Averkin v Insurance Australia Ltd

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.