Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Issa v Australian Alliance Insurance Co Ltd t/as Shannons Insurance [2017] NSWCA 87 Hearing dates: 2 May 2017 Decision date: 02 May 2017 Before: Beazley ACJ and Basten JA Decision: (1) Refuse the application for leave to appeal. (2) Order the applicants to pay the respondent's costs of the application. Catchwords: APPEAL – application for leave to appeal – judgment below was an appeal limited to questions of law – failure to identify clearly any question of law – amount in issue well below amount triggering the need for leave – no issue of principle – costs already incurred disproportionate to amount in issue MOTOR ACCIDENT – whether accident proved to have occurred "without intent" – three vehicle collision – drivers not previously known to each other – objective evidence not consistent with descriptions given by drivers – claimants failed to satisfy magistrate as to how collision occurred Legislation Cited: Local Court Act 2007 (NSW), ss 39, 40 Cases Cited: Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 Tolson v Roads and Maritime Services [2014] NSWCA 161 Category: Procedural and other rulings Parties: Peter Issa (First Applicant) Eva Issa (Second Applicant) Australian Alliance Insurance Co Ltd t/as Shannons Insurance (Respondent) Representation: Counsel: Mr J Clarke SC/Mr J O'Connor (Applicants) Mr B Burke (Respondent) Solicitors: Barrack Lawyers (Applicants) Courtenay & Co (Respondent) File Number(s): 2017/43327 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2016] NSWSC 1320 Date of Decision: 20 September 2016 Before: Associate Justice Harrison File Number(s): 2015/292489 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicants were the owners of a 1999 Mercedes Benz, which was insured for $26,900. The car was "written off" as the result of a collision between three vehicles on 27 November 2012. The insurer refused payment of the claim, following which the applicants commenced proceedings in the Local Court. The question to be determined by the magistrate was whether the applicants could establish that the vehicle had been damaged in an accident "that occurs without intent", for the purposes of the insurance policy. 2. The proceedings appear to have been vigorously contested and ran over 10 days from 12 May 2014 to 18 June 2015, before Magistrate G Curran. On 9 September 2015 the magistrate, not being satisfied that the applicants had proved their case on the balance of probabilities, dismissed the claim. 3. The applicants appealed pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) to a judge in the Common Law Division. The appeal pursuant to s 39(1) was limited to a question of law. The applicants also sought leave to appeal on grounds that were said to involve questions of "mixed law and fact", pursuant to s 40(1) of the Local Court Act. 4. That appeal came before the primary judge, Harrison AsJ, who delivered judgment on 20 September 2016 dismissing the appeal brought as of right with respect to questions of law and refusing leave to appeal under s 40(1). [1] The applicants now seek leave to appeal from that judgment. 5. As the primary judge said of the appeal before her, "[t]his appeal mainly seeks to overturn unfavourable findings of fact made in the Local Court." [2] That observation applies to the present application. The draft notice of appeal contained 10 grounds, several with extensive particulars, covering more than six pages of the document. None identified with clarity an error of law; none sought to challenge the refusal of leave under s 40 to extend the appeal to mixed questions of fact and law. 6. On 20 December 2016 the applicants filed a summary of argument in support of the application for leave to appeal. On 22 February 2017 an amended summary of argument was filed. That document limited the case to four grounds. 7. Ground 1 alleged that the primary judge "erred in failing to find that the [magistrate] had erred in law in concluding that the Applicants had failed to prove on the balance of probabilities that the collision was without intent". That did not identify any relevant error of law. However, the submission stated: "The relevant fact finding exercise was binary: the event happened; it was either an accident or it was deliberate." That analysis, which appears to have pervaded the thinking of the applicants, was inaccurate. The applicants needed to demonstrate that it was "without intent" and thus, not "deliberate". They failed to satisfy that burden of proof; that did not involve a finding that it was deliberate. 1. As the primary judge acknowledged, [3] referring to Tolson v Roads and Maritime Services, [4] despite what was said in Azzopardi v Tasman UEB Industries Pty Ltd, [5] "an erroneous finding of fact may demonstrate a basic misunderstanding of the case brought by the claimant, so as to demonstrate that the tribunal has failed to address and determine the issues before it and has thus failed to exercise its jurisdiction [6] ". However, that was not established in this case. The fact-finding by the magistrate was focussed on the issues identified in the evidence; the inferences drawn were logical, persuasive and fully reasoned. 2. The second ground alleged that the magistrate "could not conclude" that the applicants "had failed to prove their case" in the absence of cross-examination of each of the three drivers, challenging their evidence that they did not know each other prior to the collision. 3. Depending on precisely how the case was run at trial, that proposition was not necessarily correct as a matter of law or fact. It was at least possible that the accident had been staged, without the individual drivers involved knowing each other in advance. In any event, to explore that ground would mean an investigation of a 10 day hearing in the Local Court, an exercise which involves no element of public interest, would involve costs which are already entirely disproportionate to the amount in issue and which, for reasons noted below, would not clearly establish any error or injustice. 4. Ground 3 alleged that the magistrate did not "properly" grapple with, consider, and give reasons that addressed the significance of, light blue paint found on the rear of the front vehicle, with which the front of the applicants' vehicle was said to have collided. There was some question as to whether the "light blue paint" came from the applicants' vehicle or not, but it may be accepted that the applicants' car was dark blue in colour so that the source of the light blue paint was not identified. However, the magistrate placed no weight upon it and the suggestion that it might have contradicted other aspects of the mechanical and expert evidence was speculative. No question of law was raised. 5. Ground 4 alleged that the primary judge should have found that the magistrate erred in "not giving reasons that dealt with the significance of the collision between and damage caused to the front of" the third vehicle, which collided with the rear of the applicants' vehicle. Again, it is not clear how that evidence was presented at trial. It is true that the evidence of the experts was consistent with the front car reversing on three separate occasions into the applicants' vehicle, and inconsistent with the evidence that the applicants' vehicle was shunted into the front vehicle as a result of being hit from behind. This ground sought to reagitate factual issues which were not clearly shown to have been material to the outcome, let alone dispositive. 6. The applicants seek a second appeal (and thus a third hearing) in relation to a claim originally worth just under $27,000. There is no challenge to the refusal of the primary judge to grant leave to expand the appeal to cover mixed questions of fact and law. None of the grounds now relied upon clearly raises a question of law. 7. In addition to the relatively small amount in issue and the disproportionate amount which has already been incurred by way of costs, the Court has no reason to doubt that the outcome was available on the evidence. The reasoning of the magistrate was well-structured, clear and coherent. He dealt in detail with the evidence presented and made findings which were articulated with precision and which demonstrated no patent error in fact finding, as amply explained by the primary judge. There was no plausible suggestion that he mistook the legal basis on which the matter had to be determined. 8. The applicants presented evidence that they suffer significant health problems and have suffered significant financial and health difficulties as a result of their failure to persuade the magistrate with respect to their claim. Their difficulties extend to rejection by a number of insurers of applications for insurance of 10 other vehicles which they owned and with respect to house insurance. So far as the financial difficulties are concerned, it is noteworthy that, pending a review, a costs assessor has held that the costs payable by them with respect to the Local Court proceedings are more than four times the amount in issue. 9. If an error of the kind required (being more than merely arguable) had been established, these considerations may have been relevant; in the circumstances where relevant error has not been demonstrated, they do not provide any separate ground for leave to appeal. 10. The application for leave to appeal should be refused; the applicants must pay the respondent's costs of the application. ********** Endnotes 1. Issa v Australian Alliance Insurance Co Ltd t/as Shannons Insurance [2016] NSWSC 1320. 2. Issa at [7]. 3. Issa at [54]. 4. [2014] NSWCA 161 (Beazley JA, Preston CJ of LEC and me). 5. (1985) 4 NSWLR 139 at 156-157 (Glass JA, Samuels JA agreeing). 6. State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12]. 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: 02 May 2017