Averkin v Insurance Australia Ltd - [2016] NSWCA 122

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Averkin v Insurance Australia Ltd [2016] NSWCA 122
Hearing dates: 6 May 2016
Decision date: 23 May 2016
Before: McColl JA at [1];
Basten JA at [2];
Leeming JA at [30]
Decision:
1. Appeal allowed.

2. Set aside orders 1 and 2 made by the District Court on 24 April 2015, and in lieu thereof enter judgment for the plaintiff.
3. Direct the parties to file and serve, within 14 days, submissions not exceeding 5 pages indicating the orders they propose as to (a) the amount of the judgment to be entered, if such an order is required, and (b) costs at first instance and on appeal, if any orders as to costs are sought.
Catchwords:
EVIDENCE – hearsay – business records – where representations made in connection with investigation relating to or leading to a criminal proceeding – burden of proof – representations contained in records made by police officer responding to report of burning vehicle – Evidence Act 1995 (NSW), s 69(2) and (3)
INSURANCE – policy insuring vehicle against destruction by fire – insurer denied indemnity and alleged insured was complicit in vehicle's destruction –whether primary judge reversed onus of proof – whether primary judge erred in admitting expert evidence as to engine immobiliser – whether primary judge erred in admitting records made by police relating to the incident – whether primary judge erred in concluding that insurer had established the exclusion applied – appeal allowed and judgment entered in favour of insured
Legislation Cited: Companion Animals Regulation 2008 (NSW), cl 5
Evidence Act 1995 (Cth), s 143
Evidence Act 1995 (NSW), ss 59, 69, 140, 190; Pt 3.2
Motor Vehicle Standards Act 1989 (Cth)
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.35, 51.29
Vehicle Standard (Australian Design Rule 82/00 – Engine Immobilisers) 2006
Cases Cited: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235
Averkin v Insurance Australia Ltd (30 March 2015, unrep)
Averkin v Insurance Australia Ltd t/a NRMA Insurance (24 April 2015, unrep)
Cassell v The Queen [2000] HCA 8; 201 CLR 189
Commercial Union Assurance of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Lewincamp v ACP Magazines Ltd [2008] ACTSC 69
Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34
Vitali v Stachnik [2001] NSWSC 303
Walsh v Walgett Shire Council [2014] NSWSC 812
Texts Cited: Uniform Evidence Law (December 2005, ALRC Report 102, NSWLRC Report 112, VLRC Final Report)
Category: Principal judgment
Parties: Mr Michael Averkin (Appellant)
Insurance Australia Ltd (Respondent)
Representation:
Counsel:
D R J Toomey SC, T B Jones (Appellant)
G Carolan (Respondent)
Solicitors:
Toby Tancred Solicitor (Appellant)
MCK Lawyers (Respondent)

File Number(s): 2015/147224
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

30 March 2015

Before:

Norton DCJ

File Number(s):

2014/22660

Judgment

McCOLL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCA 122
Decision Date: 23 May 2016

CaseChat Overview and Summary

The appeal in *Averkin v Insurance Australia Ltd* concerned a dispute over an insurance policy for a vehicle destroyed by fire. The insurer denied indemnity, alleging the insured, Mr Averkin, was complicit in the vehicle's destruction. The matter came before the Court of Appeal of New South Wales following a decision in the District Court.

The Court of Appeal was required to determine several legal issues. These included whether the primary judge had reversed the onus of proof in finding that the exclusion clause in the policy applied, whether the primary judge had erred in admitting expert evidence concerning the vehicle's engine immobiliser, and whether the primary judge had erred in admitting records made by a police officer in relation to the incident. The central question was whether the insurer had established that the exclusion clause, which related to the insured's complicity in the destruction of the vehicle, was enlivened.

The Court of Appeal found that the primary judge had erred in admitting certain police records under section 69 of the *Evidence Act 1995* (NSW), as these records were made in connection with an investigation that related to or led to a criminal proceeding, and the insurer had not discharged the burden of proof required by section 69(2) and (3) of the Act. This error, along with other findings regarding the onus of proof and the admission of expert evidence, led the Court to conclude that the insurer had not established that the exclusion clause applied.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and entered judgment in favour of the plaintiff. The parties were directed to file submissions regarding the amount of judgment and costs.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1 and 2 made by the District Court on 24 April 2015, and in lieu thereof enter judgment for the plaintiff.

3. Direct the parties to file and serve, within 14 days, submissions not exceeding 5 pages indicating the orders they propose as to (a) the amount of the judgment to be entered, if such an order is required, and (b) costs at first instance and on appeal, if any orders as to costs are sought.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Averkin v Insurance Australia Ltd [2016] NSWCA 122
Hearing dates:	6 May 2016
Decision date:	23 May 2016
Before:	McColl JA at [1]; Basten JA at [2]; Leeming JA at [30]
Decision:	1. Appeal allowed. 2. Set aside orders 1 and 2 made by the District Court on 24 April 2015, and in lieu thereof enter judgment for the plaintiff. 3. Direct the parties to file and serve, within 14 days, submissions not exceeding 5 pages indicating the orders they propose as to (a) the amount of the judgment to be entered, if such an order is required, and (b) costs at first instance and on appeal, if any orders as to costs are sought.
Catchwords:	EVIDENCE – hearsay – business records – where representations made in connection with investigation relating to or leading to a criminal proceeding – burden of proof – representations contained in records made by police officer responding to report of burning vehicle – Evidence Act 1995 (NSW), s 69(2) and (3) INSURANCE – policy insuring vehicle against destruction by fire – insurer denied indemnity and alleged insured was complicit in vehicle's destruction –whether primary judge reversed onus of proof – whether primary judge erred in admitting expert evidence as to engine immobiliser – whether primary judge erred in admitting records made by police relating to the incident – whether primary judge erred in concluding that insurer had established the exclusion applied – appeal allowed and judgment entered in favour of insured
Legislation Cited:	Companion Animals Regulation 2008 (NSW), cl 5 Evidence Act 1995 (Cth), s 143 Evidence Act 1995 (NSW), ss 59, 69, 140, 190; Pt 3.2 Motor Vehicle Standards Act 1989 (Cth) Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.35, 51.29 Vehicle Standard (Australian Design Rule 82/00 – Engine Immobilisers) 2006
Cases Cited:	Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 Averkin v Insurance Australia Ltd (30 March 2015, unrep) Averkin v Insurance Australia Ltd t/a NRMA Insurance (24 April 2015, unrep) Cassell v The Queen [2000] HCA 8; 201 CLR 189 Commercial Union Assurance of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 Vitali v Stachnik [2001] NSWSC 303 Walsh v Walgett Shire Council [2014] NSWSC 812
Texts Cited:	Uniform Evidence Law (December 2005, ALRC Report 102, NSWLRC Report 112, VLRC Final Report)
Category:	Principal judgment
Parties:	Mr Michael Averkin (Appellant) Insurance Australia Ltd (Respondent)
Representation:	Counsel: D R J Toomey SC, T B Jones (Appellant) G Carolan (Respondent) Solicitors: Toby Tancred Solicitor (Appellant) MCK Lawyers (Respondent)
File Number(s):	2015/147224
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 30 March 2015 Before: Norton DCJ File Number(s): 2014/22660