Lois Nominees Pty Ltd v Qbe Insurance (Australia) Ltd

(2011) 42 WAR 75; [2011] WASC 208

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Equity
2. › Declarations
3. › Declaration against insurer by non-party to insurance contract
4. › Whether declaration that insurer obliged to indemnify insured would have foreseeable consequences for plaintiff
5. › Whether insurer arguably precluded from challenging liability by doctrine of abuse of process in subsequent proceedings
1. Practice and Procedure
2. › Summary judgment
3. › Application by defendant
4. › Whether plaintiffs have arguable claim for declaration against insurer
5. › Whether high degree of certainty about ultimate outcome
6. › Whether court should assess viability of claim in light of pending consolidation application
7. › Rules of the Supreme Court 1971 (WA), O 16 r 1
1. Practice and Procedure
2. › Abuse of process
3. › Whether proceedings seriously and unfairly burdensome or prejudicial
4. › Whether evidentiary and forensic disadvantages to insurer from declaration proceedings amount to abuse of process
5. › Whether availability of alternative procedure relevant
1. Practice and Procedure
2. › Consolidation
3. › Relevant considerations
4. › Whether claims relate to same subject matter, transaction or event
5. › Whether prejudice to party from consolidation demonstrated
6. › Whether consolidation preferable to hearing actions sequentially
7. › Rules of the Supreme Court 1971 (WA), O 83 r 1

Quick Take

A plaintiff who is not a party to an insurance contract may maintain an action for a declaration that the insurer is obliged to indemnify the insured, where there is an arguable case that the insurer would be precluded by abuse of process from defending subsequent proceedings by the insured. Alleged evidentiary and forensic disadvantages to the insurer from such proceedings are matters for trial, not summary judgment. The availability of a counterclaim by the insurer against the insured is a relevant factor in assessing those disadvantages. On a summary judgment application, the court may take into account the existence and likely result of a pending consolidation application rather than assessing the claim's viability solely on the basis of the action's present constitution.