Gentle Dental Care Group Pty Ltd v Al-Mozany [2021] NSWSC 1234

Supreme Court New South Wales

Medium Neutral Citation: Gentle Dental Care Group Pty Ltd v Al-Mozany [2021] NSWSC 1234 Hearing dates: 23 July 2020 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Common Law Before: Campbell J Decision: (1) The plaintiff has leave to join the second to sixth respondents to the proceedings as plaintiffs; (2) The plaintiff has leave to commence and continue proceedings against MDA National Insurance Pty Ltd; (3) Subject to further amendment to give effect to these reasons, the plaintiff has leave to file and serve an Amended Statement of Claim substantially in the form of the proposed Amended Statement of Claim; and (4)The plaintiff's costs of the application are costs in the cause. Catchwords: INSURANCE – CIVIL PROCEDURE – parties – leave sought to bring and continue proceedings against first respondent insurer – s 5 Civil Liability (Third Party Claims Against Insurers) Act – adequacy of proposed pleading – whether pleadings disclose arguable case in tortious or contractual negligence against defendant – whether pleadings make clear, or need to make clear, an arguable case the first respondent's policy responds – Sergienko v AXL Finance distinguished CIVIL PROCEDURE – joinder – of second to sixth respondents as additional plaintiffs – necessary for the determination of all matters in dispute CIVIL PROCEDURE – pleadings – amendment of pleadings – consequential upon joinder Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 4, 5 Civil Liability Act 2002 (NSW) s 5B Civil Procedure Act 2005 (NSW) ss 58, 64 Employees Liability Act 1991 (NSW) Health Practitioner Regulation National Law (NSW) ss 140, 141 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ss 5, 6 Uniform Civil Procedure Rules 2005 (NSW) rr 6.24, 14.8, 14.10, 14.11, 14.14 Insurance Contracts Act 1984 (Cth) s 45 Cases Cited: Astley and Ors v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6 Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Lister v Romford Ice and Cold Storage Company [1957] AC 555 National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400 Sergienko v AXL Finance Pty Ltd [2019] NSWSC 1610 Texts Cited: NSW Law Reform Commission, Third Party Claims on Insurance Money: Review of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (Report No 143, November 2016) Category: Principal judgment Parties: Gentle Dental Care Group (Plaintiff; 2nd to 6th Respondents) S. Al-Mozany (Defendant) (Self-represented) MDA National Insurance Pty Ltd (1st Respondent) Representation: Counsel: IG Roberts SC with S Jeliba (Plaintiff; 2nd to 6th Respondents) D Mitchell (1st Respondent)