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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cairns v Connolly Key Joint Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWDC 38
Decision Date: 12 February 2025

CaseChat Overview and Summary

Cairns v Connolly Key Joint Pty Ltd is a case concerning the plaintiff, Cairns, seeking leave to join an insurer, Insurance Australia Limited trading as CGU Insurance, as a defendant in proceedings against the original defendant, Connolly Key Joint Pty Ltd. The dispute pertains to a request by Cairns to amend their Notice of Motion and Statement of Claim to include the insurer as a party, under the provisions of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether Cairns should be granted leave to join the insurer as a defendant. This decision hinged on whether the insurer was properly notified of the proceedings, whether the insurer had a reasonable opportunity to defend the claim, and whether joining the insurer would cause substantial injustice to any party. Additionally, the court had to consider whether the amendment would be in the interests of justice, given the timing of the application and the implications for the proceedings.

The court granted leave to Cairns to amend their Notice of Motion and Statement of Claim to include Insurance Australia Limited as a defendant. The court found that the insurer had been adequately notified and had ample opportunity to defend the claim. There was no substantial injustice to any party, and joining the insurer was deemed to be in the interests of justice. The court further ordered that the amended documents be filed by a specified date, with the costs of the application to be borne by the parties as per the usual rules.

The final orders of the court were that Cairns could file the Amended Notice of Motion dated 11 February 2025, join Insurance Australia Limited as a defendant, and file the Amended Statement of Claim by 14 February 2025. The costs of the application were to be costs in the cause.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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