Wrigley v Insurance Australia Limited - [2016] FCA 638

FEDERAL COURT OF AUSTRALIA
Wrigley v Insurance Australia Limited [2016] FCA 638

File number: TAD 3 of 2015

Judge: MOSHINSKY J

Date of judgment: 2 June 2016

Catchwords: INSURANCE – home and contents insurance policy – residential dwelling severely damaged by fire – insurer alleged that the fire was started by the home owners – whether insurer established on the balance of probabilities that the owners started the fire

Legislation:
Criminal Code Act 1924 (Tas), Sch 1, ss 267, 268 and 269

Evidence Act 1995 (Cth), s 140

Insurance Contracts Act 1984 (Cth), ss 13, 54, 57

Cases cited:
Ashby v Slipper (2014) 219 FCR 322

Commonwealth v Fernando (2012) 200 FCR 1

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

Date of hearing: 7, 8, 9, 10 and 11 March 2016

Registry: Tasmania

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 96

Counsel for the Applicants: DJ Gunson SC with S Chopping

Solicitor for the Applicants: S Chopping

Counsel for the Respondent: M Douglas

Solicitor for the Respondent: Dohertys Barristers & Solicitors

ORDERS

TAD 3 of 2015

BETWEEN:
BRETT ROBERT WRIGLEY

First Applicant

YVONNE WRIGLEY

Second Applicant

AND:
INSURANCE AUSTRALIA LIMITED (ACN 000 016 722) TRADING AS NRMA INSURANCE

Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

2 JUNE 2016

THE COURT DECLARES THAT:
1.The respondent is liable to indemnify the applicants in the amount of $497,900 in accordance with the terms and conditions of the home and contents policy of insurance (policy number HOM 491494659) issued by the respondent to the applicants on or about 16 February 2014 and in force from that date until on or about 16 February 2015 in respect of the loss by fire that occurred on 4 October 2014.

THE COURT ORDERS THAT:
2.The respondent pay the applicants interest (in respect of the period from 2 December 2014 to 11 March 2016) in the amount of $31,735.55 and (in respect of the period from 12 March 2016 to the date of payment) at a daily rate of $68.21.
3.The respondent pay the applicants’ costs of the proceeding.
4.If either party seeks a variation of orders 2 or 3 above, the party may give notice in writing to the Court and the other party within three business days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction

On the evening of Saturday, 4 October 2014, the home of the applicants (Mr and Mrs Wrigley) at 5 Claridge Court, Triabunna, Tasmania, was severely damaged by fire. Mr and Mrs Wrigley lived in the house with their daughter and grandson. All of them were out of the house at the time. The fire started in the family room at the back of the house, in the part of the room used by Mrs Wrigley as a sewing room to produce craft products. That part of the room contained a large volume of craft materials as well as plastic and glass containers with flammable contents.
The fire was first seen at about 7.25pm by a police officer who happened to be in the area. He notified the police radio room, requesting a dispatch to the Tasmanian Fire Service, and telephoned the Chief of the Triabunna Fire Service. The police officer arrived at the house within 60 to 120 seconds, that is, by 7.27pm. After checking that no-one was inside, and removing a distressed dog from the rear yard, he attempted to put out the flames (which were coming out of a side window facing the deck) with a garden hose. But it was a fruitless attempt. The fire spread quickly through the back part of the house and, after about two or three minutes, into the roof. The two rear windows exploded. The fire brigade arrived within minutes and the Wrigleys arrived back a few minutes after that. The fire was eventually extinguished. But by this stage the back part of the house was almost destroyed and the front part of the house badly damaged by the smoke from the fire.
The respondent, which trades as NRMA Insurance, alleges that the fire was started by the Wrigleys and has refused to indemnify them under their home and contents insurance policy. The Wrigleys deny that they started the fire and sue for the amount covered by the policy.
The sole issue to be determined is whether the respondent has established on the balance of probabilities that the Wrigleys, or either of them, started the fire. It is common ground that the burden in relation to this issue is on the respondent, rather than Mr and Mrs Wrigley.
The respondent relies, in particular, on the evidence of a next-door neighbour and of an expert witness. The next-door neighbour’s evidence was that, while she was outside feeding her dog, she heard a smoke alarm and heard the Wrigleys’ front door close; after returning inside, she saw (through a window) the Wrigleys’ car reversing up their driveway and driving up the street at a speed which was faster than usual; and, while in her lounge, and within one to two minutes of hearing the smoke alarm, she heard a loud explosion, pulled aside the curtain, and saw what looked like a wave of fire and flame coming out of the rear corner of the Wrigleys’ house. She said that it seemed to roll up around the roof and over the roof like a wave. She also described it as a ‘fireball’. The expert gave evidence that, based, in particular, on the burn patterns, evidence of an explosion, and the rapid fire development, the most probable cause of the fire involved the use of an open flame deliberately applied to ignitable liquid on the floor of the family room.
Both Mr and Mrs Wrigley gave evidence that they did not light the fire. They accounted for their movements in the days before, and on the day of, the fire. They said that they left the house at about 7.00pm on the evening of the fire (that is, about 25 minutes before the fire was seen by the police officer). They gave evidence that nearly all of their belongings, and those of their daughter and grandson, were destroyed in the fire.
In my view, the respondent has not established that the Wrigleys, or either of them, started the fire. In summary, my reasons are as follows.
(a)First, the respondent’s case largely depended on the evidence of the next-door neighbour. While I think her evidence was honestly given, I have doubts about the reliability of some parts of her evidence. She was interviewed by police the day after the fire and by an investigator five days after the fire. She also swore an affidavit in the proceeding. There are inconsistencies between her accounts of what happened, and some elements of her later accounts were not included in the statement she gave to the police the day after the fire. As a result, I am not satisfied that the respondent has established certain elements of its case.
(b)Secondly, the report and opinions of the expert are subject to several limitations. The expert did not seek or obtain a detailed account of the events from the police officer who was first at the scene of the fire. His evidence at trial included important matters which may have had a bearing on the expert’s report and opinion, but were not factored in to her analysis. The expert did not obtain more detail from the next-door neighbour about the strength of the explosion or how loud it sounded. The expert did not obtain detailed information about the ‘fuel load’ in the rear part of the house; this information was important to the formation of a complete picture of the fire. Detailed information about the other contents of the two rear rooms was not obtained by the expert.
(c)Thirdly, no ignitable liquid was found to be present in samples taken from the scene of the fire. Although this may be consistent with the fire having been deliberately lit, it nevertheless means that a potential source of objective evidence that the fire was deliberately lit is not present.
(d)Fourthly, it is not established that the Wrigleys had a motive to burn down their home. The respondent contends that their financial circumstances were difficult and therefore they had a financial motive to light the fire. The respondent submits that it need not be assumed that they intended a fire of the size which eventuated; their intention may have been to create a small fire in part of the house. In my view, the financial situation of the Wrigleys was no different from many others and does not indicate that they had a motive to light a fire in their home.
(e)Fifthly, the circumstantial evidence supports the view that they did not light the fire. The house had been renovated. By all accounts, the house was beautifully maintained inside. The Wrigleys and their daughter, Nikki, had many special personal items in the house. I accept their evidence that these items were in the house at the time of the fire and were destroyed by the fire. Further, the sewing room area contained many items of equipment and a large volume of materials collected or purchased by Mrs Wrigley over several years. Arts and craft work was a ‘labour of love’ for Mrs Wrigley; it seems unlikely, therefore, that she would set out to destroy all of her equipment and materials. These circumstantial facts point clearly against the proposition that they lit the fire and, to my mind, outweigh the expert evidence which is subject to limitations and, in any event, not definitive.
It follows that there should be judgment for the Wrigleys for the amount of the policy (less a small amount for money already advanced), there being no dispute about quantum.
The pleadings
The proceeding was commenced by originating application. By that document, the Wrigleys claim a declaration that the respondent must indemnify them in accordance with the terms and conditions of the home and contents policy of insurance issued by the respondents to them on or about 16 February 2014 and in force from that date until on or about 16 February 2015 in respect of the loss by fire that occurred on 4 October 2014. In the alternative, the Wrigleys claim damages representing the loss occasioned to them in the sum of $502,900. They also claim interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cth) (the Act) and costs.
In the statement of claim, the Wrigleys plead the policy of home and contents insurance, by which the respondent insured them against loss or damage by fire to their home and the contents thereof up to agreed amounts, namely $374,500 for the house and $128,400 for the contents. This allegation is admitted in the defence (incorporating further and better particulars) (the defence).
The Wrigleys allege that at all material times they were interested in the house and contents to the extent of the amounts insured. Although this allegation is not admitted in the defence, it was admitted at trial.
The statement of claim next pleads that, on 4 October 2014, the house and contents were destroyed by fire, and that the Wrigleys have suffered loss and damage as a result. The particulars of loss are $374,500, being the total loss of the insured value of the house, and $128,400, being the total loss of the insured contents.
The Wrigleys next plead that they duly notified the respondent of the loss occasioned to them as a result of the fire and claimed indemnity from the respondent pursuant to the terms and conditions of the house and contents policy. This allegation is admitted in the defence.
Finally, the Wrigleys claim that the respondent refused to indemnify them in accordance with the terms and conditions of the policy of insurance and as a result them they have suffered loss and damage. In its defence, the respondent admits that it has refused to indemnify the Wrigleys.
The respondent pleads, in its defence, that:
(a)the Wrigleys started the fire referred to in the statement of claim with the intention to cause damage for the purpose of obtaining a benefit they would not otherwise be entitled to;
(b)the fire was a result of an intentional act and/or omission by the Wrigleys for the purposes of obtaining a benefit to which they are not otherwise entitled;
(c)the Wrigleys’ claim for indemnity arises from the illegal activity of arson in which the Wrigleys have been involved;
(d)the Wrigleys are in breach of their duties to the respondent pursuant to s 13 of the Act and the respondent’s liability to indemnify is reduced to nil pursuant to s 54 of the Act;
(e)the Wrigleys have made a fraudulent claim and the respondent is entitled to rely on the provisions of s 56 of the Act;
(f)the respondent relies upon the terms of the contract of insurance and in particular the exclusions listed under the heading “SPECIFIC EXCLUSIONS” and “GENERAL EXCLUSIONS”.
The respondent also alleges in its defence:
(a)The main area of the fire which the respondent alleges was started by the Wrigleys is on the floor in the living area with a second probable area of origin on the floor of the fourth bedroom. (I note that this bedroom is labelled bedroom 1 in the diagram in paragraph [30] below.)
(b)The respondent is unable to say which of the Wrigleys started the fire save that it was started by one or both of them, with each of them participating in the behaviour alleged.
(c)The respondent is unable to state with particularity the manner in which the fire was started by the Wrigleys or either of them, save that the expert evidence of the respondent indicates the most probable fire cause involves the use of an open flame deliberately applied to an ignitable liquid on the floor of the living room and the fourth bedroom.
On the basis of these matters, the respondent denies that the Wrigleys are entitled to the relief claimed and further says that, as a matter of public policy, the Wrigleys should not be entitled to any or all of the relief claimed.
The trial
At trial, there was no issue that, subject to the issue of who started the fire, the Wrigleys otherwise satisfied all the requirements to claim under the policy. Further, there was no issue as to quantum. That is to say, the respondent accepted that, if it was unsuccessful on the issue of who started the fire, the Wrigleys were entitled to the full amount of cover under the policy.
It was common ground at trial that the respondent bore the burden of proof in relation to the issue of who started the fire, and that it should present its case first on this issue. As all elements of the Wrigleys’ claim for indemnity under the policy, other than the issue of who started the fire, were admitted, the respondent presented its evidence first and the Wrigleys presented their evidence second.
The evidence in chief was partly by affidavit and partly oral. Although affidavits had been filed before trial, in many cases counsel adduced additional oral evidence in chief from the witnesses. No objection was taken to this course.
The respondent adduced evidence from the following witnesses:
(a)Nathan Dyke, a national litigation consultant for the respondent. He filed an affidavit and was not required for cross-examination. His affidavit annexes the home and contents insurance policy and some other documents.
(b)Erin Bishop, a next-door neighbour of the Wrigleys. She lives at 6 Claridge Court.
(c)Tony Burley, an insurance investigator engaged by the respondent.
(d)Constable Daniel Lamont, a police officer stationed at Orford Police Station. He saw the fire while he happened to be in the area and was the first to attend the scene of the fire.
(e)George Auchterlonie, a firefighter and employee of Tasmania Fire Service. He investigated the fire and prepared a report.
(f)Belinda Jones, an expert witness.
Apart from Mr Dyke, each of the other witnesses was cross-examined. In the case of Mrs Bishop, she was recalled for further cross-examination in relation to a document produced on subpoena, namely a statement which Mrs Bishop gave to police on the day after the fire.
The applicants adduced evidence at trial from the following witnesses:
(a)Nikki Wrigley, the daughter of the Wrigleys;
(b)Yvonne Wrigley; and
(c)Brett Wrigley.
It was common ground at trial that the respondent needs to establish its case, in relation to who started the fire, on the balance of probabilities, taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (Cth). Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is not necessary for present purposes to discuss this provision in detail, but I note that it has been considered in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [29]-[38] per Weinberg, Bennett and Rares JJ; Commonwealth v Fernando (2012) 200 FCR 1 at [129]-[130] per Gray, Rares and Tracey JJ; Ashby v Slipper (2014) 219 FCR 322 at [63]-[73] per Mansfield and Gilmour JJ. The respondent’s case amounts to an allegation that the Wrigleys engaged in conduct constituting a criminal offence (see, in particular, ss 267, 268 and 269 of the Criminal Code, being Sch 1 to the Criminal Code Act 1924 (Tas)). In these circumstances, the subject matter of the proceeding is serious and the matters alleged are grave; these matters are to be taken into account when considering whether the respondent has established its case on the balance of probabilities.
I will first make factual findings relating to matters other than the evening in question; I will then turn to consider the events of the evening in question; I will then consider whether the respondent has made out its case.
Factual findings (apart from the evening in question)
The facts set out below represent my factual findings based on the affidavit and oral evidence.
The policy of insurance
It is not necessary to refer to the home and contents insurance policy and the relevant exclusions. There is no issue that if (as the respondent contends) the Wrigleys, or either of them, deliberately started the fire they would not be entitled to indemnity under the policy. The case was conducted at trial on the basis that the sole issue to be determined is whether the Wrigleys, or either of them, deliberately started the fire.
The house
Mr and Mrs Wrigley purchased the house in 2005 with the proceeds of sale of another home.
Subsequently, Mr and Mrs Wrigley extended the house. The extension cost approximately $100,000, which they borrowed from a credit union. Following the renovation, the floor plan of the house was as depicted in the following diagram (the diagram), which is part of Ex A2.
The front of the house (fronting onto Claridge Court) is at the top of the diagram. The front part of the house was the original house. The rear part of the house was the extension, which about doubled the size of the house. There is a driveway down the right side of the property as one faces the house from the street (in other words, on the left side of the house in the above diagram). There is a yard at the rear and to the left side of the property as one faces the house from the street. There were two gates. The first gate was across the driveway, near the porch. There was also a gate beneath the bottom right corner of the house (as that corner appears in the above diagram). There were French glass doors opening onto the deck; these appear in the diagram immediately to the left of the word ‘deck’.

As at October 2014, Mr and Mrs Wrigley lived in bedroom 1, at the rear of the house. Nikki and Ryder lived in and used bedrooms 4 and 2, at the front of the house.
Nikki Wrigley and her son Ryder moved in to live at the house in April 2014. Ryder was one year old at that time. Nikki moved her clothes, all of Ryder’s clothes and all of Ryder’s toys into the two rooms which they occupied at the front of the house. They used bedroom 4 as a lounge room and bedroom 2 as a bedroom.
Mrs Wrigley used the rear part of the room labelled ‘family’ as a sewing room for her arts and craft activities. The sewing room area of the family room was separated from the rest of the room by a barrier consisting of furniture and a baby gate, so as to keep Ryder out of that area.
Mrs Bishop, who had visited the Wrigleys’ house, accepted during cross-examination that it was beautifully maintained inside. I accept this evidence.
The Wrigleys
Mrs Wrigley said in oral evidence (either evidence in chief or cross-examination), and I accept, that: Mrs Wrigley attended to the management of the financial affairs of the household; Mr Wrigley had been receiving workers compensation payments since 2002, after he fell off a roof in New South Wales; Mr Wrigley had not worked since the accident and, as at October 2014, there was no prospect that he would return to work; as at October 2014, he was receiving $1,396 per fortnight after tax; in the weeks leading up to October 2014, Mrs Wrigley had been accepted by Centrelink for a carer’s allowance, to care for Mr Wrigley, the amount being $420 per fortnight; the rough family income was $900 per week; as at October 2014, they owed $106,000 on their mortgage; the mortgage payments were fortnightly; Nikki had her own income and contributed to household expenses such as utilities and groceries; they did not have any credit cards or store cards; they lived from week to week and did not have any significant savings in bank accounts; the insurance premiums on the home and contents policy and the mortgage payments were paid late from time to time; in the period August to October 2014, there were many instances of direct debits, which were the subject of a direct debit authority, being dishonoured because there were insufficient funds in their bank account; Mrs Wrigley would describe herself as a bit of a ‘spender’; in May 2013, they purchased a Thermomix for $1,939 (with money from the sale of other things); in July 2014, they purchased a new dishwasher from Harvey Norman for $550.
During cross-examination, it was put to Mrs Wrigley that there were things she wanted to buy for herself and her children that she just could not afford. She rejected this and said, effectively, that they had everything they wanted. It was also put to her that, after a very hard 12 years, by 2014 she had reached the point where she was prepared to look after herself a little bit and make expenditures that she just could not justify. She rejected this. I accept Mrs Wrigley’s answers to these questions. While (as Mrs Wrigley accepted) they were living from week to week and had no bank savings, they were able to buy the things they wanted and make ends meet.
Mrs Wrigley gave oral evidence, which I accept, that her interest in arts and craft started in 2010, when she learnt to quilt at the quilt shop in Triabunna; she spends most of her spare time – about six hours a day – on arts and craft work; she makes patchwork quilts, baby clothes, Christmas quilts, baskets and bags; and she sells these items to supplement their income.
Mr Wrigley gave evidence during cross-examination, which I accept, that because of his fall, he is never likely to work again; he needs his wife to look after him, some days more than others; his wife handles all the money in the household and takes care of the house; she makes the decisions in the household; she consults him on major purchases but otherwise makes the decisions as to what money is to be spent on; and she handles the bills and everything else financial.
The Wrigleys had two dogs, which normally lived in the back yard. Mrs Wrigley said in her oral evidence, and I accept, that Mr Wrigley hunted kangaroos or wallabies for food for the dogs and would go out and do this weekly; and that this was a common practice in the area.
The sewing room area
In relation to the sewing room area, Mrs Wrigley gave evidence, which I accept, that she had three sewing machines and an overlocker; she had two irons and one craft iron; on the wall that was the bedroom wall she had rows of cane baskets on hooks, in which she had different laces and materials; there were at least 12 cane baskets on the wall; they were high up; they were about three-quarters full; under them was a cutting table with a small craft ironing board; beside that was a new scan and cutter (this enables one to scan a pattern and cut the pattern at the same time); there were about six cane baskets of materials on the floor of that area; they were about the height of a chair and their diameter was a bit wider than the kind of rubbish bins that were often used before wheelie bins; they were full with uncut and cut materials; and she had bolts of material and wadding lined up on the floor, under the window.
Mrs Wrigley gave evidence, which I accept, that she used the following products in her arts and craft work and they were in the sewing room area at the time of the fire:
(a)quilting basting spray;
(b)paper spray glue;
(c)CraftSmart Glue;
(d)CraftSmart Clean Up solution.
She also gave evidence, which I accept, that she had, in the sewing room at the time of the fire, 20 metres of iron-on pellon forming one bolt; a large roll of iron-on Visoflex; two rolls of iron-on tracing paper; about 50 panels, which are pieces of material about the size of a door, used for wall hangings, quilts, baby quilts and cot quilts; four shelves full of flannelette for making baby pyjamas (these were in a pine wardrobe); quilting materials, patchwork strips and jelly rolls (a form of material), which were kept in the baskets on the wall.
Mrs Wrigley gave evidence, which I accept, that there were two power points in the sewing area – one in the corner under the two windows and one in the other corner; she had some four-plug power boards; at all times, the sewing machines, the overlocker and the irons were connected to the power boards or the wall sockets; the power was kept on at all times; when she went away, it was usual for her to leave the power points on.
She also gave evidence during cross-examination, which I accept, that the sewing room area was the most important room to her in the house, that she tidied it up regularly, and kept everything in its place.
The rear bedroom
In relation to the rear bedroom, Mrs Wrigley gave evidence, which I accept, that there was a queen size bed; it was a special bed for Mr Wrigley’s back, made of material and foam, with a two-inch pillow top; under the bed there were at least five cardboard boxes with photographs and negatives in them (the boxes were cutlery and clean pizza boxes).
The days leading up to the fire
Mrs Wrigley said in oral evidence (either evidence in chief or cross-examination), and I accept, that on the Wednesday before the fire, she and Mr Wrigley went on a trip up to the north of the State; the purpose of the trip was to buy craft materials for her use; they travelled to Longford, Deloraine, Ulverstone, Exeter, Evandale and George Town; they were originally planning to return on the Sunday, but they received a call that Mrs Wrigley’s mother had had a fall and therefore cut back their trip by a day and went to Swansea (where Mrs Wrigley’s mother lived); they stayed in Swansea on the Friday night and most of the Saturday; they stayed with Mrs Wrigley’s mother until 2.30 or 3.00pm on the Saturday.
Factual findings (in relation to the evening in question)
I turn now to consider the events of the evening in question. It is convenient to start by setting out certain facts which are not controversial:
(a)Nikki and Ryder were not at home during the afternoon or evening. Nikki was at the home of her friend, Jessica Broekmeulen.
(b)At 7.01pm, Mrs Wrigley sent a text to her friend, Susan Southorn, to the effect that she (Mrs Wrigley) wanted to come to show her some new materials. Mrs Southorn lived in Spring Beach, which is about 10 minutes’ drive from the house.
(c)Mr and Mrs Wrigley left the house together, in their car.
(d)The fire had started by 7.25pm.
(e)Constable Lamont saw the fire while he happened to be in the area at about 7.25pm. He notified the police radio room of his observations and requested a dispatch to the Tasmania Fire Service. He also telephoned the Chief of the Triabunna Fire Service. Constable Lamont drove to the house, arriving approximately 60-120 seconds from the time he first saw the fire.
(f)Mrs Bishop saw the fire and ran out of her house as Constable Lamont was getting out of his car. Constable Lamont asked Mrs Bishop if anyone was in the house and she said the Wrigleys had just left.
(g)Constable Lamont let the dog, which appeared distressed, out of the yard and checked the exit or entry points of the house to make sure no-one was home. He attempted to use a garden hose to fight the fire but this was fruitless.
(h)The fire was in the rear of the house. Initially, it was in the family room. It quickly spread to bedroom 1 (as described in the diagram).
(i)At 7.32 or 7.35pm, the fire brigade unit from Triabunna arrived at the house. (Mr Auchterlonie’s affidavit says it was 7.32pm but his report says it was 7.35pm, which is also the more natural way to read the entries in the ‘Brigade – Incident Call Log’, which he annexes to his affidavit.)
(j)Mr and Mrs Wrigley arrived back at the house shortly after the first fire brigade vehicle.
(k)Fire brigade units from Swansea and Buckland arrived later, at 7.43pm and 7.56pm respectively.
There is significant controversy, however, about other aspects of the events on the evening in question. In particular, the following matters are controversial:
(a)the time at which the Wrigleys left their house − whether this was about 7.22pm, which is the effect of Mrs Bishop’s evidence, or about 7.01pm, which is the effect of the Wrigleys’ evidence;
(b)whether the Wrigleys’ smoke alarm was sounding at the time they left the house;
(c)whether the Wrigleys drove up the street at a speed which was faster than usual for them;
(d)whether the Wrigleys’ account of why they left the house, and what they were doing, is correct;
(e)whether Mrs Bishop heard a loud explosion while in her lounge and, if so, what this was;
(f)whether Mrs Bishop’s description of what she saw from the window in her lounge is accurate;
(g)whether there was an explosion at any stage and, if so, the nature of the explosion;
(h)whether, in a conversation with Mrs Bishop in February 2015, Mr Wrigley made an admission that Mrs Wrigley lit the fire.
I now address the evidence given by each of the witnesses in relation to these issues. I have included transcript references to assist the parties’ consideration of these reasons.
Constable Lamont
Constable Lamont swore two affidavits. The evidence in his affidavits was as follows:
(a)On Saturday 4 October 2014, he was on mobile patrol in the Triabunna area on his own.
(b)At approximately 7.25pm, he observed flames and smoke coming from the rear of the house which he subsequently confirmed to be a residence at 5 Claridge Court, Triabunna. He sighted the fire just after he had crossed the bridge at Triabunna.
(c)Upon noting the flames and smoke from the residence, he notified the police radio room of his observations and requested a dispatch to the Tasmania Fire Service. In his second affidavit, he confirmed that this was at 7.25pm. He also telephoned the Chief of the Triabunna Fire Service.
(d)He proceeded to 5 Claridge Court. The time from when he first saw the fire to when he arrived was approximately 60-120 seconds.
(e)Upon arriving at the circular end of the cul-de-sac, he ascertained that the back/living area of the house was on fire. Upon his arrival, he spoke to a woman who he subsequently ascertained to be Erin Bishop. She advised him that the occupants had just left and she did not believe anyone was inside the residence.
(f)Constable Lamont entered the property along the driveway on the right-hand side of the residence as it faces the street (the left side in the diagram). He checked the main entrance door to the house, which was locked and showed no signs of disturbance. He then entered the rear yard through a closed gate and removed a dog from the rear yard. He then checked the residence and found the property to be fully locked and secure. There were no open doors or windows. There was no response from any person inside the house.
(g)He observed a gas barbeque on a deck to the rear left side of the house (as it faces the street) catch alight. This barbeque was immediately adjacent to the left rear window (as the house faces the street) which he had initially observed flames coming from. (It is convenient to note at this point that in his oral evidence at trial, Constable Lamont confirmed that this was the window facing the deck in the bottom right corner in the diagram.)
(h)The first flames that he saw upon arrival were coming from the room and window which is at the left hand rear corner (as you face the house from the street) (that is, the bottom right corner in the diagram). The fire appeared towards the middle of the room and did not appear to be travelling up the walls. That same rear window then broke with flames and fire and smoke was emitted from the window. (It is clear from his oral evidence that this is a reference to the window facing the deck in the bottom right corner of the diagram.)
(i)Constable Lamont endeavoured to use a garden hose to spray water on to the flames but this appeared to have little effect on the fire. In his second affidavit, Constable Lamont explained that on his arrival the fire did not appear to have advanced to any great extent and he thought he might be able to achieve some effect with a garden hose. However, the fire then appeared to rapidly spread into the next room and it became clear to him that he was not achieving anything with the garden hose.
(j)At this point, the rest of the rear of the house became fully engaged with the fire.
(k)Constable Lamont continued to maintain observation of the fire and co-ordinate with the Triabunna volunteer fire brigade who had just arrived.
(l)He was approached by a man and a woman who identified themselves as Brett and Yvonne Wrigley, the owners of the residence. After questioning the Wrigleys, it was Constable Lamont’s understanding that they had left the residence a short time earlier and it was vacant upon them leaving. On further questioning, he ascertained that Mrs Wrigley believed she had left a number of electrical items on inside the house as they had only intended to be gone from the house for approximately one hour.
(m)During a subsequent conversation with Mrs Wrigley, she first advised him that she had left the iron on, she next advised that she had left sewing machines on, and she also advised that she had left lights and the television on. Constable Lamont said in oral evidence that the conversation took place the morning after the fire.
Constable Lamont completed an offence report, a copy of which was in evidence (Ex A9) (the Offence Report). The Offence Report records that on 5 October 2014 (the day after the fire) Constable Lamont stated as follows:
At approximately 1925hrs on Saturday 4^th of October 2014, uniform police patrolling the Triabunna area have observed flames coming from the window of a dwelling at the bottom of Claridge Court. A request for Tas Fire service has been made via police radio room and closure (sic) inspection has identified the property as number 5 Claridge Court Triabunna. Attempts were made to ascertain if the house was occupied with all doors and windows found to be secure and no persons responsive, neighbours were spoken to and advised the occupants had left a short time prior to police arrival and did not believe any person/s were inside the dwelling.
Attempts were made to control the fire with garden hoses at the rear left corning (sic) of the house however the fire quickly spread through the rear of the house and into the roof, strong winds began to fan the fire and a number of windows began to explode.
TAS Fire service volunteers from Triabunna and Buckland stations attended and the fire was eventually extinguished with a large amount of structural damage sustained to the rear of the residence and smoke damage to the remainder of the house.
The owners arrived a short time after TAS Fire volunteers and confirmed that the residence was vacant. TAS Fire service examiner attended following morning along with police forensic and CIB officers, an examination of the scene was conducted with a number of ignition points in the rear of the house and burn and charing (sic) patterns consistent with an excellarent (sic) being used in this area, as a result the fire was deemed to have been deliberately lit, with a number of photographs and samples taken from the rear rooms of the dwelling for analysis.
Fire Investigator to complete an examination report and matter to be investigated by Bellerive CIB.
In his oral evidence during the trial, Constable Lamont gave the following evidence:
(a)Constable Lamont gave evidence that he saw the fire from the bridge that continues Vicary Street across the water before it becomes Boyle Street. A glow attracted his attention. He saw the glow prior to approaching the bridge. He did not have an uninterrupted view of the house until he got to the bridge, and that is when he saw the flames. He initially observed the flames as he was going over the bridge. The flames were coming out of the corner of the house (T88-89).
(b)It was only a matter of seconds for him to drive from the bridge up to Claridge Court (T89). (I do not take this as departing from the estimate in his affidavit evidence that it took approximately 60-120 seconds.)
(c)Constable Lamont said that when he arrived at the house the fire was in the same vicinity as when he first saw it, namely the back corner. The following exchange then occurred between senior counsel for the applicants and Constable Lamont (T90):
And was the fire contained within the building at that stage?---No, I – as I had spoken to previously, the flames were coming out the side of the building when I first saw them on the bridge.
Okay, but they hadn’t got onto the roof?---No.
And if I suggested to you it was some little while before the fire got onto the roof, would you agree with that?---Agree, yes.
Yes. How long do you think it was after you got there that the fire came out through the roof?---So – yes, it appeared that there was a gas barbecue around that corner where I saw the flames to start with.
Yes?---And that window had exploded or however it happened and the flames were coming out that window and then the flames came along the back rear house – of the house and the window started exploding then, so the fire was contained inside the actual structure for – it’s hard to say time-wise because it happens so quickly when you’re there, but I would say until it got into the roof it would have been a good two or three minutes at least.
(Emphasis added.)
(It is clear from Constable Lamont’s evidence at trial, including his annotation of the diagram, that the window that “had exploded or however it happened” and from which flames were coming out prior to his arrival, was the window facing the deck in the bottom right corner of the diagram (T92).)
(d)His first steps when he arrived were to let the dog out, as it was in a distressed state in the driveway, and to check the exit or entry points to make sure no-one was in there. He accepted that at this stage he thought it was possible to fight the fire, but due to the lack of a suitable hose and water pressure, it was a fruitless attempt (T90-91).
(e)At the time he arrived, he could not see any obvious flames elsewhere in the family room. The only flames he observed on arrival were coming out the window facing the deck at the bottom right of the diagram (T93).
(f)Constable Lamont agreed with the proposition that at the time he arrived “the fire certainly had not exploded”. He agreed that “[i]t hadn’t burst through the roof in a ball of flame”. He was asked whether it ever burst through the roof in a ball of flame and answered, “No”. He was asked whether he ever observed a great rolling wave of fire smashing through the roof and rolling across the top of the house and answered, “No” (T94).
(g)Constable Lamont initially said that the only explosion that he could recall hearing while he was at the scene was from the glass bricks from the ensuite (which is above bedroom 1 in the diagram). He said the glass bricks began to pulsate and individually explode as the fire moved from the rear of the house up towards the porch area (T98).
(h)However, Constable Lamont also said: “That window there in the bottom right-hand corner, that exploded and then the subsequent window in the bedroom number 1 exploded” (T99). (Constable Lamont was here referring to the rear window of the family room and the rear window of bedroom 1 in the diagram.)
(i)Mr and Mrs Wrigley arrived back at the fire scene a little while after Constable Lamont arrived. He said that both Mr and Mrs Wrigley seemed upset. The main concern was whether anyone was inside the house; Mrs Wrigley advised that there was no-one inside the house. She said that the bird may have been inside the house (T102, T104).

I found Constable Lamont to be a credible witness. His answers were responsive to the questions he was asked. He appeared to have a good recollection of the events and was clear and generally consistent in his evidence during cross-examination.
There are some differences between his affidavit evidence and his evidence during cross-examination, but I do not think these are significant. In particular, in his affidavit evidence he said that upon arrival the fire appeared towards the middle of the room which is the family room in the diagram, but in his evidence during cross-examination he said that upon arrival the only flames he observed were coming out of the bottom right corner of the house. Further, in his affidavit evidence he said that the rear window facing the deck “then broke”, that is, after his arrival, but in his evidence during cross-examination he said that that window “had exploded or however it happened” and flames were coming out of that window by the time he arrived. To the extent that there are differences between his affidavit evidence and the evidence he gave during cross-examination, I prefer the latter, as it was the subject of careful questioning to establish his recollection as precisely as possible. Subject to this qualification, I accept Constable Lamont’s affidavit evidence. I also accept all of the evidence he gave at trial, as summarised above.
Mrs Bishop
Mrs Bishop gave evidence in her affidavit as follows:
(a)She had recently separated from her husband, Andrew, and he had moved out. On the day in question, he had taken their children and was living at his parents’ place which is only one to two minutes’ drive from their house.
(b)She was, therefore, home alone. She had a bath in the afternoon and made herself dinner at approximately 6.30pm.
(c)At about 7pm, she thought she would watch a movie. She made some popcorn in the kitchen and prepared a drink. She thought she would feed the dog, which was in the back yard, before she sat down to watch the movie.
(d)She was standing on approximately the third step from the back porch feeding the dog. She had been outside approximately 10 to 20 seconds when she heard a noise she recognised to be a smoke alarm. She looked in the direction that it seemed to be coming from. That was the back area of the Wrigleys’ house. She could hear it quite clearly as it was very loud and piercing. She could see nothing that suggested to her that there was a fire or anything that looked like there was a problem. It did not occur to her that it might be a fire. She heard a door close, which she knew to be the front door of the Wrigleys’ house, because the noise was loud and distinctive.
(e)Mrs Bishop walked back into her house and put the tin of dog food in the laundry. She has a large window in her laundry from which she can see the front part of the driveway of the Wrigleys’ house and has a view looking up Claridge Court. As she put the dog food tin down, she could see a car which she recognised to be a Mitsubishi Magna of an older type belonging to the Wrigleys. Looking out the laundry window, she saw the Wrigleys’ car reverse up the driveway. She did not see who was driving. At this time, it was not night-time, but not fully daylight. It was somewhere approaching dark.
(f)She then walked into the kitchen, which is adjacent to the laundry. The kitchen window gives a good view straight up Claridge Court. She saw the Wrigleys’ car drive up Claridge Court at a rate of speed that was noticeably faster than she had seen them drive before. In her affidavit she states that, based on her past observations, both Mr and Mrs Wrigley are slow and careful drivers, but “[o]n this occasion the vehicle seem[ed] to be driving a lot faster than I would normally have expected”.
(g)Mrs Bishop took her drink and popcorn (which she had made and prepared before going outside to feed the dog) and sat down in a lounge chair in the corner of the living room. Just as she sat down, she heard a very loud explosion. She states in her affidavit that “[i]t was quite terrifying”. She pulled the curtain aside immediately and looked out. The seat is immediately adjacent to a very big window which has a good view of the Wrigleys’ house. She then states in her affidavit: “What I saw was particularly vivid. As best I can describe it, I saw what looked like a wave of fire and flame coming out of the south western corner of the [Wrigleys’] house. It seemed to roll up around the roof and over the roof like a wave”. She states that the time from when she first heard the noise, which she believed to be a smoke alarm, to the time when she heard this explosion would have been between one and two minutes. (I note that Mrs Bishop referred here to the south-west corner of the Wrigleys’ house. It is clear from her evidence generally that she was referring to the bottom right corner in the diagram. Although counsel also referred to this corner as the south-west corner, it appears from the evidence generally that it may in fact be the north-west corner. Nothing turns on this and, to avoid confusion, I will refer to the bottom right corner of the diagram.)
(h)Mrs Bishop was very startled. She grabbed her mobile phone and started running outside her house into the cul-de-sac. As she ran out the front door, she rang Andrew’s number, which she had on speed dial. She told him in very urgent terms that the Wrigleys’ house had just blown up and he should get there. (It is convenient to note here that it appears from her mobile phone, which she showed Mr Burley, that the call was made at 7.24pm.)
(i)As she went out to the front of her house into the court, she saw a police officer just getting out of his car. He asked her whether anybody was home (in the Wrigleys’ house). Mrs Bishop replied that the Wrigleys had just left. He then enquired whether there were gas cylinders in the house. She said that she believed there was a barbeque on gas. The police officer then ran into the yard of the Wrigleys’ house.
(j)Andrew and Mrs Bishop’s father-in-law arrived in less than five minutes, and before the first fire brigade.
(k)After the first fire brigade had arrived, the Wrigleys arrived back and parked in the street. Mr Wrigley got out of the car and walked towards the police officer and fire brigade personnel. He was very distressed. Mrs Wrigley remained in the passenger seat of the car. Mrs Bishop went to ask if she was okay. Mrs Bishop states that she did not seem distressed, but expressed concern for her sewing machines, her jewellery and photos of Tom, her brother, who had died recently.
(l)Mrs Bishop also gives evidence of a conversation with Mr Wrigley on the afternoon of 25 February 2015. She says that she was out the back of her house and noticed Mr Wrigley collecting things from the house. She initiated a conversation with him, enquiring when they thought work might start to repair the house. He said that they were having a mediation on 18 March 2015. Mr Wrigley referred to Mrs Bishop having given a statement to the insurance company saying that they were at home, and said that he knew this because the insurance investigator had told him. Mrs Bishop states in her affidavit that Mr Wrigley then said words that she clearly recalls, which were: “They know the old girl lit it”. Mrs Bishop then said, “Really?” and he then quickly responded by saying that they think the old girl lit it. Mrs Bishop states in her affidavit that the manner in which he said this indicated to her that he had become very uncomfortable with what he had just said. Mrs Bishop, on the advice of the insurance investigator, made a note of the conversation, which is annexed to her affidavit. Mrs Bishop states in her affidavit that the note was made on 27 February 2015.
Mrs Bishop gave two other accounts of these events prior to trial. First, she gave a statement to police officer Daryn Splann on the day after the fire (Ex A6) (the police statement). The statement is in officer Splann’s handwriting and signed both by Mrs Bishop and officer Splann. Mrs Bishop gave evidence at trial that she did not read the written statement before signing it, and that she had not slept the night before giving the statement (that is, the night of the fire). Secondly, she was interviewed by Mr Burley, the respondent’s investigator, on 9 October 2014, that is, five days after the fire. The interview was recorded and subsequently transcribed (the record of interview). This was annexed to Mrs Bishop’s affidavit.
It is convenient to note at this point that there are several differences between the police statement, the record of interview and Mrs Bishop’s affidavit:
(a)In relation to the time when she went outside and heard the smoke alarm, in the police statement, she said that it was about 7.45pm, but in her record of interview she said it was about 7.20pm.
(b)In the record of interview, Mrs Bishop said that the “smoke alarm was going off when I first got out there” (Q57). On the other hand, in her affidavit she said that she had been outside for approximately 10 to 20 seconds when she heard a noise she recognised as a smoke alarm.
(c)While in the record of interview and in her affidavit, Mrs Bishop stated that she had seen the Wrigleys’ car drive up the road at a rate of speed that was faster than usual, she made no mention of this in the police statement.
(d)In the police statement, Mrs Bishop said that, after feeding the dog, she went into her kitchen and saw the Wrigleys’ car reverse out of the driveway. In her affidavit, she said that, looking out the laundry window, she saw the Wrigleys’ car reverse up the driveway; and that she then walked into the kitchen, and saw the Wrigleys’ car drive up Claridge Court at a rate of speed that was faster than she had seen them drive before.
(e)In the record of interview, Mrs Wrigley used the word, ‘fireball’ to describe what she saw, but this was not mentioned in the police statement.
Mrs Bishop gave the following evidence at trial:
(a)Mrs Bishop’s property, at 6 Claridge Court, Triabunna, is to the left of the Wrigleys’ house as you go down the cul-de-sac. From her house she can see the side of the Wrigleys’ house which appears on the right of the diagram. She can also see the front part of the Wrigleys’ driveway (T31-32).
(b)Mrs Bishop was questioned about the sound she heard when outside feeding the dog and maintained that it was a smoke alarm. Mrs Bishop said that she assumed it was the Wrigleys’ smoke alarm, but when she saw them leave the house, she thought that “it must be further down the road” (T33-35).
(c)Mrs Bishop accepted that, notwithstanding having heard what she believed to be a smoke alarm, she did nothing about it (T34, T37).
(d)At the time she heard the alarm, there were no flames or smoke (T37, T38).
(e)It was put to Mrs Bishop that it was some time between when she heard the alarm and when she realised the Wrigleys’ house was on fire, but she rejected this. It was put to her that the time she heard the noise of the alarm and saw the Wrigleys go out was about 7.01 or 7.02pm. She rejected this and maintained that it would have been about 7.20pm (T37, T39, T40).
(f)Mrs Bishop did not check a watch or a clock to ascertain the time when she was outside and heard the smoke alarm. She accepted that when she said it was 7.20pm, this was a guess and that it could have been as early as 7.00pm. However, in re-examination, Mrs Bishop was asked how long it was between the explosion and the call she made to her husband (which was at 7.24pm). She said about three seconds. She was then asked how long it was between feeding the dog and sitting down on the couch when she heard the explosion. She said around 24 seconds. She explained that the reason she had said during cross-examination that it could have been much earlier than 7.20pm when she heard the smoke alarm was because she did not have a watch on and did not look at the time (T46-47, T50).
(g)Mrs Bishop said that, as she sat down on the couch to watch television, “I heard an explosion. And I reefed open our blinds and seen a big fireball come out the bottom end of the Wrigleys’ house” (T39).
(h)She said the Wrigleys returned less than five minutes after she went out onto the street, and that Mr Wrigley was very distressed and in tears. She said that Mrs Wrigley was quite calm (T45).
(i)In relation to the conversation with Mr Wrigley on 25 February 2015, it was put to Mrs Bishop that no date had yet been set for the mediation, and therefore Mr Wrigley could not have referred to this date. In light of this, Mrs Bishop accepted that he may have said that the mediation was coming up, rather than referring to 18 March. She also accepted that it was possible that all Mr Wrigley said to her was, “They think the old girl did it” (T48).
(j)Mrs Bishop was recalled for further cross-examination, in relation to the police statement. She accepted that the reference to 7.45pm in the police statement was an error (T107).
(k)She was questioned about a statement (in the police statement) that she thought the alarm was coming from the houses over the back paddock. She said that there was a paddock behind the Wrigleys’ home and beyond that paddock there are other houses, and that is where she first thought the alarm was coming from (T107-108).
(l)Mrs Bishop was questioned about the statement (in the police statement) that she saw the Wrigleys’ car reversing out of their drive from her kitchen window, and her affidavit evidence and evidence during the trial that she had seen this from the laundry window. She maintained that she had seen them reverse out of their driveway from the laundry window. She said that she had then seen them speeding up the road from her kitchen window. She accepted that this was inconsistent with the police statement (T108-109).
(m)She explained that, when she gave the police statement, she was not concentrating properly due to lack of sleep, and had three upset children (T109).
(n)She was questioned about the fact that there is no mention in the police statement of the Wrigleys’ car driving up the street at a rate of speed that was faster than usual. She said that she may not have been asked this question. She accepted that police officer Splann had asked her to explain to him everything she had seen and that she did not tell him that (T109).
(o)As noted above, Mrs Bishop said in re-examination that she had not slept the night before giving the police statement (that is, the night of the fire) and that she did not read the police statement before signing it (T110).
Before making some findings in relation to Mrs Bishop’s evidence, I note that there appears to be a minor discrepancy regarding timing between Constable Lamont’s account and Mrs Bishop’s account. Constable Lamont confirmed in his second affidavit that it was 7.25pm when he notified the police radio room. This was just after he saw the flames and smoke from the residence. The time between when he first saw the fire and when he arrived at the residence was approximately 60-120 seconds. Mrs Bishop’s evidence is that she telephoned her husband (using her mobile phone) at 7.24pm, as she ran out her front door, and as she went out to the front of her house she saw a police officer (Constable Lamont) just getting out of his car. That the time on her phone was 7.24pm was confirmed in the record of interview with Mr Burley. The times do not seem to match up: Constable Lamont’s evidence suggests he arrived at 7.26 or 7.27pm; Mrs Bishop’s evidence suggests he arrived at 7.24 or 7.25pm. It may be that the relevant devices were not set to precisely the same time, and this explains the apparent discrepancy. Or it may be that the times they provide in evidence can be reconciled on the basis that Constable Lamont arrived at the house at 7.25pm and Mrs Bishop was outside the front of her house at 7.25pm. In the end, I do not think it is necessary to resolve this matter.
I now address Mrs Bishop’s evidence more generally. While I consider Mrs Bishop’s evidence to have been honestly given, I have doubts about the reliability of some aspects of her evidence. The inconsistencies between her accounts (in the police statement, the record of interview, the affidavit and the evidence during the trial) indicate a lack of precision in her recollection of events and cause me to doubt the accuracy of her memory of some of the events. I make the following findings:
(a)I accept that Mrs Bishop did hear what she believed to be a smoke alarm while she was outside feeding her dog. But I am not satisfied that this was a smoke alarm in the Wrigleys’ home. Mrs Bishop herself thought that it was coming from the houses over the back paddock (as stated in her police statement) or coming from “further down the road” (in her evidence during the trial).
(b)I accept that Mrs Bishop saw the Wrigleys’ car reversing out of their driveway a short time before she became aware of the fire. This is consistent with what she said to Constable Lamont upon his arrival at the scene.
(c)I have doubts about whether the time between when Mrs Bishop heard what she believed to be a smoke alarm (and saw the Wrigleys leaving) and when she heard an explosion was only one to two minutes. I think the period of time could well have been longer. Mrs Bishop was not wearing a watch and did not look at a clock at the time she heard the sound she believed to be a smoke alarm (and saw the Wrigleys leaving). The estimate of one to two minutes is just that – an estimate of the time between two events. But her estimate of the time between the two events may well be inaccurate given the impact of the events of that evening.
(d)I am not satisfied that the Wrigleys drove at a faster than usual speed up the street, when they left their house. This was not included in the police statement, given the day after the fire. It was first mentioned in the record of interview, which Mrs Bishop gave five days after the fire. Although I accept that she had not slept the night before she gave the statement, and this may explain this omission, the omission causes me to doubt whether Mrs Bishop’s memory is accurate in this regard.
(e)I accept that Mrs Bishop heard a loud noise, which may be described as an explosion. Her accounts are consistent in this regard.
(f)I have some doubt about whether Mrs Bishop saw what might be described as a ‘fireball’ rather than simply large flames coming through the window facing the deck in the bottom right corner of the diagram. Mrs Bishop did not describe what she saw as a ‘fireball’ in the police statement which she gave the next day. It first entered her account in the record of interview. Again, although I accept that Mrs Bishop had not slept the night before she gave the statement, and this may explain the omission, the omission causes me to doubt her memory in relation to this aspect.
(g)I do not accept that Mrs Wrigley was calm and did not seem distressed. This is inconsistent with Constable Lamont’s evidence that she was upset. I accept Constable Lamont’s evidence for the reasons given in paragraphs [54]-[55] above.
Ms Jones
I turn next to the evidence of Ms Jones, the expert called by the respondent. Ms Jones is a forensic scientist specialising in the investigation of fires, explosions and related matters. There was no issue that she was qualified to express the opinions that she did in her reports. Ms Jones prepared an interim report dated 24 October 2014 and a final report dated 19 November 2014. As indicated in the reports, Ms Jones attended the property on 10 October 2014, six days after the fire. As explained in paragraph 4.1 of the final report, by this time the two rooms of interest, namely the fourth bedroom (bedroom 1 in the diagram) and the living/sewing area (the family room in the diagram) had been overhauled and cleaned out to floor level and the items in the two rooms had been thrown out the two rear windows onto the ground outside.

Ms Jones’s final report contained the following observations and opinions:
(a)In paragraph 2.1, she summarised information in the records of interview with Mr and Mrs Wrigley, Nikki Wrigley, Jessica Broekmeulen and Annette Higgs.
(b)In paragraph 2.2, Ms Jones summarised information provided by Mrs Bishop as follows:
ŸAround 7:20pm Ms Bishop heard a smoke alarm when she was outside the house for approximately 5 minutes. She was unsure which house the alarm was in.
ŸMs Bishop then proceeded to walk into her house, and as she was walking she saw Yvonne and Brett Wrigley leaving in their car. She heard the front door shut. She noted that the Wrigleys were driving faster than they normally did.
ŸMs Bishop got a drink and some popcorn and sat on her couch. She then heard an explosion, she opened her blinds and curtain and saw a fireball come out of the Wrigleys’ house. She went to the front door and rang her husband at 7:24pm.
ŸShe noted that the Fire Brigade were onsite when the Wrigleys returned to the house.
(Emphasis added.)
(c)In paragraph 2.3, Ms Jones summarised information provided by the factual investigator, Mr Burley, which he had obtained from the police officer, Daniel Lamont. This was as follows:
ŸThe officer attended the site after noticing the fire whilst on patrol in the area.
ŸThe house was secure at the time of attendance, with the neighbour, Ms Bishop informing the Police that the Wrigleys had left.
ŸThe fire was noted to be coming from the rear left window of the house. The fire spread quickly and windows began to explode.
ŸBoth rear windows and the tile roof exploded.
ŸThe main areas of fire were the lounge room to the fourth bedroom, with the smoke seen before the first flame was observed in the centre of the room.
(d)In paragraphs 3.1 to 3.3, Ms Jones dealt with general damage. She stated that the house was of brick, timber and tile construction. She stated that the fire within the house was located at the rear of the property, with the front three bedrooms, bathroom and laundry exhibiting heavy smoke damage and a little heat damage from the hallway.
(e)Paragraphs 4.1 to 4.6 appeared under the heading, ‘Area of Origin’. Ms Jones stated that the roof above the rear bedroom and living/sewing room (towards and part of the way across the dining area and kitchen) had been severely damaged by the fire. The tiles had fallen along with the remains of roof beams and trusses. The external walls were intact but the glass in the windows had failed, and the timber frame for the ceiling on top of the walls was consumed. The wall between the rear bedroom and the living/sewing area was severely burnt, with the timber studwork exposed and partially consumed to floor level. The rear bedroom had its walls consumed, the roof had collapsed and the ceiling beams had been partly consumed. The carpet was mostly burnt away and the contents were destroyed and moved outside the room to the ground as a pile of ash and debris. There was deep charring to all the studwork, with the floor compromised by large holes burnt through to expose the sloping ground underneath. Figure 6 to the report was a view of bedroom four (bedroom 1 in the diagram) and the living/sewing area. This is reproduced below.

Figure 6: View of bedroom four (right) and living/sewing area
(f)Ms Jones then stated, in paragraph 4.4, that “[c]lean broken glass was identified further down the hill from the debris piles and the back wall, indicative of a deflagration explosion propelling the glass out of the window before the fire developed” (emphasis added).
(g)Figure 7 to the report showed the debris piles at the rear of the house. This is reproduced below.

Figure 7: View of debris piles at rear of house

(h)Figure 8 to the report showed a close up view of debris and glass at the rear of the house. This is reproduced below.

Figure 8: Close up view of debris and glass at rear of house

(i)In paragraph 4.5, Ms Jones stated that the main area of interest for the fire origin was on the floor of the living/sewing area, with a second possible area of origin on the floor of the fourth bedroom (bedroom 1 in the diagram). She stated: “The exposed flooring of the living/sewing area bore burning patterns characteristic of ignitable liquid distributed in pools, runs and splashes. The patterns on the bedroom floor were less well defined due to the presence of solid objects or materials which had left protection marks.” Figure 9, reproduced below, showed the view of the living/sewing room floor. Figure 10, also reproduced below, showed the view of the rear bedroom floor.

Figure 9: View of living/sewing room floor

Figure 10: View of bedroom floor

(j)In paragraph 4.6, Ms Jones noted that two samples were collected from the skirting boards against the living room floor situated against the external walls. Paragraphs 5.1 and 5.2 dealt with the laboratory analysis of the samples. They were analysed by Professor W Stern using a system known as Gas Chromatography and Mass Spectrometry or ‘GCMS’, which the report states (and I accept) is the normal method for analysis of this type of sample. His findings were set out in two fire debris analysis certificates (Ex A8). In each case the certificate stated, “No petroleum hydrocarbon mixture fraction present” and included the comment, “No ignitable liquid mixture present”.
(k)In paragraph 5.1 of the report, Ms Jones identified three possible reasons for no ignitable liquid being identified: (a) no ignitable liquid was originally present; (b) some was present but was consumed in the fire and/or evaporated afterwards; (c) residues remained but samples were taken from the wrong locations. She then stated in paragraph 5.2 that “[b]ased upon the burn patterns, evidence of an explosion and the rapid fire development apparent from the information in 2.2-2.4 [of the report], option (b) is the most probable explanation”.
(l)In paragraph 5.3 of the report, Ms Jones indicated that she considered four alternative sources of ignition in the living/sewing area and bedroom four (bedroom 1 in the diagram), namely: electrical fault; an iron being left on; a lit cigarette; and deliberate application of an open flame to volatile ignitable liquid in the area. In relation to electrical fault, she considered this a highly unlikely scenario as it “would not be able to ignite and then cause a deflagration explosion in at least two rooms”. In relation to an iron being left on, Ms Jones said this had been eliminated by fire investigator Auchterlonie on the basis of burn patterns to the iron, which she had been unable to examine. She said that the fire damage to the building was inconsistent with a small, localised, slowly developing fire, which an iron could initiate. In relation to a lit cigarette smouldering within the items of the living/sewing area, she said this was not a viable scenario due to the time this would take, which could be in the order of hours.
(m)In paragraph 5.5, Ms Jones expressed the opinion that: “The precise first fuel(s) ignited in the rooms is unknown due to the overhaul, however the burn patterns on the floor of the living area are indicative of an ignitable liquid poured over the floor. The burn patterns are indicative of pour/splash marks where the fire burnt through a vinyl floor covering and into the wooden floor.”
(n)In paragraph 5.6, Ms Jones referred to the fact that two samples had been collected and tested negative for ignitable liquid. She expressed the view that “as the area was severely burnt and had been overhauled and left clear for up to 5 days prior to my attendance, it is probable that the remnants of any ignitable liquid left on the floor would have evaporated away”.
(o)In paragraph 5.7, Ms Jones expressed the opinion: “The presence and ignition of volatile flammable liquid e.g. petrol is supported by the evidence of deflagration, as well as by the witness description of Police Officer Daniel Lamont” (emphasis added).
(p)Ms Jones’s conclusions in paragraphs 6.1 to 6.4 of the report were as follows:
6.1In my opinion, the fire started in the rear living/sewing area most likely in the centre of the room.
6.2The fire has then spread to the fourth bedroom via a volatile ignitable liquid. At least two deflagration (vapour) explosions occurred as a result.
6.3The most probable fire cause involves the use of an open flame deliberately applied to the ignitable liquid on the floor of the living room.

6.4 I consider the fire to be deliberate, and not accidental in nature.
(Emphasis added.)

Ms Jones’s evidence during the trial can be summarised as follows:
(a)Ms Jones was questioned about the procedure she adopted in taking the samples (the test results for which were negative for any signs of an accelerant) and said she took them from the skirting boards, because if there was an ignitable liquid spread around the floor, it would seep under crevices and into gaps. This was in accordance with recommended procedure (T156).
(b)She said that there were ‘pooling marks’ on the floor and explained that if there is a pooling fire, the fire is actually burning on top of the pool of liquid, and the liquid protects the floor underneath, which is why there are marks that are visible (T156, T216, T220).
(c)She said that when she visited the property on 10 October 2014, she was approached by Mrs Bishop and had a conversation with her. Initially, Ms Jones said that she wrote down some notes from this conversation, but later she corrected this and said that she did not make notes of the conversation; her notes were made when reading Mrs Bishop’s record of interview (T157, T163, T169).
(d)She was questioned about the statement (in paragraph 2.2 of the final report) that Mrs Bishop had provided information that she had heard the smoke alarm “when she was outside the house for approximately 5 minutes”. Initially, Ms Jones said Mrs Bishop had told her this during the conversation, but later Ms Jones said that she gathered this from the information in the record of interview. However, as she accepted, the record of interview did not contain such a statement (T158, T171-172).
(e)Ms Jones was questioned about the information provided by Mrs Bishop (and set out in paragraph 2.2 of the final report) that she “saw a fireball come out of the Wrigleys’ house”. Ms Jones said she understood the word, ‘fireball’ to refer to a “rolling [flame] front coming out of the house in a ball … shape”. She agreed that she accepted it without question and “found it very powerful”. She said that hearing an explosion and then seeing a fireball indicated that “something violent had happened in the house” (T159).
(f)Ms Jones did not ask Mrs Bishop any questions about the strength of the explosion or how loud it sounded (T176, T178-179).
(g)Ms Jones said that Mrs Bishop’s evidence about the explosion and fireball were confirmed by her physical examination of the house (T159, T216).
(h)Ms Jones gave evidence that you can “have an explosion that blows out in a fireball, maybe scorches a roof, but does not last long enough to actually ignite the roof structure, and then a smouldering small fire is actually the result inside the house, because the fire has actually been blown out by the pressure wave of the explosion. So you can actually have an explosion that precedes a small fire, that the police officer saw, in a very short timeframe” (T162).
(i)Ms Jones accepted the following propositions that were put to her: if a fire takes hold inside a closed house, it can theoretically die out through lack of oxygen; as the fire develops, it consumes the oxygen in the closed house; if a fire penetrates the wall or causes a window to break, oxygen rushes into the vacuum; and as oxygen rushes into that vacuum, it basically reignites the fire. Ms Jones said that the oxygen rushing in, in such circumstances, could cause a ‘backdraft explosion’ (T176).
(j)Ms Jones did not speak with Constable Lamont. She accepted that her understanding of the fire and how it advanced might have been enhanced by speaking with him. She accepted the proposition that it would have been sensible to speak with him because he was the person at the scene who first attempted to fight the fire and, as a police officer, was a trained observer. In later evidence, Ms Jones noted that she had received the Offence Report, which contained information from Constable Lamont which she found helpful (T177, T198).
(k)Ms Jones accepted that a fire penetrating a window or wall and bringing in oxygen is one source of a bang or explosion, but that there were other things that could go ‘bang’ in a fire, such as a gas cylinder or an aerosol spray if they blew up in a fire (T178).
(l)Ms Jones accepted that she had no knowledge of the ‘fuel load’ on the floor in the sewing room. She accepted that this was important information and could have been obtained. In re-examination, Ms Jones said she did have a Tasmanian Fire Service report which contained observations on the sewing room and a ‘mud map’ which described the furniture in the rooms. She also said that while fuel load played an important part in overall fire damage, it was less important than other matters in determining the initial cause and ignition sequence (T179-180, T184-185, T218-219).
(m)Ms Jones accepted that fabrics and craft items are things that will burn in a fire. She said she did not turn her mind to the volume of materials that Mrs Wrigley might have had in the sewing room, but she did direct her mind to whether there might be containers containing flammable material among the craft materials, and concluded that they would burn (T186-188).
(n)Ms Jones accepted that the opinion in her report was not definitive and said: “The reason it is not definitive is because of the overhaul and because of the actual damage to a lot of the appliances that I couldn’t examine, I can’t exclude them”. She also accepted that she could not totally exclude the possibility of an electrical fault causing the fire, although she considered it unlikely (T189, T210).
(o)In explaining why she considered electrical appliances to be a less likely cause, Ms Jones referred to “physical evidence of the explosion” (T189). She was asked to clarify what evidence she was referring to and said (T189-190):
So there was glass that was sprayed out the back in – there were two windows out the back for both the living room and the … bedroom. There was a glass spray ... a distance away, metres. I didn’t measure it, however, it was not indicative of failure of a window under fire conditions, which generally causes the glass to fall in a short distance away from the wall, straight down. This glass had been sprayed out, which indicates that it has failed under pressure, which indicates an explosion. The glass was clean, and therefore there was not a smoke build-up, so it was not indicative of a smouldering or a backdraft-type fire. So I excluded the – the fact that – the possibility of a backdraft because the glass was clean. However, the evidence of the explosion was the glass which was sprayed around the backyard.
(Emphasis added.)
(p)After that evidence, the following exchange took place between senior counsel for the applicants and Ms Jones (T190):
But the backdraft and the explosion occurred at the same time, essentially, according to Ms Bishop, didn’t they?---The backdraft is one possible cause of an explosion.
Yes?---A vapour explosion is a second.
That’s another cause?---So they are two distinct types of explosions which have two distinct types of physical evidence as a result. The – the formation of the glass, which did not have a smoke build-up, i.e. it was clean, indicates that it was a vapour explosion and not a smoky and, like, a … backdraft explosion.
It doesn’t tell you definitively, I suggest?---I believe that is reasonably definitive evidence of an explosion.
(Emphasis added.)
(q)Ms Jones said that photographic material burns readily and produces high heat. She said she could not exclude this material producing the marks on the floor in the rear bedroom (T191, T206).
(r)In relation to the sewing room, Ms Jones was asked to assume that it was sectioned off with cupboards and a wardrobe which were full of sewing material; that Mrs Wrigley had on the floor six wicker baskets about 90 centimetres in diameter and about 90 centimetres high, full of pieces of craft material; and that she also had paper adhesive and containers of glue in the area. Ms Jones rejected the proposition that this could equally account for the burn marks (T191).
(s)Ms Jones was shown a series of items such as sprays and glues used in arts and craft activities. Many of these were marked “flammable” or “highly flammable”. Ms Jones described how each would likely react in a fire. In relation to the ‘CraftSmart Clean Up’, which was in a glass bottle, she said that if the plastic top melted, the liquid would escape, and it would be more likely to run, pool and ignite than the glue in plastic bottles. She explained that plastic bottles generally melt straight down in fire conditions and the contents are therefore less likely to run everywhere; glass, on the other hand, is more likely to break and shatter, releasing the liquid in its entirety (T192-197, T204-206).
(t)Ms Jones accepted that the craft materials and bottles that she had been taken to could explain some (but not all) of the burn marks in the living room (T206, T220).
(u)Ms Jones was taken to aspects of Constable Lamont’s evidence during the trial, and then the following exchange took place between senior counsel for the applicants and Ms Jones (T200-201).
Does that assist you? ---Well, it does, yes.
In what way?---In that after the explosion, after a period of about – and I’m roughly guesstimate – like, roughly saying this because of both Ms Bishop and the constable’s information – between 7 and 7.24 at least there was a smoke alarm, so there was a fire that was actually burning pre-explosion, all right. But then when the constable arrived he saw possibly after the – most likely after the explosion – a very short time after the explosion, that there was a small fire which had been blown out by the explosion due to the pressure wave and the force of the – out the windows.
Did he tell you that, did he?---No. However, this is my understanding and my interpretation of the fire movement based on the witness accounts.
All right. Which are, to say the least, very sketchy, aren’t they?---The witness accounts?
Yes, Ms Bishop?---I’m using both, a combination of both. I don’t believe Ms Bishop’s accounts are sketchy.
So in drawing all of these conclusions, you’re putting together what you read in Ms Bishop’s record of interview?---I’m using that for timing, the fact that there was an explosion, the fact that I’ve identified glass out the back indicating there was an explosion, in my opinion, which then correlates up with the – the police officer’s account of the fire being quite small at that stage because the explosion has actually blown out the windows and the pressure wave has actually suppressed the fire to some extent. The windows have now failed, the area is ventilated and the fire builds up again very quickly.
Why can’t the glass that Constable – that you found on the ground, that have been blown out there when, and I quote, “strong winds began to flame – fan the fire and a number of windows began to explode”?---Okay. So if it’s after – if you’re assuming that the windows have failed after the explosion that they were – or there was no explosion and there was a fire and the windows have exploded out and failed, I’m assuming that’s the general understanding of what you’re asking me.
No. Constable Lamont says that after he starts to fight the fire - - -?---Yes.
- - - strong winds fanned it and a number of windows started to explode?---Okay. So you would like me - - -
Now, I would like you to concentrate on that - - -?---Okay.
- - - and tell me whether it is a possibility that the shards of glass that you found that were clear could have come from that point?---No, because in my understanding, if a window – if there has been an explosion and windows haven’t failed, that a strong – a strong wind – they – they would be mechanically weakened and they would be more likely to fail if something like a strong wind came along. However, the distance of that failure would not be in the distance that I actually found the glass.
But the – you weren’t there, were you?---No.
It’s self-evident. And the amount of information that you have been given is very small, isn’t it?---It is enough.
It is very small, isn’t it?---It is a small amount but it is enough.
(Emphasis added.)
(v)Ms Jones was asked, “If there was an explosion and if the explosion blew out the window, which windows did it blow out?” She answered, “The two rear windows, the living room and the bedroom” (T202).
(w)Ms Jones was taken to Constable Lamont’s affidavit evidence to the effect that there was an entry point or exit point but it was on the side of the house not at the back. The following exchange then occurred (T209):
Now, given his evidence about that, your theory that the explosion had blown out the other windows has no substance?---It doesn’t say that he didn’t see them, and it also doesn’t preclude that the – the windows were broken prior to him coming there, and the fact that he saw the fire then spread out the back indicates that they were ventilated.
But not necessarily. That’s speculation, isn’t it?---I disagree.
But, you see, later in his police report he talks about the wind getting up, fanning the flames and blowing out windows. He- - - ?---But he doesn’t say which ones, and, with due respect, like, until you actually identify which windows have failed – like, the wind blowing out the windows after an explosion because they’ve been – they may not have failed under the explosion, but they’ve been weakened. A strong wind coming along would quite easily cause them then to fail totally.
(x)In re-examination, Ms Jones was asked whether she would change her conclusion if all she was relying on was the physical evidence. She answered: “I would consider it highly likely, but I wouldn’t be as strong about it if I hadn’t had the accounts of the neighbour as well as the … police officer” (T217).

Mrs Wrigley presented as a credible witness. While there were some inconsistencies in her evidence (as noted above), Mrs Wrigley was generally consistent in her answers. Her answers were responsive to the questions asked and she answered in a straightforward way. However, I will place only limited weight on her oral and affidavit evidence in relation to the evening in question, unless it is corroborated by objective evidence. This is partly because of her interest in the outcome of the case – the outcome will have a huge impact on the Wrigleys’ financial situation – and partly because the events of the evening may have impacted her ability to recall with precision matters of timing and detail regarding the events of the evening.
Mr Wrigley
Mr Wrigley gave evidence in his affidavit as follows:
(a)Mr Wrigley said that they arrived home from the trip at about 4.30pm. He said they then went to the supermarket to obtain some supplies, and went back home. (I note that this is inconsistent with Mrs Wrigley’s evidence which was to the effect that they went to the supermarket on their way home.)
(b)Mr Wrigley said that he was feeling the effects of the long trip, so he lay down to have a rest, leaving Mrs Wrigley to unpack the car. Later in the evening, after he had rested, he said to her that they would “go out to get a roo for the dogs”. Shortly after this, they drove through Triabunna to Okehampton Road. He said, “This was a usual occurrence for us. We regularly went out to find a wallaby to use as dog food”.
(c)He said that when they went out to the car he could hear a buzzing sound; he told Mrs Wrigley about it; she checked her phone but it was not there; they were unable to ascertain what was making the buzzing noise so they drove off without paying it any more attention.
(d)He described the route they took to get to Okehampton Road and the stops they made on the way. He said that when they were there, their daughter, Nikki, called Mrs Wrigley and asked what was going on; he could hear Nikki say to Mrs Wrigley that the house was on fire; Mrs Wrigley told her they were up Okehampton Road; he did a U-turn and they rushed back to the house; the police were there, as were the neighbours.
(e)He said that some time before the mediation, he was in the back yard feeding the dogs; Mrs Bishop spoke with him and asked, “How’s it going?”; he said to her, “They reckon the missus did it, the bloody idiots”; at this stage, he did not even know there was a mediation.
In oral evidence in chief, Mr Wrigley gave further detail about the drive to Okehampton Road on the evening of the fire. He also gave evidence about the buzzing sound he heard as they were leaving the house. He said it “sounded to [him] more like a fork truck or something reversing at a distance, from a long way off”. He said that there are fork trucks in the area; they often unload fish at the wharf (T355).
Mr Wrigley gave the following evidence during cross-examination.
(a)It was put to Mr Wrigley that he and Mrs Wrigley, in or around 4 October 2014, discussed lighting a small fire in their house in order to make an insurance claim; he said, “No, definitely not”. It was put to him that his wife wanted additional money. He responded, “No. What for? We live comfortably. We’re not rich, but we live comfortably” (T348).
(b)Mr Wrigley said that his wife very rarely goes with him when he goes out shooting. (In re-examination, he said that his wife didn’t go shooting with him unless they were going somewhere (T342, T353-354).)
(c)It was put to him that he and his wife concocted a story about going kangaroo shooting and then to Mrs Southorn’s in order to give themselves an alibi for lighting the fire; he rejected this. It was put to him that they checked the driveways and thought their neighbours were out, and that he assisted his wife to set what they intended to be a small fire in their home; he rejected these propositions (T349).
(d)Mr Wrigley agreed with the propositions that they live in a small and close community, and that if a house in the neighbourhood was on fire, it would not take long for the neighbours to discover it. It was put to him that, knowing these things, he was prepared to set a fire because he fully expected it would be discovered quickly. He rejected this. He also said that Triabunna had a volunteer fire brigade; most of them are out on a Saturday night; and he would “never even think of doing things like that” (T349-350).
(e)In relation to the sound he heard, it was put to him that he was well aware that what he heard on 4 October 2014 was a smoke alarm. He said that the noise he heard did not sound anything like a smoke alarm (T356).
(f)Mr Wrigley said that they left the house at about 7pm. He said that he was not wearing a watch and this was based on an estimate that they were away for 20 to 30 minutes. However, he accepted that he was just guessing (T350-351).
(g)It was put to him that, when they left the house, they drove in the opposite direction of Mrs Southorn, because they never intended to go to her house; he rejected this. He said that there were kangaroos on the way to Mrs Southorn’s house, but it was not safe to shoot that way because a lot of people ride bikes up the road (T350, T355).
(h)In relation to the conversation with Mrs Bishop in February 2015, Mr Wrigley was asked whether he said words to the effect that there was a mediation coming up; he said that he could not recall that. He was asked whether there was a mediation coming up in about March 2015; he answered, “Yes. Possibly”. It was put to him that he said words to the effect, “They know the old girl lit it”; he rejected this. It was put to him that he had then thought about what he had said and added the words, “Oh, well, they think the old girl lit it”; he rejected this (T351-352).
(i)It was put to him that the truth is that he knows his wife lit the fire on 4 October 2014; he rejected this (T352).
Mr Wrigley presented as a credible witness. Although there are some inconsistencies in his evidence (as indicated above), his evidence was generally consistent. He was responsive to the questions he was asked. However, for the same reasons as with Mrs Wrigley (see paragraph [78] above), I will place only limited weight on his oral and affidavit evidence in relation to the evening in question, unless it is corroborated by objective evidence.
Conclusions on disputed factual issues
In paragraph [49] above, I set out a list of factual issues which are controversial between the parties. Those issues, and my conclusions in relation to them (to the extent I am able to reach conclusions), are set out below.
(a)The time at which the Wrigleys left their house. For the reasons given in paragraph [61](c) above, I have doubts about whether the time between when Mrs Bishop heard what she believed to be a smoke alarm (and saw the Wrigleys leaving) and when she heard an explosion was only one to two minutes (which would fix the time of departure at about 7.22pm). The expert evidence does not assist in establishing whether the time was only one or two minutes. Accordingly, I am not satisfied that the time between when Mrs Bishop heard the sound which she believed to be a smoke alarm (and saw the Wrigleys leave) and when she heard the explosion was only one to two minutes. I turn then to consider the applicant’s case on this issue. Mrs Wrigley’s evidence is that they left at about 7.01pm. She fixes this time by reference to the time of the text message she sent to Mrs Southorn. Her evidence at trial was that she sent this text while sitting in the car, about to leave. But I think the impact of the events may well have affected her ability to recall precisely the sequence of events. It may be that she sent the text while they were still inside, as put to her by the respondent. Mr Wrigley’s evidence during cross-examination was that they were gone about 20-30 minutes. On the basis that they arrived back just after the time when the first fire truck arrived (7.32 or 7.35pm), this would suggest that they left between about 7.05 and 7.15pm. Taking into account the evidence of Mrs Bishop (which suggests that, if not one to two minutes, it was nevertheless a short time between when she heard the sound she believed to be a smoke alarm (and saw the Wrigleys leave) and heard the explosion) and the evidence of Mr Wrigley, I conclude that they left between about 7.05 and 7.15pm.
(b)Whether the Wrigleys’ smoke alarm was sounding at the time they left the house. For the reasons set out in paragraph [61](a) above, I am not satisfied that what Mrs Bishop heard was a smoke alarm in the Wrigleys’ house. I am therefore not satisfied that the Wrigleys’ smoke alarm was sounding at the time they left the house.
(c)Whether the Wrigleys drove up the street at a speed which was faster than usual for them. For the reasons set out in paragraph [61](d) above, I am not satisfied that the Wrigleys drove at as faster than usual speed up the street, after they left the house.
(d)Whether the Wrigleys’ account of why they left the house, and what they were doing, is correct. There is no objective evidence to establish, one way or the other, whether the Wrigleys’ account is correct. As noted above, there was inconsistency in the Wrigleys’ evidence about how often Mrs Wrigley accompanied Mr Wrigley when he went shooting. However, I do not think it follows from this that their account is to be rejected. In the absence of objective evidence, I am not inclined to make a finding, on the basis of Mr and Mrs Wrigleys’ oral evidence alone, that their account of why they left the house and what they were doing is correct. However, I am prepared to conclude that their account of why they left the house and what they were doing – namely, that Mrs Wrigley wanted to visit Mrs Southorn to show her the new materials she had purchased during their trip, and Mr Wrigley wanted first to shoot some kangaroos or wallabies for dog food in the Okehampton Road area – is credible.
(e)Whether Mrs Bishop heard a loud explosion while in her lounge and, if so, what this was. For the reason set out in paragraph [61](e) above, I accept that Mrs Bishop did hear a loud noise, which may be described as an explosion. I do not think it has been established that the explosion which Mrs Bishop heard was a deflagration or vapour explosion. The expert evidence to the effect that there was a deflagration or vapour explosion assumed that this explosion was of the two rear windows. But it is clear from Constable Lamont’s evidence that those windows exploded after he arrived; it follows that they could not have been the explosion heard by Mrs Bishop (which was just before Constable Lamont arrived). While it is possible that the explosion heard by Mrs Bishop was a deflagration or vapour explosion of the side window facing the deck, there is no physical evidence which clearly establishes this. There is some reason to doubt that the explosion heard by Mrs Bishop was a deflagration or vapour explosion involving the side window facing the deck because she heard the explosion only a few seconds before she ran outside, at which time Constable Lamont had arrived and was getting out of his car; Constable Lamont had already seen flames coming out of the corner of house as he was going over the bridge (see paragraph [53](a) above); this tends to suggest that the side window had broken some time before Mrs Bishop heard the explosion. In light of these matters, I am unable to reach a conclusion as to what the explosion heard by Mrs Bishop was.
(f)Whether Mrs Bishop’s description of what she saw from the window in her lounge is accurate. For the reasons set out in paragraph [61](f) above, I have some doubt about whether Mrs Bishop saw what might be described as a ‘fireball’ rather than simply large flames coming through the window facing the deck in the bottom right corner of the diagram. The expert evidence does not provide any clear assistance in resolving this. In these circumstances, I am not satisfied that (as the respondent contends) Mrs Bishop saw a fireball rather than large flames.
(g)Whether there was an explosion at any stage and, if so, the nature of the explosion. The word, ‘explosion’ is used both by Mrs Bishop and by Constable Lamont. On the basis of this evidence, there were multiple loud noises which may be described as explosions. However, as discussed above, the evidence does not enable a conclusion as to the nature of these explosions.
(h)Whether, in a conversation with Mrs Bishop in February 2015, Mr Wrigley made an admission that Mrs Wrigley lit the fire. I am not satisfied that Mr Wrigley made an admission that Mrs Wrigley lit the fire during the conversation. It is unlikely that he would have said to Mrs Bishop, “They know the old girl lit it”. I think it more likely that he said words to the effect, “They think the old girl lit it” and Mrs Bishop misheard what he said.
Whether the respondent has established its case
The issue to be determined is whether the respondent has established its case – namely, that Mr and Mrs Wrigley, or either of them, deliberately lit the fire – on the balance of probabilities, taking into account that the subject-matter of the proceeding is serious and the matters alleged are grave.
In my view, the respondent has not established its case on the balance of probabilities, for the following reasons.
For the reasons given in paragraph [83] above, certain factual matters relied on by the respondent are not established. In particular:
(a)I am not satisfied that the time between when Mrs Bishop heard what she believed to be a smoke alarm (and saw the Wrigleys leaving) and when she heard an explosion was only one to two minutes (which would have fixed their time of leaving at about 7.22pm); rather, I conclude that they left between about 7.05 and 7.15pm;
(b)I am not satisfied that the Wrigleys’ smoke alarm was sounding at the time they left the house;
(c)I am not satisfied that the Wrigleys drove at a faster than usual speed up the road after they left the house;
(d)I am not satisfied that the explosion heard by Mrs Bishop was a deflagration or vapour explosion;
(e)I am not satisfied that Mrs Bishop saw what might be described as a fireball rather than simply large flames coming through the window facing the deck in the bottom right corner of the diagram;
(f)I am not satisfied that, in a conversation with Mrs Bishop in February 2015, Mr Wrigley made an admission that Mrs Wrigley lit the fire.
While the importance of each of these matters to the respondent’s case varies, the cumulative effect of the failure to establish these matters is that a significant part of the respondent’s case that the fire was deliberately lit has not been established.
As set out in paragraph [65] above, in my view the final report of, and expert opinions expressed by, Ms Jones are subject to several limitations. This diminishes the weight that can be placed on this part of the respondent’s evidence. Ms Jones’s opinion that the fire was deliberately lit relied, in particular, on “the burn patterns, evidence of an explosion and the rapid fire development apparent from the information in 2.2-2.4 [of the report]” (see paragraphs [63](k) and (m) above). She also relied on “the evidence of deflagration” as well as “the witness description of Police Officer Daniel Lamont” (see paragraph [63](o) above). In so far as Ms Jones relied on the burn patterns, the weight that can be attached to this evidence is reduced when regard is had to the contents of the two rear rooms, which could provide an alternative explanation for at least some of the burn marks (see paragraph [65](c) above). In relation to “evidence of an explosion” (by which I take Ms Jones to be referring to the evidence which in her view establishes that there was a deflagration or vapour explosion), for the reasons given in paragraph [83] above, I am not satisfied that there was a deflagration or vapour explosion. In relation to “the rapid fire development”, Ms Jones’s report was prepared on the basis of Mrs Bishop’s account (as summarised in the report). I have concluded in paragraph [83] above that I am not satisfied that the time between when Mrs Bishop heard what she believed to be a smoke alarm (and saw the Wrigleys leaving) and when she heard an explosion was only one to two minutes; rather, I conclude that the Wrigleys left between about 7.05 and 7.15pm. Ms Jones does not specifically address this scenario. In any event, the shortness of time during which the fire developed is just one factor to be taken into account in considering whether the fire was deliberately lit, and needs to be weighed against other factors, such as the circumstantial evidence discussed below. In so far as Ms Jones relied on “the witness description of Police Officer Daniel Lamont”, as discussed in paragraph [65](a) above, one of the deficiencies of her report is that she did not seek or obtain more detailed information from Constable Lamont.
I think it is significant that no ignitable liquid was found to be present in the samples taken from the scene of the fire: see paragraph [63](j) above. Ms Jones took the samples from the skirting boards because, if there was an ignitable liquid spread around the floor, it would seep under the crevices and into gaps; she also said that the samples were taken in accordance with recommended procedure (see paragraph [64](a) above). While the absence of ignitable liquid in the samples may be consistent with the fire having been deliberately lit, the absence nevertheless means that a potential source of objective evidence to support the respondent’s case is not present.
It is not established that the Wrigleys had a motive to burn down their home. The respondent contends that their financial circumstances were difficult and therefore they had a financial motive to light the fire. The respondent submits that it need not be assumed that they intended a fire of the size which eventuated; their intention may have been to create a small fire in part of the house. Indeed, during the cross-examination of Mrs Wrigley it was put that she did not intend to burn down the house, but only intended a small fire (see paragraph [77](k) above). In my view, the financial situation of the Wrigleys was no different from many others and does not indicate that they had a motive to light a fire in their home. I also note that there seems to be an internal tension within the respondent’s theory that the Wrigleys intended only a small fire. An aspect of this theory was that they knew that neighbours would quickly notify authorities, and hence the fire would be contained. But at the same time, the respondent cross-examined Mr and Mrs Wrigley on the basis that they had checked their neighbours’ driveways and believed that they were not home. Further, the theory that the Wrigleys were relying on neighbours quickly notifying authorities, and thus the fire being brought under control quickly, does not sit easily with Mr Wrigley’s evidence, which I accept, that the fire brigade personnel are volunteers, most of whom are out on a Saturday night.
The circumstantial evidence strongly supports the view that the Wrigleys did not light the fire. The house had been renovated. Mrs Bishop’s evidence, which I accept, is that it was beautifully maintained inside. The Wrigleys and their daughter, Nikki, had many special personal items in the house which, I accept, were destroyed by the fire. Although it was put to Mrs Wrigley that there was no way of confirming that items had not been removed, I accept her evidence that they did not remove any items. I note that Mr Burley confirmed during cross-examination that there was no evidence of sentimental items having been removed from the fire scene; he agreed that these types of items were still within the house and either smoke-damaged or damaged by fire (see paragraph [68] above). Mrs Wrigley said, and I accept, that her late brother’s basketball trophies and memorabilia, which were special to her, were in the house and destroyed by the fire; and that an urn containing her late father’s ashes was also in the house and destroyed by the fire. Nikki Wrigley said, and I accept, that a set of professionally taken photographs of Ryder (costing $3,500) was destroyed in the fire. The presence of these special personal items in the house (I assume that the Wrigleys were aware of the photographs of Ryder) makes it unlikely that they would light a fire in the house.

Further, the sewing room area contained many items of equipment and a large volume of materials collected or purchased by Mrs Wrigley over several years. The arts and craft work was a ‘labour of love’ for Mrs Wrigley – she gave evidence that the sewing room was the most important room in the house for her. It seems unlikely that she would set out to destroy all of her equipment and materials.
I note also that the Wrigleys’ dogs were contained in the back yard and a pet budgerigar was in a cage in the front part of the house at the time of the fire. These facts tend against the allegation that they lit the fire.
More generally, all of Mr and Mrs Wrigley’s possessions, and those of Nikki and Ryder, were in the house. It is apparent from the evidence that Mr and Mrs Wrigley took pride in their home and possessions.
The circumstantial facts referred to in paragraphs [91]-[94] above point clearly against the proposition that the Wrigleys lit the fire and, to my mind, outweigh the expert evidence which is subject to limitations (discussed above) and, in any event, not definitive.
Conclusion
For these reasons, I conclude that the respondent has not established that the Wrigleys, or either of them, started the fire. It follows that there should be judgment for the Wrigleys in the amount of the home and contents insurance policy (less a small amount already advanced), there being no dispute about quantum. I will also make orders for interest (on the basis of figures provided to me during the trial) and costs (on the basis that costs follow the event). If either party wishes to be heard on these orders, the party may give notice in writing within three business days.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.
Associate:
Dated: 2 June 2016

File number:	TAD 3 of 2015
Judge:	MOSHINSKY J
Date of judgment:	2 June 2016
Catchwords:	INSURANCE – home and contents insurance policy – residential dwelling severely damaged by fire – insurer alleged that the fire was started by the home owners – whether insurer established on the balance of probabilities that the owners started the fire
Legislation:	Criminal Code Act 1924 (Tas), Sch 1, ss 267, 268 and 269 Evidence Act 1995 (Cth), s 140 Insurance Contracts Act 1984 (Cth), ss 13, 54, 57
Cases cited:	Ashby v Slipper (2014) 219 FCR 322 Commonwealth v Fernando (2012) 200 FCR 1 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Date of hearing:	7, 8, 9, 10 and 11 March 2016
Registry:	Tasmania
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	96
Counsel for the Applicants:	DJ Gunson SC with S Chopping
Solicitor for the Applicants:	S Chopping
Counsel for the Respondent:	M Douglas
Solicitor for the Respondent:	Dohertys Barristers & Solicitors