New South Wales Supreme Court CITATION : Devoe v NRMA [2004] NSWSC 892 HEARING DATE(S) : 27 September 2004 JUDGMENT DATE : 29 September 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The proceedings are dismissed; the plaintiff is to pay the costs of the proceedings; the exhibits may be returned. CATCHWORDS : Appeal from Local Court - lack of reasons and misdirection - competing views as to what was decided by the Court - no error in point of law. PARTIES : Natasha Devoe (Plaintiff) NRMA Limited (Defendant) FILE NUMBER(S) : SC 10742/04 COUNSEL : Mr S Tilmouth QC & Mr S Whybrow (Plaintiff) Mr S Torrington (Defendant) SOLICITORS : Capital Lawyers (Plaintiff) Abbott Tout (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 70 of 2003 FILE NUMBER(S) : LOWER COURT Russell LCM JUDICIAL OFFICER : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 29 September 2004 10742 of 2004 Natasha Devoe v NRMA Insurance Limited JUDGMENT 1 Master: The plaintiff was the owner of a 1999 Mitsubishi Pajero (the vehicle). She entered into a policy of insurance with the defendant. The policy was current on 22 and 23 September 2002. 2 On 22 September 2002, the plaintiff had left the vehicle both parked and locked at her workplace. On 23 September 2002, she discovered that the vehicle was missing. The matter was reported to the police. The vehicle was later located. It had been destroyed by fire. 3 There were no signs of forced entry or of removal otherwise than by use of a key. The vehicle had not been stripped. 4 The plaintiff made a claim under the policy. The defendant carried out an investigation. It was then discovered that the plaintiff had only one of the two manufacturer's keys for the vehicle. These keys were acquired at the time of its purchase. The defendant refused to indemnify the plaintiff. 5 The plaintiff brought proceedings in the Local Court. It was defended on a number of grounds. The defendant put in issue the allegation that loss and damage was suffered by theft and subsequent destruction by fire. It also pleaded special defences. 6 The proceedings went to a hearing before Russell LCM. The learned magistrate found in favour of the defendant. 7 During the course of the hearing, it emerged that the only special defence ultimately relied on by the defendant was that pleaded in paragraph 6 of the notice of grounds of defence. Paragraph 6 is in the following terms:- In answer to the whole of the Statement of Claim the defendant says that the Policy contained the following provision: "This Policy does not cover: · loss or damage intentionally caused by you or a person acting with your express of [sic] complied consent." 8 There does not seem to be any issue between the parties that the provision thereby relied on by the defendant constituted an exemption and that the defendant bore the onus of proof to establish that special defence. 9 At the time of the damage to the vehicle, the plaintiff was in a relationship with Mr James Smith. Some years earlier, she had been in a relationship with Mr Mark Latham. Such relationship had terminated in unhappy circumstances. Mr Latham was bitter about the break-up of the relationship. An explanation offered by the plaintiff for the alleged theft, was that it was an act of revenge by him as a spurned lover. He has a criminal record. It was suggested that about two years earlier he may have stolen the missing key from her jewellery box. 10 A locksmith (Mr Squire) gave expert evidence. He said inter alia that the vehicle was drivable only with one of the manufacturer's key and that the key inspected by him showed less than expected wear. The plaintiff advanced material for the purposes of explaining that lack of wear. 11 The defendant did not adduce any evidence of motive on the part of the plaintiff to make a fraudulent claim. Allegations of fraud were abandoned. 12 The judgment of the learned magistrate was delivered on 25 February 2004. Following an analysis of the cases of the parties and the evidence, the judgment concludes with the following:- The plaintiff and Mr Smith appeared to be credible witnesses. Mr Smith was not, and the plaintiff was not, significantly undermined in cross-examination. The uncontested evidence is that neither the plaintiff nor Mr Smith were in any financial difficulty in, or leading up to, September 2003 [sic]. The plaintiff bears the onus of proving her case on the balance of probabilities. The problem for the plaintiff is that the expert evidence points firmly in the other direction. There is no evidence of scrape marks or other damage at the scene from which the vehicle is said to have been taken. The evidence is that the car was not stripped. There is the possibility that Mr Latham or someone to whom he had given the keys took the car. That, despite the explanation proffered by the plaintiff as to the extent which she used the key, is undermined to some degree at least by the evidence of Mr Squire as to the level of usage of the key provided to the NRMA by the plaintiff, an opinion on which Mr Squire himself was not significantly challenged. I am left with two mutually exclusive alternatives, neither on the evidence, in my view, is more likely than the other. IN THOSE CIRCUMSTANCES THE PLAINTIFF WHO BRINGS THE CLAIM MUST FAIL, OR I ENTER A VERDICT FOR THE DEFENDANT. 13 The plaintiff has filed a summons in this court. She now proceeds on an amended summons filed on 26 May 2004. The summons propounds an appeal from the decision of the learned magistrate. 14 An appeal is available to the plaintiff in this case where there is error in point of law. She bears the onus of satisfying the court that there is error in point of law which justifies the disturbing of the decision. 15 The appeal was heard on 27 September 2004. It emerged from the submissions, that the real issue between the parties was relatively narrow. 16 Counsel for the parties have prepared written submissions. These were supplemented by oral address. 17 It is unnecessary to go into the detail of the matters of fact that arose during the hearing. It suffices to mainly focus on the excerpt from the judgment already mentioned. In essence, what might be described as a question of construction arose. Counsel presented competing versions of what had been done by the learned magistrate. 18 The relevant passages of the judgment are prima facie elliptical, and certainly engender (at least upon initial reading) a lack of clarity. However, these problems seem largely to disappear upon closer examination of the judgment. 19 The plaintiff points to a deficiency in the expression of reasoning process. She says that the learned magistrate misdirected herself and erred in dealing with the questions of onus of proof. By way of contrast, the defendant says that the learned magistrate dealt with the case on the basis that she was not satisfied that the vehicle had been stolen. 20 There was no dispute that the plaintiff bore the onus in establishing the events that entitled her to make a claim (that the vehicle had been stolen and was damaged). The excerpt leaves no doubt that the learned magistrate decided the case on the basis that the plaintiff had failed to discharge the onus borne by her. 21 The learned magistrate found that inter alia the plaintiff was a credible witness (who was not significantly undermined in cross-examination). The plaintiff had given evidence that inter alia she was not involved in the stealing and destruction of the vehicle. The learned magistrate then appears to have weighed up the evidence given by the plaintiff and Mr Smith against that which had been provided by Mr Squire. She appears then to have come to the conclusion that she could not prefer one body of evidence to the other. It was this conclusion that led her to the ultimate result. 22 This view is fortified by what appears earlier in the judgment. On page 1, the learned magistrate observed that "The defendant puts in issue the plaintiff's claim that the vehicle was stolen". On page 2, she further observed that "Her claim was defended on the basis of the opinion of Ronald Squire". 23 It is true that the "two mutually exclusive alternatives" are not expressly identified. However, what precedes those words makes it sufficiently clear that she had in mind the issue of whether or not the vehicle had been stolen. 24 Although there was commonality between this issue and that raised by the special defence pleaded in paragraph 6 of the notice of grounds of defence, it was an issue on which the plaintiff bore the onus of proof. 25 The result may seem strange (particularly when there has been a largely unqualified expression of acceptance of the plaintiff and Mr Smith as credible witnesses). It may be that another judicial officer may have reached a different decision. Be that as it may, there was evidence to support the decision that was made and I am not satisfied that it is afflicted by error in point of law. In these circumstances, the court has no jurisdiction to disturb it. 26 In the circumstances of this case, the plaintiff has failed to satisfy the court that the decision of the learned magistrate should be set aside. 27 Accordingly, the proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. Last Modified: 09/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.