Zivko Dopudj v FDC Construction and Fitout Pty Limited

[2022] NSWSC 1564

Supreme Court

New South Wales

Medium Neutral Citation:

Zivko Dopudj v FDC Construction and Fitout Pty Limited [2022] NSWSC 1564

Hearing dates:

4 November 2022

Date of orders:

4 November 2022

Decision date:

04 November 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) The hearing of the application is adjourned.

(2) List the matter for further directions before the Common Law Case Management Registrar at 9am on 11 November 2022.

(3) Direct that the first and third defendants file any motion supported by affidavit upon which they propose to rely to have GIO joined as a cross defendant by 4pm on Thursday 10 November 2022.

Catchwords:

CIVIL PROCEDURE – parties – joinder – of defendants

Legislation Cited:

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)

Insurance Contracts Act 1984 (Cth), s 28

Cases Cited:

National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400

Category:

Procedural rulings

Parties:

Zivko Dopudj (Plaintiff)
FDC Construction and Fitout Pty Limited (First Defendant)
Goodman Limited (Second Defendant)
SRG Building (Northern) Pty Ltd (Third Defendant)
Workers Compensation Nominal Insurer (Fourth Defendant)
Form International Pty Limited (Fifth Defendant)
AAI Limited trading as GIO Insurance (Respondent to the motion)

Representation:

Counsel:
F.D.M. Curran (Plaintiff)
D. Talintyre (First Defendant)
S.E. Gray (Third Defendant)
H. Lenigas (AAI Limited)

Solicitors:
Carters Law Firm (Plaintiff)
Spark Helmore Lawyers (First Defendant)
Mills Oakley (AAI Limited)

File Number(s):

2016/161539

Judgment (revised)

1. In this matter, the plaintiff's application to join AAI Limited trading as GIO Insurance, as a defendant under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), was listed for hearing today. The principal proceedings concern an industrial accident in which the plaintiff allegedly suffered serious injury, which occurred on a building site on 13 January 2013. He was a formworker who fell through collapsing formwork at the site, which was at Talavera Road, Macquarie Park. GIO purportedly insured a company named Form International Pty Ltd, which is now, despite some earlier confusion, said to be the company which constructed the offending formwork.

2. The insurer strongly contests the application for joinder on a number of grounds, but specifically and perhaps most significantly, on the basis that it has purported to avoid the policy in August of this year, principally on the ground of material, or indeed fraudulent, misrepresentation under the provisions of s 28 of the Insurance Contracts Act 1984 (Cth).

3. When the matter was called for hearing today, Mr Curran of counsel, appeared for the plaintiff, and Mr Talintyre of counsel and Mr Gray of counsel, I suppose it can be said, to my surprise, sought to appear for other defendants in the proceedings in support of the plaintiff's application. Neither of them, with respect, has filed their own motion to join the insurer in respect of any claim for contribution they may have. Ms Lenigas of counsel appears for the insurer, and perhaps in response to encouraging words from me, opposes Mr Talintyre and Mr Gray having a part in today's proceedings. It should be said in Mr Talintyre’s case, his client, as Ms Lenigas drew to my attention, consented to judgment on its cross-claim in favour of GIO’s insured in August 2019.

4. In any event, Mr Curran, who applied for an adjournment of the motion, informed me that Mr Polin of senior counsel appears and Mr Curran with him. Mr Curran said that the plaintiff had been somewhat caught on the hop by the service, initially unsworn, of Mr Skelly's affidavit, now affirmed on 3 November 2022. Apparently, Mr Skelly was away overseas and was unable to affirm the affidavit before service. It is clear to me that his affidavit and the attachments to it are the substantial basis upon which the GIO seeks to contend that the plaintiff is not entitled to the relief sought. Ms Lenigas advances the argument on the bases that given the avoidance of the policy ab initio, Form International is not an insured person for the purpose of the legislation or alternatively the GIO is entitled to disclaim liability and accordingly the Court is not empowered on either basis to grant leave to the plaintiff for its joinder.

5. Although the substance of the content of Mr Skelly's affidavit was served in draft form with Ms Lenigas' submissions on 28 October 2022, Mr Curran informs me that it was only yesterday that he and his learned leader were able to consider the documents in detail and they wish to have an opportunity to meet the substance of the facts underpinning the avoidance of the policy. In this regard he has tendered, and I admitted as exhibit A, a subpoena to produce documents directed to the GIO, filed on 4 October 2022, and returnable on 18 October, which inter alia sought the production of what might be referred to as all of the GIO’s underwriting records for Form International. The underwriting records are clearly significant material. Mr Curran informed me that no documents were produced in answer to the subpoena either on 18 October or since.

6. While initially there was an issue of whether the subpoena had been served, Ms Lenigas subsequently informed me that it had been served, but she drew to my attention certain informalities or ambiguities concerning the description of the documents sought to be obtained. However that might be, it is clear that nothing has been produced in answer to the subpoena, and no application has been made to set it aside.

7. As things developed both Mr Talintyre and Mr Gray supported the application for an adjournment, but I am satisfied on the grounds that Mr Curran has advanced, that the plaintiff has validly been caught somewhat by surprise, and given the non‑compliance with the subpoena, and the absence of an application to set it aside, I am satisfied that it is appropriate to adjourn the application, to allow the plaintiff the opportunity to enforce compliance with the subpoena, if he can, and to consider what other material is required to support the application, if any.

8. One of the difficulties, as I have indicated, is the proceedings are somewhat long in the tooth. I do not criticise anyone in that regard. But they have, now, been set down for hearing on 27 March 2023. And they are under the close, watchful eye, by way of case management, of Cavanagh J. Obviously, this issue has to be determined as soon as possible to preserve the hearing dates, which are rapidly approaching.

9. I am prima facie of the view that the GIO are in a position to meet the proceedings if joined. This follows from the consideration that, up until the avoidance of the policy, the GIO had instructed the present solicitors, Mills Oakley, to act on behalf of Form International, and that they have taken all the usual steps in relation to preparation.

10. I am unaware of any arrangement between the putative insurer and the insured about the continuance of Mills Oakley acting after the policy has been avoided. And I do not make any comment about it. It also seems to me that if the other defendants are to join the application to have the GIO joined to their cross‑claims, as I think is open, in accordance with the decision of the Court of Appeal in National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400, then that should be done, so that all issues can be dealt with at once.

11. There is a particular difficulty in relation to Mr Talintyre’s case in relation to the consent judgment to which I have referred. In any event, as unfortunate as it is, it does seem to me that the interests of justice and of the administration of justice require that I accede to Mr Curran’s application. Doubtless, this matter should be dealt with as soon as possible. But, given the uncertainties concerning the subpoena, the other evidence that the plaintiff may require and the position of the other defendants, it is impossible for me to set it down for hearing today. And I consider the best outcome would be to list it for further directions before the registrar in the hope that another date is available this year.

12. I record, I have been told that it is again before Cavanagh J on 25 November 2022. And if the registrar is unable to accommodate the application with a hearing date this year, doubtless his Honour can make appropriate directions on that occasion.

13. My orders are:

1. The hearing of the application is adjourned.

2. List the matter for further directions before the common law case management registrar at 9am on 11 November 2022.

3. Direct that the first and third defendants file any motion, and support it by affidavit, upon which they propose to rely to have GIO joined as a cross-defendant by 4pm on Thursday 10 November 2022.

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Decision last updated: 17 November 2022