Berry v Al Jabour [2019] NSWDC 959

Berry v Al Jabour [2019] NSWDC 959

The statutory prerequisites for joinder under s 119(1) were established because proceedings had been commenced against Ms Al Jabour and AAMI had given Mr Berry particulars alleging lack of good faith, namely that Mr Berry was not in the car. The Court exercised its discretion to join AAMI because there was some substance to AAMI's particulars, the inconsistency between Ms Al Jabour's statement and AAMI's case was plain, and the interests of justice favoured joinder so that the real issue of Mr Berry's presence or absence in the car could be ventilated despite the spousal relationship and common accounts of the plaintiff and defendant.

Jurisdiction
Australia
Judgment Date
30 September 2019
Procedural Posture
Civil Proceedings Arising From an Alleged Motor Vehicle Accident Injury Claim / Notice of Motion by Insurer for Joinder as a Party
Outcome
AAMI's application for joinder was granted.
Legal Topics
['joinder of Insurer' 'alleged False Claim' 'good Faith in Motor Accident Claim' 'interests of Justice' 'proper Contradictor']
['civil Procedure' 'motor Accidents Compensation' 'insurance'] ['joinder of Insurer' 'alleged False Claim' 'good Faith in Motor Accident Claim' 'interests of Justice' 'proper Contradictor']

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Procedural Posture

Civil Proceedings Arising From an Alleged Motor Vehicle Accident Injury Claim / Notice of Motion by Insurer for Joinder as a Party

Legal Issues

  1. 1 ["Whether AAMI should be joined as a party under s 119 of the Motor Accidents Compensation Act 1999 where it alleged that the plaintiff's claim was not made in good faith." 'Whether the interests of justice favoured joinder so that the dispute about whether Mr Berry was in the car at the time of the collision could be ventilated.']

Ratio Decidendi

The statutory prerequisites for joinder under s 119(1) were established because proceedings had been commenced against Ms Al Jabour and AAMI had given Mr Berry particulars alleging lack of good faith, namely that Mr Berry was not in the car. The Court exercised its discretion to join AAMI because there was some substance to AAMI's particulars, the inconsistency between Ms Al Jabour's statement and AAMI's case was plain, and the interests of justice favoured joinder so that the real issue of Mr Berry's presence or absence in the car could be ventilated despite the spousal relationship and common accounts of the plaintiff and defendant.

Court Disposition

AAMI's application for joinder was granted.

Orders

  • ['Make order 1 in the notice of motion filed 17 May 2019 joining AAMI as a party.' 'Costs be costs in the cause.' 'AAMI be directed to file and serve within 28 days an affidavit explaining the entitlement of AAMI to act as indicated in the last three paragraphs on page 1 of the letter of Moray & Agnew to Mrs Nima Al...