Insurance Australia Ltd v Dent

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Insurance Australia Limited v Dent [2019] NSWCA 134

Hearing dates:

22 May 2019

Decision date:

07 June 2019

Before:

Basten JA at [1];
Gleeson JA at [6];
McCallum JA at [53]

Decision:

(1)   Grant leave to appeal.

 

(2)   Appeal allowed.

 

(3)   Direct the applicant to file a notice of appeal in the form contained in the White Book within 7 days.

 

(4)   Set aside orders 1 and 2 made by the primary judge on 6 September 2018, and in place order:

 

(a) Grant leave to Insurance Australia Limited to be joined as a party to the proceedings in the District Court No 2018/297094 pursuant to s 79 of the Motor Accidents Compensation Act 1999 (NSW);

 

(b)   Costs of the joinder application are the intervenor’s costs in the proceedings.

 (5)   The applicant to pay the first respondent’s costs of the proceedings in this Court.

Catchwords:

APPEAL – leave to appeal – whether insurer should be joined as party to District Court proceedings against insured driver – Motor Accidents Compensation Act 1999 (NSW), s 79 – where real possibility of conflict between interests of insurer and insured driver

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
District Court Act 1973 (NSW), s 127
Motor Accidents Act 1988 (NSW), s 47A
Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 10, 16, 20, 23, 78, 79
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Leichhardt Municipal Council v Green [2004] NSWCA 341
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] HCA 50

Category:

Principal judgment

Parties:

Insurance Australia Limited ABN 11 000 016 722 Trading as NRMA Insurance (Applicant)
Stephen Douglas Dent (First Respondent)
Braham Murray Williams (Second Respondent)

Representation:

Counsel:
Mr G M Jensen (Applicant)
Mr B Dooley SC (First Respondent)
Mr Williams (Self-represented) (Second Respondent)

  Solicitors:
Moray & Agnew (Applicant)
Everingham Solomons (First respondent)

File Number(s):

2018/297054

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

6 September 2018

Before:

Sorby ADCJ

File Number(s):

2018/110144

Judgment

1. BASTEN JA: Insurance Australia Ltd sought leave to appeal from the refusal of a judge in the District Court to join it as a party to proceedings. For the reasons given by Gleeson JA, I agree that the applicant should have been joined as a party, and that the consequential orders should be made.

2. The statutory scheme provided by the Motor Accidents Compensation Act 1999 (NSW) confers a power on a third party insurer to apply to the court to be joined as a party in order to argue that it has no obligation under the policy to indemnify the defendant, who will be the owner or driver…