Nigro v Apostolou [2016] NSWDC 256

District Court New South Wales

Medium Neutral Citation: Nigro v Apostolou [2016] NSWDC 256 Hearing dates: 10 October 2016 Date of orders: 10 October 2016 Decision date: 10 October 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Plaintiff's application for a vacation of the hearing dismissed. (2) Plaintiff's application for leave under s 6 of the Law Reforms (Miscellaneous Provisions) Act 1946 to join the insurer as a party to the proceedings refused. Catchwords: INTERLOCUTORY APPLICATION – to vacate hearing date – to join further defendant - first day of trial – no satisfactory explanation for delay – alternative application to join insurer Legislation Cited: Civil Procedure Act 2005, s 56 Law Reforms (Miscellaneous Provisions) Act 1946, s 6 Category: Procedural and other rulings Parties: Rem Nigro (plaintiff) Jenny Apostolou (defendant/cross-claimant) Carmelo Squadrito (cross-defendant) Representation: Counsel: Mr M Daley with Ms L Goodchild (plaintiff) Mr H J A Neal (defendant/cross-claimant)

Solicitors: Brydens Lawyers Pty Limited (plaintiff) Wotton Kearney (defendant/cross-claimant) File Number(s): 2015/37993 Publication restriction: None

Judgment 1. The plaintiff, Rem Nigro, in 2012 went onto a building site to inspect some demolition work and was injured. Initially he sued his wife, Jenny Apostolou, the owner of the site as first defendant, and Newstyle Glass Pty Ltd, a company connected with the workers involved in the demolition, as second defendant. The case against the second defendant was abandoned some months ago by the filing of an amended statement of claim on 23 December 2015, deleting the second defendant as a party. One of the two workers, Carmelo Squadrito, was joined as a cross‑defendant on a cross-claim by the defendant but has had no involvement in the proceedings. 2. On the first day of the trial Mr Nigro seeks an adjournment so that he can join the two workers to the proceedings as defendants. He relies upon Ms Apostolou's insurance policy which, on one construction, may grant rights to the workers as insureds under the policy. Mr Nigro says that the interests of justice in the matter favour that only one trial be held rather than that there be separate proceedings against the workers, particularly when, on his submission, the workers are insured under the same policy, and thus by the same insurer. 3. There was no evidence on the application. The explanation for the failure before today to raise the matter of the joinder is said to be the late retainer of Mr Daley as lead counsel for the plaintiff. Again, no evidence, or submission, particularising the date of that retainer is given. It was also submitted that an order for costs will cure any prejudice suffered by reason of the vacation of the hearing date and the adjournment of the proceedings. 4. Ms Apostolou submits, through her counsel, that she does not want an adjournment, a matter disputed by the counsel for the plaintiff, her husband. The defendant also refers to s 56 of the Civil Procedure Act 2005 which provides that the overriding purpose of a just, quick and cheap resolution of the real issues informs the construction of provisions in the Uniform Civil Procedure Rules, including those allowing adjournments. The defendant also relies on the absence of any explanation about the circumstances that proceedings against the second defendant, a party having some connection with the workers, were discontinued, but no claim was then made against the workers personally. The defendant also relies on a submitted weak case on the merits, arguing that it is unlikely that a duty to keep a pathway clear would be owed by demolition workers to a person with building experience walking backwards on a demolition site. The defendant also argues that the fact of insurance is irrelevant, just as it would be irrelevant if the workers were found on the first morning of the hearing to have assets justifying proceedings against them. 5. No claim was initially made under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 for leave to join the insurer, although it was eventually raised. I will have more to say about that in a moment. 6. In reply, the plaintiff submitted that although the workers would come within the definition of "the Insured" in the policy, the plaintiff is unable to show that the workers were unfinancial and therefore would not be entitled to leave. The plaintiff submitted that the question of whether the workers are covered by the policy is a pure legal argument involving its construction. 7. As to whether the workers come within the terms of the policy, on the one hand, the policy schedule defines the insured as "Mrs J Apostolou and all Principals, Contractors and Sub-Contractors", which may be thought to include the workers. On the other hand, clause 2.6 in the policy wording says, "'Insured' wherever used in this Policy means the Insured named in the Schedule". Mrs Apostolou is the only person specifically named, but as noted there is a reference to other contractors. Clause 2.6.2 refers to, "Any principal, or owner, or agent of the principal or owner, contractors and sub-contractors of the Insured named in the Schedule", which may found an argument that there is a distinction between the "Insured named in the Schedule" and "contractors" even if contractors are referred to in the definition of "Insured" in the policy schedule. 8. It would be inappropriate for me at this stage of the proceedings to reach a view on the question of the coverage of the policy, other than to say that neither of the alternative positions is unarguable. 9. Matters of significance on the present application are the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 and the absence of any evidence of explanation, particularly in circumstances where a party connected to those sought to be joined was removed from the proceedings almost a year ago. Also, it appears that the plaintiff would remain entitled to maintain a claim against the workers in separate proceedings. 10. These matters persuade me that this is not an appropriate case to order a vacation of the hearing date. 11. That leaves a question of the application for leave to join the insurer under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946. There is a question as to whether the workers are parties within the meaning of subs (1) of s 6. Section 6 applies to a person who has "entered into a contract of insurance", and there is no suggestion, in respect of this policy, that the workers did that, although Mr Nigro submits that the workers entered into the insurance contract by means of the agency of Mrs Apostolou, who effected the insurance covering them. 12. It seems to me that the insurer should be in no worse position than the (potentially insured) workers would be if they were to be joined at this stage of the proceedings. It cannot be submitted, and was not, that the proceedings could continue against the two workers today. Thus, joinder of the insurer would require an adjournment. 13. There are other matters that may be relevant to questions of leave, such as the financial position of the workers and their account of the incident giving rise to the proceedings. That has not been the subject of evidence before me. There may also be defences available, such as potentially a limitations defence, which the insurer has not had the opportunity to explore. There is no evidence about these matters. 14. For all those reasons, I do not propose to grant the leave contemplated by s 6 to join the insurer as a party to the proceedings. 15. The orders of the Court are: 1. Plaintiff's application for a vacation of the hearing dismissed. 2. Plaintiff's application for leave under s 6 of the Law Reforms (Miscellaneous Provisions) Act 1946 to join the insurer as a party to the proceedings refused.