Cairns v Connolly Key Joint Pty Ltd

[2025] NSWDC 38

District Court

New South Wales

Medium Neutral Citation:

CAIRNS v CONNOLLY KEY JOINT PTY LTD [2025] NSWDC 38

Hearing dates:

12 February 2025

Date of orders:

12 February 2025

Decision date:

12 February 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

Orders:

In relation to the Amended Notice of Motion dated 11 February 2025:

(1) Leave is granted to the plaintiff to file in court an Amended Notice of Motion dated 11 February 2025.

(2) Pursuant to section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), leave is granted to the plaintiff to join, as a defendant, Insurance Australia Limited trading as CGU Insurance.

(3) Leave is granted to the plaintiff to file an Amended Statement of Claim in the form annexed to the Amended Notice of Motion, such Amended Statement of Claim to be filed by 14 February 2025.

(4) The costs of the application are to be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE – leave to join an insurer as a defendant

Legislation Cited:

CivilLiability (Third Party Claims Against Insurers) Act 2017 (NSW)

Cases Cited:

Murphy, McCarthy & Associates Pty Limited v Zurich Australian Insurance Limited [2018] NSWSC 627

RitchievAdvancedPlumbingandDrainsPtyLtd [2019] NSWSC 1028

Wigge v Allianz Australia Insurance Ltd [2020] NSWSC 150

Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522

Category:

Procedural rulings

Parties:

Damian Cairns (Plaintiff)
Insurance Australia Limited ABN 11 000 016722 AFS LIC No. 227681 T/A CGU Insurance trading as CGU Insurance (Proposed Defendant)

Representation:

Counsel:
C Purdy (Plaintiff)
N Robertson (Solicitor) (Proposed Defendant)

Solicitors:
Owen Hodge Lawyers (Plaintiff)
Meridian Lawyers (Proposed Defendant)

File Number(s):

2022/00302978

Publication restriction:

No

JUDGMENT – EX TEMPORE

1. Before the Court is an Amended Notice of Motion dated 11 February 2025, by which the plaintiff seeks leave under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (“the Act”) to join Insurance Australia Limited trading as CGU as the defendant in place of the existing defendant. A proposed Amended Statement of Claim effecting that change is annexed to the Amended Notice of Motion.

2. The background to the matter is that the plaintiff was injured on 25 October 2017 at an industrial site in Casino in New South Wales, where he was employed as a roofer by SAE Group Pty Limited whilst engaged in the process of installing solar panels.

3. According to the Statement of Claim filed on 11 October 2022, he severely lacerated himself on a sharp edge of some Colorbond sheeting placed on a bench.

4. Under the Act, the Court can grant leave to join an insurer in appropriate circumstances as set out in the legislation. I refer in particular in relation to the principles to be applied to the decision of Adamson J, as her Honour then was, in Wigge v Allianz Australia Insurance Ltd [2020] NSWSC 150, where her Honour followed the principles stated by the court in Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522, by Campbell J.

5. Adamson J also quoted comments of Hammerschlag J in Murphy, McCarthy & Associates Pty Limited v Zurich Australian Insurance Limited [2018] NSWSC 627, where at paragraph 16 his Honour said that:

“[16] The requirement for leave under s 5(4) of the Act is one imposed to insulate insurers from exposure to untenable claims. The discretion to give leave to bring such a claim is to be exercised with this in mind”.

6. His Honour then stated at [17]:

“[The plaintiff] must have an arguable case against [the insured], there must be an arguable case that the Policy responds to it and there must be a real possibility that if judgment is obtained, [the insured] would not be able to meet it …”.

7. Dealing with each of those matters seriatim:

1. The plaintiff on the pleadings has at least an arguable case against the insured;

2. Mr Robertson who appears for the proposed insurer has accepted that a policy is in existence which responds to the events in question. That formal concession therefore deals with that aspect; and

3. In relation to the real possibility that if judgment is obtained, the insured would not be able to meet it, I refer to the material annexed to the affidavit of Ms Sinclair dated 20 December 2024 which establishes that the defendant joined by the original Statement of Claim filed on 11 October 2022 is now deregistered.

8. I am unaware of any discretionary matters which would lean against the leave sought. The fact that there is a residual discretion is made clear in the authorities. See for example paragraph 4 of the decision of Campbell J in Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028.

9. For those reasons I make orders in accordance with the orders which I have previously indicated to the parties.

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