellaneous Provisions) Act where an action was brought against the insurer prior to the commencement of the Civil Liability (Third Party claims against Insurers) Act.
4. The plaintiff's original notice of motion seeking leave to join the insurer was filed on 22 May 2017 and therefore was filed prior to the commencement date of the Act of 1 June 2017.
5. The Civil Liability (Third Party Claims against Insurers) Act does not provide a definition of the word "action" within s 3, the definition provision. Nor is "action" defined within the Dictionary of the Uniform Civil Procedure Rules 2005 (NSW) or s 3 of the Civil Procedure Act 2005 (NSW). However, s 11 of the Limitation Act 1969 (NSW) provides the following definition of "action": ""Action" includes any proceeding in a court."
6. In Neetmanski & Child Support Registrar and Neetmanska [2009] FMCAFAM 200, Halligan FM considered at [47] that "action" referred to a "proceeding" and was an 'inclusive, not exhaustive' term.
7. A broad definition of the word "action" is provided by the Encyclopaedic Australian Legal Dictionary (Peter Nygh and Peter Butt (eds), Encyclopaedic Australian Legal Dictionary, 2011, LexisNexis): "A civil proceeding in a court."
8. The word "proceeding" has been expansively defined in statute. For example, in s 155 of the Civil Proceedings Act "proceedings" is defined as: ""proceedings" means proceedings in the Court other than criminal proceedings."
9. Likewise, the Encyclopaedic Australian Legal Dictionary defines "proceeding" in wide terms as (Peter Nygh and Peter Butt (eds), Encyclopaedic Australian Legal Dictionary, 2011, LexisNexis): "An action commenced in a court, whether between parties or not, including an appeal…"
10. The definitions of "action" and "proceeding" are broad and inclusive. It is my view that an equally broad definition of the word "action" should be given to s 12 of the Civil Liability (Third Party Claims against Insurers) Act. The notice of motion filed 22 May 2017 therefore falls within the definition of "action" and accordingly the action was brought prior to the commencement of the Civil Liability (Third Party Claims against Insurers) Act. Hence, the present application is to be determined under s 6(4) of the Law Reform (Miscellaneous Provisions) Act.
11. In any event, the plaintiff's amended notice of motion sought an order to grant leave under either s 6 of the Law Reform (Miscellaneous Provisions) Act or ss 4 and 5 of the Civil Liability (Third Party Claims against Insurers) Act. The plaintiff also submitted that irrespective of which Act applies, the same common law test is applicable. The plaintiff cited the Law Reform Commission report 143 titled 'Third Party Claims on Insurance Money' November 2016 ("the Law Reform Report") (extracted later in this judgment) in support for this proposition. (New South Wales, Law Reform Commission, Third Party Claims on Insurance Money, (November 2016)).
12. If I am wrong in my conclusion regarding the application of s 6(4) of the Law Reform (Miscellaneous Provisions) Act, I will now consider what test would apply had the Civil Liability (Third Party Claims against Insurers) Act been the applicable Act.

(2) What is applicable test under the Civil Liability (Third Party Claims against Insurers) Act?

1. The court has a general discretion to grant leave under s 5 of the Civil Liability (Third Party Claims against Insurers) Act. The statute is silent as to what considerations should be considered in respect of this Court's decision of leave.

Submissions

1. As previously stated, the plaintiff submitted that the Court should apply the same common law test that was previously applied to the Law Reform (Miscellaneous Provisions) Act. During the hearing, the insurer agreed with the plaintiff's submission that this Court should apply the same test. (T5.8-14). Both parties agreed this was consistent with the intention of Parliament when it amended the law in accordance with the recommendations of the Law Reform Report.
2. The Law Reform Report relevantly sets out at 16-17: "Granting leave to proceed against an insurer 2.43 In NSW, a court has a general discretion to grant leave to a plaintiff to join or proceed against an insurer. But NSW, unlike NZ, also includes a proviso that leave may not be granted where the insured is entitled to disclaim under the policy. This proviso operates in addition to the court's general discretion, as the High Court has explained: This provision is not directing the court that leave be denied only in a case where it is satisfied both of entitlement to disclaim liability and that necessary steps have been taken to establish entitlement to do so. Leave may be refused in other cases but must be refused in these cases. 2.44 The provision requiring the leave of the court to commence a claim against the insurer was originally formulated by the NZ Statutes Revision Committee, which considered it necessary to add the safeguard "so that the insurance companies would have a right to be heard in all cases where actions might be commenced against them". In part it was included to ensure that the provision was not misused at a time when juries still heard civil matters and were thought to hand down verdicts motivated by sympathy for a plaintiff when insurers (who were seen as being able to pay) were joined in proceedings. 2.45 Concerns have been expressed that "the easier the test becomes for claimants, the greater must be the likelihood that insurers will be joined to proceedings simply as alternative, and convenient, defendants". Court's general discretion 2.46 The provision does not specify when leave may be granted. The approach of the courts has generally been to require that the plaintiff show three things: that there is an arguable case of liability against the defendant that there is an arguable case that the insurer's policy responds to that liability, and there is a real possibility that, if the plaintiff obtains judgment against the defendant, the defendant will not be able to meet it. 2.47 These criteria appear to be well settled. There are also further considerations that courts may take into account in deciding whether to grant leave, as set out below. Arguable case 2.48 The requirement that there be an arguable case against the defendant has been described as a "relatively modest hurdle". The NSW Court of Appeal has recently explained: The standard for when it is justifiable to bring an insurer in is fairly low, namely that there is an arguable case, but an arguable case exists only when there is both an arguable case that certain facts exist, and an arguable case that those facts provide grounds for legal relief. Defendant unable to pay 2.49 A court may refuse leave to join an insurer if it is satisfied that a defendant is available to be sued and can meet any claim, that is, that there is a "perfectly good common law defendant" available. Conversely, leave will be granted if there is doubt about a defendant's capacity to pay. For example, if a defendant is subject to multiple proceedings that might see the value of his or her property reduced substantially. Other considerations 2.50 The grant of leave may be refused for other proper reasons such as, for example, where the claim was statute barred or where the insurer could demonstrate irreparable prejudice. Avoiding a multiplicity of proceedings is also a relevant consideration in determining whether to grant leave. 2.51 Justice Moffitt has also stated that it would be wrong to grant leave on the basis that "a plaintiff finds it distasteful to sue a tortfeasor because he is a relative, an employee, a fellow employee or employer or because it is considered that their future relationship may be affected in some way". Court must refuse leave where insurer is entitled to disclaim liability 2.52 We have already noted that the aim of the proviso to s 6(4), which requires the court to refuse leave if the insurer can disclaim liability, is to prevent unwarranted proceedings against insurers. A number of NSW Court of Appeal judgments have observed this. (footnotes omitted)."
3. On 3 May 2017, David Clarke MLC addressed the operation of the Civil Liability (Third Party Claims against Insurers) Act in his second reading speech in the Legislative Council on 3 May 2017. (New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 May 2017 at 14), where he stated: "The bill repeals section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 and replaces it with a new standalone Act - the Civil Liability (Third Party Claims Against Insurers) Act. It is proposed to create a new Act, as section 6 has no relationship with any other provisions in the Law Reform (Miscellaneous Provisions) Act 1946. The bill retains the original intent of section 6 by ensuring that a plaintiff can recover compensation or damages directly from the insurer in respect of the insured defendant's liability to the plaintiff. The bill removes the problematic concept of the "charge" currently provided for in section 6. Importantly, clause 4 ensures that a plaintiff can recover compensation or damages directly from the insurer in respect of the insured defendant's liability to the plaintiff. Clauses 5 to 9 make procedural and technical amendments, including to preserve the leave requirements in section 6 to make it clear that a plaintiff's failure to seek leave before proceeding against an insurer is not fatal to the plaintiff's claim, to clarify the operation of limitation periods and give effect to the New South Wales Court of Appeal's view in Chubb Insurance v Moore (2013) ALR 101, to clarify the territorial application of the right to claim, and to confirm that the insurer can rely on the operation of the insurance contract to reduce its liability to the plaintiff. Clause 10 retains the original primary object of section 6; that is, to prevent collusion between the insurer and the defendant. It provides that any payment the insurer makes to the defendant, or any compromise agreed between them in respect of the insured liability, does not discharge the insurer's liability to the plaintiff. This is so unless and to the extent that the defendant pays the money to the plaintiff…"
4. Recently in Peterson Superannuation Fund Pty Ltd v Bank of Queensland Limited [2017] FCA 699 ("Peterson"), Yates J stated at [102] to [104]: "102 It will be observed that s 4 employs the mechanism of the insurer standing in the place of the insured person in respect of the third party's claim for damages, compensation or costs, as if the proceedings were brought against the insured person. The CL(TPCAI) Act does not employ the mechanism of the third party standing in the place of the insured person in respect of the insured person's claims under the contract of insurance against the insurer. 103 However, the insurer is entitled to rely defensively on the contract of insurance in any proceedings under s 4. The insurer is also entitled to rely on any defence that the insured person might have to the third party's claims for damages, compensation or costs. In this connection, s 7 provides: Matters on which insurer may rely In proceedings brought under section 4, the insurer is entitled to rely on any defence or any other matter in answer to the claim or in reduction of its liability to the claimant: (a) that the insurer would have been entitled to rely on in a claim made by the insured person under the contract of insurance, or (b) that the insured person would have been entitled to rely on in proceedings brought by the claimant against the insured person in respect of the insured liability. 104 Proceedings under s 4 by the third party against the insurer cannot be brought or continued except by leave of the court in which the proceedings are to be, or have been, commenced: s 5(1). The CL(TPCAI) Act does not prescribe any particular matter to be weighed in exercising the discretion to grant or refuse leave, but it does require leave to be refused if the insurer can establish that it is entitled, amongst other things, to disclaim liability under the contract of insurance: s 5(4). Whilst in terms unconfined (other than for the consequence required by s 5(4)), the exercise of discretion must be directed to the purpose for which it is conferred. I proceed on the basis that the purpose of s 5(1) is materially the same as the purpose for which, under the proviso to s 6 of the LR(MP) Act, leave was also required, namely to ensure that insurers are not exposed to "unnecessary" or "inappropriate" claims (Oswald v Bailey (1987) 11 NSWLR 715 at 717F-G) or "unwarranted" claims (Tzaidas v Child (2014) 61 NSWLR 18; [2004] NSWCA 252 at [17] and [107])."
5. I agree with the approach taken by Yates J in Peterson at [104]. The discretion must be exercised with the purpose for which it was conferred and both Acts can be regarded as having a materially similar purpose, as set out in the Law Reform Report.
6. It is my view that if the Civil Liability (Third Party Claims against Insurers) Act is applied to the present application, this court would exercise its discretion in much the same way as if the application had been made pursuant to s 6(4) of Law Reform (Miscellaneous Provisions) Act.
7. I turn now to consider the application of this test in the present circumstances.

(3) Whether leave should be granted to join the insurer?

1. The plaintiff bears an evidentiary and persuasive onus for the application: see Energize Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213 at [53] ("Energize Fitness").
2. The common law test in relation to s 6(4) of the Law Reform (Miscellaneous Provisions Act was set out by Hammerschlag J in Eastern Creek Holdings Pty Limited v Axis Specialty Europe Limited [2010] NSWSC 840. His Honour stated at [20] that for leave to be granted pursuant to s 6(4), the plaintiff must show firstly, there is an arguable case against the liability of the insured; secondly, there is an arguable case that the policy responds; and thirdly, there is a real possibility that if judgment was obtained, the insured would not be able to meet it. See also Energize Fitness; AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398; and Guild Insurance Ltd v Hepburn [2014] NSWCA 400.
3. In applying this test, it is necessary for the Court to bear in mind that the purpose of the statute is to ensure that insurers are not exposed to "unnecessary", "inappropriate" (Oswald v Bailey (1987) 11 NSWLR 715 at 717F-G) or "unwarranted" claims (Tzaidas v Child (2014) 61 NSWLR 18 at [17]). The legislation provides "a filter against insurers being unjustifiably made parties in litigation that, apart from the grant of leave, they would be free to stay out of": see Energize Fitness at [59].
4. Leave will not be granted, however, if the insurer can establish that it is entitled to disclaim liability under the contract of insurance: see s 6(4) of the Law Reform (Miscellaneous Provisions) Act and s 5(4) of the Civil Liability (Third Party Claims against Insurers) Act. The onus is on the insurer to establish that it has a right to disclaim liability. The insurer submitted that the insurance policy does not respond to the Mr McKiernan's liability.
5. I consider that the most contentious issue is whether the plaintiff can satisfy that there is an arguable case that the policy responds to Mr McKiernan's liability.

(a) Is there an arguable case against the liability of Mr McKiernan?

1. In Energize Fitness, Campbell JA (with whom Allsop P and Meagher JA agreed) adopted what was said in AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398 in relation to what constitutes an arguable case at [48]: "48. In AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398, the Full Federal Court (Franki, McGregor and Kelly JJ) said, at 400, that the ACT analogue of s 6(4): '… commands the court not to grant leave in certain circumstances. It is not easy to decide precisely what is embraced in the words which describe the circumstances where the court is not to grant leave. In our opinion the court has a general power to grant leave in all cases which do not fall within the provision that it shall not grant leave and in which it is made to appear by evidence available in the application that there is an arguable case of liability against the insured, being a liability against which the insured is indemnified by a contract of insurance in force at the time of the happening of the event said to give rise to the claim. We accept the relevant test proposed by the respondent which is really the test formulated by the primary judge, namely, has the respondent presented a case which is at least arguable?'"
2. Campbell JA in Energize Fitness continued at [58]: "…recognises that it can be necessary for the arguable case of liability to 'appear by evidence available in the application'."
3. It is my view that an arguable case against Mr McKiernan in negligence exists on the evidence before me. This is due to the accident being caused by Mr McKiernan engaging in forceful conduct when he was wrestling his stepson on a balcony where the veranda rail and balustrade were still under construction. Both parties conceded during the hearing that, for the purposes of this application, there was an arguable case of liability against Mr McKiernan. (T5.45-50; T6.1-9). This issue is satisfied.

(b) Is there an arguable case that the policy responds to Mr McKiernan's liability?

1. The plaintiff must prove an arguable case exists that the policy issued by the insurer responds to the insured's liability. In other words, it is required that she prove that the insurance policy taken out by Mr McKiernan would cover his liability arising from a common law action in negligence.

The policy

1. It is common ground that Mr McKiernan had insured his domestic contents. The plaintiff submitted that the accident was an "accident" within the terms of the definition of "accident" under the policy and the accident occurred in Australia.
2. On 30 March 2011, the parties entered into the policy. The policy identified CGU as the insurer of all cover under the policy and Mr McKiernan as the insured. The policy also provided that other people are also insured under the policy "as long as they normally live with you." (Aff, Stiff, Annexure A).
3. The policy defined the term "Schedule" as "the most current document we give you which sets out the details of your insurance cover". It also defined the term "Situation" as "the place where the property insured is located". The "Situation" is specified in the schedule as: "614 XXXX Creek Road and XXXX Coramba Road, Glenreagh 2450".
4. The policy provided cover in respect of different risks which an insured could be exposed to, as owner of rural property. Each risk is covered under different sections of the policy.
5. The coverage summary sets out the areas of coverage as follows: "1. Domestic Buildings and Contents' 2. Farm Property; 3. Farm Machinery and Working Dogs; 4. Hay Grain Fencing Livestock and Farm Trees; 5. Business Liability; 6. Farm Motor."
6. Relevant to the plaintiff's application are areas of coverage "1" (domestic buildings and contents) and "5" (business liability).
7. The wording of the policy in respect of domestic buildings and domestic contents is: "What is insured The property set on your schedule is insured if it is destroyed, lost or damaged, it is insured only if you own or are liable for the property... … Words that have special meaning in this section In this section there are words that have special meaning. ♦ Domestic Buildings mean: • Residential domestic buildings you live in including any professional offices in those buildings; … • Domestic out buildings; … • … anything permanently built, permanently constructed or permanently installed on your property for domestic purposes."
8. Under the section titled "Liability", the policy provides: "Liability - We will pay the amount you are liable to pay following an accident. If your liability arises from any of the circumstances shown below. ... When we will pay ♦ If you have insured your domestic buildings, we will pay the amount you have to pay because you are the owner or occupier of your domestic buildings. … ♦ If you have insured your domestic contents and live in a rented building, we will pay you the amount you have to pay as owner of your domestic contents or occupier of the building. ♦ If you have insured your domestic contents, we will pay the amount you have to pay for any accident that happens: • Anywhere in Australia. This does not include the amount you have to pay because you are the owner or occupier of your domestic buildings. …"
9. On 2 January 2012, the insurer was notified of the claim. On 13 March 2012, the insurer issued a declinature notice. (Aff, Stiff, Annexure E). In providing its reasons for declining coverage under the provision, the insurer gave only one reason. It claimed that a subsequent provision excluded the liability. That provision reads: "This does not include the amount you have to pay because you are the owner or occupier of your domestic buildings." ("the exception clause").
10. In its letter declining coverage to Mr McKiernan, the insurer made two points relating to the exception clause (Aff, Stiff, Annexure E). The first was that coverage under the insuring clause did not extend to liability which arose because Mr McKiernan was the owner or occupier of Celtic Mists. The second was that the claim against Mr McKiernan was clearly a claim which arose because Mr McKiernan was the owner or occupier of Celtic Mists. Accordingly, cover "was not available".

Submissions

1. The plaintiff submitted that it is clearly arguable the policy responds to the incident. Under the liability section of the policy (extracted above), CGU had agreed with the insured, Mr McKiernan, to pay any amount that he is liable to pay following an accident if his liability were to arise in any of the provided circumstances. For the purposes of the present case, this included where Mr McKiernan had insured his domestic contents and an accident happened anywhere in Australia. It was common ground between the parties that Mr McKiernan had insured his domestic contents, the accident was an accident as defined by the policy and that the accident occurred in Australia. The plaintiff argued that she had established an arguable case that the policy responds on this basis and, in all of the circumstances, an order should be made allowing the plaintiff to proceed directly against the insurer.
2. The plaintiff also submitted that the burden imposed upon the plaintiff is only to demonstrate that it is arguable that the policy responds. Once this is established, the burden passes to the insurer. The insurer's burden is more onerous as it requires the insurer to establish that it is entitled to disclaim liability under the contract of insurance pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act and s 5(4) of the Civil Liability (Third Party Claims against Insurers) Act. The plaintiff suggested that this required a greater level of certainty when compared to mere arguability.
3. Based upon this, the plaintiff argued that the liability of Mr McKiernan could have arisen anywhere in Australia and the insurer would remain bound under the liability provision. The actual place of the occurrence, being 614 XXXX Creek Road, Glenreagh (Celtic Mist), was therefore purely incidental and was not relevant to the issue of indemnity.
4. The insurer submitted that the liability cover provision in the policy does not respond to the accident. This argument was based upon two reasons. First, the liability cover provision covered Mr McKiernan's liability as owner or occupier of the domestic buildings identified in the situation in the Schedule. This did not include the domestic buildings at Celtic Mist. Second, if Mr McKiernan insured his domestic contents and lived in a rented building, the policy also covered his liability as owner of the domestic contents or occupier of the building arising from any accident occurring anywhere in Australia. While the insurer conceded that Mr McKiernan did have domestic contents insurance per the Schedule (Aff, Stiff, Annexure A), this cover was subject to an exception clause which excluded its liability for any amount that Mr McKiernan would have to pay as the owner or occupier of the domestic building. The exception clause was operative because the plaintiff's claim against Mr McKiernan was based upon him being the owner and occupier of the premises. Accordingly, the policy was argued to exclude liability.
5. In response, the plaintiff submitted that the insurer's reliance upon the exception clause was flawed on four bases. These were: 1. It was far from clear that the exception clause was intended to operate in the manner in which the insurer was attempting to rely upon it. The words do not support the insurer's argument and, at the very least, are ambiguous. 2. The exception clause does not appear to provide for an exception for coverage but is directed at other issues. 3. The premise of the insurer's reasoning was unsound because the insurer assumed that the only basis for the plaintiff's claim against Mr McKiernan is a liability based upon him being the owner or occupier of Celtic Mists. This is incorrect because the claim was also made on the basis that Mr McKiernan was negligent in engaging in forceful conduct, namely the wrestling match with his stepson at a time when he was aware that the veranda rail was not finished. 4. CGU owed an onus for establishing that the exception clause applies to the current circumstances.
6. I will now consider these submissions.

Consideration

1. It is only required the plaintiff prove that it is arguable the policy responds. Once this threshold has been meet, the onus shifts to the insurer to satisfy the higher burden that it is entitled to disclaim the policy pursuant to either s 6(4) of the Law Reform (Miscellaneous Provisions) Act, or in the alternative, s 5(4) of the Civil Liability (Third Party Claims against Insurers) Act.
2. In relation to the first basis of liability cover under the policy, that is where Mr McKiernan has insured a domestic building and is liable as the owner or occupier of that domestic building, it appears that the policy cover does not respond. As previously stated, the properties identified as being covered in the Situation in the Schedule did not include the domestic buildings at Celtic Mist. It would have required the accident to have occurred on either of the two insured properties listed within the Schedule and not at Celtic Mist for liability to arise on this basis. However, the plaintiff has not confined Mr McKiernan's liability solely to that arising from being the owner or occupier.
3. The second basis of liability provides that the policy will respond to liability that arises from an accident occurring anywhere in Australia where Mr McKiernan had insured his domestic contents and lives in a rented building. Mr McKiernan had taken out a domestic contents insurance for two properties - the rental property and XX Coramba Road, Glenreagh (Aff, Stiff, [5]). Despite Celtic Mists not being a property specified in the Situation of the Schedule, the policy states that it would cover liability arising from any accident that occurred anywhere in Australia. As the accident occurred in Australia, it is arguable that the policy covers the accident that occurred at Celtic Mists for which Mr McKiernan is liable, so long as the liability does not arise from him being the owner or occupier of the property.
4. I do not consider the exception clause to be ambiguous. The provision stipulates that liability will not be covered for an accident that occurs anywhere in Australia to the extent that the claim is based on Mr McKiernan being the owner or occupier (My emphasis).
5. The plaintiff's claim against Mr McKiernan is not reliant upon him being either the owner or the occupier. Rather, it arises from his forceful conduct of wrestling with his stepson which caused the rail to dislodge and the plaintiff to fall and suffer personal injury. The particulars of negligence in paras 15 (b) and (c) of the statement of claim do not rely upon the occupation or ownership of Mr McKiernan. In my view, there is an arguable case of negligence arising from Mr McKiernan's conduct and not one that arises as owner or occupier.
6. On this basis, the plaintiff has sufficiently satisfied the evidentiary burden of proving that there is an arguable case the policy responds. It is also my view that the insurer has not sufficiently discharged the burden of proving that it is entitled to disclaim liability on the basis of the exception clause.

(c) Is there a real possibility that, if the judgment were obtained, Mr McKiernan would be unable to meet it?

1. The plaintiff submitted that the quantum of damages being sought were in excess of $7,000,000 and that Mr McKiernan has assets of less than $500,000. A real possibility therefore existed that Mr McKiernan would be unable to meet the judgment.
2. During the hearing neither party made submissions regarding the financial position of Mr McKiernan. A statement of Mr McKiernan's financial position shows that he has assets with a net value of $399,901. (Aff, Christopoulos, Annexure A). If the plaintiff is successful, the judgment debt is also likely to be high given the permanent injuries she has suffered. Dr Monica Ling, a consultant physician in rehabilitation medicine, opined that the plaintiff will have a reduced life expectancy of approximately 77% of the mean life expectancy of the general population; a significantly reduced working capacity, and that she will incur substantial future medical and care expenses. (Aff, Christopoulos, Annexure B). Mr Peter Semmler QC provided an opinion on quantum dated 17 May 2017. He was of the view that the plaintiff, if successful, would "undoubtedly be very substantial" and in the range of $7,000,000 to $11,000,000. (Aff, Christopoulos, Annexure D).
3. It is my view on the evidence before me that there is a real possibility Mr McKiernan would be unable to meet the judgment debt if the plaintiff was successful in her action.

Conclusion

1. The plaintiff has sufficiently satisfied all three issues set out in the common law test to justify the exercise of this Court's discretion to grant leave. The plaintiff has established that there is an arguable case of negligence against Mr McKiernan, that it is arguable the insurance policy responds, and, if the plaintiff's action were successful, that Mr McKiernan would be unlikely to meet it. In these circumstances, in the exercise of my discretion, I grant leave to the plaintiff to commence proceedings directly against CGU Insurance Limited.
2. Costs are discretionary. Costs usually follow the event. CGU Insurance Limited is to pay the plaintiff's costs of her notice of motion filed on 8 September 2017.

The Court orders that: 1. Leave is granted to the plaintiff to commence proceedings against CGU Insurance Limited. 2. An amended statement of claim joining CGU Insurance Limited as second defendant is to be filed and served within 28 days. 3. GGU Insurance Limited is to pay the plaintiff's costs of the notice of motion filed 8 September 2017.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2017