Murphy v RACQ Insurance Limited
[2014] QCATA 132
•29 May 2014
| CITATION: | Murphy v RACQ Insurance Limited [2014] QCATA 132 |
| PARTIES: | Daniel Joseph Murphy (Appellant/Applicant) |
| v | |
| RACQ Insurance Limited (Respondent) |
| APPLICATION NUMBER: | APL077-14 |
| MATTER TYPE: | Appeals |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 29 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where vexatious submissions – where contract of insurance – whether appellant indemnified in accordance with law – whether policy documents false and misleading – whether inadmissible evidence accepted – whether agreement wholly in writing – whether reasonably arguable case of appellable error shown – whether leave to appeal should be granted Competition and Consumer Act 2010 (Cth) Schedule 2 Re Collins Marrickville Pty Limited, Re v Henjo Investments Pty Limited; Henry Saade; Norman Peter George and Saade Developments Pty Limited [1987] FCA 363 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) [1989] FCA 246; (1989) 40 FCR 76 In Re W (an infant) [1971] AC 682 Snell v Morgan [2011] QCATA 316 Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 Townsend v Roussety & Co (WA) Pty Ltd (2007) 33 WAR 321 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
At all material times the appellant Daniel Joseph Murphy (“Murphy”) held a “Motor Comprehensive” insurance policy issued by the respondent insurer (“RACQ”). The subject of the policy was a Toyota Hilux motor vehicle (“the Hilux”), registration number “179LTN”. The policy covered several sorts of misadventures, including theft.
On or about 23 August 2013, the Hilux was stolen,[1] and Murphy applied to RACQ for indemnity in the amount of $25,000, including the value of chattels, said to be worth $11,000.
[1]Transcript of hearing 11 December 2013 (“Transcript”) page 14 line 27.
On or about 4 October 2013, RACQ, relying on an independent valuation referred to below, paid Murphy $11,956.81 of an estimated market value of $13,250, retaining $1.293.19 as an “input tax credit”.[2]
[2]Transcript page 32 lines 1-15 (Mapes).
Dissatisfied with this result, Murphy commenced these proceedings on 11 October 2013, claiming (i) payment of $25,000; and (ii) an order that RACQ update its Product Disclosure Statement; and (iii) an order that it cease using the term “comprehensive” to describe its “vehicle and driver (excluding contents) policy”.[3]
[3]Application for minor civil dispute – consumer dispute 11 October 2013 Part C (1).
Proposed orders (ii) and (iii) are not orders that the Tribunal is authorised to make. That applies a fortiori to these bizarre applications:
Chairman of the board of RACQ to be speared in the thigh.
Person(s) spearing chairman of the board of RACQ to have absolute immunity in carrying out the orders of the Tribunal.
I think it unlikely that the QCAT Act will soon be amended to confer jurisdiction to make such relief available.
A charitable assumption is that the application for orders to do and to condone grievous bodily harm is a misplaced attempt at harmless merriment. But doubt overshadows that assumption when one moves to an Appendix to the notice of dispute:
It appears that the CEO [of RACQ] is the snakehead of a criminal cartel, systemically and systematically [sic] engaged in white collar crimes. ... Thigh spearing is a civil remedy ... [which] provides accountability in an otherwise impenetrable grey mist of incorporation, levels of management and corporate policy. ... Evidently RACQ has repeatedly defrauded its clients ... It is unlikely that RACQ ... will admit under oath that [it] is a criminal cartel. ... It is for King’s representative to provide justice.[4]
[4]Appendix to notice of dispute page 4 item 2.2.
There follows a picaresque disquisition on the Magna Carta of 1296 (sic), Scottish independence, the American war of independence, the Treaty of Waitangi, the Eureka rebellion, Murri courts, the wars in Iraq and Afghanistan and the Criminal Code. These submissions need not detain us in a search for their inscrutable relevance.[5]
[5]Ibid page 5.
After salutary expurgation of the applicant’s pleadings,[6] the ultimate issue was whether RACQ paid Murphy his full entitlement for the loss of the Hilux.[7]
[6]Order dated 23 October 2013 striking out items 1.2 and 1.3 of Part C and item 2.2 of Part 2 thereof as frivolous, vexatious and misconceived and otherwise an abuse of process: QCAT Act s 47.
[7]Reasons for decision to strike out in part, 23 October 2013; Transcript pages 30-31 (Adjudicator).
Upon hearing the applicant in person, and Mr Mapes for the RACQ, the Adjudicator found that the contract was a “market value” policy. He accepted independent expert evidence that the market value of the Hilux, when stolen, was $13,250.[8] The Adjudicator held,[9] and Mr Mapes eventually conceded,[10] that RACQ was not entitled to withhold $1,293.19 for taxation purposes. Accordingly, that amount was awarded to Murphy[11] and duly paid.[12]
[8]Queensland Motor Valuations report 10 December 2013.
[9]Transcript page 33 lines 18-20.
[10]Transcript page 33 line 42.
[11]Transcript page 35 lines 43-45.
[12]Respondent’s submissions filed 6 May 2014 paragraph 3.
Murphy now seeks leave to appeal.[13] Regardless of the payments just mentioned, he now claims $26,053.80, including the cost of changing the colour of a replacement vehicle, and $1,800 for each of two attendances (unrepresented) at the Tribunal, and a further $1,800 for “attending to [the] appeal ... in person”. He also seeks a letter of apology from RACQ and an order that it “avoid further deception of the market place”.
[13]As required by QCAT Act s 142(3)(a)(i).
He then returns to the forbidden[14] mode of pleading:
If the contract is all ... in writing RACQ is a collection of thieves and possibly a criminal organisation ... [S]ystematic theft and deception involving 1.1-1.4 million clients may pass the bar of serious criminal activity ... RACQ regularly commits the crime of procurement[15] ... ongoing criminal activity.[16]
[14]See order dated 23 October 2013.
[15]Submissions filed 10 February 2014 pages 3, 4.
[16]Further submissions dated 5 April 2014 page 2.
On an analysis of the appellant’s submissions - vexatious or irrelevant material and new evidence[17] aside - he appears to allege these errors:
- Misapplication of the Insurance Contracts Act, Privacy Act, Trade Practices Act, Australian Consumer Law and Full Federal Court decision in Henjo v Collins Marrickville Pty Ltd;
- Finding that RACQ was not guilty of deceptive conduct;
- Acting upon inadmissible valuation evidence;
- Treating the contract as wholly in writing;
- Not completing the hearing by four thirty.[18]
[17]That is, material which, if relevant, could have been adduced at the trial, but was not, and is now inadmissible.
[18]Sic: see submissions 10 February 2014 page 8 item 11.0.
The last of these grounds is best passed over in silence.
Misapplication of several Acts – Deceptive conduct
This ground overlaps the “deceptive conduct” ground. No particulars of this scattergun allegation are supplied. The Trade Practices Act 1974 (Cth) is replaced by Schedule 2 of the Competition and Consumer Act 2010 (Cth). No citation for the Henjo matter is given. Between 1987-1989, there were four Federal Court cases involving Henjo Investments Pty Ltd,[19] all concerned with false or misleading representations under the Trade Practices Act. In this case the judge of fact[20] reasonably found that the relevant documents are not false and misleading. Therefore decisions applying consumer protection legislation to transactions found to be false and misleading are not in point. The same applies to a Western Australian case incorrectly cited.[21]
[19]Re Collins Marrickville Pty Limited v Henjo Investments Pty Limited; Henry Saade; Norman Peter George and Saade Developments Pty Limited [1987] FCA 363; Re Henjo Investments Pty Limited; Henry Saade, Saade Developments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 39 FCR 546; Re Collins Marrickville Pty Limited v Henjo Investments Pty Limited; Henry Saade; Norman Peter George and Saade Developments Pty Limited [1988] FCA 418; Henjo Investments Pty Limited v Collins Marrickville Pty Limited [1989] FCA 246; 89 ALR 539; (1989) 40 FCR 76.
[20]A “false and misleading” plea raises an issue of fact and degree: Google Inc v Australian Competition and Consumer Commission (2013) 87 ALJR 235 at [15]; [2013] HCA 1.
[21]“Townsend v Rossi” should be Townsend v Roussety & Co (WA) Pty Ltd (2007) 33 WAR 321.
Inadmissible evidence?
Murphy alleges that the Adjudicator received inadmissible evidence, namely the report of Queensland Motor Valuations, dated 10 December 2013. The report was clearly relevant and admissible, and the Adjudicator was perfectly entitled to accept it. No pre-trial response to the notice of dispute was required, or, indeed, permitted.[22] Even if permitted, it would not have to provide a preview of RACQ’s evidence. Murphy, who chose to make quantum an issue, was at liberty to obtain and tender relevant expert evidence of his own. There is no substance in this ground.
[22]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 43.
Was the agreement wholly written?
Murphy claims, contrary to the documents, that the insurance contract was partly written and partly oral. This proposition is based on his assertion that, when he ordered the policy by telephone, an unnamed RACQ employee said that if the Hilux were stolen or destroyed he would “get one exactly the same”.[23] Murphy says that he tape-recorded that conversation (probably contrary to law.).[24] Be that as it may, the Adjudicator, as judge of fact and credit, chose to reject his evidence of an oral representation diametrically opposed to the written agreement, as he was entitled to do. This ground of appeal fails.
[23]Transcript page 18 line 12.
[24]Telecommunications (Interception and Access) Act 1979 (Cth) s 77.
Interpretation of the Policy
Significantly, there is no coherent argument that the learned Adjudicator misconstrued the policy.
Murphy does not dispute that RACQ gave him a relevant product disclosure statement.[25] The policy itself advises an insured person to read that statement, and invites requests for “more information”.[26]
[25]See for example Transcript page 23 line 46 (Murphy).
[26]Policy page 1.
The policy is described in Clause 1 as “motor comprehensive insurance”. That is a generic term, referring to policies designed to indemnify a vehicle owner for his own loss, if any, as distinct from policies that merely cover his liability to third parties.[27] Comprehensive policies may be for market value or for a predetermined, agreed amount.[28]
[27]Policy page 11, “Authorised financial services products”. Transcript page 24 lines 23-24 (Adjudicator).
[28]Transcript page 19 lines 29-34 (Mapes).
The subject policy is of the former kind. It proceeds to state the sum insured for any loss sustained by the insured (as distinct from third parties) as “market value, including listed accessories”.[29] Theft of other items is covered only in circumstances that do not exist here.[30] The Adjudicator read from the policy, without dissent by Murphy, the following definition of “market value”:
The cost of purchasing on the local second-hand market at the time of the accident, event or theft, a vehicle with tools and accessories, the same as or similar to, the make, model and condition as your vehicle.[31]
[29]Policy page 4 “Sum insured”.
[30]Namely where theft occurs immediately after a collision, overturning or fire: Transcript page 24 lines 42-44.
[31]Transcript page 25 lines 24-26.
It remained for the Adjudicator to apply that formula to the present case. The only independent, expert evidence in point was the valuation of Queensland Motor Valuations (QMV), determining that the value of the Hilux, at the material time, was $13,250. Incidentally, that figure differs only slightly from the RACQ’s own valuation. The Adjudicator accepted the QMV opinion, which he was perfectly entitled to do.[32]
[32]Transcript page 30 line 34.
No error in construction of the policy has been shown.
Conditions and limitations of applications for leave
Understandably, but unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person. Those restrictions could well be more prominently advertised to would-be appellants, particularly in minor civil disputes.
The legislative purpose of a “leave to appeal” provision is to ensure that the primary decision will normally be final. Before an appeal is entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will cause substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible (which is also an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes meet that description.
An essential, and much misapprehended point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but in fact was not.[33] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[34]
[33]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at [28].
[34]Robinson v Corr [2011] QCATA 302 at [7].
It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[35] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[36]
[35]Fox v Percy (2003) 214 CLR 118 at 125-126.
[36] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Those are the principles that apply here.
Mr Murphy has failed to show any reasonably arguable ground of appeal, or any miscarriage of justice. His case is not fortified by absurd and contumelious requests for orders that the Tribunal could not conceivably make, or by scurrilous reflections upon his opponent. Leave must be refused.
ORDER
The application for leave to appeal is refused.
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