Berry v Al Jabour

[2019] NSWDC 959

District Court

New South Wales

Medium Neutral Citation:

Berry v Al Jabour [2019] NSWDC 959

Hearing dates:

30 September 2019

Date of orders:

30 September 2019

Decision date:

30 September 2019

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Make order 1 in the notice of motion filed 17 May 2019 joining AAMI as a party.

(2)   Costs be costs in the cause.

(3)   AAMI be directed to file and serve within 28 days an affidavit explaining the entitlement of AAMI to act as indicated in the last three paragraphs on page 1 of the letter of Moray & Agnew to Mrs Nima Al Jabour dated 13 August 2019.

Catchwords:

CIVIL PROCEDURE — parties — joinder – joinder of insurer – claim allegedly not made in good faith – dispute as to whether plaintiff in car – car driven by wife

Legislation Cited:

CivilProcedure Act 2005, s 56

MotorAccidents Compensation Act 1999, s 119

Cases Cited:

Hamad Abu-Ahmed v Wally El Riche (District Court (NSW), Norton SC DCJ, 4 February 2019, unrep)

Ishak v Taoube [2019] NSWDC 46

Virski v Virski (Supreme Court (NSW), 20 March 1998, unrep)

Category:

Procedural rulings

Parties:

Alex Berry (plaintiff/second respondent on notice of motion)
Nima Al Jabour (defendant/first respondent on notice of motion)
AAI Limited trading as AAMI (applicant on notice of motion)

Representation:

Counsel:
Mr G Schipp (plaintiff/second respondent on notice of motion)
Mr M A Cleary (applicant on notice of motion)

Solicitors:
Prominent Lawyers (plaintiff/second respondent on notice of motion)
Moray & Agnew Lawyers (applicant on notice of motion)

File Number(s):

2019/59261

Publication restriction:

None

Judgment

1. The Compulsory Third Party Insurer, AAMI, seeks to be joined as a party to this litigation. Alex Berry, also known as Mohammed Al Jabour and Khalil Alnajjar, who is the plaintiff, claims to have been injured when a car driven by his wife, Nima Al Jabour, the defendant, collided with the rear of a vehicle driven by Chak Kwan Ying

2. Mr Berry and Ms Al Jabour assert in a statement to AAMI that Mr Berry was in the front passenger seat at the time of the collision. Mr Berry sought medical treatment the day after the collision, and a police record made some months after the accident indicates that he was injured in the collision.

3. On the other hand, Mr Ying says that Ms Al Jabour and a young child sitting in the rear restraint seat were the only passengers in Ms Al Jabour’s vehicle, and that there was no one in the front passenger seat at the time of the collision.

4. AAMI asserts that the claim is not made in good faith in that Mr Berry was not in the vehicle at the time of the collision.

5. Section 119 of the Motor Accidents Compensation Act 1999 allows joinder of the insurer. It provides:

“119Joinder of insurer where false claim alleged

(1)  If:

(a)  court proceedings have been commenced against a person in respect of a claim, and

(b)  the person’s insurer has given the plaintiff particulars alleging that the claim has not been made in good faith,

the insurer may apply to the court to be joined as a party to the proceedings.

(2)  If the court gives the insurer leave to be joined as a party, the insurer may call as a witness any person able to give evidence relating to the occurrence out of which the claim arose or evidence of other matters relating to the claim, including a person who was, at the time of the occurrence, the owner or the driver of the motor vehicle.

(3)  The insurer may examine the witness as to the occurrence out of which the claim arose and may also, with the leave of the court, examine the witness as to:

(a)  any other claim in which the witness was involved either as a claimant, a witness or an owner or driver of the motor vehicle, and

(b)  the credibility of the witness.

(4)  If the court gives leave to do so, the insurer may:

(a)  cross-examine the witness, and

(b)  lead other evidence to refute the evidence given by the witness,

as to any or all of the matters as to which the insurer might have examined the witness under subsection (3).

(5)  Any right to examine or cross-examine a witness arising under this section is additional to and not in diminution of any right to examine or cross-examine the person arising under any other law.

(6)  This section applies despite anything to the contrary in section 38 of the Evidence Act 1995.

…”

6. Here proceedings have been commenced against Ms Al Jabour, and AAMI has given Mr Berry particulars alleging a lack of good faith, namely that Mr Berry was not in the car. Thus, the statutory prerequisites for joinder set out in subs (1) are established. The Court retains a discretion as to joinder as the word “may” in the final phrase of subs (1) indicates.

7. AAMI says joinder should be ordered because it wishes to call Mr Ying, cross‑examine Ms Al Jabour and make submissions contrary to Ms Al Jabour’s account in the statement, all to the effect of establishing that Mr Berry was not in the car. The interest of Ms Al Jabour as the plaintiff’s wife may be more aligned with Mr Berry than with AAMI.

8. Ms Al Jabour did not appear, although notified of the application. Mr Berry submitted that AAMI bore the onus of establishing that the order should be made in the interests of justice and referred to Virski v Virski. ^[1] However, Mr Berry did not dispute that the interests of justice might be better served by having a proper contradictor in the position of the defendant rather than have the plaintiff’s wife play that role. Mr Berry also submitted that there was no express level of satisfaction about whether the insurer’s claim of an absence of good faith is well‑founded and made reference to Ishak v Taoube. ^[2] In that case, Abadee DCJ also stated:

“I am not to be taken as expressing anything near a final view of the correctness of the various factual contentions that the Insurer makes regarding the plaintiff or the defendant. Nevertheless, I propose, for the purposes of this application, to consider the Insurer’s application by taking the evidence put before me at its highest.”^[3]

1. Supreme Court (NSW), 20 March 1998, unrep.

2. [2019] NSWDC 46.

3. At [10].

9. Of course, no decision as to the correctness of AAMI’s particulars about the lack of good faith is required to establish the statutory requirements for an order under s 119(1). Yet the substance of the assertion may be relevant to the exercise of the discretion.

10. In the present case, Mr Berry in submissions challenged the evidence of Mr Ying. It was a wet day and Mr Ying had a concern about having to pay an excess for vehicle damage so might not have been entirely impartial. A medical report the next day and the later police report both favour Mr Berry. AAMI served a crash assessment report which challenged the veracity of Mr Berry’s and Ms Al Jabour’s accounts of the collision.

11. Some of these matters may have more force than others. The question of the excess might be irrelevant since both Mr Berry and Ms Al Jabour say that the collision with the car in front of her was the fault of Ms Al Jabour. The police report is barely contemporaneous.

12. But this is not the occasion to make findings about Mr Ying’s account. I have not heard his testimony or any cross‑examination. The circumstance that Mr Ying has signed a statement indicates that there is some substance to the particulars alleged by AAMI.

13. Mr Berry also referred me to the decision of Hamad Abu-Ahmed v Wally El Riche. ^[4] In that case,^[5] the evidence on the application did not establish that a statement of the defendant was inconsistent with the case the insurer sought to make at trial. Yet here the inconsistency between Ms Al Jabour’s statement to AAMI and the case that Mr Berry was not in the car is plain. Questions about a lack of cooperation or a failure to provide information are not so material once the inconsistency is apparent.

    4. District Court (NSW), Norton SC DCJ, 4 February 2019, unrep.

    5. See [30].

14. In my view, the interests of justice favour the joinder of AAMI so that the real issues between the parties, the presence or absence of Mr Berry in the car at the time of the collision, can be readily ventilated. ^[6] Exploration of this issue would otherwise be complicated by the spousal relationship between the plaintiff and the defendant, and the commonality of the accounts of Mr Berry and Ms Al Jabour that Mr Berry was present in the car, contrary to Mr Ying’s account.

    6. See s 56 of the Civil Procedure Act 2005.

15. For these reasons, I propose to order the joinder of AAMI and make order 1 of the notice of motion.

16. The orders I make are:

1. Make order 1 in the notice of motion filed 17 May 2019 joining AAMI as a party.

2. Costs be costs in the cause.

3. AAMI be directed to file and serve within 28 days an affidavit explaining the entitlement of AAMI to act as indicated in the last three paragraphs on page 1 of the letter of Moray & Agnew to Mrs Nima Al Jabour dated 13 August 2019.

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Endnotes

Decision last updated: 29 July 2022