THE ESTATE OF DARRYL ARTHUR HERBERT care of THE PUBLIC TRUSTEE

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : [2004] WADC 135

Insurance action against liability insurer - Appeal against granting of application for summary judgment in favour of second defendant - Statutes - Interpretation

Insurance Contracts Act (1984) as amended

Hutchinson v Australian Securities and Investment Commission (ASIC) [2001] VSC 465; (2001) 40 ACSR 198

Sturk v SGIO Insurance Ltd [2002] WADC 58

Vollstedt v Calibre Enterprises Pty Ltd (1999) 10 ANZ Insurance Cases 61­440

1 O'SULLIVAN DCJ: The plaintiff was injured when he fell from a horse on 20 September 1994. A writ claiming damages in respect of his injuries was filed on 10 July 2000.

2 A history of the proceedings thereafter is set out in the reasons for judgment of Deane DCJ delivered on 5 September 2003.

3 The statement of claim endorsed upon the writ states that all material times the first defendant was the proprietor of a business providing supervised horse riding to members of the public. A cause of action in negligence is then pleaded against the first defendant.

4 The first defendant died in 1997. It seems that the administrator of his estate is a Ms Tzuko Kaino ("Kaino").

5 On 12 August 2002 an application to substitute Kaino as first defendant in the proceedings was dismissed by a Registrar of this Court.

6 Deane DCJ dealt with an appeal from the learned Registrar's decision and it was also dismissed.

7 An application to extend time for service of the writ upon Kaino met with a similar fate.

8 The statement of claim further pleads that all material times the second defendant was the insurer of the first defendant, that the first defendant died in or about June 1997 and that he "is liable in damages to the plaintiff" (sic). It is then pleaded as follows:

"21. Pursuant to s 51 of the Insurance Contract Act 1984 ("the Act") the Plaintiff's claim is against the Second Defendant for loss and damage suffered by the Plaintiff as a result of the negligence of the First Defendant as pleaded in paragraph 6 above.

22. In breach of the provisions of the Act the Second Defendant has declined liability to satisfy the Plaintiff's claim."

9 The writ was served on the second defendant on 10 July 2001, exactly a year after it was filed and the second defendant entered an appearance on 19 July 2001.

10 On 24 December 2003 the second defendant filed an application for summary judgment pursuant to O 16 of the Rules of the Supreme Court and the application was granted on 1 July 2004.

11 This is an appeal from the decision of the Deputy Registrar granting the application and, accordingly, the matter falls to be decided afresh.

12 Section 51(1) of the Insurance Contracts Act 1984 as amended provides:

(a) the insured under a contract of liability insurance is liable in damages to a person (in this section called the third party);

(b) the insured has died or cannot, after reasonable inquiry, be found;

(c) the contract provides insurance cover in respect of the liability;

(d) the third party may recover from the insurer an amount equal to the insurer's liability under the contract in respect of the insured's liability in damages."

13 The second defendant submits that there can be no finding in this case that the estate of the deceased is "liable in damages" to the plaintiff and, accordingly, there can be no finding that the plaintiff may recover anything from the first defendant's insurer, the second defendant.

14 On the other hand counsel for the plaintiff contends that there can, even now be a finding of liability against the first defendant and consequently a judgment against the second defendant.

15 In support of his submission counsel for the plaintiff referred me to the decision of Martino DCJ in Sturk v SGIO Insurance Ltd [2002] WADC 58.

16 In that case the defendant applied to dismiss the claim of the plaintiff who had brought an action against the insurer of a company which had been deregistered. Section 601AG of the Corporations Law provides:

"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:

(b) the insurance contract covered that liability immediately before deregistration."

17 Dealing with a submission by counsel for the defendant that this provision required the plaintiff to establish that he had a judgment or some agreed right against the company before its deregistration Martino DCJ, following Mahony M in Hutchinson v Australian Securities and Investment Commission (ASIC) [2001] VSC 465; (2001) 40 ACSR 198, held that there was no such requirement and that it was open to the plaintiff to establish at trial simply that he had a cause of action in negligence against the company before it was deregistered.

18 With due respect this must be right but I do not think it assists the plaintiff in this case.

19 The issue here is not whether the first defendant "had a liability" within the meaning of those words in s 601AG of the Corporations Law but whether the first defendant "is liable in damages" as that expression is to be construed in the Insurance Contracts Act 1984 as amended. Moreover the estate of Herbert has never been properly joined as a party in the action and applications to substitute the Administrator of the Estate as a party and to extend time to serve the writ have been denied.

20 In these circumstances the plaintiff can never succeed in establishing at trial that the estate of Herbert "is liable in damages" to him. It follows that he will be unable to obtain a judgment to recover that amount from the second defendant.

21 The appeal should therefore be dismissed.