Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; - HCA 1992 case summary — Zoe

[196]

the Applicant had 25 years' experience driving forklifts;
the Applicant was not under the influence of drugs or alcohol or otherwise observed to be impaired or driving erratically prior to the incident;
there had been increased reliance on the forklift the subject of the incident in circumstances where one of the three grab forklifts was out of service;
the servicing of the forklift had been delayed from February to March as a result of the increased reliance on the forklift;
the forklift travelled approximately 10 metres between where it was parked and where it hit the first object and would have been able to reach its full speed of 10 kilometres per hour across that distance;
upon hitting the first object there was no evidence of braking but rather, the forklift travelled a further 9 metres, hitting multiple other objects along the way, into a pedestrian zone and roller door without stopping in circumstances where the forklift should brake within 2 metres if the operator applies a working brake;
the forklift weighs in excess of 11 tonnes and Mr Brennan's evidence is that if the brakes were not used and the Applicant was travelling at 10km per hour the forklift would be able to travel well beyond 6 metres;
no precise measurements were taken of any of the distances that the forklift travelled during the course of the investigation and I am not satisfied that a forklift, weighing in excess of 11 tonnes, would have slowed to a stop before hitting the roller door in circumstances of brake failure, despite hitting objects along the way;
the Respondent called Adapt-A-Lift, the entity that leases and services the forklift, to inspect the forklift post accident and it was that entity that reported that it had found no issues with the forklift;
the Respondent interviewed the Applicant to get his full account of events after Adapt-A-Lift has inspected the forklift;
the Adapt-A-Lift representative was not told that the Applicant had alleged soft pedal and did not test for water contamination, which creates a high risk of soft pedal if it occurs;
the Applicant has been consistent in his account that the brake went soft (soft pedal);
while the service history states a 4000-hour service was completed on 9 March 2023, there are anomalies in the forklift's service history including evidence suggesting that:

Parties

Applicant/Plaintiff:

# Neat Holdings Pty Ltd

Respondent/Defendant:

Karajan Holdings Pty Ltd \[1992\] HCA 66;

Legislation Cited (8)

Practices Act 1974

Trading Act 1987

Work Act 2009

Health and Safety Regulations 2011

Health and Safety Act 2011

Work Regulations 2009

WHS Act 2011

Health and Safety Regulation 2017

Cases Cited (16)

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (16 December 1992)

2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud ((1) See, e.g., Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 500; Rejfek v. McElroy [1965] HCA 46; (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362; Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538) proof is necessary "where so serious a matter as fraud is to be found" ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud [1926] VicLawRp 43; (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711):

6. It is true that the trial judge did not make an express finding that the entries in the book had been deliberately falsified by the personal respondents. Nonetheless, a careful reading of the whole of the judgment makes clear that his Honour was conscious of the fact that such a finding was implicit in the finding of deceit which he made against the respondents. As has been indicated, the central issue at the trial was whether Karajan's weekly takings figures (for the period prior to take-over) were false or whether Neat Holdings' weekly takings figures (for the period after take-over) were false. The respondents' approach on that central issue was that the takings figures in Karajan's takings book were genuine and accurate and that the figures in Neat Holdings' takings book were deliberately false in the sense that part of the takings had been concealed or not "declared". It was necessary for the purposes of Neat Holdings' case that it persuade the court that the figures in Karajan's takings book were false. As a practical matter, that involved, in the circumstances, persuading the court that the takings book had been deliberately falsified by the personal respondents. It did not, however, involve alleging or seeking to prove that the takings book was also a forgery in the sense that it was a subsequent fabrication of what purported to be a contemporaneous record of weekly takings ((8) See the definition of a document "said to be false" in s.470 of The Criminal Code (W.A.) as it stood prior to its repeal in 1990; and see, generally, Brott v. The Queen [1992] HCA 5; (1992) 173 CLR 426). Nor was it incumbent upon the learned trial judge to make any positive finding in that regard.

It was a curious submission for the respondents to make, not because the standard of proof was otherwise than on the balance of probabilities, but because of itself it did not invite his Honour to consider the degree of proof required where there was an allegation of fraud ((9) See Rejfek v. McElroy [1965] HCA 46; (1965) 112 CLR 517, at p 521).

(1992) 67 ALJR 170

(1992) 110 ALR 449

(1945) 71 CLR 430

(1965) 112 CLR 517

(1938) 60 CLR 336

(1940) 63 CLR 691

(1986) 6 NSWLR 534

(1992) 173 CLR 426

(1995) 62 IR 371

(1996) 142 ALR 681

(2002) 117 IR 357

(1997) 72 IR 186

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66;

At a glance

Court

Decision date

Before

Source

Judgment (854 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (16)

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (16 December 1992)