MCMURRAY -v- AIG INSURANCE AUSTRALIA LTD [No 5] [2021] WASC 300 | Case summary

[4]

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

MCMURRAY -v- AIG INSURANCE AUSTRALIA LTD [No 5] [2021] WASC 300 | Case summary | Zoe

[289]

(a) the kitchen, pantry, downstairs ensuite and powder room, dining/meals room, living room, laundry, lift and staircase on the ground floor remained in the same locations as they were prior to the renovations (although new fixtures and fittings had been, or were in the process of being, installed);

(b) the rear terrace area of the ground floor had been enclosed, and its use designated as a loggia (a gallery that can open to the elements with doors that open wide on both sides), and an enclosed bar had been, or was in the process of being, constructed to the eastern side of the loggia in what had been the rear terrace area. It does appear that a wall on the eastern side of the bar had been built to extend the area of the bar that was previously part of the rear terrace area;

(c) new decking had been built to wrap around the ground floor rear of the house, from the eastern side of the property from the bar area to the western side of the house around the existing pool;

(d) although it is not entirely clear, the only interior walls that appear to be have been removed, in part, or in whole, and replaced on the ground floor was a small area of wall near the lift, and an area of wall in the ground floor entry between the rooms proposed to be the dining room and the sitting room;

(e) part of the entry walls (to the dining room and the sitting room) were replaced with new timber frames with recesses for timber sliding doors or what are sometimes referred to as pocket doors;

(f) a gyprock lined and flat oak lined column (described by AIG as a faux column) was constructed in the dining room in the corner between the entry wall and the wall between the dining room and bathroom, which corner was near the stairs leading down to the spiral staircase;

(h) the walls of the entry were covered by linear oak battens on timber panels, and the timber sliding doors to the dining room and the sitting room were covered with a mirror face with linear oak battens affixed to the mirrored surface;[47]

(i) Loba Oil had been specified by the McMurrays' interior designer, Mr Lyon, to use on the wood wall panels and battens to match the new floorboards; and

(j) all of the oak timber lining in the dining room had been, or was in the process of being, stained by the painters using Loba Oil to match the new timber flooring. However, as set out below, there is no evidence that the painters were working inside the dining room on the day before the night of the fire.

[385]

(1) a car pulled up, lights flashed and the car later drove off at about 10.42 pm;[135]

(2) a person can be seen walking down the street on the other side of the road at about 10.44 pm.[136] This image is consistent with Mr McMurray's evidence that he saw a person walking down the street, away from the eastern side of the house with a backpack, across the vacant block, which is next to the house that immediately abutted the McMurrays' house on the eastern side at about 10.45 pm;[137]

(3) at about 11.44 pm, a vehicle drives past the McMurrays' house travelling along the road from east to west. At 11.45 pm, a male person is seen walking in the opposite direction to the vehicle, that had just passed from the east to west along the verge past the entry to the house and then disappearing from view on the eastern side of the house.[138] The CCTV footage from the front of the McMurrays' house looking over the entryway across to the verge shows the person walking along the street past the entry on the other side of road, walking in an easterly direction. This CCTV footage of the person is very clear, and records the image from a relatively close distance. The tennis court footage, recorded from the front of the house next door on the western side and across the tennis court to the McMurrays' property, is not so clear, and it has recorded images at or near the McMurrays' property at a much greater distance. However, in the tennis court footage sufficient light is seen around the front area of the McMurrays' property to also record a person walking along the verge of the McMurrays' house at that time, and the person can be seen to walk east, past and near the steps up to the entry at the front door before going out of sight. Another car then drives past from east to west. Its lights light up part of the front of the McMurrays' house. From these images of this person in the tennis court footage, it appears sight of the person is lost shortly before or at about the point where the path to the eastern gate meets the verge. These images are sufficiently clear from which an inference can be drawn that the person whose image is seen at this time, could have walked along the eastern side of the McMurrays' property and entered the eastern gate without being seen on any CCTV footage. This is because the person was recorded as being in very close proximity to the eastern gate and there is no CCTV footage available that shows the path towards and the entry to the eastern gate to the McMurrays' property. Further, there is other evidence that establishes that a person could have entered the property through the eastern gate and walked around the back of the property to the external laundry door without being seen on any CCTV footage; and

(4) a car travels east, lighting up the area, at 12.50.37 am. A second car travels east at 12.51.10 am. A third car travels west at 12.51.43 am. A fourth car travels west at 12.53.18 am. A person is seen walking west, on the opposite side of the road to the McMurrays' house, at 12.53.21 am. At 12.53.51 am, a fifth car travels east. The person continues walking west until, at 12.53.57 am, they are no longer visible. The clarity of this footage is, however, poor. None of the footage is clear enough to draw any inference that the person seen, or any person, may have approached and entered the eastern gate prior to walking west, past the house, on the opposite side of the road.

[469]

(1) The Department of Fire and Emergency Services received a call that there was a fire at the Wellington Street property at 1.21 am on 16 January 2016, and that a fire and rescue services crew from Claremont attended to investigate and suppress the fire. On arrival, the incident controller station officer could not determine the origin and cause of the fire, and called in the fire investigation and analysis unit to attend.[173]

(2) The owners of the property visited on the evening of Friday 15 January to top up the pool around 8.30 pm.[174] They did not enter the premises; they walked around the back via the eastern side. They stated that they did not see or hear anything unusual during their visit.[175]

(3) The home is being refurbished by Mosman Bay. The home was due to be completed in a few weeks' time. Claremont crews attended a fire in a skip bin at the front of the premises on the morning of (Tuesday) 12 January, four days prior to the current fire. This fire was recorded as suspicious.[176]

(4) The front verge of the property is secured by cyclone fencing and a skip bin is located on the verge adjacent to the driveway.[177]

(5) After recording in some detail the extensive damage sustained by fire and heat to the house that could be seen from the outside (and before conducting an internal examination), under the heading 'Right hand side (southern‑eastern)', he stated that the external examination revealed that the most fire damage to the top floor area was around the central section, and that two hypotheses of the origin of the fire were still valid. These were: whether the fire started in the upper floor and dropped down into the ground floor or whether the fire started in the ground floor and spread to the upper floor.[178]

(6) The internal examination of the central hallway area on the ground floor, which encompasses the staircase, displayed the following fire patterns:

Failure of the ceiling panels exposing the smoke stained concrete slab

A 'V' pattern was evident on the timber wall panelling indicating the smoke and heat travelled from the front of the premises to the rear.

There is evidence of plaster spalling in the upper section of the wall adjacent to the timber panelling

Smoke staining on the walls of the stairwell increased towards the upper parts.

A section of plaster spalling was evident in the bulkhead at ceiling level of the staircase which faces the front of the property.

No smoke staining was evident on the external walls at the ground level of the staircase.

[874]

(1) The evidence of Mr Tisdale is that the lock picking tool found on the ground outside the laundry door could be used not only to open the laundry door in about 30 seconds, but also easily be used to open the east gate.

(2) The evidence of Mr McMurray and the CCTV footage establishes that a person could enter the eastern side of the property through the eastern gate and walk around to the laundry door without being seen by the camera located across from the tennis court of the house next door. Mr McMurray estimated the journey from the east gate to the laundry door to be 30 to 40 seconds.[361]

(3) The temporary security fencing at the front did not cross the whole of the front of the McMurrays' property, so that a person could enter the eastern gate without having to negotiate the security fence.

(4) The tennis court footage taken from the arrival of the McMurrays on the night of 15 January 2016 at about 10.37 pm identifies a person who may have entered the house. The tennis court footage shows Mr McMurray enter the property through the eastern gate at 10.37 pm and disappear from view, even though he was using his iPhone as a torch. A few seconds later the same thing happens with Mrs McMurray. On each occasion, they pause before entering the property. At 11.45 pm a male person is seen to walk in an easterly direction along the verge past the entry on the McMurrays' house side of Wellington Street and very close to the entry to the eastern gate of their property before going out of sight at about the same point that Mr and Mrs McMurray did when they walked along the path to the eastern gate. From the CCTV footage taken from the front of the McMurrays' house and the tennis court video, it can be inferred that this person had an opportunity to enter the McMurrays' house through the eastern gate and through the laundry door if that person had a lock picking device.

(5) The fire was first seen by neighbours at 1.02 am. As Mr Holgersson points out, there were many reasons why a person might enter a house of this kind, and in the course of entry either accidentally or intentionally light a fire. Such circumstances are not unknown to this court who until very recently had exclusive jurisdiction to deal with criminal proceedings for the offence of arson. It might be thought that nobody would be in the house since it was being renovated and it might be thought that something of value might have been placed in the house that could be stolen. As Mr Manser conceded, in his experience as a police officer and a forensic fire investigator, on rare occasions a fire is found to have been caused by someone who breaks into a house to steal something valuable.[362]

(6) There is one piece of evidence that is consistent with someone having entered the house after Mr Thomas left and locked the house up at the end of the day, that is not consistent with the oily rags in the bin theory and is consistent with the intruder theory, and that is Mr Thomas' evidence that the green plastic rubbish bin was inside the dining room and one to one and a half metres away from the sliding doors.[363] Mr Thomas not only marked the location of this bin on a plan when he was interviewed on 3 February 2016, but his evidence is that he threw a drill bit and an empty water bottle into this bin when he left for the day, and that he was in the entryway about one and half metres away from the bin. The uncontradicted evidence of Mr Bell, Mr Tong, Mr Manser and Mr Pollard is that during the fire this bin was located almost in the middle of the entry to the dining room, close to and between the sliding doors. Mr Thomas' evidence on this point is cogent and consistent with the whole of his evidence. Importantly, it is particularly cogent because he marked the location of the bin on the plan 14 days after the fire.

[949]

I was referred to a number of authorities which discuss what is a structure, in the context of other legislation. I do not think assistance is gained from considering these authorities, as the word must take its meaning from the purpose and context of the relevant Act in which it is to be found. For example, in R v Rose, it was held that a caravan was a structure within the meaning of 'building or structure' in s 1 of the Criminal Code (NT) (where the words were included in the definition of 'dwelling-house'), so that Gibbs J accepted a plea of guilty by the defendant, who broke into a caravan used as a residence, to a charge of breaking and entering a dwelling-house. I do not consider that a caravan, which is obviously not intended to remain permanently in one place, is a structure for the purposes of the Copyright Act. In the context of the Copyright Act, there is no requirement that the building or structure be occupied for human habitation, or that it is even occupied by living species at all, as it obviously includes bridges and dams, which are not inhabited. At least some structures designed for the keeping of animals, produce, plants or fish such as stables, silos, greenhouses or fish ponds would be included. Thus, there is no necessity for a structure to have steps, doors, a roof, or windows. In the case of dams, or large storage tanks, these could well be structures even though they are designed to store water or fuel. I think that the word 'structure' implies something which is of some substance, and is usually erected upon or constructed upon or in the ground with an element of permanence, although it need not be a fixture, so that prima facie, a prefabricated building which is designed to be removed may be a structure, and may still remain a structure even though it is in the process of being removed or is left temporarily unattached to the soil. I do not see why buildings, and therefore structures, need be built from concrete or stone; surely the form of building material used is not important, so long as the building or structure is a thing of some permanence. It flows from this that it is not necessary that the building or structure be built up from the ground in situ. Modern materials and methods of construction include buildings which are prefabricated off‑site; nevertheless I do not see why such buildings are not 'buildings' in the ordinary sense of the word, if the intention is that the building when delivered on-site will become permanently, or relatively permanently, fixed to the ground.

[1365]

(a) in respect of the Murrays' costs:

(i) AIG accepts that, given the McMurrays' role in the proceeding (for example preparing the trial bundle), the amount of hours for the preparation of case item is likely to exceed the scale limit and should be lifted. However, AIG does not accept that the hourly rates for the solicitors should also be lifted in circumstances where no reason is given other than the fact of their rates just being higher than the scale;

(ii) given the length and complexity of the trial, AIG accepts that the trial - fee on brief item is likely to exceed the scale limit and should be lifted. In light of the fact that other parties briefed senior counsel (AIG and Mr Holgersson) and Mr Hancy's rate is less than senior counsel's rate in the scale, AIG accepts that for work performed by Mr Hancy, the hourly rate for counsel ought to be lifted. This will also affect trial second and each successive day of trial; trial (attending on reserved judgment); appeals - counsel fee on hearing including preparation; and pre-trial mediation, conferrals or other conferences. This may also affect statement of claim and proceedings in chambers. Further, AIG says the limits in respect of these items should only be lifted for work performed by Mr Hancy in respect of the hourly rate he charged;

(b) as to Mr Holgersson, AIG does not contest the uplift of the hourly rate for senior counsel for fees on brief and at trial, including closing submissions (items 22(a) ‑ (d) and (g)). However, AIG submits there is no evidence led by Mr Holgersson to enable the court to form the view that there is a fairly arguable case that, on taxation, the costs allowed for preparation of case (item 19) may properly be allowed in an amount greater than the limit imposed by the costs determination. AIG also claims that Mr Holgersson did not brief any experts and only called two lay witnesses, Mr Simpson and himself, to give evidence. Accordingly, AIG says there is no basis upon which the court could form an impression that the scale amount for preparation of the case would be insufficient.

MCMURRAY -v- AIG INSURANCE AUSTRALIA LTD [No 5] [2021] WASC 300 (2 September 2021)

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