South Australian Current Acts South Australian Current Acts125A—Joinder of insurer as defendant to an action
(1) Where an action
for damages or other compensation has been commenced in a court against an
insured person in respect of death or bodily injury resulting from the use of
a motor vehicle, the court may, on the application of the insurer, join it as
a defendant to the action.
(2) The court may not
join an insurer as a defendant to an action under subsection (1) unless
the court is of the opinion that—
(a)
there is an actual or potential conflict of interest between the insurer and
the insured in relation to the presentation of the defence; and
(b) the
defence proposed by the insurer in relation to which the actual or potential
conflict of interest arises is, in the circumstances of the case, not merely
speculative.
(3) Where, in
pursuance of this section, an insurer has been joined as a defendant to an
action—
(a) the
insurer will be taken to have directly assumed the liability (if any) of the
insured person upon the claim in respect of death or bodily injury and, where
such a liability is found to exist, judgment upon that claim will be given not
against the insured person but against the insurer; and
(b) the
insured person remains a party to the action only for the purposes of—
(i)
defending a claim that is not a claim in respect of death
or bodily injury; or
(ii)
proceeding upon a counterclaim,
and where there is no such claim or counterclaim, the insured person ceases to
be a party to the action; and
(c) the
insured person may not be joined as a third party to the action; and
(d) the
insured person is, notwithstanding paragraphs (b) and (c), entitled to be
heard in the proceedings upon any question related to the claim in respect of
death or bodily injury; and
(e) for
the purpose referred to in paragraph (d), the insured person is entitled
to be represented by counsel of the insured person's own choice, and the
insured person's costs must be paid by the insurer unless, in the opinion of
the court, there are special reasons for ordering otherwise; and
(f) the
insurer may apply to call the insured person to give evidence and, in that
event, the person will be called, or summoned to appear, as a witness and be
liable to cross-examination by the insurer.
(4) No judgment or
finding of a court in proceedings in which an insurer has been joined as a
defendant under this section is binding in subsequent proceedings against the
insured person under section 124A.