Mabbett by his tutor Noeline Apiata v CGU Workers Compensation (NSW) Ltd [2009] NSWSC 519

Mabbett by his tutor Noeline Apiata v CGU Workers Compensation (NSW) Ltd [2009] NSWSC 519

Leave and joinder were granted because Mr Josef's later statement created a serious issue as to whether the plaintiff had been employed by the first defendant; if the plaintiff failed on that issue, HIH and Gordian might be liable as public liability insurers. Joinder would best serve the purpose of resolving all potentially relevant matters in one proceeding and avoiding further litigation, and the potential burden on HIH's liquidation pool was not sufficient to refuse leave because HIH was already effectively involved through the insurance arrangements and non-joinder risked greater future burden.

Jurisdiction
Australia
Judgment Date
12 May 2009
Procedural Posture
Civil Notice of Motion for Joinder/addition of Parties and Leave to Commence Proceedings Against Insurers / Ex Tempore Judgment on Notice of Motion
Outcome
Plaintiff's applications granted; orders 1 to 5 in the notice of motion made; costs to be costs in the cause.
Legal Topics
['joinder and Addition of Parties' 'leave to Commence Proceedings Against Insurer' 'leave to Proceed Against Company in Liquidation' 'workers Compensation and Public Liability Insurance' 'limitation and Disability Declaration']
['civil Procedure' 'insurance' 'corporations'] ['joinder and Addition of Parties' 'leave to Commence Proceedings Against Insurer' 'leave to Proceed Against Company in Liquidation' 'workers Compensation and Public Liability Insurance' 'limitation and Disability Declaration']

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Procedural Posture

Civil Notice of Motion for Joinder/addition of Parties and Leave to Commence Proceedings Against Insurers / Ex Tempore Judgment on Notice of Motion

Legal Issues

  1. 1 ["Whether HIH Casualty and General Insurance Limited and Gordian Runoff Limited should be joined so that public liability insurance issues could be resolved in the proceedings if the first defendant was found not to have been the plaintiff's employer." 'Whether leave should be granted under s 471B of the Corporations Act 2001 to commence proceedings against HIH, which was in liquidation and subject to schemes of arrangement.' 'Whether leave should be granted under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to commence proceedings against HIH and Gordian.' 'Whether the plaintiff should be precluded from joining HIH and Gordian because of delay, an earlier forensic choice to sue the first defendant as employer, the weakness of the alternative case, possible relitigation of limitation issues, and added cost or complexity.']

Ratio Decidendi

Leave and joinder were granted because Mr Josef's later statement created a serious issue as to whether the plaintiff had been employed by the first defendant; if the plaintiff failed on that issue, HIH and Gordian might be liable as public liability insurers. Joinder would best serve the purpose of resolving all potentially relevant matters in one proceeding and avoiding further litigation, and the potential burden on HIH's liquidation pool was not sufficient to refuse leave because HIH was already effectively involved through the insurance arrangements and non-joinder risked greater future burden.

Court Disposition

Plaintiff's applications granted; orders 1 to 5 in the notice of motion made; costs to be costs in the cause.

Orders

  • ['Leave to file a third Further Amended Statement of claim in the form of Annexure "D" to the affidavit of Robert Andrew Algie sworn on 4 February 2009.' 'Leave to commence proceedings against HIH Casualty and General Insurance Ltd pursuant to s 471B of the Corporation Act 2001.' 'Leave to commence proceedings...