Bek v Fizzell

[2001] NSWCA 357

CITATION:	Bek v Fizzell & Anor [2001] NSWCA 357
FILE NUMBER(S):	CA 40954/00
HEARING DATE(S):	5 October 2001
JUDGMENT DATE:	5 October 2001
PARTIES :	Tarek Bek (Appellant) v Paul Fizzell (First Respondent) AAMI Limited (Second Respondent)
JUDGMENT OF:	Giles JA at 1,12; Davies AJA at 2; Sperling J at 13

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	7123/98
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	A: Mr S Galitsky 1R: In Person 2R: Mr J W Conomos
SOLICITORS:	A: Bechara & Company, Solicitors 1R: For Self 2R: McLachlan Chilton, Solicitors
CATCHWORDS:	Motor vehicle accident - whether appellant or first respondent was driver - whether fraudulent claim
LEGISLATION CITED:	Motor Accidents Act 1988, s 66A
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Vale v Vale [2001] NSWCA 245
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40954/00
DC 7123/98
GILES JA
DAVIES AJA
SPERLING J
FRIDAY, 5 OCTOBER 2001

TAREK BEK v PAUL FIZZELL & ANOR

JUDGMENT

1 GILES JA: We are in a position to deal with the matter now. I will ask Davies AJA to give his reasons.

2 DAVIES AJA: This is an appeal from a judgment of a Judge of the District Court of New South Wales, his Honour Judge R A Rolfe. His Honour dismissed a claim brought by Tarek Bek (“the appellant”) against Paul Fizzell (“the first respondent”), in proceedings in which AAMI Limited (“AAMI”), the second respondent, was joined as the second defendant pursuant to the provisions of s 66A of the Motor Accidents Act, 1988 (“the Act”).

3 In the proceedings before his Honour, the first respondent was not represented and did not give evidence.

4 The issue before his Honour proceeded upon the issue raised in AAMI's defence. The defence in terms alleged that the first respondent was not, as the appellant alleged, the driver of the vehicle and that the claim made was a fraudulent claim.

5 In this appeal, counsel for the appellant, Mr S Galitsky, placed considerable weight upon the principle enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 350, 353 and 363 that a serious allegation such as fraud must be proved by strong and cogent evidence.

6 However, this is not a case where the appellant was entitled to succeed unless AAMI proved fraud by evidence of that type. AAMI was joined pursuant to s 66A of the Act, which enables an insurer to be joined once it has given particulars alleging that the claim has not been made in good faith. If the matter then proceeds, as it did in this case, on the insurance company's defence, the obligation remains on the plaintiff in the proceedings to prove that he was entitled to damages arising out of the negligence of the driver of the vehicle, the third party policy in respect of which the driver held with the insurer.

7 In a recent decision, in Vale v…