Murphy v RACQ Insurance Limited - [2014] QCATA 132

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
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 47, s 142
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 43
Telecommunications (Interception and Access) Act 1979 (Cth), s 77

Re Collins Marrickville Pty Limited, Re 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
Collins Marrickville Pty Limited,Re v Henjo Investments Pty Limited; Henry Saade; Norman Peter George and Saade Developments Pty Limited [1988] FCA 418
Fox v Percy (2003) 214 CLR 118
Google Inc v Australian Competition and Consumer Commission (2013) 87 ALJR 235

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
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Robinson v Corr [2011] QCATA 302
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

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…

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: [2014] QCATA 132
Decision Date: 29 May 2014

CaseChat Overview and Summary

In Murphy v RACQ Insurance Limited, the plaintiff sought indemnity from the defendant, RACQ Insurance Limited, under an insurance policy. The case involved a dispute over whether the policy documents were false and misleading, whether inadmissible evidence was accepted, and whether the agreement was wholly written. The appeal was against the decision of the Queensland Civil and Administrative Tribunal. The central issue was whether the appellant, Murphy, was indemnified in accordance with the insurance contract and the law. The appeal hinged on several grounds, including vexatious submissions, the acceptance of inadmissible evidence, and the interpretation of the insurance policy.

The court examined whether the policy documents were false and misleading, a question of fact and degree. The judge of fact found the documents to be neither false nor misleading, a finding the court upheld. The court dismissed arguments regarding the acceptance of inadmissible evidence, noting the Adjudicator's entitlement to consider the report of Queensland Motor Valuations. The court also rejected the claim that the insurance contract was partly oral, finding that the Adjudicator was entitled to reject the oral representation as contrary to the written agreement. The appellant's arguments lacked substance, and the court found no reasonably arguable case of appellable error.

The appeal was dismissed, and the decision of the Queensland Civil and Administrative Tribunal was affirmed. The court held that the appellant failed to demonstrate a reasonably arguable case of appellable error, and thus, leave to appeal was not granted. The findings of the Adjudicator on the issues of false and misleading documents, inadmissible evidence, and the wholly written agreement were upheld. Consequently, the tribunal's decision remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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