Wayland v Bird [2017] NSWCA 26

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wayland v Bird [2017] NSWCA 26 Hearing dates: 10 February 2017 Decision date: 28 February 2017 Before: Macfarlan JA at [1]; Ward JA at [2]; Emmett AJA at [44] Decision: 1. Leave to appeal refused with costs. Catchwords: INSURANCE – claims generally – application for leave to appeal from refusal of application by plaintiffs for leave pursuant to s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join defendant's professional indemnity insurer – principles governing discretion to grant leave – application for leave to appeal heard concurrently with appeal in event leave were to be granted – complaint that insufficient material for primary judge's finding that insured's conduct caused such prejudice that insurer entitled to disclaim liability – complaint that primary judge erred in not finding that there was a real possibility that insured would not be able to meet an adverse judgment – where amount in dispute relatively small and other avenues open to plaintiffs – application for leave to appeal refused. Legislation Cited: Civil Procedure Act 2005 (NSW) Insurance Contracts Act 1984 (Cth), s 54 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6 Legal Profession Act 2004 (NSW), s 347 Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 4 Uniform Civil Procedure Rules 2005 (NSW), r 51.10 Cases Cited: Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399; [1995] HCA 28 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Clarke v State of New South Wales [2015] NSWCA 27 Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 Energize Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213 Gorczynski v W&FT Osmo Pty Ltd [2010] NSWCA 163 Guild Insurance Ltd v Hepburn [2014] NSWCA 400 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Oswald v Bailey (1987) 11 NSWLR 715 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 The Age Company Ltd v Liu (2013) 82 NWLR 268; [2013] NSWCA 26 Tzaidas v Child (2004) 61 NSWLR 18 Zelden v Sewell Henamast Pty Ltd [2011] NSWCA 56 Category: Principal judgment Parties: Michael John Wayland and Amanda Kim Wayland (Applicants) Daniel Bird (First Respondent) (no appearance) Pacific International Insurance Limited (Second Respondent) Representation: Counsel: G Miller QC with Ms N Compton (Applicants) J Guihot (Second Respondent)