An application to join an insurer to proceedings was refused with costs due to insufficient evidence.

In Issue

  • Whether the requirements of s4(1) of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) were satisfied.

The Background

The applicant sought an order that proceedings be permitted to be brought against another named insurer, namely AAI Limited, trading as Suncorp Insurance (the respondent).

The application was supported by two affidavits, one of which annexed an email which was the sole evidentiary basis of the application brought under s4(1) Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (the Act).

The Decision

Section 4(1) of the Act sets out the basis on which an application for leave to join an insurer to proceedings may be brought:

  • an entity, namely the relevant insurer must exist
  • the insurer must have issued an insurance policy with the relevant defendant
  • the policy must have covered the risk
  • and the policy must have been in place at the time of the risk.

The onus is on the applicant to establish each of these matters and satisfy the court it has the jurisdiction to exercise its discretion under s5 of the Act.

Taken at its highest, the evidence in support of the application in this case only established that an insurance policy number had been identified, and that the respondent had confirmed the existence of a policy of relevance to a business division of the respondent but not the nature of the policy or its contents. Consequently, the evidence did not establish, as it was required to do, the existence of a policy per se. This in turn meant that no evidence was available on whether the policy covered the risk and was in place at the time of the risk.

The court therefore held that there was insufficient evidence to establish the jurisdictional basis for bringing the application pursuant to s4(1) of the Act and the application was refused with costs.

Implications for you

This case demonstrates that courts will strictly enforce the jurisdictional requirements which must be satisfied before the discretion is exercised to allow an insurer to be joined to proceedings and stand in the shoes of an insured. This brief decision clearly sets out what an applicant must prove in order to succeed on such an application. Inferences available from existing documents may not be sufficient to prove every matter required to be proved under the Act.