Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017

Supreme Court New South Wales

Medium Neutral Citation: Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017 Hearing dates: 19 July 2016 Date of orders: 22 July 2016 Decision date: 22 July 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to the first cross-defendant to have separate legal representation from those solicitors and counsel appearing on behalf of the plaintiffs in the principal proceedings in order to defend the First Cross-Claim.

(2) Unless an application for a different order is made in writing to my Associate within seven days, order the plaintiffs to pay the defendants' costs of the notice of motion. Catchwords: PRACTICE AND PROCEDURE – application by insured plaintiff for leave for separate legal representation in order to defend the first cross-claim – legal representatives for insured plaintiff in recovery proceedings instructed by compulsory third-party insurer under Motor Accidents Compensation Act 1999 (NSW) – cross-claim against first plaintiff – actual conflict of interest between position of first cross-defendant and its insurer would prevent legal representative acting on behalf of the first cross-defendant if also instructed by the compulsory third party insurer in the principal proceedings – order allowing separate legal representation for same party only made under exceptional circumstances – inherent jurisdiction of the Supreme Court – interests of justice favour orders – leave granted

INSURANCE – statutory insurer dominus litis in proceedings brought in insured's name for recovery of monies paid to claimants injured as a result of negligence of owner or driver – s 78 Motor Accidents Compensation Act Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 60 Motor Accidents Compensation Act 1999 (NSW), ss 3, 10, 16, 78, 112 Motor Vehicles (Third Party Insurance) Act 1942 (NSW), s18 Supreme Court Act 1970 (NSW), s 23 Cases Cited: Buses + 4WD Hire Pty Ltd v Oz Snow Adventures Pty Ltd [2015] NSWSC 1687 Carter v Marine Helicopters Ltd (1996) 9 ANZ Insurance Cases 61-299 GPI Leisure v Herdsman Investments (No. 3) (1990) 20 NSWLR 15 McCann v Parsons (1954) 93 CLR 418 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 Tindle v Ansett Transport Industries (1990) 21 NSWLR 492 Wilkins v Kingsley-Strack (unreported, Supreme Court of NSW, 12 December 1996) Texts Cited: S Mullins, "Conducting an Action on Behalf of the Insurer in the Name of the Insured (A Case for Schizophrenia)" (1991) 4 Insurance Law Journal 83 Category: Procedural and other rulings Parties: Buses + 4WD Hire Pty Limited (1st Plaintiff, 1st Cross-Defendant) Shannon Baglee (2nd Plaintiff) Oz Snow Adventures Pty Limited (1st Defendant, 1st Cross-Claimant) Matthew Goodall (2nd Defendant, 2nd Cross-Claimant) Zurich Australia Insurance Limited (2nd Cross-Defendant) Representation: Counsel: JA Gracie (1st & 2nd Plaintiff; 2nd Cross-Defendant) D O'Dowd (1st Cross-Defendant) J Rose (Defendants/ Cross-Claimants)