Swan v Phoenix Combat Sports Pty Ltd (In Liquidation)

[2022] ACTSC 332

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Swan v Phoenix Combat Sports Pty Ltd (In Liquidation)

Citation:

[2022] ACTSC 332

Hearing Date:

2 December 2022

DecisionDate:

2 December 2022

Before:

Elkaim J

Decision:

(i)      QBE Insurance (Australia) Ltd be added as a party to the proceedings.

(ii) Pursuant to r 502 of the Court Procedures Rules 2006 (ACT), the plaintiff is granted leave to file the proposed Further Amended Statement of Claim, substantially in the form annexed to the affidavit of Liam James Casey dated 4 November 2022, within seven days.

(iii)     The costs of the application are costs in the cause.

Catchwords:

CIVIL LAW – APPLICATION – Application to join a proposed party to the proceedings – where there is an arguable case against the proposed party 

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 220, 502 and 503

Parties:

Brendan Swan (Plaintiff)

Phoenix Combat Sports Pty Ltd (In Liquidation) (First Defendant)

QBE Insurance (Australia) Ltd (Second Defendant)

Representation:

Counsel

A Muller (Plaintiff)

R Gambi (Second Defendant)

Solicitors

Slater and Gordon (Plaintiff)

Hall & Wilcox (Second Defendant)

File Number:

SC 120 of 2022

ELKAIM J:

1․The plaintiff originally commenced proceedings against Phoenix Gym (Phoenix) in April of this year. He alleged that in July 2010, when he was a minor, he became a member of the gym and that thereafter his membership was renewed. He says that a number of incidents occurred at the gym through 2012 and up to 2014 as a result of which he, on each occasion, suffered a concussion.

2․The plaintiff alleged that the post-concussion management provided by the gym was negligent so that he has suffered injury attributable to a breach of duty of care on the part of the gym.

3․The statement of claim was amended in August 2022 because Phoenix had gone into liquidation. By an application in proceeding filed on 4 November 2022, the plaintiff now wishes to further amend the proceedings to join the insurer (“QBE”). The application is opposed by QBE.

4․QBE says that it is not liable to indemnify Phoenix in respect of the injury asserted by the plaintiff.

5․Rule 220 of the Court Procedures Rules 2006 (ACT) allows the joinder of another party. Rules 502 and 503 deal with amendments to the pleadings.

6․The issue at the heart of this application is whether or not the plaintiff has an arguable case against QBE, namely a case which would result in QBE being obliged to indemnify Phoenix, assuming of course that breach of duty of care was established.

7․QBE has pointed out four issues upon which it says it would be able to defeat any claim against it:

(a)A limitation argument,

(b)An argument as to whether the policy is one of public liability or professional indemnity.

(c)The nature of the business being insured.

(d)Whether there are provisions in the policy which exclude the claim.

8․QBE acknowledges that there is an arguable point in respect of the first two of the above four issues.

9․However, QBE…