Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alexakis v AAI Limited t/as GIO Insurance [2016] NSWCATAP 241 Hearing dates: 13 October 2016 and 19 October 2016 Date of orders: 10 November 2016 Decision date: 10 November 2016 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member D Goldstein, Senior Member Decision: (1) The time to file the appeal is extended to 24 July 2016. (2) The appeal is allowed and to the extent necessary leave to appeal is granted; (3) The order made 15 June 2016 in application GEN 16/17469 is set aside and in lieu thereof the following orders are made: (a) The respondent, AAI Limited trading as GIO Insurance, is to pay the applicant, Peter Alexakis, the sum of $4,192.05 (Principal Sum) immediately; (b) The respondent is to indemnify the applicant for an amount equivalent to any amount paid by the appellant to Mr Campos pursuant to s101 of the Civil Procedure Act for interest on the Principal Sum, such amount to be limited to the amount of interest from the date of the Local Court Judgement (namely 8 October 2014) to a date not later than 3 days following the date the Principal Sum is paid to the appellant. (4) The parties may apply to the Tribunal at first instance to fix the amount payable pursuant to the previous order if that amount cannot be agreed. The Tribunal may be constituted by any member for this purpose Catchwords: Adequacy of reasons- error of law, failure to deal with significant evidence and explain process in rejecting evidence. Leave to appeal- inferences drawn, weight of evidence, substantial miscarriage of justice Damages- breach of obligation of insurer to indemnify insured, liability of insurer for interest on unpaid judgement against insured unable to pay. Legislation Cited: Civil and Administrative Tribunal Act, 2013 Civil Procedure Act, 2005 Insurance Contracts Act, 1984 (Cth) Insurance Contracts Regulation, 1985 (Cth) Cases Cited: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 CGU Insurance Limited v AMP Financial Planning Pty Ltd [2007] HCA 36 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Hadley v Baxendale (1854) 9 Ex 341, 156 ER 145 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Category: Principal judgment Parties: Peter Alexakis (Appellant) AAI Limited Trading as GIO Insurance (Respondent) Representation: Solicitors: Appellant (in person) Ms Rayfield (Respondent) File Number(s): AP 16/33822 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 15 June 2016 Before: C Campbell, General Member File Number(s): GEN 16/17649 reasons for decision 1. On 12 April 2016 the appellant commenced proceedings GEN 16/17649 in the Consumer and Commercial Division of the Tribunal seeking an order in his favour that the respondent pay to him the sum of $7,500.00. The dispute concerned a third party property damage insurance policy which had been taken out by the appellant with the respondent in consequence of a telephone conversation on 14 March 2013. 2. The substance of the dispute is whether or not the inception date for the policy of the insurance was 14 March 2013, the date the appellant contacted the respondent to request a quotation for the insurance policy, or 14 April 2013, the date the respondent says the appellant requested the insurance cover to commence. 3. The reason for the dispute is that the appellant was involved in a motor accident on 13 April 2013, the day before the respondent says the period of insurance commenced. 4. The appellant contended in his application to the Tribunal and on appeal that in fact the respondent agreed to provide insurance on and from 14 March 2013, being the date he telephoned the respondent to obtain a quotation for the insurance. The appellant's application was heard by the Tribunal on 15 June 2016. The application was dismissed and the Tribunal published reasons for decision which were dated 17 June 2016. 5. The appellant filed a Notice of Appeal on 24 July 2016. The appeal was required to be filed 28 days after the date the notice of decision was received by the appellant and is therefore out of time. The appellant sought an extension of time because he was a full-time carer of his mother and father and said that they had serious problems with dementia and other issues which have prevented him from preparing and filing his Notice of Appeal on a timely basis. In its reply to appeal the respondent said that it did not object to the Tribunal extending the time for the lodgement of the appeal. 6. The appeal was required to have been filed by 20 July 2016 and is therefore four days late. However, as the respondent does not oppose an order extending time and having regard to the explanation provided, the Appeal Panel is satisfied that an order extending the time to file the Notice of Appeal should be granted up until the date it was filed on 24 July 2016. Notice of appeal and reply to appeal 1. In his Notice of Appeal the appellant asserted that the Tribunal made an error of law, that there was evidence that he was not able to obtain upon summons and that he had not been afforded procedural fairness. 2. In addition, in submissions attached to the Notice of Appeal, the appellant said that the Tribunal was in error in its analysis of the evidence he provided at the hearing and incorrectly concluded that the appellant had requested that the policy of insurance to be issued by the respondent commence on 14 April 2013, rather than 14 March 2013 being the date he telephoned the respondent to request insurance. 3. The respondent filed a Reply to Appeal dated 19 August 2016. The respondent said that it was not obliged to indemnify the appellant for the loss and damage suffered in the accident on 13 April 2013 because this incident occurred outside the period of insurance. The respondent said that policy documents clearly set out the date when the insurance was to commence and any failure of the appellant to read those documents did not affect the inception date. Further, the date of insurance recorded on the certificate of insurance as the date of commencement, namely 14 April 2013, was the agreed and operative date for the policy. 4. The respondent also said in its Reply to Appeal that there was no discernible error of law identified by the appellant. Further, there was no basis to say the appellant had been denied procedural fairness by not being given an opportunity to issue a summons because there were no documents that would have been produced of the type sought. Lastly, there was no breach of procedural fairness in the manner in which the hearing was conducted. History of the appeal and submissions 1. The appeal was listed for call over on 11 August 2016. At that time the appellant was directed to lodge with the Tribunal and provide to the respondent all documents in support of his appeal by 8 September 2016. The appeal was listed for hearing on 13 October 2016. 2. The appellant filed a bundle of documents on 9 September 2016. The respondent filed submissions and documents in reply on 4 October 2016. 3. When the matter came on for hearing on 13 October 2016, the appellant did not appear in person. Rather, he had telephoned the Tribunal to advise he was unwell and unable to attend and that he would obtain a medical certificate. No medical certificate was provided. 4. However, the Appeal Panel telephoned the appellant and sought to allow him to appear by telephone so as to facilitate a hearing of the appeal. During the course of that hearing it became apparent that the appellant had failed to provide documents which he had been directed to supply for the purpose of the hearing. Consequently, the hearing of the appeal was adjourned. The respondent did not oppose this adjournment. 5. The Tribunal made further directions to require the appellant to file and serve any additional material, including a typed copy of those parts of the sound recording upon which he wished to rely. The appellant filed a second bundle of documents on 17 October 2016 which was also provided to the respondent. 6. The hearing of the appeal resumed on 19 October 2016. At that time the appellant appeared in person and the respondent was represented by Ms Rayfield, an in-house lawyer. 7. At the hearing on 19 October 2016 the respondent handed up typed copies of extracts of the sound recording of the hearing on 15 June 2016. The appellant also sought to rely on additional parts of the sound recording which had not been transcribed, details of which are referred to below. 8. During the course of hearing the appeal the Appeal Panel identified the three substantial issues to be resolved in the appeal. These were: 1. Were the reasons for decision adequate, particularly having regard to the Tribunal's finding in par 29 of the decision that the appellant had requested the policy of insurance to commence on 14 April 2013 and not 14 March 2013; 2. If there was no error of law because the reasons for decision were adequate, should leave to appeal be granted because the decision of the Tribunal was not fair or equitable or against the weight of evidence; and 3. If there was an error of law and/or leave to appeal should be granted and the appeal is successful, what amount should be awarded in favour of the appellant including what amount for interest. 1. In his submissions, the appellant provided a chronology of events and a detailed analysis of the evidence before the Tribunal at first instance. His submissions can be summarised as follows: 1. the appellant provided evidence of the conversation which he had with the representative of the respondent he spoke to on the telephone when he called on 14 March 2013 to request a quotation for a third party property damage insurance policy for his motor vehicle. This evidence was to the effect that he did not request the policy of insurance to commence on 14 April 2013 and that any alteration made to the proposed start date to the policy of insurance was not at his request; 2. the respondent did not call the representative to whom the appellant had spoken to give evidence before the Tribunal and the "screen shot" of the notes recorded by the representative did not indicate any request had been made to change the start date, although the notes did record discussions concerning the duty of disclosure of the appellant and his earlier driving record; 3. the appellant admitted receiving a copy of the certificate of insurance a few days after the telephone conversation, observed from the certificate that payment of the premium was due in the future, but did not see that start date for the policy of insurance was incorrectly recorded as 14 March 2013. Further the appellant did not observe that his date of birth had been incorrectly recorded. 4. On 16 April 2013, following a motor vehicle accident on 13 April 2013, the appellant telephoned the respondent to make a claim, during which conversation he requested the date for commencement of the policy be corrected to 14 March 2013, having observed the error on the certificate of insurance as to the commencement date. 5. Having regard to the above facts, there was no basis to conclude the appellant had requested a commencement date for the policy on 14 April 2013; 6. While Mr Fea, the respondent's team leader and supervisor of the representative who took the appellant's call on 14 March 2013, gave evidence concerning the usual process to be adopted by the representatives when speaking to customers about renewing insurance policies, there was no evidence that this occurred in the present case and there was no reason for the Tribunal to have rejected the evidence given by the appellant that no such discussion had occurred; 7. there was evidence of other data entry errors being made, in particular the appellant's date of birth was incorrectly recorded in the certificate of insurance, a fact corroborating the appellant's position that any change of the inception date to 14 April 2013 was an error made by the respondent but did not alter the fact that the appellant had requested a commencement date on 14 March 2013. 1. In relation to the amount claimed, the appellant said that he had an award made against him in the Local Court in favour of Mr Campos, the driver of the other motor vehicle in the motor vehicle accident referred to, for a total of $4792.05. This award was made on 8 October 2014 and comprised an amount of $4520.00 being the original claim by Mr Campos together with interest of $144.05 and cost of $128.00. This amount remained unpaid as the appellant has been unable to afford to make payment. 2. In reply, the respondents submitted that the Tribunal was correct to accept the evidence before it that the inception date recorded for the policy was entered by way of manual adjustment and that such an adjustment would only have been made upon request by the appellant. Therefore the Tribunal was correct to conclude that the inception date of 14 April 2013 was the date requested by the appellant as the start date for the policy, in consequence of which the respondent was not liable to indemnify the appellant for an accident occurring the day before, namely 13 April 2013. 3. The respondent says this conclusion was also justified by the fact that the appellant was provided with a certificate of insurance after the telephone call on 14 March 2013 and had an opportunity to review the details contained in the certificate, including the start date for insurance. Further, the respondent relied upon the evidence of Mr Fea as to the usual practice of the operator and said that the Tribunal was correct to infer the appellant had requested commencement on 14 April 2013 as the policy would usually have had an inception date on the day on which any quotation was requested. 4. Lastly, the respondent said that the appellant had not provided any sufficient explanation to explain why he had failed to read this certificate of insurance when it was received. 5. In relation to quantum of the claim, the respondent did not dispute the amount of the judgment but said that the sum of $600.00 would need to be deducted, being the excess payable by the appellant under the terms of the insurance policy. Otherwise, the respondent submitted that any interest that might be payable in respect of the amount claimed by the appellant was to be calculated under s57(2) of the Insurance Contracts Act, 1984 (Cth) (IC Act) and Reg 32 of the Insurance Contracts Regulation, 1985 (Cth) (IC Regulation). Consideration 1. The appellant has a right of appeal on a question of law and otherwise requires leave to appeal on any other matter: see s80(2) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). 2. Because the appeal is from a decision of the Consumer and Commercial Division of the Tribunal, leave may only be granted if the appellant can demonstrate he may have suffered a substantial miscarriage of justice: see cl12 Sch4 of the NCAT Act. 3. The present appeal raises a question of law, namely whether the reasons provided by the Tribunal were inadequate and, if not, whether leave to appeal should be granted and the appeal allowed because the decision of the Tribunal was not fair and equitable or was against the weight of evidence in consequence of which the appellant may have suffered a substantial miscarriage of justice. 4. The obligations concerning the giving of reasons and the principles applicable to the grant of leave were dealt with by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. 5. In relation to the obligation to give reason, the Appeal Panel said at [54]: 54 In relation to one of the principal predecessors of the present Tribunal, the Appeal Panel of the Administrative Decisions Tribunal (ADT) held that the principles identified above applied to that Tribunal. In Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 the Appeal Panel of the ADT said at [56] - [60]: 56 The Tribunal is obliged to give adequate reasons. Appeal Panels of the Tribunal have routinely accepted the principles enunciated in the line of cases that include Soulemezis v Dudley (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The Tribunal is a deliberative body engaged in the exercise of a judicial function when hearing and determining applications, giving reasons for decision and making final orders. See recently, Campbelltown City Council v Vegan (2006) 67 NSWLR 372, esp at [109] ff per Basten JA. The Commonwealth authorities relating to Commonwealth tribunals are to similar effect. See, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366; Dornan v Riordan(1990) 24 FCR 564 at 568; Edwards v Guidice (1999) 169 ALR 89 at [10], [43]. 57 In our view, s 89(5) of the ADT Act, to which counsel for the appellant gave emphasis, does no more than confirm the law as it would in any event have applied to the Tribunal. 58 Section 89(5) states that the Tribunal must in reasons published under s 89 set out: '(a) the findings on material questions of fact, referring to the evidence or other material on which these findings are based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.' 59 (In that regard we note that strictly interpreted s 89 is not applicable to this case. Section 89 is concerned with the circumstance where the Tribunal does not publish written reasons at the time it makes its final orders.) 60 A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280. 1. Section 62 of the NCAT Act imposes a similar obligation. 2. In Beale, the Court of Appeal of the Supreme Court of New South Wales considered what constituted a statement of adequate reasons. At 443-4, Meagher JA said: … the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of a set of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, we are findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose for which the reasons serve which issue primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted in this Court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sinak v Tess (Court of Appeal, 15 March 1995, unreported). 1. His Honour then said at 444: It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: we know reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered. … Lastly, it is to be noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. … 1. As to the grant of leave because an appellant may have suffered a substantial miscarriage of justice, the Appeal Panel in Collins said at [76]-[79]. 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" -Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. Were the reasons inadequate? 1. There is no dispute in this appeal that the parties agreed to enter into a contract of insurance on 14 March 2013, being a third party property damage policy in respect of the appellant's motor vehicle. It was a condition subsequent the appellant pay the premium for this insurance. There is no dispute that the premium was subsequently paid nor is there a dispute that the appellant had a motor vehicle accident on 13 April 2013 for which he would have been indemnified if the policy of insurance commenced to provide cover for a 12 month period from 14 March 2013. 2. The central issue for determination by the Tribunal was whether or not the appellant requested that the policy of insurance commence on 14 April 2013 and not on the day he telephoned for a quotation, namely 14 March 2013. 3. In its reasons for decision dated 17 June 2016 the Tribunal found at [26] and following: 26 I am satisfied on the evidence before me that there has been no breach of the Insurance Contracts Act 1984 by the respondent. 27 Both parties relied on Mr Fea's report, in particular point 4 of that report. There is no dispute between the parties, and in accordance with point 4 of Mr Fea's, that the default date for the commencement of the period of insurance is the date the proposed insured telephoned the respondent. And according to Mr Fea any variation to the commencement date requires the operator to go into the system and manually enter a different date. I find that it follows, the operator would then enter a date specified by the proposed insured. There is no other logical reason for a date, other than requested by the caller, to be entered as the commencement date of the policy. 28 In this case I am satisfied the applicant had ample time prior to the date of the accident, to review the policy document and request the respondent amend or correct start date. He did not make this request, until three days after the accident. 29 I am satisfied that on balance, the applicant requested the policy commence from the 14.04.13 and the default setting was manually overridden by the operator, who then entered the start date requested by the applicant. And it is for this reason the applicant made no request to change or amend the start date for the policy until three days after he had the accident. 30 For these reasons the application is dismissed. 1. These findings were made despite the applicant's evidence recorded at [5] and following that at no time did he request the policy to commence on 14 April 2013. Further, these findings were made despite the fact that: 1. there was evidence before the Tribunal that other errors had been made by the operator in inputting information into the computer system for the purpose of issuing the certificate of insurance: see decision at [10]; and 2. the screen shots of the typed notes of the operator did not record any request for a date change; 3. having set out the standard operating procedure for telephone calls (concerning reading information to applicants for insurance) Mr Fea said "In saying this – the above process is what should be done and I cannot confirm for sure if these steps were done in this particular circumstance." See appellant's bundle filed 9 September 2016 attachment X2. 1. It can be inferred from the findings of the Tribunal that the evidence of the appellant concerning the conversation he had with the operator was rejected by the Tribunal. However, the reasons for doing so are not explained. Certainly the reasons do not record any observations of the appellant or suggest he was not a credible witness. To the contrary, the reasons record at [5]: The applicant's evidence was that at no time during the initial telephone call any till the respondent that the policy was to commence from 14.04.13. He asked for a quote for a third party property damage policy of insurance. He provided his personal details and gave an honest account of his driving record. He told the operator that he had recently been involved in a "minor motor vehicle accident" 1. In our opinion, the finding of fact that 14 April 2013 was "the start date requested by the applicant" is the critical conclusion in the Tribunal's decision. While the Tribunal relied on the evidence of Mr Fea to support this conclusion, the reasons do not provide an adequate explanation as to why the appellant's version of events was rejected. This is despite the fact the Tribunal recorded at [21] a concession of the respondent in the following terms: The respondent also relies on the report of Brendan Fae. The respondent conceded it had no evidence of the applicant nominating a particular commencement date of the policy. It was conceded that in the absence of the tape recording being available the screenshot was the best available evidence as to what start date and other information was entered into the system, for the purpose of formation of the contract of insurance. 1. As said by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and approved by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, the reasons are "not to be construed minutely and finely with an eye keenly attuned to the perception of error". However, in the present case the reasons do not explain how the Tribunal came to reject the evidence of the appellant despite the concession to which we have referred and despite the fact that the respondent conceded that there was no evidence the appellant nominated a start date of 14 April 2013. 2. In our view this failure constitutes an error of law. Leave to appeal 1. Further, even if the reasons are adequate, leave to appeal should otherwise be granted. 2. In our view the appellant may have suffered a substantial miscarriage of justice because the decision is not fair and equitable or is against the weight of evidence. This is because, taken as a whole it "strongly preponderates … against the conclusion found by the tribunal at first instance" and the appellant was "deprived of a 'significant opportunity' or a 'chance fairly open' that a different and more favourable result would have been achieved". 3. The reasons for this conclusion are as follows. 4. In addition to the evidence to which the Tribunal referred, as identified in the reasons and set out above, there was evidence that: 1. The certificate of insurance issued on 14 March 2013 (Original Certificate), recorded the start date and time for the policy. The start time was 11:53 am on 14 April 2016 rather than 12am on that day: see appellant's bundle p11; 2. This start time is not the same time as the appellant telephone to request insurance (which was 13:10: see screen shot of respondent's computer- appellant bundle p33), 3. No evidence suggested the appellant requested a particular start time for the policy other than what might be inferred from the date the respondent's representative entered in the respondent's system, 4. The evidence suggests that a policy usually provides for a start time at the commencement of the day insurance cover commences: see amended certificate of insurance issued 16 April 2013 (Amended Certificate)- appellants bundle p15 and further amended certificate of insurance issued 1 August 2013 (August Certificate)- appellant's bundle p43. 5. The unusual entry of a time for the commencement of a policy of insurance at 11:53 am on a date in the future remains unexplained by the respondent. There is no evidence to suggest such a request was made and it does not seem probable that a person requesting insurance to commence a month in the future would nominate a time other than the start of that day. 6. The respondent's representative had incorrectly entered the date of birth of the appellant as 23 April 1964 on the Original Certificate rather than 23 August 1964, a matter which remained undetected and was not corrected until the August Certificate was issued when the appellant brought this to the attention of the respondent. 7. No evidence suggests the appellant misinformed the respondent's representative of his date of birth; 8. The operator who took the telephone call did not give evidence at the hearing; 9. Mr Fea, the respondent's manager, was unable to give evidence about what in fact happened and whether or not the standard operating procedure was adopted on that day; 10. No telephone notes were otherwise made to record any facts that would corroborate that the incorrect data entry arose because of what the appellant said, rather than operator error by the respondent's representative. 1. These matters count against the decision of the Tribunal to reject the evidence of the appellant in the absence of the telephone recording and evidence from the respondent's representative who took the call. They also count against the drawing of an adverse inference on the basis accepted by the Tribunal, namely that a change to the start date was a manual alteration effected by the respondent's representative and that the appellant had a chance to read and request corrections to the certificate of insurance when it was received after being sent in consequence of the telephone call. 2. In relation to this last matter, the Tribunal noted the appellant gave evidence he in fact read the Original Certificate when received but did not notice the error in the start date or the date of his birthday, evidence which the Tribunal also implicitly rejected. Again no basis is given to reject this evidence and there was no finding that the appellant was not telling the truth. 3. On the other hand, the evidence we have identified is supportive of a conclusion that, despite the appellant requesting a quote for a third party property insurance policy immediately, the respondent's representative entered incorrect information into the computer system of the respondent when the insurance contract was formed, including a start date for the policy different to what had been requested, an anomalous start time for a policy commencing on a future date and an incorrect date of birth for the appellant. 4. These matters and the concession of the respondent that there was no evidence of the appellant nominating a particular commencement date for the policy lead us to conclude that the Tribunal was in error in rejecting the appellant's claim and that the parties in fact entered into a policy of insurance concluded by a telephone conversation by which the appellant sought to effect insurance cover with an inception date of 14 March 2013 rather than 11:53am on 14 April 2013. 5. It follows that leave should be granted and the appeal allowed. Disposition of appeal 1. It is preferable for the Appeal Panel to finalise the proceedings rather than remit the claim to determine damages. 2. There is no dispute that the if the policy of insurance commenced on 14 March 2013 then the respondent was required to indemnify the appellant for the amount he was liable to pay Mr Campos. This is the amount the appellant was ordered to pay Mr Campos in the Local Court proceedings for the damage to Mr Campos' vehicle caused by the appellant in the motor vehicle accident. 3. There is no suggestion the appellant acted unreasonably in pursuing his claim in the Local Court and although his cross claim was dismissed, there is no suggestion he is not entitled to be indemnified for the court costs which he was obliged to pay Mr Campos in respect of Mr Campos's claim. The parties are under a duty to act with utmost good faith: see s13 IC Act. This includes the appellant acting as a prudent uninsured while any dispute concerning his entitlement to indemnity is determined: see eg CGU Insurance Limited v AMP Financial Planning Pty Ltd [2007] HCA 36. 4. The only issue is what amount is payable and what, if any, interest is payable to the appellant by the respondent. 5. The respondent submitted that in addition to the cost of repairs to the vehicle of Mr Campos for which the appellant was liable to pay, the only amount the respondent was liable to pay was interest calculated in accordance with the IC Act and IC Regulation. It is unclear whether the respondent accepts liability for the court costs added to the claim of Mr Campos in the Local Court proceedings. 6. In any event, it seems to us that the parties in this appeal agree that the policy required the respondent to indemnify the respondent for loss and damage arising from the accident with Mr Campos if the policy was operative at the time and if the appellant was responsible for the motor vehicle accident. The obligation to indemnify was subject to the appellant's obligation to pay an excess of $600.00. 7. Where this obligation is not met, the respondent is in breach of the contract of insurance and liable to pay damages arising from that breach. That liability may be limited in circumstances where consequential loss is suffered because an insured did not act in accordance with the duty of utmost good faith as a prudent uninsured whilst any dispute over the liability of the insurer was resolved. In the present case there is no suggestion that the appellant was imprudent in seeking to recover his own loss and damage (which was uninsured) and have the matter determined by a court of competent jurisdiction, which is what occurred. The fact he lost in those proceedings and had liability determined against him does not, in the present case, alter this position. 8. It follows that where an insurer does not exercise its right of subrogation to deal with a claim, subject to any policy limitation, it is liable to the insured for all loss and damage "as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.": see Hadley v Baxendale (1854) 9 Ex 341, 156 ER 145 per Alderson B at 355. No policy limitation was identified. 9. If the appellant had in fact paid the original judgement in favour of Mr Campos, the amount to be indemnified would be the amount actually paid. In that case the only additional sum payable by the respondent would have been interest calculated in the manner prescribed by the IC Act and IC Regulation. However, in this case, where the appellant has been unable to pay the judgement debt of $4,792.05, the loss suffered by the appellant includes any accrued interest payable by the appellant to Mr Campos under the Civil Procedure Act, 2005 and rules. This interest is payable as it constitutes loss and damages suffered by the appellant by reason of the continuing breach by the respondent until such time as the appellant is indemnified or provided with funds to discharge the judgment debt. On the other hand, the liability to compensate for this component of the appellant's loss should be limited to 3 days after the appellant is paid the relevant sum, so as to allow a reasonable time for the appellant to discharge the judgment debt after receipt from the respondent. 10. The liability of the respondent is subject to a deduction for the amount of $600 payable in respect of the excess and an adjustment to any interest payable on the Local Court judgment for the excess amount. After deduction of the excess from the Local Court judgment, the amount payable is $4,192.05. Orders 1. The Appeal Panel does not know what, if any, further amount of interest may be claimed by Mr Campos. However the Tribunal has power to make orders to facilitate the payment of any additional interest payable by the appellant on the award made in favour of Mr Campos in the form of an order to perform services, the definition of which includes the provision of insurance cover: see s 79F(1)(f) of the Fair Trading Act, 1987. 2. The Appeal Panel makes the following orders: 1. The time to file the appeal is extended to 24 July 2016. 2. The appeal is allowed and to the extent necessary leave to appeal is granted; 3. The order made 15 June 2016 in application GEN 16/17469 is set aside and in lieu thereof the following orders are made: 1. The respondent, AAI Limited trading as GIO Insurance, is to pay the applicant, Peter Alexakis, the sum of $4,192.05 (Principal Sum) immediately; 2. The respondent is to indemnify the applicant for an amount equivalent to any amount paid by the appellant to Mr Campos pursuant to s101 of the Civil Procedure Act for interest on the Principal Sum, such amount to be limited to the amount of interest from the date of the Local Court judgment (namely 8 October 2014) to a date not later than 3 days following the date the Principal Sum is paid to the appellant. 3. The parties may apply to the Tribunal at first instance to fix the amount payable pursuant to the previous order if that amount cannot be agreed. The Tribunal may be constituted by any member for this purpose. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 14 November 2016 - Order (3) (b) 13 October 2016 amended to 8 October 2014 [2] 14 April 2014 amended to 14 April 2013 [9] 13 April 2016 amended to 13 April 2013 & 14 April 2016 amended to 14 April 2013 [19] (1) 14 March 2016 amended to 14 March 2013 [62] (3) (b) 13 October 2016 amended to 8 October 2014 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. Decision last updated: 14 November 2016