Royce v Youi Pty Ltd
[2018] QCATA 141
•18 September 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Royce v Youi Pty Ltd [2018] QCATA 141
PARTIES:
STEPHEN ROYCE
(applicant)v YOUI PTY LTD
(respondent)
APPLICATION NO/S:
APL035-18
ORIGINATING APPLICATION NO/S:
MCDO1473-16
MATTER TYPE:
Appeals
DELIVERED ON:
18 September 2018
HEARING DATE:
11 September 2018
HEARD AT:
Brisbane
DECISION OF:
Member Roney QC
ORDERS:
1. The Appeal is dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – minor civil dispute – consumer dispute – where motor vehicle partially inundated in floodwater – where insured claimed on comprehensive motor vehicle policy – where claim accepted and settled – where insurer paid out agreed value – where agreed value exceeded vehicle market value – where property in vehicle salvage passed to insurer – whether appeal raises a question of law – mixed questions of law and fact – whether necessary to obtain the Appeal Tribunal’s leave to appeal
INSURANCE – MOTOR VEHICLES – INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE – OTHER MATTERS – where contractual discretion to declare vehicle total loss – where vehicle so declared – where insured indemnified according to insurance policy – where vehicle written off – where vehicle listed on written-off vehicle register – where vehicle not re-registrable for public road use – where vehicle salvage sold at public auction – where insured informed of registration preclusion before auction – where insured bought vehicle salvage at auction – where insured believed removal of vehicle from register achievable for error – where insurer denied error – where vehicle not removed from register – whether vehicle wrongly declared total loss and written off – whether insurer breached insurance policy and duty of utmost good faith to insured
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where insured sought declarations and injunction to enable removal of vehicle from written-off vehicle register – where legally qualified member of the Tribunal may make declarations and order injunctions – where declarations neither necessary nor appropriate – where inordinate delay in bringing proceedings – whether injunctive relief warranted or appropriate
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 60, s 142, s 147
Transport Operation (Road Use Management) Act 1995 (Qld), s 63Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 193
Coghlan v Cumberland [1898] 1 CH 704Warren v Coombes [1979] 142 CLR 531
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Mr P O’Shea of Holman Webb Lawyers
REASONS FOR DECISION
Introduction
The Grounds of Appeal
Appeal on question of law and leave to appeal
The principal issues below
Injunction or other mandatory orders
Appeal Grounds 1 and 2 – failure to accurately identify the relief sought
The issue of whether the Applicant made a claim under the policy
Appeal Ground 3
Appeal Ground 4
Appeal Ground 5
Appeal Ground 6
Appeal Ground 7
Appeal Ground 8
Appeal Ground 11
Appeal Ground 9
Introduction
This appeal, from an Adjudicator in the Queensland Civil and Administrative Tribunal, concerns an application which was made by the Applicant, who is also the Applicant in this appeal, for various forms of relief, not limited to monetary relief, arising out of the circumstances in which his insurer dealt with water damage caused to his motor vehicle in a flooding incident in January 2013.
As shall be seen shortly, the Applicant sought to challenge a determination made by his insurer that the damaged vehicle ought be written off and sought a finding that assessment reports prepared on behalf of, or for purposes of the Respondent in making the decision to write off the vehicle, were inaccurate, with the result that the vehicle ought not have been written off.
The Applicant had also sought ancillary relief with a view to correcting the public record with the Queensland Department of Transport concerning whether the vehicle had in fact, or had in fact properly been included on the Register of Vehicles Written Off. The purpose for which the Applicant sought the latter order was because, notwithstanding that he knew the vehicle had been written off, and indeed that the insurer had paid out the agreed value for the vehicle under the insurance policy the Applicant held with it, he had repurchased the vehicle at a public auction for a sum substantially less than the payout figure and wanted to be in a position to be able to reregister it. It is common ground that the effect of the vehicle having been statutorily written off, and recorded on the Departmental record as being written off, was that the vehicle could not be reregistered, and could be used for limited purposes such as being broken up and sold for spare parts. The relief that the Applicant sought was in aid of his being able to register and eventually make effective use of the vehicle.
There was also a claim that was described in the Applicant’s application, and submissions as damages or restitution for $25,000, which reflected the jurisdictional money limit for minor civil disputes in the Tribunal.
After a hearing which went for three days, and in respect of which the Applicant conceded before me he had determined not to make certain challenges to the evidence led by the Respondent because of time limitations and other forensic considerations, the Adjudicator dismissed the application.
At the heart of the Applicant’s contentions both below, and in the Appeal Tribunal, was the contention that he had not in fact ever made a claim on his insurance policy, and that therefore no contractual or other entitlement arose on the part of the Respondent to pay the agreed value of the vehicle to him and his financier, or otherwise to act to give effect to any purported claim under the policy, and for that matter to have reported to have written off the vehicle, obtained title to it, and sold it off into the marketplace as a written off vehicle.
The Grounds of Appeal
The grounds of appeal are in the following terms;
I submit the following errors of ‘mixed law and fact’ occurred
1) The decision maker erred in omitting all my declarations and orders sought within his considerations and findings, although filed and served in accordance with his instructions.
2) The decision maker erred in making findings on earlier declarations and orders relinquished by me.
3) The decision maker erred in the application of law after his finding that the Statutory Write Off (SWO) provisions for water inundation inside my vehicle did not apply, then failed to axiomatically consider or apply the correct implications to the residual of the respondents’ case, the evidence, (SWO) definitions & reports to Government & Youi’s obligation to amend under the legislation, insurance contract and my pleadings.
4) The decision maker erred in not allowing the uncontested expert witnesses’ findings to stand, then made findings outside of any evidence to support his own contention, and further based a key reasoning on ambiguous hearsay evidence.
5) The decision maker continued to hear this matter when he had no authority to action the relief sought within the application & did not transfer the matter to a suitably qualified QCAT person. Parts of his decision was a consolidation of his initial brief that no reason to transfer to another qualified QCAT person would arise as the respondent’s position was sound, (a bias) without the full evidence being given or tested.
6) The decision maker erred in not considering the noted reference to the Queensland Department of Main Roads processes and doc ‘F4050’ for amending errors in reports, including incorrect Statutory Write Off notifications, & the obligation (that Youi has) to make that correction.
7) The respondent’s suppression of evidence and/or deliberate misrepresentations made to the decision maker, influenced the determination reached, thereby by fraudulent, unethical means.
8) An apprehension of bias is applicable, due to the decision maker’s considerations and lack thereof of the evidence, and pre-judgement of elements within the case at hand.
9) The decision maker erred in law as to the contractual obligations between the parties being activated, with respect to a claim involving water inundation within the car, or of an incident reported to that effect being made.
10) The decision maker erred by allowing the statutory write off for water inundation to stand as an official Government record when his determination confirmed no SWO for water inundation occurred, and no evidence of any other SWO being applicable or presented by the respondent.
11) The Respondent’s solicitor made representations direct to the decision maker without my knowledge during these proceeding giving rise to further grounds for an apprehension of bias. That document inadvertently come to light when QCAT registry staff made copies of part of the file for me, there may have been more inappropriate representations made, however, I was not permitted to physically handle or view the file”.
Appeal on question of law and leave to appeal
Pursuant to s 142 of the Queensland Civil and Administrative Tribunal Act 1999 (Qld) (‘QCAT Act’), an appeal only lies to this Tribunal on questions of law, unless, in relation to appeals on a question of fact or a question of mixed law and fact, the Appellant has obtained the Appeal Tribunal’s leave to appeal.
The Appellant’s submissions with respect to leave to appeal leave much to be desired in terms of identifying specifically what findings of fact or part fact and law are sought to be challenged.
Turning to the Appellant’s grounds of appeal, it is apparent that in relation each ground, but as raising ‘errors of mixed law and fact’ no attempt has been made to identify what legal principle is at the heart of the challenge. Many of the grounds complain that certain findings the Member made on the evidence were errors of mixed law and fact although the basis upon which it is contended they were so is not evident. Conceptually, some grounds in the appeal raise issues of law concerned with whether he ought have referred it to a differently constituted tribunal, whether because he lacked power to grant the relief sought, or because there was an alleged apprehension of bias on his part. In large part, this appeal has been conducted as an attempt to re-argue a multiplicity of issues which were raised at the original hearing, both in evidence and in law, and as to the proper interpretation to be placed upon evidence where it fell into some particular context or other.
By s 147 of the QCAT Act, an appeal to this Tribunal on a question of fact only or a question of mixed fact and law is by way of rehearing. It is well accepted that there is difficulty faced by an appellate tribunal in determining that a challenged finding of fact is a wrong finding and this is reflected in the principles of restraint that apply to a review of fact.
The duty of finding the facts is conferred on the judicial officer conducting the trial under a hierarchical system. A rehearing is a procedure concerned with the correction of error.[1]
[1]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 193, 203-4; Warren v Coombes [1979] 142 CLR 351, 358-9; Coghlan v Cumberland [1898] 1 CH 704, 704-5.
In this case, the findings of the Tribunal Member were made after a comprehensive hearing. There can be no doubt that the Applicant had a full opportunity to present his case over the three days of hearing which were spread over three different months in March, May and July 2017, and in relation to which the Member hearing the matter has decided disputed questions of fact in a reasoned judgment that is not evidently attended by error in terms of his findings of fact.
The invitation to conduct a rehearing of the matter in relation to questions of fact or questions of mixed fact and law was made all the less attractive because I was not taken through the relevant parts of the evidence which it was sought to challenge, by reference to preferable evidence in order to demonstrate the error in the factual conclusions of the relevant Member.
The principal issues below
Much of the contest below went to the issue of just how much water damage the vehicle had sustained, and whether in truth it met the requirements for what is known as a statutory write off. The Adjudicator’s Reasons[2] set out what are the national write off vehicle criteria, which he used to identify when a statutory write off may occur, and as to what occurs when a vehicle has been the subject of a statutory write off. In short, that criteria includes, for water damage vehicle write off, the following;
[2]At [75]-[76].
Where the internal cabin of a vehicle is inundated with any water (fresh, salt and/or brackish water) such that the internal cabin water level rises above the level of the inner door sill for any period the vehicle is to be classified as a SWO.
...
A SWO may only be sold subject to a statutory restriction that it may only be used for parts or scrap metal.
...
A vehicle determined to be a total loss must also be assessed against the criteria set out in this guide to determine its classification. There are 11 categories of potential damage that each vehicle must be assessed against, comprising:
Three forms of specific ‘event’ related criteria (fire, water and vehicle stripping). If the vehicle meets any of these criteria, it must be classified as a SWO; and
Eight separate areas of potential structural damage to be reviewed. These are set out on pages 4-20 of this guide.
...
The criteria have been developed to err on the side of caution in terms of safety to ensure that vehicles that have sustained significant damage are consistently identified and appropriately classified as suitable only for dismantling or processing as scrap.
The reference to ‘SWO’ in the preceding paragraph is a reference to statutory write off.
The Applicant raised substantial criticisms of the Respondent’s assessor’s report which led to the write off. The Adjudicator accepted many of these criticisms and accepted that the report contained many errors which he concluded did not inspire confidence in the author’s attention to detail. The Adjudicator criticised reliance upon hearsay statements in the report which had not been verified. They concerned the extent to which the vehicle had been in water, and as to the depth of the water.
The Adjudicator also was critical of the Respondent’s failure to call a truck driver whose assertions formed the basis for much of what was in the assessor’s report. One of the assertions by the assessor was that the;
…carpet [was] soaked, interior steamed up, airbags would have to be replaced, electrical components would have to be replaced, engine was full of water, [and] air box full of water.
The Adjudicator held (citations omitted);[3]
Certainly, the photographs of the vehicle taken by Mr Banwell depict wet carpet in the vehicle but there is no photograph which depicts the vehicle interior steamed up. Other photographs of the interior do not depict more pervasive internal dampness than just the cabin floorpan carpets.
[3]At Reasons [84].
One of the challenges which the Applicant sought to bring in this appeal was to the implicit finding of the Adjudicator that the photographs which the assessor said he had taken had in fact been taken on the morning close to the incident, rather than later in the day. In other words it was sought by argument in the appeal to mount a challenge to the truthfulness of Mr Banwell, and as to his credibility generally on that and other issues. Indeed, that challenge went on to assert for the first time in argument here, that in fact the insurer, by its agents, had deliberately sabotaged the vehicle and put water into it which had not been there as a result of the flooding incident. These are extraordinary assertions to be making on an appeal, not least because the Adjudicator had not been asked to arrive at those conclusions himself. Nor had any of the Respondent’s witnesses had the suggestion put to them in the course of the hearing. The fact that a forensic decision was made not to do so does not mean that there is a basis for raising these issues for the first time on appeal.
In relation to the condition of the vehicle as affected by the flooding incident, the Adjudicator found, on the balance of probabilities, on what he described as ‘the totality of the parties’ evidence’ that;
(a)Flood water and water spray entered the engine air intake by reaching an under bonnet level of at least 900 mm from the ground, wetting the engine electronics and sensors and causing the engine to stall;
(b)Flood water also entered the vehicle’s exhaust system through the tail pipe to that level as well; and
(c)Some water did enter the cabin floor area wetting the carpets.
He went on to hold[4] that the evidence was insufficient to establish that the cabin of the vehicle was inundated to the extent that the water level inside rose above the level of the inner door sill for any period, such that ‘Youi was compelled by the guidelines to write the vehicle off as it did’. Of note is that whilst the Adjudicator was not satisfied that Youi was compelled by the guidelines to write the vehicle off, he did not find that in writing it off it in some way acted unlawfully, or in a way which was unjustified.
[4]Reasons [88].
He amplified these findings in relation to the insufficiency of the evidence to show a statutory write off later in the reasons, when dealing with the Applicant’s claims to be entitled to compensation. The Adjudicator found that;
[193] The vehicle was water damaged in the incident on 28 January 2013. The vehicle’s engine ceased functioning after the inundation. The effect of water ingress was, ostensibly, temporary. However, associated problems can emerge many years later with corrosion and electronic malfunction.
[194] Once the engine electronics and sensors had dried out after the incident, the car started and ran without difficulty the next day. Mr Banwell expelled much of the water in the exhaust system by running the vehicle as the photographs show. The wet carpets dried out. The vehicle is in a roadworthy condition now, but has not travelled any appreciable distance because it cannot be re-registered.
[195] Mr Banwell’s assessment report was incorrect in the instances to which I have referred. However, his photographic evidence concerning the state of the vehicle, taken the day after the incident, in conjunction with Mr Royce’s report of the incident, stands unaffected by those errors.
[196] Youi’s evidence in these proceedings fell short of establishing that guideline criteria were satisfied for the mandatory write-off of the vehicle. Nevertheless, on the totality of the evidence to which I have referred, Mr Royce having made a claim under the policy, Youi had sufficient reason at the time to decide that the vehicle was not safe to repair and that it should be declared a total loss as it did.
[197] Youi’s decision at the time to write off the vehicle is supported by the fact that any future claim for corrosion or electronic malfunction would be excluded under the policy and neither Mr Royce nor any subsequent holder of a Youi policy could claim indemnity for loss and damage in that event.
[198] It is necessary to look at the situation as it presented to Youi at the time of the incident, not as it presents now, many years on, with the benefit of hindsight and after exhaustive forensic and investigative scrutiny.
[199] Youi was contractually entitled to err on the side of caution and it did so by writing the vehicle off. Erring on the side of caution for the benefit of an insured does not amount to a breach of the insurer’s duty of utmost good faith.
[200] The description “total loss” is synonymous with “write-off,” though not according to the criteria published in the guideline. The outcome, however, is the same. On my reading of them, the write-off guidelines do not prevent an insurer from writing a vehicle off in circumstances where the threshold for doing so is not met.
[201] Youi settled Mr Royce’s claim to its substantial financial detriment by fully indemnifying him for the vehicle’s agreed value. The agreed value exceeded the vehicle’s market value. Mr Royce cannot demonstrate any compensable loss flowing from his claim and Youi’s settlement of it.
[202] Mr Royce’s claimed losses in fact flow from his own decision to make the claim and, once settled, buy the vehicle back from Youi at auction in full knowledge of the vehicle’s written-off status, not from any breach of contract, breach of statutory duty, error or negligence, on Youi’s part. The alleged losses are not causally related to Youi’s decision to declare the vehicle a total loss and write it off.
[203] Further, even if the losses claimed by Mr Royce were causally related to, and arose from, Youi’s decision to write the vehicle off, which is not the case, he had a duty to mitigate such loss and damage. Mr Royce’s decision to buy the vehicle back compounded any loss that he could prove that he suffered, rather than mitigating it.
As the Adjudicator’s findings at [200] set out above make clear, although the Respondent had not proven that the guideline criteria was satisfied so as to justify a mandatory write off, that did not prevent the Respondent from writing off the vehicle in circumstances where the threshold for doing so was not met. It followed from that conclusion that the Respondent had not breached its duty of utmost good faith, and by necessary implication it must have followed that there would not be an order that compelled it to do things to rectify the public record with the Department of Transport in relation to whether the circumstances for the write off were met, even had the Adjudicator determined that he had a power to grant injunctive relief.
Injunction or other mandatory orders
In relation to his powers to make declarations generally, the Adjudicator held, in my view correctly, at [106]-[109] that (citations omitted);
[106] Only a legally qualified member may make a declaration, binding on the parties to a proceeding, about a matter in a proceeding instead of, or in addition to, an order it could make. The declaratory power is in addition to the power to make a declaration under an enabling Act.
[107] I am a legally qualified adjudicator, not a legally qualified member, of the Tribunal, so unless pursuant to an enabling Act which expressly authorises it, I have no power to make the declarations sought by Mr Royce. However, I am empowered to make orders in minor civil disputes in terms prescribed by section 13 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) and as empowered in an enabling Act such as the Australian Consumer Law.
[108] Even if I had the power to make the declarations sought by Mr Royce in the respects sought in paragraph 1(a)(i) to (ix) of the Consumer Claim, which I do not, I would have declined to exercise it because facts are routinely found, not declared, in the process of giving reasons for a decision. Findings of fact are as binding on the parties as are declarations and orders made to dispose of a dispute in the Tribunal.
[109] Insofar as the interest declaration sought by Mr Royce is concerned, making a declaration about whether interest may be added to the claim, which Mr Royce wants in terms of paragraph 4 of the orders sought, is unnecessary. Where claimed, interest may be allowed in the exercise of discretion.
In terms of the injunctive or compulsive orders sought, the Adjudicator observed that;
Mr Royce wants a mandatory injunction requiring that Youi notify the Department of Transport of the matters referred to in paragraph 1(b) of the orders sought.[5]
[5]Reasons [110].
Although this injunction was not pressed as one of the ultimate orders sought, a different form of mandatory injunction was sought in paragraph 3 of the orders sought in the Applicant’s final written submissions.
The Adjudicator held in relation to such mandatory orders, in my view correctly, as follows (citations omitted);
[111] As with the power to make declarations, the exercise of injunctive power is qualified. A legally qualified member, but not a legally qualified adjudicator, constituting the Tribunal may by order grant an injunction, whether on notice or ex parte and whether on application of a party or of its own initiative, including an interim injunction in a proceeding if it is just and convenient to do so.
[112] The limitation period for a claim for loss or damage arising out of a contravention of the provisions of chapter 2 or 3 under the Australian Consumer Law is six years. The limitation period for a claim for damages for breach of contract is also six years in Queensland.
[113] Mr Royce filed his consumer claim in this Tribunal on 23 November 2016, approximately three years and ten months after the incident. Though filed within the limitation period, delay in bringing these proceedings is a relevant consideration against granting injunctive relief. Even if I had the power to enjoin Youi, I would not have done so because of Mr Royce’s inordinate delay.
It is common ground that the Adjudicator concluded, correctly, that he did not have power to grant declaratory relief or injunctive relief. In each case, however, the Adjudicator concluded that he would not have made the declaratory relief sought, nor granted the mandatory injunction on the basis of discretionary and other considerations. One of the complaints of the Applicant on appeal is that the Adjudicator erred in not declining to hear the matter, and ought have referred it to a legally qualified Member of the Tribunal who might have had those powers. For the reasons which are explained elsewhere in my findings, even had the matter been heard by a Tribunal Member whose jurisdiction was not so limited, on the basis of the factual findings that the Adjudicator made, there was no order of declaratory or injunctive nature to be made.
Appeal Grounds 1 and 2 – failure to accurately identify the relief sought
Grounds 1 and 2 were described in argument by the Applicant as essentially raising the same complaint, namely;
(a)That the Adjudicator’s determination was on the basis of what was in the amended application;
(b)Whereas during the course of the hearing the Adjudicator had asked the Applicant to identify what orders he was seeking; and
(c)That as a result he refined what he was seeking in a way which was not dealt with by the Adjudicator’s Reasons.
The Adjudicator identified in his reasons that in his amended claim, the Applicant wanted the Tribunal in effect to make the following orders;
1 A declaration under section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) that:
a)That Youi Pty Ltd assessment reports numbered 7113 conducted on the 29.01.13 are inaccurate and at odds to (sic) the evidence and will be reissued pursuant to the points hereunder; items (i. to ix) .. Or further as the tribunal sees fit.
i.The car is an Automatic. Not a manual as stated.
ii.The car is a Nissan X-Trail T 31. Not Z58 as stated.
iii.The month of manufacture is 2/2010. Not 3/2010 as stated.
iv.That there is no panel damage. Not Heavy Panel damage or unroadworthy as stated.
v.That repairs are to be noted as Nil. Not the list as shown within the current document.
vi.That no water inundation was visible or evident inside the vehicle.
vii.That no water was evident within the motor, the car started without any works being undertaken or needed.
viii.That the vehicle is available for collection by the owner.
ix.The damp carpets within parts of the car occurred after the vehicle was towed.
b)That Youi Pty Ltd give notice to the Queensland Department of Transport and Main Roads Written off Vehicle Register concerning
i.The applicants 2010 Gold Nissan X-Trail, Identification number; JN11ANT31A0052751 (former reg number 604MXH) is at odds to the evidence and is to be corrected by Youi Pty Ltd (respondent) pursuant to these declarations and orders.
ii.That the corrected notification is then to be forwarded to Queensland Department of Transport and Main Roads Written off Vehicle Register and a copy of that supplied to the applicant. Including a covering letter and a copy of the Tribunal’s declarations, orders and intent.
c)The intent of this declaration and orders is to;
i.Have the Gold 2010, Nissan X-Trail (formerly registered as 604MXH) ID number JN11ANT31A0052751 taken off the written off register.
ii.It could then be used or registered subject to all the requirements of registration being met.
d)Definition of; “water inundation” in this instance is “Any pooling of water above 5 mm”.
2 That effect be given to the declarations, under s60 QCAT Act 2009, allowing 14 days for compliance.
3 That Youi Pty Ltd to pay damages/restitution or combination of these to the Applicant to the amount of $25,000 within 14 days of this order.
4 That if interest and/or the filing fees can be added to the $25,000 damages/restitution (or a lesser amount so awarded) that this occurs, so long as that does not affect the maximum amount that can be awarded.
In his final submissions the Applicant identified that the orders he actually, and ultimately sought (‘the ultimate orders sought’) were in these terms;
1. The Tribunal makes the following declarations under s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”):
a)The Youi Pty Ltd assessment report number 7113, dated 31/01/13, has been found to be critically flawed and inaccurate. The issues of panel damage, and water inundation are not applicable to the automatic, 2010 Nissan X-Trail, formerly showing Qld registration 610 MXH, identification number JN1ANT31A0052751. That vehicle at all material times belonged to the applicant.
b)That the tribunal found the Nissan X-Trail as identified at 1 (a) hereinbefore had no issues that would make it a statutory write off, or damage of any nature that would make the car unroadworthy. The tribunal accepts the expert evidence of the applicant and Mr Paul West of Auto-King who issued a roadworthy certificate LV-P 2480819, on 17/06/16 with respect to the applicant’s Nissan X-Trail. That vehicle at all material times belonged to the applicant.
2. The declarations at Item 1 (a) & (b) are hereby given the same standing as if they were orders. In this instance, they are noted to assist any other authority or person should that need arise in understanding the findings of the tribunal.
3. The respondent is ordered to supply to the applicant a new investigation report covering the tribunals findings, at 1.(b). Within 14 days.
4. The respondent is ordered to pay to the applicant $25,000. Within 14 days.
The Applicant criticised the Adjudicator for not correctly identifying what his final position was in terms of the ultimate orders sought.
The Applicant contended that he did not know in asking for that relief that the Adjudicator did not have power to make declarations, although there are references in the transcript to the Adjudicator raising that question during the hearing. It was submitted that had the Adjudicator in fact given consideration to the orders that were actually sought, there would have been no need to make a declaration in any event.
As may be seen, the ultimate orders sought included declarations, or simply findings or orders to enable ‘any other authority or person should that need arise in understanding the findings of the Tribunal’ (sic).
The first of the ultimate orders sought concerns whether the assessor’s report was inaccurate. The Adjudicator made findings that there were inaccuracies in material respects in that report, but did not arrive at the conclusion that it meant that the basis for having resolved the claim was legally flawed, in the sense that the insurer was not entitled to decide to write off the vehicle and pay out under the policy. I have set out the Adjudicator’s findings in that regard already.
The proposition stated in the terms of the first order sought that at all material times the vehicle belonged to the Applicant depends upon acceptance of the proposition that he never made a claim under the policy and the insurer was not entitled to make a payment out under it, and never became the owner of the vehicle in consequence.
The second of the orders sought among the ultimate orders sought, was for a finding that there were ‘no issues that would make it (the car) a statutory write off’ or make it unroadworthy. It asked that evidence other than that which the Adjudicator accepted, including that of a Mr Paul West, should have been preferred, and that therefore ownership in the vehicle remained with the Applicant. Again, there was no cause for the Adjudicator to need to specifically consider the language of that proposed order, first because the Adjudicator did in fact consider the issue of whether there was a basis to determine that the vehicle should be a statutory write off and/or whether there was damage to the vehicle that would make the car unroadworthy, and made factual findings which were consistent with, and resulted in the conclusion being reached, that the Respondent was entitled to write off the vehicle, and that indeed the vehicle was in such a condition as to justify the conclusion that it ought be written off. Therefore, even had the Adjudicator carefully followed the terms of what it was the Applicant was seeking in the ultimate orders sought, he would not have made such a finding or made a declaration to the effect of that which was sought.
It therefore follows that the Adjudicator’s failure to give precise consideration to the language used by the Applicant as to the ultimate orders he sought did not affect the outcome.
Another complaint made by the Applicant is that the Adjudicator considered and made findings about declarations and other orders that the Applicant had abandoned. I am not persuaded that the Adjudicator did in fact do so, but if he did, it was of no consequence to the outcome because those determinations were superfluous to the result.
The issue of whether the Applicant made a claim under the policy
In the course of arguing these two grounds, the Applicant condescended into an argument which carried through into numerous other of his grounds, which was to the effect that he had not in fact made a claim for water damage to his vehicle under the policy. He also contended that he was entitled to challenge the findings of fact made by the Adjudicator because it was based on ‘false and misleading evidence’ and because the evidence was that all he had ever sought was provision of a replacement vehicle for his damaged vehicle, and not for any other process to be invoked under the policy. In that regard, he conceded that he sought to challenge the factual findings made in relation to this issue, particularly those at [21], [23]-[25] and [31]-[34] of the Reasons.
On the question of whether he had made a claim, the Applicant faces a substantial impediment in light of the findings of the Adjudicator as to what dealings the Applicant had with the insurer on the night of, and in the days following the flooding incident.
The Adjudicator held, after referring to how the flooding occurred, as follows at [6]-[8] (citations omitted);
[6] That evening, at about seven o’clock, Mr Royce telephoned an after- hours emergency contact number for the Respondent, Youi Pty Ltd, his comprehensive motor vehicle insurer. He gave the insurer’s representative an account of what had happened. Being an emergency line, that call was not recorded.
[7] Mr Royce telephoned Youi again on 29 January 2013 at 7:13 am, in follow up. That call was recorded. A recording and typed transcript of the telephone discussion on 29 January 2013 is in evidence.
[8] The transcript of the recording establishes that Mr Royce asked for, and was given, an insurance claim number to pass on to the tow truck operator and that he was told that the call was recorded for training, contractual and evidentiary purposes.
The Reasons at [9] identify that the transcript shows that the following conversation occurred (citations omitted);
Applicant: “I put a car in yesterday ... they haven’t got the claim number so I was wondering if I can get that so I could ring it through to the people who towed the car yesterday ...”
Youi Representative: Did you um, go through and lodge a claim with one of our advisers …
Applicant: “Yeah, yeah ... they didn’t call me back, so I don’t have the claim number.”
Youi Representative: I’ve found your policy number, but there’s no claim logged under that one ... after hours service don’t actually take the claim down, they just go through and as you mentioned, organised emergency transport and towing things like that.
Youi Representative: ... so in order for us to go through and lodge a claim today, I must first advise you that our calls are recorded for training, contractual, and evidentiary purposes.
Applicant: “Yep.”
...
Youi Representative: Stephen so if you can run me through what’s actually happened in the incident I’m just going to be typing everything as we go ok.
Applicant: “Yes, I’ve just ah been inundated with ah, I’ve come down to the road, that roads been blocked off by water, I’ve turned there’s been about three cars these guys with big four wheel drives.
I was just driving along, I thought there’s no depth meter at the end that I came into this ah bit of road and I’ve lived here for a long time so you have a look, ah then so I’ve started to turn, there’s a whole bunch of guys with large four wheel drives ...
They’re using tow ropes and things and they’re skiing through this thing, so anyways, so I’ve been inundated with water like, ah, you know, all over the front of the car, and two or three of these things and I’m just waiting so I can safely get back and so the car starts to splutter ... and then I get out and she stops, so that’s it.”
Youi Representative: Ok, so you’ve, they’ve flood waters that you’ve unfortunately gotten yourself into?
Applicant: “Well, no, it’s the cars going past and you know when a car goes through a puddle of water and it squirts all over your thing, so I’ve got three cars that have gone through and they’ve drenched the front of my car, but they’re using their cars to do aquaplaning and surfboarding through these ... you know, that section of road and that pathway ...
But the days leading up to that my stone tray underneath, we’ve gone through some puddles, don’t get me wrong you can’t get in and out of where I live without going through something but I’ve had to get home over the last few days, and my stone tray underneath, I had strapped that up, I don’t think that’s gonna make any difference as to how much water has um, been affected. ...
They’ve sprayed the water up over my car and then my car’s stopped working.
I waited for about an hour, I called roadside assist, I just had the bonnet up and at that stage of the day it wasn’t raining, so I just “oh, it’ll dry out” and they said no the water has gone oh I don’t know in the intake, or whatever it is, so I just went with that.
At Reasons [10], the Adjudicator identified the following further passage of the transcript of the call on 29 January 2013 (citations omitted);
Applicant: “So my biggest question, on my insurance policy, am I covered for a replacement car?”
Youi Representative: I’ll have to check that in a moment. ... okiedokie, so it’s not driveable, it has been towed, ok.
Applicant: “I mean no water got in the car itself, its just all the, whatever the …”
Youi Representative: In the intake.
Applicant: “Yeah that ...”
Youi Representative: Ok. Um, in relation to the car hire, you haven’t actually chosen the option on the policy, um, so you don’t have car hire on your policy.
Applicant: “Yep”
Youi Representative: Um what we can do, I’ll organise someone to go um, with the Gold Coast Tow Truck Light and Heavy, um, we’ll have to um get someone to go and take a look at the car, um if not we’ll move the car to a big holding yard that we have all of our cars that have been affected by the water um and we’ll get them all assessed at once.
Applicant: “Yep.”
The Adjudicator held that the Respondent’s representative then explained the insurer’s claim procedure to Mr Royce in the following terms (citations omitted);
So um ... if the vehicle is repairable, obviously we’ll go through and do that, if it’s a total loss um then we’ll go through and process that one, you’ve got an agreed value here of thirty three thousand and four dollars so um, obviously the damage needs to exceed that amount before we write it off.
The Applicant responded (citations omitted);
Applicant: “I can’t see that, all they have to do is (inaudible) I’d imagine.”
Youi: Representative: that’s ok, yeah I haven’t seen the car so I can’t really comment I’m just letting you know what the processes are ... now a six hundred and fifty dollar excess does apply to the claim um, that’ll just get paid to the repairer on completion of the repairs, um, what we’ll go through and do I’ll send an SMS to your mobile phone so that’s gonna have my contact details and the claim reference number.
Applicant: “Yep”
Youi Representative: And I’ll give you the claim number over the phone now if you like.
Applicant: “Yes that’ll be great.”
Youi Representative: so two six six four zero seven three.
Applicant: “Yep.”
Youi Representative: I’ll be looking after the claim here for you, um, so as I mentioned before we’ll get um our assessing team to take over the car side of it now and they’ll look to either move the car to a repairer or an um, as I say that other assessment area that we’ve got set up, ok?
Applicant: “Right, and um, so that stone tray too, they’d come off going through some water too and it’d started flapping so I’d tied that up with a bit of shoelace on one side but the thing kept on flapping so I’d taken the whole thing off ... it’s only a plastic stone tray.”
The Adjudicator held at [13]-[34] (citations omitted);
[13] Later that same day, Mr Royce received a telephone call from a Youi assessor assigned to the claim, Mr Banwell, who told Mr Royce that the vehicle had been written off. Mr Royce asked whether this was a practical joke. Mr Banwell said that it was not.
[14] Mr Banwell told Mr Royce that he’d spoken with the tow truck driver who said that the water had been up to the door handles. Mr Banwell said that the interior was soaked. He said that Mr Royce should collect his personal property from the vehicle.
[15] In turn, Mr Royce called Youi and insisted that there’d been a mistake because, he said, no water had entered the vehicle internally. He says that the insurer took no steps to have another Youi assessor look at the vehicle and review Mr Banwell’s assessment. An internal Youi review at that time reached no different conclusion.
[16] On 30 January 2013, i.e. the next day, Mr Royce attended the holding yard in which the vehicle was parked to collect his belongings. He started the engine. It ran well. He turned it off after two or three minutes. The logbook and service documents, which he collected from the vehicle, were dry. He left.
[17] Mr Royce says that he noticed that the carpet in the vehicle was wet. He assumed that someone had left the windows or doors open at the holding yard. However, he does not say that the windows or doors were open when he attended the holding yard.
[18] Mr Royce’s assumption with respect to the cause of the wetting of the carpet is unsupported by Mr Banwell’s photography of the vehicle on 29 January 2013. It shows the windows and doors of the vehicle closed, except where doors had obviously been opened for Mr Banwell to photograph the inside of the vehicle from the outside.
[19] Mr Royce says that he made further calls to Youi to have someone correct Mr Banwell’s “error,” as he puts it, but his actions were to no avail and there was no follow up from Youi.
[20] Youi logged the claim as complete on 31 January 2013. It settled Mr Royce’s claim on or about 13 February 2013 as a “total loss.” That expression has a contractual significance. According to the policy definition which I will later quote in full, total loss meant that Youi had decided that the vehicle was damaged to an extent that it was not safe to repair.
[21] Youi paid out the vehicle agreed value of $33,004.00. It did so by payment of $28,238.57 to St George Finance, which had a registered security interest over the vehicle, and $4,140.43 to Mr Royce after deduction of the policy excess of $625.00 payable by him (“the settlement”).
[22] The market value of the vehicle, by reference to comparable vehicles of the same age, make, model and mileage, but excluding the Couplertec Rust Protection System fitted to the vehicle and a set of roof racks (“the add ons”) shown in Mr Banwell’s photographs, was between $25,500 and $28,000. Therefore, the agreed value exceeded the market value of the vehicle by several thousand dollars.
[23] Mr Royce accepted the amount paid to him and the benefit of the discharge of his liability to St George Finance. He neither objected nor reserved his rights. He did not, and does not, bring the settlement into account in respect of the money claim which he makes in these proceedings.
[24] Youi arranged to put the vehicle to auction for salvage through Pickles Auctions. Mr Royce spoke with Mr Simon Watson, Youi’s Car Assessing State Manager, on 1 February 2013. He asked about possibly buying the vehicle back from Youi. Mr Watson explained that the vehicle could not again be registered for road use and that it would be sold for parts only.
[25] Mr Watson’s contemporaneous electronic file note of the telephone discussion, which I accept as accurate, says, “Customer understands. No further concerns.” Mr Royce thus acquiesced in the final stage of the process, disposal of the salvage.
[26] Mr Royce attended the Pickles auction of the vehicle on 28 February 2013 as a bidder. The Salvage Vehicle Auction List published by Pickles for the sale on 28 February 2013 referred to the vehicle (Lot 438) as a Statutory Write-off. Alex Coleman, the auctioneer, announced that fact to the public no less than six times before selling the written-off Lots.
[27] Against a competing bidder, Mr Royce bought the written-off vehicle back for $7,858.00 at the auction. He says he believed that an independent review would correct the error.
[28] Mr Royce called for further information from Youi on 15 September 2015 and complained about the total loss assessment in a telephone call to Youi on 11 July 2016.
[29] In his email to Joel Carpenter of Youi’s internal disputes resolution service dated 20 July 2016, over three years after settlement, filed in these proceedings, Mr Royce said;
“I simply want Youi to take steps to have the car taken off the register of written off vehicles. I will then take the steps to have ... a roadworthy certificate issued.”
[30] Youi carried out an internal review, which affirmed the original decision to write the vehicle off, and informed Mr Royce of such on 25 July 2016.
Applicant’s affidavit
[31] In addition to his oral evidence at the hearings, Mr Royce says in an affidavit that he did not make, or intend to make, a claim on the policy. That is clearly untrue.
[32] The transcript of the telephone recording on 29 January 2013, to which I have referred, establishes without doubt that Mr Royce both intended to make, and did make, a claim on the policy. The claim set in train the processes to which the Youi representative had referred. They carried through to completion and the settlement.
[33] In his affidavit, Mr Royce also says that he was told by Youi staff that no recordings of his calls on 28 and 29 January 2013 were “captured.” That is partly untrue. Mr Royce was specifically told of the fact and the purpose of the recording of that telephone call on 29 January 2013, which he acknowledged without objection.
[34] Ultimately, but only after receiving and reviewing the transcript, Mr Royce conceded that he had in fact made a claim on the policy. He admitted that the transcript of his call on 29 January 2013 is accurate.
The Applicant argued before me that it was not his intention to make a claim under the policy, and that a clear reading of the transcript of his discussion with the insurer made it clear that that was all he was doing. That is not what an objective reading of that transcript discloses. It shows that his enquiry went beyond asking whether he was covered for a replacement car, because when he was told that there was no option under the policy which permitted him to have a hire car, the discussion moved on to towing the vehicle, getting someone to look at it, putting it in a holding yard, and having the vehicle assessed. It went on to involve a discussion about whether the vehicle was repairable, and if not, it would be gone through and processed as a total loss, and a payout made at the agreed value which was $33,004. His response to that was to acknowledge what had been said, and that it would be great if a claim number was given to him, which it was. Later discussion was to the same effect.
The Adjudicator held at [36] that (citations omitted);
[36] Mr Royce says that the vehicle was towed to the Gold Coast Towing yard against his written instruction, however the transcript clearly establishes that he was told that the vehicle would be inspected there, or at a big holding yard, which he acknowledged, and in which process he acquiesced.
The Adjudicator was entitled to, and did place particular significance, on the fact that the Applicant participated in the processes which followed on from that, each of which was consistent with a claim having been made and assessment being made as to what should occur under it. He accepted the payout of the agreed value of $33,004, which was somewhere between $7,500 and $5,000 more than the actual market value of the vehicle, and as the Adjudicator held, he accepted the amount paid to him and accepted the benefit of the discharge of his borrowings to a financier without objecting or reserving his rights in any respect. He then bought the vehicle back at auction, in circumstances which can only be consistent with an acknowledgement that he had made a claim, had been paid out under it, and that the insurer was the owner of the vehicle entitled to sell it at public auction.
In my view, there is no demonstrated error in the analysis of the Adjudicator on this issue. The challenges made to his findings in that regard do not in any event raise issues of law or mixed fact and law.
Appeal Ground 3
In oral argument on the appeal, the Applicant identified this issue more concisely than he had in the six pages of written submissions which addressed the issue in the written outline filed in the Tribunal on 13 April 2018.
Essentially, as articulated in oral argument, the Applicant contended;
(a)That according to the statutory requirements to be met before there is a statutory write off, there were no circumstances in the present case that ought to have led to a statutory write off occurring;
(b)That the Adjudicator found in his Reasons that the preconditions to a statutory write off had not been met;
(c)That the Adjudicator had found that there was no damage to the vehicle;
(d)That the Respondent insurer had withheld information from the Adjudicator in relation to what the requirements were for a statutory write off;
(e)That the Adjudicator did not look at the statutory requirements for a write off, in particular a form which went into evidence and was identified as a Form F4054 entitled ‘Written-Off Vehicle Correction Advice’.
By the terms of the Form F4054, which became Exhibit 5 in the appeal, it is identified that the form was issued pursuant to the Transport Operation (Road Use Management) Act 1995 (Qld) and:
…must be used by a written off vehicle notifier when applying to the Department of Transport and Main Roads to have corrections made to a written off vehicle notification made by the notifier.
On the face of the Form F4054, it permits a person who has previously notified a vehicle as having been written off, such as the insurer in this case, correcting an earlier notice by correcting either damage details, the extent to which it was damaged, what the details of the damage were, and whether it was a repairable write off, or a statutory write off. It required reasons for the change to be specified.
The Applicant explained the basis for his seeking to challenge this finding as being that he had now owned the car for some time, but wanted an order that it was not a statutory write off, and wanted the Tribunal to make a formal finding that it did not meet the criteria for a statutory write off.
In argument in the appeal, the Applicant conceded that he was not challenging a finding that it was correctly determined to be a statutory write off, although he did contend that this was the wrong conclusion to have reached. His argument was that notwithstanding the findings against him in that regard, he was still entitled to findings based on what he asked be made in his ultimate orders sought below, not those in the amended application.
The evidence about the condition of the vehicle was all before the Adjudicator, and he was entitled to have proper regard to which of that evidence he regarded as most credible. It is true enough to say that the Adjudicator did not accept that the Respondent had demonstrated on the evidence that the preconditions for a statutory write off had occurred. It does not follow from that proposition that he was required to conclude that they were not in fact met. Indeed his findings, which I have set out above, make clear that he was satisfied that the Respondent was entitled to write off the vehicle, whether or not it met the statutory definition.
On an appeal limited to questions of law, it is not open for the Applicant to invite the Appeals Tribunal to make findings of fact which were neither made below, nor which in material respects differ from those which were made below.
It is most certainly incorrect to suggest, as the Applicant does, that the Adjudicator found that there was no relevant defect in the vehicle. On the contrary, his findings at Reasons [195]-[196] demonstrate that he found to the contrary.
Where an insurer has determined, as this Adjudicator has found it was entitled to determine, that a vehicle should be written off, there is no basis to interfere with that determination by making orders compelling an insurer to fill out forms and lodge them with the Department of Transport to enable a later owner of the vehicle to register the vehicle. Where, as occurred in this case, the Applicant bought the vehicle knowing that it had been written off, and that its use was limited, there would be even less reason than might otherwise have been the case to make such compulsive orders.
In my view, the Adjudicator demonstrated no error in declining to make orders of that kind and it is not appropriate for the Appeals Tribunal to make its own findings on the evidence so as to decide whether such an order might be made now.
Appeal Ground 4
Ground 4 invites the Appeal Tribunal to overturn findings based on credit made below as to the extent to which there was damage caused to the vehicle by the flooding and as to the extent to which the flooding penetrated the vehicle.
Stripped of its argumentative detail, this ground seeks to challenge the Adjudicator’s rejection of the evidence given by the Applicant’s brother, who is a mechanic, that after the flooding incident there was limited damage to the vehicle, and that indeed it was in excellent order after the incident.[6]
[6]His evidence on that issue is set out at Reasons [44].
The Adjudicator rejected the evidence that the vehicle was in excellent order and the brother’s evidence to the extent that it purported to corroborate the Applicant’s version of events on that issue. In his Reasons,[7] the Adjudicator found that the vehicle did not sustain water damage by entry through the exhaust system through the tail pipe. Indeed in the Reasons at [87], the Adjudicator made the findings which I have recited earlier, concerning the extent to which water entered the engine air intake and exhaust system, and entered the cabin floor area.
[7]At [48]-[56] inclusive.
I am not persuaded that the Adjudicator made any error in his analysis of the evidence. He was entitled to reject conflicting evidence given by the Applicant’s brother.
In the end, this issue is only a subsidiary one, because ultimately the Adjudicator’s findings did not depend upon whether or not any water entered the engine. The Adjudicator decided, and was entitled to decide on the evidence before him,[8] that the Respondent had sufficient reason at the time to decide that the vehicle was not safe to repair and that it should be declared a total loss, as it did. He concluded that its decision to write off the vehicle was supported by the prospect of there being a future claim for corrosion or electronic malfunction as a result of water penetration, and that such claims if made would be excluded under the policy. The Adjudicator concluded that the Respondent was entitled to err on the side of caution in deciding to write the vehicle off, and that it did so in part for the benefit of the Applicant himself.
[8]See Reasons [197]-[200].
Ground 4 therefore must fail.
Appeal Ground 5
Ground 5 complains that the Adjudicator ought to have referred the matter off to another Member because he had no power to grant declaratory or other discretionary relief. For reasons expressed elsewhere, I consider that it was neither necessary nor appropriate for the Adjudicator to have referred the matter elsewhere.
On the basis of the findings of fact which the Adjudicator made, even if he had had the power to make such orders, it would not have been appropriate for such orders to have been made.
Therefore, even were I persuaded that there was some error in the Adjudicator failing to refer the matter to another Tribunal Member who had power to make those orders, it did not affect the outcome.
Appeal Ground 6
Ground 6 complains that the Adjudicator did not give proper reference to the terms of the Form 4050 in deciding whether to make a discretionary order.
For the reasons already expressed, I consider that it was not necessary for the Adjudicator to make reference to that document or decide what effect it might have to arrive at the conclusions that he did, namely that;
(a)He had no power to make an order, or grant an injunction compelling the Respondent to file such a document; and
(b)There was no factual basis for making an order which compelled the Respondent to amend the record established by reason of the formal notification of the write off lodged by the Respondent with the Department and Transport and Main Roads referenced at [61].
Appeal Ground 7
Ground 7 seeks to contend that the Respondent suppressed evidence, made deliberate misrepresentations to the Adjudicator and influenced the result by ‘fraudulent and unethical means’.
In support of this ground, the Applicant contends that the Respondent suppressed evidence of what the process was for writing off a vehicle and as a result the Adjudicator wrongly concluded that alterations could not be made to the Departmental record. Reference is made to the Reasons at [183] in which the Adjudicator recites what it is that the Respondent contended.
In its Defence in that context, reference is made in paragraph 43(m) of the reasons to the Respondent’s contention that;
Youi’s Internal Dispute Resolution Service then raised a dispute for Mr Royce, that information available from the Department of Transport and Main Roads Queensland website confirmed that only limited changes are allowed for entries in the Register, for example updating typing errors, and that based on assessment reports and photographs of the vehicle taken during Mr Banwell’s inspection the Written Off Vehicle Notification application lodged on 31 January 2013 and that Mr Royce was notified of the review decision by letter dated 25 July 2016, with Mr Royce notifying his dissatisfaction on or around 26 July 2016 and Youi then supplying him “telephone recordings” by email on or around that date. (citations omitted)
By implication, the proposition being advanced by the Respondent in its defence seemed to be that limited changes were allowed for entries in the register, for example correcting typing errors and the like.
Reference was also made to a conclusion at [197] of the Reasons which concerns the basis for the Respondent’s decision to write off the vehicle in relation to possible future claims.
The premise behind this ground of appeal is based upon a fallacy. The Adjudicator decided that even if he had power in some way or another to make a compulsive order to amend the register, he would not have made such an order. In his Reasons at [110]-[111] he recites why it is that he lacks power to grant the injunction, but concluded at Reasons [113] that the claim was lodged three years and 10 months after the incident, and that delay in bringing the proceedings was a relevant consideration mitigating against granting the injunctive relief. There is no specific finding in the Adjudicator’s Reasons in which he adopts or makes findings consistent with the contention made on behalf of the Applicant that only limited changes were allowed for entries in the register.
Regulation 69 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) provides in subsection (3) that:
…a notifier may at any time ask the Chief Executive, in writing, for approval to correct a clerical or technical error in notifiable information the notifier has given to the Chief Executive for a vehicle.
Regulation 69 goes on to refer to there being a discretion of the Chief Executive as to whether to approve such a request, that the Chief Executive can request further information, and that in that regard a notifier is required not to give knowingly false information.
A bulletin issued by the Department in 2012, which has gone into evidence as Exhibit 5, makes reference to amendments made to the Regulation which made changes to the way written off vehicles were managed in Queensland. One of those referred to vehicles damaged by corrosion. It provided that the criteria that applied to corrosion write offs was whether a notifiable vehicle had been damaged by corrosion to the extent that the vehicle’s fair salvage value, when added to the cost of repairing the vehicle for use on a road or road related area, would be more than the fair market value of the vehicle of equivalent make, model and year of manufacture that is not damaged by corrosion. So the vehicle must be classified as a statutory write off. It goes on to identify what obligations apply to a notifier to tell the vehicle’s registered owner that the vehicle is a written off vehicle.
In my view the proposition that the Adjudicator’s decision to refuse mandatory or injunctive orders was based upon knowingly false or suppressed evidence as to the circumstances in which changes could be made to the register has not been established. Views may differ as to how the Regulation is to be interpreted, and what practices and procedures may, and may not be adopted in that regard. The Applicant did not establish on the evidence before the Adjudicator that the Respondent knew that it could make a material amendment to the register, but falsely asserted that it could not.
The second aspect of Ground 7 is the contention that the Adjudicator ought to have dismissed evidence led on behalf of the Respondent as to the time when paragraphs were taken evidencing the condition of the vehicle after the flooding event.
In substance this is an attempt to introduce further evidence on appeal in an effort to impeach findings of fact made below as to the reliability of photographic evidence. There is no basis to permit these assertions about how one ought interpret the shadows in photographs which were tendered with a view to demonstrating that the Respondent adduced knowingly false evidence about the timing of the photographs taken.
It is in this context that the Applicant asserted during submissions that someone on behalf of the Respondent had put water in the exhaust and air filter intake after the vehicle was unloaded from the tow truck, and that the Respondent had tampered with the vehicle by adding water to it. This was to supplement his contention that there was a fabrication of evidence as to when the inspection was done.
In my view, the same difficulty presents here as with the last proposition discussed. This is yet another attempt to introduce, by argument in an appeal, challenges to the veracity of evidence below, and indeed to introduce a serious allegation concerning tampering with evidence, and giving knowingly false evidence about the causes of damage. Those courses are not open to the Applicant on an appeal here, and they are certainly not achieved by assertion from the Bar table during argument.
At the end of the day however, even if the challenged evidence was questionable, it does not alter the fact that a claim was made under the policy, and that the insurer exercised its discretion to write off the vehicle and pay out under the policy. The fact that an assessor, or someone else might have tampered with the vehicle, and which led to an erroneous conclusion by the insurer as to whether the water damage was caused by the original inundation, or by some later tampering of the vehicle, does not affect that result.
Appeal Ground 8
Ground 8 alleges bias and prejudgment by the Adjudicator. The alleged bias is the contention that by accepting that limited changes could be made to entries in the register, for example by updating typographical errors and the like, the Adjudicator demonstrated prejudgment and bias.
I have already found that the Adjudicator did not accept that submission by the Respondent, and that it did not found a part of the reasoning for refusing mandatory or injunctive orders. There is nothing to suggest that the Adjudicator prejudged that issue in reading the conclusions that he did in relation to what could be done in relation to the Department of Transport register.
Appeal Ground 11
Ground 11 is another contention on the part of the Applicant that there was a ground for the apprehension of bias on the part of the Adjudicator.
The contention relies upon the fact that the Respondent’s solicitors engaged in ex parte communications with the Adjudicator on 5 June 2017, that is, after the first and second days of the hearing and before the third day of the hearing.
The communication[9] was a letter of that date and concerns the veracity of the transcript of the discussion between the Applicant and the representative for the Respondent, in which it is contended that the claim was made. I have set out the precise terms of the transcript earlier in these Reasons.
[9]Exhibit 6.
It is unfortunate that this communication to the Adjudicator was not also provided to the Applicant at the time, or that there was any form of ex parte communication to the Tribunal Member. In the end, having reviewed what appears in correspondence, I consider that what is described was in fact uncontroversial, and did not, and cannot, have affected the result adversely for the Applicant. The transcript referred to in the letter was something which later on, as the Reasons acknowledged at [34], the Applicant himself conceded accurately recorded the conversation he had. There can be no apprehension of bias on the part of Adjudicator simply because he received that communication even though it was not also conveyed to the Applicant.
The second aspect of Ground 11 concerns other ex parte communications by representatives for the Respondent to QCAT, in the context of managing the ADR in the proceeding.
Those communications, which included exchanges by both parties in which various offers to settle are made in seeking to resolve the proceeding have not been shown to have in any way come before the Adjudicator himself, or for that matter have been in any way used as a foundation for his findings.
Again, it may be readily accepted that ex parte communications with QCAT, even with its ADR managers, ought not occur. That said, in my view the fact that those communications were sent is not a basis to challenge the Adjudicator’s findings. Nor do they demonstrate bias or prejudgment.
Appeal Ground 9
Ground 9 contends that the Adjudicator made an error as to whether the policy provisions were enlivened with respect to a claim involving water inundation to the car.
The Applicant contends that he merely telephoned and indicated that he needed a hire car or replacement car and that the Respondent had no authority to act as they then did. In my view this point is the same as his earlier point that he did not make a claim, put another way.
In this context the contention is that he did not make a claim initiating the conclusion to write off the vehicle and make a payout. In my view this ground fails for the same reasons as I have already given in relation to earlier grounds which depend upon whether the Adjudicator properly found that he had made a claim initiating the determination to write off the vehicle and make a payout.
It follows that none of the grounds of appeal have been substantiated. I order that the appeal be dismissed.
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