[1938] HCA 34
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Dearman v Dearman (1908) 7 CLR 549
[1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472
[1993] HCA 78
Fox v Percy (2003) 214 CLR 118
[2003] HCA 22
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1
Source
Original judgment source is linked above.
Catchwords
[1938] HCA 34
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Dearman v Dearman (1908) 7 CLR 549[1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472[1993] HCA 78
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1[2014] HCA 26
Insurance Australia Ltd v Checchia (2011) 80 NSWLR 1[2011] NSWCA 101
Lee v NSW Crime Commission (2012) 224 A Crim R 94[2012] NSWCA 262
Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449[1992] HCA 66
New South Wales v Hathaway [2010] NSWCA 184
Nominal Defendant v Smith (2015) 73 MVR 257[2015] NSWCA 339
Warren v Coombes (1979) 142 CLR 531J Trainor (Respondent)
Judgment (11 paragraphs)
[1]
Solicitors:
Hall & Wilcox (Appellant)
Than & Associates (Respondent)
File Number(s): 2017/381638
Decision under appeal Court or tribunal: District Court
Jurisdiction: Civil
Date of Decision: 23 November 2017
Before: Norton SC DCJ
File Number(s): 2016/169835
[2]
[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.]
[3]
[This headnote is not to be read as part of the judgment]
The appellant, Ms Thi Thuy Tien Nguyen, was involved in a car accident on 20 November 2012, when she negligently turned her vehicle into the path of oncoming traffic contrary to a "No Right Turn" sign and collided with another car. The respondent, Mr Van Nam Tran, commenced proceedings against the appellant, claiming damages for injuries that he alleged he sustained as a passenger in the appellant's car. It was not a matter of contention that the appellant had breached her duty of care to her passengers in negligently turning right. In her defence, the appellant pleaded that the respondent was not in the car at the time of the accident and that he had brought a false or misleading claim within the meaning of ss 117 and 118 of the Motor Accidents Compensation Act 1999 (NSW) (MACA).
During the trial, the parties adduced evidence seeking to demonstrate that, in the case of the appellant, the respondent was not in the car, and in the case of the respondent, that he was in the car. The primary judge evaluated the evidence of the respondent and his witnesses and made a finding on the evidence "[s]tanding by itself" that the respondent had established on the balance of probabilities that he was in the vehicle at the time of the accident. Following her assessment of the respondent's evidence, the primary judge stated that there was a "tactical burden" on the appellant to demonstrate the respondent was not in the vehicle. Her Honour concluded that, while there was a suspicion that the respondent was not in the vehicle at the time of the accident, the appellant had not established this to the requisite level of proof. The primary judge found in favour of the respondent and awarded him damages in the sum of $15,486.05, after deducting $5,908.30 pursuant to s 83 of the MACA.
The only issue on appeal was whether the primary judge erred in accepting the evidence of the respondent and his witnesses that he was in the car at the time of the accident and thus erred in failing to find that the respondent's claim for damages was fraudulent.
The Court granted leave to appeal and allowed the appeal.
Beazley P (Emmett AJA and Bellew J agreeing) held:
(i) Where an appeal is "by way of rehearing" pursuant to s 75A of the Supreme Court Act 1970 (NSW), appellate intervention will be warranted where there is incontrovertible evidence to the contrary of the evidence accepted by the trial judge or, although there was no such incontrovertible evidence, the conclusion reached by the primary judge was glaringly improbable, there was evidence supporting compelling inferences to the contrary of the findings of the primary judge, or, where the trial judge's finding depends to any substantial degree on the credibility of the witness, the trial judge has failed to use or has palpably misused their advantage as the trial judge: [40], [43].
(ii) The rehearing "nature" of the appeal requires the appellate court to "give the judgment which in its opinion ought to have been given in the first instance", nonetheless, the Court is required to "observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record", namely, the disadvantage that the appellate court has in assessing the evidence of witnesses as compared to the advantage that the trial judge has in seeing and hearing the witnesses give evidence: [41] - [42].
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, followed.
Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, considered.
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84; Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78; Warren v Coombes (1979) 142 CLR 513, referred to.
(iii) The fact finding exercise which is required to be undertaken by the tribunal of fact is not to be approached in a segmented manner. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case: [52] - [54].
(iv) The primary judge erred in finding that the appellant had not "established to the requisite level" that the respondent was not in the car at the time of the accident. A party denying a claim does not have any positive burden to adduce evidence to contradict the opposing party's evidence, either directly or by way of inference. The respondent, as the plaintiff in the proceedings, bore the legal onus to establish that he had been injured in the motor vehicle due to the negligence of the appellant and, it followed, bore an evidentiary burden to prove that he was. The appellant, as defendant, in denying that the respondent was in the car, was not required to adduce evidence to prove that he was not: [55] - [58], [64].
Emmett AJA held:
(v) The primary judge erred in her approach in so far as she concluded that the appellant had not established "to the requisite level" that the respondent was not in the vehicle. The mere fact that a defendant denies an allegation made by a plaintiff does not transfer any burden of proof to the defendant: [101] - [102].
Beazley P (Bellew J agreeing) held:
(vi) Section 140 did not import a requirement that the appellant provide "clear or cogent or strict proof" demonstrating that the respondent was not in the vehicle at the time of the accident. Rather, the nature of the defence, including the gravity of the denial that the respondent was in the car, was a matter for the primary judge's consideration in determining whether she was satisfied that the respondent had proved his claim: [56] - [64].
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 [2014] HCA 26; New South Wales v Hathaway [2010] NSWCA 184; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66, considered.
Emmett AJA held:
(vii) Under s 140 of the Evidence Act, in deciding whether, on the balance of probabilities, the respondent was a passenger in the vehicle, it was open to the Court to take into account the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged. However, it was for the respondent to prove his case on the balance of probabilities: [100]
Beazley P (Emmett AJA and Bellew J agreeing) held
(viii) The primary judge's fact finding process also miscarried, in that the primary judge posed a number of speculative questions which were either contrary to evidence that had been given or which had not been the subject of examination in the trial: [66] - [76].
(ix) The discrepancies in the evidence of the respondent and his witnesses were such that they cast serious doubt on the credibility of those persons. By contrast, the appellant's witnesses were "witnesses of integrity and credit" and there was no reason why their evidence should not be accepted: [78] - [79].
[4]
Judgment
BEAZLEY P: The respondent, Mr Van Nam Tran, sued the applicant, Ms Thi Thuy Tien Nguyen, for damages for injuries he claimed he suffered on 20 November 2012 when he was a passenger in a vehicle driven by the applicant. There was no dispute that the applicant drove her vehicle negligently when she crossed into the path of an oncoming vehicle driven by Mr Patrick Kian, contrary to a "No Right Turn" sign. The question in issue in the proceedings was whether the respondent was a passenger in the vehicle at the time of the collision.
The primary judge held, at [129], that although there was a suspicion that the respondent may not have been in the vehicle, the applicant had not established this to the requisite level of proof in accordance with the Evidence Act 1995 (NSW), s 140, and the observations of the Court in New South Wales v Hathaway [2010] NSWCA 184 at [263]. Her Honour awarded damages to the respondent in the sum of $15,486.05, after making a deduction of $5,908.30 pursuant to the Motor Accidents Compensation Act 1999 (NSW) (MACA), s 83.
The applicant seeks leave to appeal from her Honour's judgment on the basis that her Honour should not have been satisfied that the respondent was in the vehicle at the time of the accident and thus should have dismissed his claim. Leave to appeal is required as the amount in issue on the appeal is less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). The essential error for which the applicant contended in her draft notice of appeal was that her Honour erred in accepting the evidence of the respondent's witnesses that he was a passenger in the car at the time of the accident and thus erred in failing to find that the respondent's claim for damages was fraudulent.
The principles for the grant of leave are well established. In Lee v NSW Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262, Bathurst CJ stated, at [12], as follows:
"Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error …" (citations omitted)
In the present case, there are two matters of particular relevance, one pointing in favour of the grant of leave and the other pointing against the grant of leave. It is convenient to deal first with the matter pointing against the grant of leave, namely, that the amount in issue is a small amount.
[5]
Nature of the claim made at first instance
The respondent, in his statement of claim filed on 2 June 2016, alleged that, on 20 November 2012 he was a passenger seated in the rear passenger seat of the appellant's car, which was involved in a collision with another vehicle. The appellant, in both her defence and amended defence, denied that the respondent was a passenger in the vehicle. She admitted, however, that her vehicle collided with another vehicle and that she owed a duty of care to her passengers.
In her amended defence, the appellant also alleged that the respondent had made false and misleading statements for the purpose of obtaining a financial benefit, namely, payments made by the appellant's third party insurer pursuant to the Motor Accidents Compensation Act 1999 (NSW), s 83, in the sum of $5,908.30. The appellant pleaded that MACA, s 117 applied and sought to recover the sum of $5,908.30 pursuant to s 118(2)(b) of that Act. There is a question whether the claimed recovery of monies pursuant to s 118 was properly a matter of defence or whether it should have been the subject of a cross-claim. I will return to that matter later in these reasons.
[6]
Issue on the appeal
Although the draft notice of appeal contained 10 grounds of appeal, the appellant, in her written submissions, identified the essential issue on the appeal as being whether the primary judge erred in the evaluation of the evidence of the witnesses, causing her Honour to wrongly conclude that the respondent was a passenger in the appellant's vehicle at the time of the accident and thus erred in awarding him damages.
[7]
Primary judge's reasons
The primary judge reviewed the evidence of the respondent, who claimed to have been injured in the accident, and two witnesses who were passengers in the appellant's vehicle at the time of the collision, Ms Thi Thanh Hoa Nguyen (Ms Hoa), a friend of the appellant, and Ms Thi Kim Loan Nguyen (Ms Loan), the respondent's wife, both of whom said the respondent was in the vehicle. Ms Hoa and Ms Loan had also brought proceedings claiming damages for injuries they had suffered in the accident which were heard and determined by her Honour together with the respondent's proceedings. Her Honour also considered the evidence of Mr Kian, the driver of the other vehicle in the collision, and Mr Kian's partner, Ms Rosaria D'Albora, who was a passenger in Mr Kian's vehicle. The appellant, who was the driver of the vehicle, did not give evidence. However, no Jones v Dunkel inference was drawn in respect of her failure to do so.
Her Honour found, at [81], that it was "obvious" that the credit of the respondent, Ms Hoa and Ms Loan was in issue. In relation to the respondent's credit, her Honour found, at [114]-[116], that the respondent, both in his evidence and in the history he gave to the doctors who assessed him for medico-legal purposes, was "very vague", even in respect of simple and non-contentious details, such as his residential address.
However, her Honour held that it could not be said that his answers were all tailored to assist his case or that he exaggerated the effects of the injuries he said he sustained in the accident. For example, the respondent readily conceded that some of his symptoms had improved, as had his psychological condition. Her Honour found that these concessions suggested that he was not willing to lie to assist his case or to obtain a financial benefit. In her Honour's view, it was not surprising that after almost five years, he was unable to accurately recall certain details, such as the colour or age of the other vehicle and the presence of a fire engine at the scene.
Her Honour also found, at [117]-[118], that the medical evidence, with the exception of the evidence of one of the medical experts, Dr Reid, provided some support for the respondent having suffered injuries consistent with the collision and that, accordingly, the respondent's credit was bolstered by the medical evidence.
In relation to Ms Hoa and Ms Loan's credit, her Honour found, at [83], that, on balance, while Ms Hoa's evidence had to be looked at carefully due to certain inaccuracies in it, she had not exaggerated her injuries or her claim for damages, or falsely verified the respondent's claim. Her Honour stated, at [84], that it was necessary to examine Ms Loan's evidence "with some care". However, on the balance of probabilities, her Honour accepted her evidence.
[8]
Submissions of the parties
The appellant challenged the primary judge's finding in favour of the respondent essentially on the basis that the evidence adduced in support of her case was straightforward and consistent, whereas the evidence of the respondent and his witnesses was so inconsistent that it ought not to have been accepted by the primary judge as establishing, on the balance of probabilities, that the respondent was a passenger in the appellant's motor vehicle at the time of the collision.
The appellant referred in particular to Mr Kian's evidence that when he observed the appellant's vehicle, "I saw three ladies". He stated that he was "100%" certain that there were only three people in the vehicle, and that he did not see a man in the vehicle. Mr Kian said that his view into the vehicle was "perfectly clear". In response to a suggestion that it was possible that there was a man sitting in the rear passenger seat behind the appellant, Mr Kian responded "anything's possible". Mr Kian conceded in cross examination that it was "possible" that a man exited the appellant's vehicle while he was talking to the police. However, in re-examination, Mr Kian explained that what he meant by "anything is possible" was that "I'm not going to say that nothing is possible, obviously that's possible, but I don't agree that there was a man there".
The appellant also relied upon Ms D'Albora's evidence that she had a "clear view" of the occupants of the appellant's vehicle and that there were three female occupants. She stated that she did not see a man in the vehicle or a man get out of the vehicle. Ms D'Albora accepted that she developed Post-Traumatic Stress Disorder after the accident. However, she denied that this affected her ability to recall the number of occupants in the appellant's vehicle.
The appellant submitted that, in contrast to the evidence of Mr Kian and Ms D'Albora, the respondent's evidence was vague and unconvincing. In particular, the appellant referred to the following aspects of his evidence:
1. The respondent was unable to tell the Court his residential address.
2. When asked to explain how the accident occurred, the respondent stated that the vehicle had stopped at a red light and that it had started moving when the light turned green, but that "I don't know what happened after that".
3. The respondent stated that he could not remember seeing a fire truck, which was the first emergency services vehicle to attend the scene.
[9]
Consideration
Subject only to the medical evidence, the respondent's claim that, as a passenger, he was injured in a motor vehicle collision on 20 November 2012, fell to be determined solely on the oral evidence of the respondent, the other two passengers in the vehicle and the oral evidence of the driver of and passenger in the other vehicle. To that extent, it was a classic "word on word" case and accordingly the appeal from the primary judge's finding falls to be determined on the basis of the principles discussed in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
In Fox v Percy, the plurality, at [29], identified the bases for appellate intervention in a primary court's fact finding function as being warranted where there was incontrovertible evidence to the contrary of the evidence accepted by the trial judge; or, although there was no such incontrovertible evidence, the conclusion reached by the primary judge was glaringly improbable; or there was evidence supporting compelling inferences to the contrary of the findings of the primary judge.
Relevantly however, for the present case, the plurality in Fox v Percy, at [22], discussed the nature of an appeal from a judgment of the District Court. Pursuant to the Supreme Court Act, s 75A, the appeal is "by way of rehearing". A "rehearing" within the meaning of that provision does not involve a fresh hearing. Rather, the court proceeds upon the basis of the record.
The plurality further observed, at [23], that whilst the rehearing "nature" of the appeal required the appellate court to "give the judgment which in its opinion ought to have been given in the first instance", nonetheless, the Court was required to "observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record", namely, the disadvantage that the appellate court has in assessing the evidence of witnesses as compared to the advantage that the trial judge has in seeing and hearing the witnesses give evidence: see Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 at 561.
McHugh J's reasons were to the same effect. In relation to the point just made, his Honour, at [66], cited the observations of Brennan, Gaudron JJ and himself in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at [479] that:
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ..."
[10]
Orders
Apart from that matter, the orders I propose are:
Grant leave to appeal;
Appeal allowed;
Set aside the orders of Norton SC DCJ made on 23 November 2017;
Judgment for the appellant;
The respondent to pay the costs of the appeal and in the court below;
Direct the appellant to inform the Court of the course she wishes to take in relation to the recovery of monies paid to the respondent.
EMMETT AJA: The question in these proceedings is whether the respondent, Mr Van Nam Tran, was a passenger in a motor vehicle driven by the appellant, Ms Thi Thuy Tien Nguyen, on 20 November 2012, when the vehicle collided with another vehicle at the intersection of Sackville Street and Canley Vale Road, Canley Vale. There was no dispute that Ms Nguyen was negligent in making a prohibited right hand turn from Sackville Street to Canley Vale Road in the face of the oncoming traffic. Mr Tran sued Ms Nguyen in the District Court claiming damages in respect of injuries alleged to have been suffered as a result of the collision.
In his statement of claim in the District Court, Mr Tran alleged that, on 20 November 2012, he was a passenger seated in the rear driver's side seat of a Toyota Camry motor vehicle being driven by Ms Nguyen who attempted to make a right hand turn from Sackville Road into Canley Vale into the oncoming path of a Toyota Corolla motor vehicle, causing the two vehicles to collide. In her defence filed on 11 July 2016 and in her amended defence filed on 26 November 2017, Ms Nguyen denied that Mr Tran was a passenger in the Toyota Camry motor vehicle.
The amended defence also alleged that Mr Tran had made false and misleading statements regarding his involvement in the motor vehicle accident for the purpose of obtaining a financial benefit in contravention of s 117 of the Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act). Curiously, the defence asserted that Ms Nguyen sought to recover the payments made to Mr Tran by Ms Nguyen's third party insurer on her behalf as a consequence of the alleged false and misleading statements made by Mr Tran.
On 23 November 2017, for reasons published on that day, a judge of the District Court (the primary judge) directed the entry of judgment in favour of Mr Tran in the sum of $15,486.05. The primary judge subsequently ordered Ms Nguyen to pay Mr Tran's costs of the proceedings. By summons filed on 23 February 2018, Ms Nguyen seeks leave to appeal from the orders made by the primary judge. The proposed grounds of appeal relate to the conclusion by her Honour that Mr Tran was a rear seat passenger in the motor vehicle driven by Ms Nguyen at the time of the collision.
[11]
Amendments
28 September 2018 - Typographical errors amended at Headnote (vi), [64], [86], [87]
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: 28 September 2018
In Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69, Kirby P explained, at 2-3, the rationale for imposing a monetary limit as follows:
"(3) The discouragement of unnecessary litigation in small amounts where public costs are necessarily involved including the time of the Judges, court officers, use of court buildings and functions, court reporters and the other expensive features of public litigation;
(4) A recognition of the fact that, particularly in small claims, the amount of costs that can be recovered on a party and party costs order, are typically below those which are actually incurred by a party and which, in respect of a small claim, may be completely disproportionate to the amount actually at stake;
(5) The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable."
Similarly, Cole JA stated, at 3, that:
"It should be recognised that where such small claims are involved there must be an early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute."
The applicant submitted, however, that notwithstanding the small amount involved, there is a public interest in the court rejecting fraudulent claims. A question arose in the course of argument as to whether the purport of the applicant's defence was that the claim was fraudulent, or whether it was no more than a denial of the respondent's allegation that he was in the vehicle at the time of the collision.
In my opinion, a denial of such an essential factual element of a party's claim implicitly involves an allegation of fraud. In any event, the applicant's draft notice of appeal expressly pleaded that the claim was fraudulent.
The applicant submitted that the motor vehicle accident scheme cannot financially withstand the accumulation of many small fraudulent claims and that, as was publicly known, the reason that a new scheme had recently superseded the scheme in force at the time of the applicant's accident was because of the proliferation of many small fraudulent claims.
That this was the purpose of the introduction of the new scheme may be gleaned from the second reading speech for the Motor Accidents Injuries Bill 2017 where the Minister stated that the Bill was "designed to reduce fraudulent and exaggerated claims" and pointed to the financially burdensome effect of such claims on New South Wales motorists.
In my opinion, as a matter of the administration of justice, the Court should not permit itself to be used for the bringing of fraudulent claims. This is so even if the claim is small, such as is the case here, if in fact the respondent was not a passenger in the motor vehicle when the accident occurred. That, of course, is the question in issue on the appeal and is not determined by the grant of leave. However, for the reasons I have indicated, this is a matter where leave to appeal should be granted. Accordingly, I will hereinafter refer to the applicant as the appellant.
Her Honour found, at [123], that, "[s]tanding by itself", on the balance of probabilities, on the evidence of the respondent, Ms Hoa and Ms Loan, it had been established that the respondent was in the vehicle at the time of the collision. This was so notwithstanding the concern as to Ms Hoa's credibility and inconsistencies in the evidence of the respondent, Ms Hoa and Ms Loan as to the details of events which took place before and after the accident, such as how they left the scene, what happened earlier in the day and the purpose of the journey.
Her Honour emphasised that it was not surprising that there were differences in the evidence, in light of the fact that five years had passed since the accident. Indeed, her Honour found that it would be surprising if they recalled the details of the surrounding circumstances in exactly the same way. Her Honour noted that the most memorable event of the day was the accident itself, and each of the respondent, Ms Hoa and Ms Loan recalled the collision and "were unshaken as to [the respondent] being in the vehicle at the time".
Her Honour stated, at [124], that there was "then a tactical burden on [the appellant] to show that [the respondent] was not in the vehicle". Her Honour commented that the defence case involved a serious allegation, namely, of fraud, with grave consequences which meant, if made out, that each of the respondent and his witnesses had committed perjury and engaged in a conspiracy. Her Honour considered that the allegation that the respondent was not in the vehicle brought into play MACA, ss 117 and 118, and that this would affect the claim of the respondent. Her Honour considered that it was possible that the claims of his two witnesses, who had each brought their own proceedings and been awarded damages, would be affected by s 117.
Her Honour also referred, at [124], to the Evidence Act, s 140, observing that when considering the standard of proof, "the requisite degree of satisfaction is informed by the seriousness of the allegation", citing FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26 at [12]. Her Honour, at [125], again referred to the seriousness of the allegation of fraud such that there was a need for "clear or cogent or strict proof" to make out the appellant's allegation in that regard. Her Honour cited New South Wales v Hathaway at [263] as supporting that proposition.
The primary judge next dealt with the evidence of Mr Kian, the driver of, and Ms D'Albora, the passenger in, the other vehicle involved in the collision. Although her Honour considered Mr Kian and Ms D'Albora to be witnesses of integrity who gave their evidence in a straightforward manner to the best of their ability, and although she accepted that both were sure that there were only three occupants of the appellant's vehicle, not four, her Honour found, at [126], that the number of occupants would not have been of much relevance to them at the time and that there was "much else to occupy their attention".
Her Honour noted that Mr Kian and Ms D'Albora did not make a statement which gave any details as to the number of occupants of the appellant's vehicle until December 2015, over three years after the accident. Her Honour also noted that both Mr Kian and Ms D'Albora conceded that they had discussed the event between themselves and that Mr Kian had said that prior to making their statements, there had been numerous calls from the insurer. Ms D'Albora also agreed that the process of taking the statements involved answering questions, the wording of which, her Honour found, at [127], could "easily, no doubt unintentionally, influence the narrative particularly when the interview takes place so long after the event itself".
Her Honour, at [128], considered that if the respondent was sitting behind the driver's seat looking down, as he claimed, he "may well have been difficult to see", in circumstances where the respondent was "a very diminutive gentleman", having regard to his weight and height, and where it was highly likely that the seats were fitted with head restraints, having regard to the age of the vehicle. Her Honour also commented on the absence of any photographic evidence, evidence as to whether the windows and windscreen of either vehicle were tinted, or evidence of whether either or both of Mr Kian or Ms D'Albora were wearing sunglasses.
The primary judge concluded, at [129], that these considerations reduced the weight of the evidence relied on by the appellant. Her Honour concluded, as mentioned earlier, that while there was a suspicion that the respondent may not have been in the vehicle, that had not been established to the requisite level of proof.
In further support of the argument that the primary judge erred in finding that the respondent had established on the balance of probabilities that he was in the appellant's vehicle at the time of the collision, the appellant made reference to the following inconsistencies and improbabilities in the evidence of the respondent, Ms Hoa and Ms Loan:
1. The respondent had told a medical assessor that he, along with the appellant, Ms Hoa and Ms Loan, were on their way to a Buddhist temple in Cabramatta when the accident occurred. However, when cross-examined on this, he stated that he was not on the way to the temple, stating that he did not know where they were going and that "I just went wherever she took me to".
2. The respondent stated that the vehicle driven by Mr Kian was light yellow and old. The vehicle was in fact white and Mr Kian said it was a 2013 model.
3. The respondent stated that, after the accident, he "caught a free shuttle bus 88" home, contrary to statements he had made to two medical experts that he was picked up at the scene of the accident by a friend of Ms Hoa and, in another version again, that he caught a taxi home.
4. Ms Loan conceded in cross-examination that while she was outside the court room, she discussed with Ms Hoa how they travelled home after the accident. The respondent was also cross-examined about this discussion but stated that he did not overhear it because "when I sit, I actually meditate and I don't pay attention to anything".
5. After the accident, the respondent consulted a general practitioner, Dr Luong, who was not his regular general practitioner. He stated that he went to see Dr Luong because:
"My wife and I, we went to the market and then we were sitting on the bench on Canley Vale Road and someone told her and I followed her."
1. Contrary to this evidence, he had told one of the medical experts that he went to see his regular general practitioner, Dr Thi, after the accident and that while he was waiting to see Dr Thi other patients in the waiting room advised him that Dr Thi did not specialise in motor vehicle accidents and recommended that he see Dr Luong.
2. In cross-examination the respondent accepted that when he saw Dr Thi, he did not tell him about the accident.
3. Ms Loan gave similar evidence as to how the she and the respondent came to see Dr Luong, namely, that a person in the waiting room said that Dr Thi did not specialise in motor vehicle accidents and Dr Luong was recommended. She also stated that she did not tell Dr Thi about the accident when she eventually consulted him.
4. Ms Hoa stated that she had never met the respondent or Ms Loan before the day of the accident. Ms Loan's evidence, however, was that they had met "a few times before that day" and that Ms Hoa had visited her house.
5. Ms Hoa was granted a certificate pursuant to the Evidence Act, s 128, following which she gave the following evidence:
"Q. The evidence you gave on Monday where you told the Court … that you had never seen [Ms Loan] or [the respondent] before the day of the accident? That was not true, was it?
A. INTERPRETER: Yeah, yes.
Q. You agree?
A. INTERPRETER: Yes, I agree.
Q. It was a lie?
A. INTERPRETER: I wasn't lying, I just can't remember.
…
Q. Earlier today when I first started asking you about this, you maintained the position that you'd never seen them before?
A. INTERPRETER: You asked me, I did say that I've met them before. Only on Monday, I actually after I went home, I remembered that I have.
…
Q. How could you possibly have thought on Monday when you gave your evidence in this Court supposedly telling the truth, how could you possibly have forgotten on Monday that you'd known them before this accident?
A. INTERPRETER: Because even though that we actually have known each other for five years, we would rarely contact each other or rarely talk to each other. We only contact each other in you know about this case … otherwise not always at all and that's why I don't remember exactly either before or after the accident because we are not close at all."
For his part, the respondent relied on his own evidence in support of his case, as well as the evidence of Ms Hoa and Ms Loan. In essence, that evidence was that he was a passenger in the appellant's vehicle and that he was sitting behind the appellant. This was consistent with the evidence of Ms Hoa and Ms Loan.
The respondent contended that the certainty of the evidence given by Mr Kian and Ms D'Albora was to be assessed having regard to their reactions immediately after the accident. Mr Kian stated that he felt upset, very angry and "slightly in shock". Ms D'Albora accepted, in cross-examination, that she was "shocked" and in pain, and stated that it felt "like a wave of emotions hit me". After learning that their pet bird had been killed, Mr Kian stated that he felt "upset and angry" and Ms D'Albora stated that "it hit me like a wave … it was severe". She stated that "I was holding onto my stomach; I couldn't stand anymore". The respondent also pointed out that Ms D'Albora's evidence that she did not see a man in the vehicle or get out of the vehicle fell to be assessed along with the respondent's evidence that he remained in the vehicle for 15 minutes after the collision.
In addition to the matters referred to in the preceding paragraph, the respondent relied on the following evidence as demonstrating Ms D'Albora's inability to recall details about the accident:
1. Ms D'Albora stated that while she believed that the appellant's vehicle was a "lighter coloured car", she was not "100% positive".
2. Ms D'Albora stated that she was "not sure" whether, at the time of the accident, she was holding the pet bird, an animal described by Mr Kian to be "part of the family".
3. Ms D'Albora stated that she did not know whether a fire truck arrived at the scene of the accident. Mr Kian, who gave evidence that he saw the truck to the right of his vehicle, described it as being "very big".
4. Ms D'Albora stated that, following the collision, the appellant's vehicle was "kind of on an angle but close to us". However, when asked as to the distance between the vehicles, she stated "I don't know, I'm not good at measurements either".
5. Ms D'Albora stated that she did not recall which window of Mr Kian's vehicle she looked through when she was looking at the appellant's vehicle. Nor could Ms D'Albora recall whether the windows of Mr Kian's vehicle were tinted.
6. Ms D'Albora stated that she could not remember whether the passenger seated in the rear passenger seat of the appellant's vehicle was sitting behind the appellant's seat or behind the front passenger seat.
7. Ms D'Albora stated that she did not recall for how long Mr Kian remained in the vehicle before exiting it.
The respondent also pointed to inconsistencies between the evidence of Mr Kian and Ms D'Albora:
1. Mr Kian stated that he saw the three female occupants of the appellant's vehicle whilst seated in his vehicle. However, in cross-examination, he stated that when he observed the occupants of the appellant's vehicle, he was outside his vehicle and standing at the front of the appellant's vehicle.
2. Mr Kian stated that, after checking Ms D'Albora's condition, he exited his vehicle and "looked at the no right hand turn sign to make sure I was correct in believing it was the no right hand turn". He stated that he berated the occupants of the appellant's vehicle, although, in cross-examination, he accepted that he had in fact only berated the appellant. After doing so, Mr Kian stated that he returned to his vehicle and asked Ms D'Albora as to the whereabouts of the pet bird. Contrary to this evidence, Ms D'Albora stated that Mr Kian exited the vehicle to look for the pet bird.
3. Mr Kian stated that after returning to his vehicle, Ms D'Albora, whilst sitting in the vehicle, saw the pet bird's body "somewhere between the two cars". However, Ms D'Albora stated that Mr Kian found the pet bird and that "it was a shock to me".
The respondent additionally pointed to the evidence of Ms D'Albora that she and Mr Kian had discussed the circumstances of the accident between themselves. She stated that she prepared a statement in respect of the accident in December 2015, which she "skimmed through" in the week before giving evidence. Mr Kian also gave evidence that he had provided a statement about the accident in December 2015, which he had read before giving evidence.
In their submissions, both parties relied upon a number of statements in the case law which, in essence, have involved the application of the principles discussed in Fox v Percy. It is appropriate that I refer to them before returning to the reasons of the primary judge.
In Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339, upon which both parties relied, Basten JA (Leeming JA agreeing) stated, at [7], that "the appellate court will not intervene unless persuaded that the trial judge was not correct, was wrong, or was in error". His Honour cited Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 and Fox v Percy. His Honour, at [8], referred to the statement in Warren v Coombes at 552, that "[t]he duty of the appellate court is to decide the case - the facts as well as the law - for itself". His Honour, at [9], also referred to the plurality's observations in Fox v Percy that if such error is shown, appellate courts "are authorised, and obliged, to discharge their appellate duties in accordance with the statute".
Basten JA further stated, at [11], that:
"…while recognising that written reasons cannot provide a complete picture of the circumstances of the trial, or the considerations which may have led to the preferring of the testimony of one witness over another, nevertheless the appellate court is entitled to infer error from the manner in which the testimony was addressed in the reasons, including a failure to refer to factors which appear to the appellate court to be significant."
The point made in Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, upon which the respondent relied, was whether the fact finding process had miscarried in some way. In considering that question the Court (Leeming and Payne JJA and Schmidt J) stated:
"[66] … ultimately the burden of the appellant in advancing such a ground of appeal is to persuade the appellate court to infer that the fact finding process has miscarried. … On some occasions, that may be relatively straightforward. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:
'Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.'
Similarly, if there is an unexplained failure to attend to a particular piece of evidence which has been emphasised in submissions, it may be possible to infer that the fact-finding process has miscarried.
[67] On the other hand, where there has been a fair attempt by a judicial officer who is plainly trying conscientiously to make findings of fact, not lightly is it to be inferred that the process has miscarried. Where points which are raised on appeal were not at the forefront of the submissions at trial, less weight is to be given to the failure by the primary judge expressly to have regard to them."
The Court concluded that the primary judge had properly attended to his fact finding task and that the process had not miscarried. The respondent submitted that, likewise in this case, the primary judge had properly attended to the fact finding task. The respondent submitted that her Honour had full regard to and engaged in an analysis of the inconsistencies in his evidence and that of his witnesses, but had nonetheless determined that he had satisfied her as the tribunal of fact, on the balance of probabilities, that he was in the vehicle at the time of the collision, so that there was no basis for appellate interference.
The respondent also submitted that this case was "an exemplar" of a case where witnesses were giving evidence as to "a physically and emotional stressful event" years after its occurrence, so that it was to be expected that accounts may differ between witnesses. In support of this submission, the respondent referred to the observations of Leeming JA in Nominal Defendant v Smith at [82], where his Honour agreed with the observation of Justice McClellan, writing extra-judicially, that "memories are unstable and malleable and vulnerable to suggestion".
In this case, there was no incontrovertible evidence to the contrary, nor any evidence from which compelling inferences to the contrary of her Honour's finding ought to have been drawn. The case hinged solely on the evidence of the witnesses and the support in the medical evidence of the respondent's injuries. That being so, it was for the primary judge to assess the evidence, including the credibility and reliability of the witnesses, so as to determine whether or not she was satisfied that the respondent was in the appellant's motor vehicle at the time of the collision.
For that reason, as the High Court observed in Fox v Percy, due regard must be had to the advantage her Honour had in assessing that evidence. The question therefore is whether the advantage enjoyed by her Honour in seeing and hearing the witnesses was such that there is no basis for appellate interference.
For the reasons that follow, I consider that there is an issue as to the manner in which her Honour approached her fact finding task. In that regard, there are three aspects of her Honour's reasons which fall for consideration: the segmented manner in which she approached her fact finding task; the manner in which she dealt with onus; and her application of the Evidence Act, s 140. Although each of these matters calls for separate consideration, they are nonetheless interrelated, as I seek to explain.
I have referred above to her Honour's reasoning, at [123], in which she found, on the evidence of the respondent and his witnesses "[s]tanding by itself", that the respondent was in the vehicle. Her Honour, at [124], then entered into a reasoning process that marked the commencement of her consideration as to why the appellant failed in her defence that the respondent was not in the car. According to her Honour, there was "then a tactical burden" on the appellant to show that the respondent was not in the vehicle. In making a finding on one part of the evidence before proceeding to determine whether that finding should be displaced, her Honour adopted the "segmented" approach to fact finding to which I have earlier referred.
The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case.
In particular, there is no relevant "tactical burden", if by that her Honour meant that an opposing party has an onus to disprove a plaintiff's case. During the course of a case, each party may and invariably will make various tactical decisions to best advance or oppose the claim that is made. It may be that her Honour meant no more than that, although her reasons in the succeeding paragraphs of her judgment do not sit comfortably with that explanation.
The appellant submitted that it was likely that when her Honour referred to a "tactical burden", she presumably intended to refer to an "evidentiary onus" on the appellant to adduce evidence contrary to that adduced by the respondent that he was in the car or from which such a contrary inference could be drawn. This may be correct, having regard to her reference to the Evidence Act, s 140, which I discuss below. Accepting that was her Honour's intended meaning, a party denying a claim does not have any positive burden to adduce evidence to contradict the opposing party's evidence, either directly or by way of inference.
Whether or not the respondent was in the car was the elemental factual controversy in the case. The respondent, as the plaintiff in the proceedings, bore the legal onus to establish that he had been injured in the motor vehicle due to the negligence of the appellant, and, it followed, bore an evidentiary burden to prove that he was. Otherwise his claim would fail.
The appellant, as defendant, in denying that the respondent was in the car, was not required to adduce evidence to prove that he was not. The appellant could have sought to make out her denial in a variety of ways, including by adducing evidence, but also by cross-examination of the respondent and his witnesses. As it turned out, the appellant did both. That was the 'tactical decision' that the appellant made to meet the respondent's claim. However, the appellant bore neither a legal onus nor an evidentiary burden in the sense in which those concepts are properly understood and as I understand her Honour's reasons, was what she meant.
The difficulty that I have perceived with her Honour's approach is underscored by the manner in which she applied the Evidence Act, s 140. Her Honour observed, at [124], that if the appellant's denial was made out, it would mean that the respondent and his two witnesses had committed perjury, had engaged in a conspiracy and that the MACA, ss 117 and 118 would be brought into play. Her Honour then referred to the Evidence Act, s 140 and to FTZK v Minister for Immigration and Border Protection and, in particular, to the observation of French CJ and Gageler J, at [12], that when considering the standard of proof, the "requisite degree of satisfaction is informed by the seriousness of the allegation". This was a reference to the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, which, it is accepted is now encompassed in s 140(2)(c).
Her Honour, at [125], then dealt directly with the defence, noting that its effect was an allegation that the respondent's claim was fraudulent. This, she said, was a "grave allegation", such that it had to be proved by "'clear or cogent or strict proof' in order to make out on the balance of probabilities [that] allegation", citing New South Wales v Hathaway at [263]. In that case, the Court was satisfied that the Briginshaw principle applied. In being so satisfied, the Court observed:
"In the language of Briginshaw, the seriousness of that finding [that police had planted evidence] and the gravity of the consequences flowing from it are such that it requires 'clear or cogent or strict proof' in order to be made out on the balance of probabilities."
The manner in which the principle in Briginshaw operates was explained by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 at [2] as follows:
"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. 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 or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. 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 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." (citations omitted)
As is apparent from this passage, the Briginshaw principle is directed to proof in a civil proceeding of a party's claim, which at all times remains proof on the balance of probabilities. This is now stated in express terms in s 140, which governs the standard of proof in a civil proceeding. In accordance with s 140(1), "the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities". Section 140(2) provides for the matters that a court may take into account in deciding whether it is so satisfied, including the "gravity of the matters alleged", picking up the language of Briginshaw.
However, care must be taken when stating the requirements of proof in a case in which s 140(2) is invoked. The High Court was alert to this in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd in the passage I have extracted above. Whilst acknowledging that there were authoritative statements using the language of "clear or cogent or strict proof", the plurality's observations were in significantly more moderate terms, namely, that a court should not "lightly make [such] a finding".
Nor does s 140 refer to a requirement that there be "'clear or cogent or strict proof' in order to make out on the balance of probabilities [the appellant's] allegation", as her Honour, at [125], considered was required. Rather, the nature of the defence, including the gravity of the denial that the respondent was in the car, was a matter for her Honour's consideration in determining whether she was satisfied that the respondent had proved his claim. As I have sought to explain, there was no onus or burden on the appellant "to make out on the balance of probabilities" her denial of the respondent being in the car or to adduce evidence at all, let alone evidence satisfying a description of "clear or cogent or strict proof".
In my opinion, her Honour's approach to the determination of the respondent's claim as demonstrated in her reasons at [124]-[125], was in error. It was of course incumbent upon her Honour to assess the evidence of the appellant's witnesses as part of her overall assessment of the evidence in determining whether the appellant was in the car.
However, in seeking to assess the evidence of Mr Kian and Ms D'Albora, her Honour postulated a number of possibilities and considerations, many of which were not the subject of any evidence. For example, as noted earlier, her Honour considered, at [126], that the number of persons in the appellant's car "would not have been of much relevance" to Mr Kian and Ms D'Albora. However, that statement was made in the face of clear evidence by Mr Kian, including in cross-examination, that there were only three people in the car. It was not suggested to Mr Kian in cross-examination or in questioning by her Honour that he was wrong or might have been mistaken because it was not of "much interest" to him as to how many people were in the car.
Her Honour rightfully took into account that Mr Kian and Ms D'Albora were not asked to provide a statement until over three years after the accident. However, Mr Kian's evidence was firm that there were only three people in the car. He said he only saw three people get out of the car and that he had unimpeded vision into the rear of the car where the respondent claimed he was seated. Additionally, there was no basis in the evidence for her Honour's comment, at [126], that Ms D'Albora and Mr Kian "are now sure there were only 3 people in the car". Neither witness had made any statement other than that there were three persons in the car.
There were other occasions when the matters posited by her Honour were contrary to the evidence. Her Honour's statement, at [127], that the wording of questions asked by investigators "can easily … influence the narrative", is at odds with Ms D'Albora's response to her Honour's questioning, denying that it had been suggested to her by the investigator that there were three people and not four in the car. Honour did not refer to this evidence. But in any event, her Honour's comment was speculative.
At [128], her Honour listed a number of matters of which she said there was "no evidence". For example, in dealing with the clarity of vision that Mr Kian may have had as to whether the respondent was in the car, her Honour noted the evidence that it was a sunny day, but observed that there was "no evidence as to the amount of tinting of the windows and windscreen of either car". This was not entirely accurate. Mr Kian gave evidence that he had looked into the car through the front window which, he said, was "not tinted".
Her Honour also stated, at [128], that as the appellant's car was a 2010 model, it was "therefore highly likely that both the front and back seats were fitted with head restraints as this has been a requirement since 2006", and therefore, Mr Kian's view into the rear of the car may have been obstructed. Even if it is assumed that this is a matter of common knowledge of which her Honour could take notice pursuant to the Evidence Act, s 144, Mr Kian was asked and said that there was no impediment to his view inside the car.
Her Honour further observed that the evidence suggested that the windows in the appellant's car were up. Having made that comment, her Honour added:
"Not only is there no evidence of whether the windows were tinted, there is no evidence as to whether or not either, or both Ms D'Albora or Mr Kian were wearing sunglasses."
However, Mr Kian said he looked into the car through the front windscreen, making her Honour's comment both irrelevant and speculative. Although it is not clear on Ms D'Albora's evidence whether she looked into the appellant's car through the windscreen or the side windows, the question whether either was wearing sunglasses was not the subject of any questioning or submission.
Her Honour, at [129], then concluded:
"I find all of the above matters reduce the weight of the evidence relied on by [the appellant] that whilst there is a suspicion that [the respondent] may not have been in the vehicle, it has not been established to the requisite level."
There are two problems with her Honour's conclusion. First, the various matters to which her Honour had regard in the preceding paragraphs, which she considered reduced the weight of the evidence of the appellant's witnesses, were matters which, in the main, were not raised in the course of the hearing, were not the subject of evidence and, in most respects, were matters of speculation. There were matters that might have had some impact on the weight of the evidence of Mr Kian and Ms D'Albora, including that they had discussed the event between themselves and that prior to giving their statements to the investigator, there had been numerous calls from the insurer. However, it was not put to Mr Kian at any stage in the proceedings that he may have been influenced by the questions asked.
Secondly, her Honour's observation that it had not been established to the requisite level that the respondent was not in the vehicle, reiterated the error that I consider she made at [125] as to the question of onus. As I have said, the appellant did not have to establish that the respondent was not in the vehicle. It was for the respondent to establish that he was. That question had to be determined on the whole of the evidence.
Having regard to the matters to which I have referred, I consider that her Honour's fact finding task miscarried. I consider that this was so both because her Honour wrongly considered that there was an onus on the appellant to establish that the respondent was not in the car and in assessing the evidence of the appellant's witnesses to determine whether that onus had been discharged, her Honour posed a number of speculative questions which were either contrary to evidence that had been given or which had not been the subject of examination in the trial.
For that reason, I am of the opinion that the appeal should be allowed. That leaves for consideration two questions: first, whether this Court should engage in the fact finding process for itself and what should become of the s 118 'defence' raised by the appellant.
The appeal to this Court is by way of rehearing: Supreme Court Act, s 75A. The discrepancies in the evidence of the respondent and his witnesses are discussed above. In my opinion, these discrepancies cannot be explained and cast such doubt on the credibility of those persons that none of their evidence should be accepted unless independently corroborated.
By contrast, the evidence of Mr Kian and Ms D'Albora was straightforward and consistent throughout. Having read the evidence on a number of occasions, and giving full weight to the fact that this Court does not have the benefit of seeing and hearing the witnesses, I cannot see any basis why Mr Kian and Ms D'Albora's evidence should not be accepted. Indeed, as her Honour recorded at [126], the respondent's Counsel at trial conceded that they were "witnesses of integrity and credit". Nor did her Honour reject the evidence of Mr Kian and Ms D'Albora. Rather, having postulated the various matters to which I have referred, her Honour considered, at [129], that those matters "reduce[d] the weight" of their evidence and did not "[establish] to the requisite level" that the respondent was not in the car, despite the suspicion that he may not have been. As I have sought to explain, this was not the correct question and revealed, in my opinion, that her Honour reversed the onus.
In the circumstances, I am of the opinion that the orders made by her Honour should be set aside and that judgment be entered for the appellant.
Before finalising the orders in the matter, something needs to be said about the appellant's pleading of ss 117 and 118 by way of defence.
Section 117 provides that it is an offence to make a statement knowing that it is false or misleading:
"117 False claims
A person who makes a statement knowing that it is false or misleading in a material particular:
(a) in an accident notification form under Part 3.2, or
(b) in a notice of a claim given to a person or an insurer under Part 4.2, or
(c) in the course of the assessment of a claim under Part 4.4, or
(d) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident,
is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both."
Section 118 provides a remedy in respect of fraudulent claims:
"118 Remedy available where claim fraudulent
(1) This section applies to a claimant or insurer if it is established that, for the purpose of obtaining a financial benefit, the claimant or insurer did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading.
(2) If this section applies to a claimant:
(a) …
(b) a person who has paid an amount to the claimant in connection with the claim (whether under a settlement, compromise or judgment, or otherwise) is entitled to recover from the claimant the amount of the financial benefit so obtained by the claimant and any costs incurred in connection with the claim.
…" (emphasis added)
The Explanatory Note to the Motor Accidents Compensation Bill 1999 (NSW) states that Pt 4.6, which includes s 118, "provides for a right of recovery against a person who obtains a financial benefit by means of a fraudulent claim". This suggests that a claim by either a claimant or an insurer pursuant to s 118 was not intended to operate as a defence.
During the hearing on the appeal, a question was raised as to whether the appellant, in seeking to recover the money paid by the insurer to the respondent, should have done so in separate proceedings or by way of a cross-claim. The appellant accepted that a claim pursuant to s 118 "probably would have required the insurer to bring proceedings in its own right separately", but indicated that there was a practice in the District Court whereby a claim to recover monies paid was pleaded as a defence.
This practice of pleading ss 117 and 118 by way of defence to which the appellant referred would seem to have had been given at least implicit approval in Antoun v Chidiac [2017] NSWDC 208. In that case, the defendant pleaded in his defence that the plaintiff had made false or misleading statements within the meaning of s 117 and sought the "recovery of any financial benefit paid by the defendant to the plaintiff". Mahony SC DCJ did not take issue with the fact that the defendant had sought relief pursuant to s 118 in his defence, finding at [130], that:
"… the defence relied on pursuant to s 117 of the MACA has been made out. In addition to entering a verdict for the defendant, I will give the defendant the opportunity to be heard on any consequential relief he seeks pursuant to s 118(2) of the MACA."
His Honour directed the defendant to make any application for further orders under s 118 by notice of motion supported by affidavit evidence.
This Court considered the application of s 118 in Insurance Australia Ltd v Checchia (2011) 80 NSWLR 1; [2011] NSWCA 101. However, in that case, the issue was whether the insurer was entitled to refuse to pay the claimant an amount in settlement of his claim, pursuant to s 118(2)(a). The insurer was not seeking to recover an amount already paid pursuant to s 118(2)(b), as the appellant sought to do in this case.
The matter may be academic in this case, as the appellant indicated that the insurer's concern was with challenging the judgment in favour of the respondent which, it had always contended, was based on a false claim. However, given that the pleaded s 118 claim remains unresolved, the appellant should inform the Court within seven days as to what course she wishes to take in relation to the recovery of monies paid to the respondent. The Court can then decide what steps to take in that regard.
The primary judge heard evidence from Mr Tran and two female witnesses, all of whom claimed to have been passengers in Ms Nguyen's car at the time of the collision. The two female witnesses also made claims for damages. Her Honour also heard evidence from the driver and passenger in the Toyota Corolla motor vehicle. Ms Nguyen did not give evidence.
It was common ground that the two female witnesses were passengers in Ms Nguyen's motor vehicle at the time of the collision. The primary judge found that, while the evidence of the first passenger, Ms Hoa, must be looked at carefully, given serious inaccuracies, her Honour found overall that Ms Hoa did not exaggerate her injuries or claim for damages or falsely verify Mr Tran's claim.
The primary judge found that it was necessary to look at the evidence of the other passenger, Ms Loan, with some care. Her Honour found that Ms Loan did not exaggerate her own injuries and on the balance of probabilities accepted her evidence. In her reasons for giving judgment for Ms Loan in her proceedings, her Honour accepted that Ms Loan had not exaggerated her injuries or disabilities and that that was relevant in making an assessment of her credit, which her Honour found was "overall positive". Her Honour found that Ms Loan was not a participant in a conspiracy to verify Mr Tran's claim falsely.
The primary judge referred to the evidence of the driver of the Toyota Corolla motor vehicle, Mr Kian, and his passenger, Ms D'Albora. Her Honour found that they were witnesses of integrity who gave their evidence in a straightforward manner to the best of their ability. However, her Honour found that several matters reduced the weight of the evidence given by Mr Kian and Ms D'Albora. Her Honour said that there was no evidence as the amount of tinting of the windows and windscreen of either car. That was erroneous. Her Honour found that it was highly likely that both the front and back seats were fitted with head restraints, that Mr Tran was a very diminutive gentleman who would be difficult to see if sitting behind the driver's seat as he claimed he was. The possibility of head restraints interfering with the view of Mr Kian and Ms D'Albora was not put to them in cross-examination. Each of them was adamant that there was no male passenger in Ms Nguyen's car. Her Honour also observed that it was a sunny day and there was no evidence as to whether either Mr Kian and Ms D'Albora was wearing sunglasses. No question was asked as to those matters. Nevertheless, her Honour concluded that all of those matters reduced the weight of the evidence given by Mr Kian and Ms D'Albora.
The primary judge found that the evidence of Mr Tran, Ms Loan and Ms Hoa "standing by itself" established that on the balance of probabilities, Mr Tran was in Ms Nguyen's vehicle notwithstanding the issues as to the credibility of Ms Hoa and the inconsistencies in the details given as to how they left the scene, what happened early in the day and the purpose of the journey. Her Honour observed that all three plaintiffs recalled the collision and "all three were unshaken" as to whether Mr Tran was in the vehicle at the time. Her Honour therefore considered that there was "a tactical burden" on Ms Nguyen to show that Mr Tran was not in the vehicle and that that allegation had grave consequences because "it amounts to fraud on the part of Mr Tran and a conspiracy between all three plaintiffs". Her Honour said that the defence was that Mr Tran was not in the motor vehicle and that there was a need for "clear or cogent or strict proof" in order to make out on the balance of probabilities "the defendant's allegation". Her Honour found that, whilst there was a suspicion that Mr Tran may not have been in the vehicle, "it has not been established to the requisite level".
The approach adopted by the primary judge was erroneous. Mr Tran was required to establish, on the balance of probabilities, that he was a passenger in the vehicle being driven by Ms Nguyen. Under s 140 of the Evidence Act, in deciding whether, on the balance of probabilities, Mr Tran was a passenger in the vehicle, it was open to the Court to take into account the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged. While Ms Nguyen, through her insurers, somewhat infelicitously raised the claim in relation to payments to be made to Mr Tran, it was for Mr Tran to prove his case.
The mere fact that a defendant denies an allegation made by a plaintiff does not transfer any burden of proof to the defendant. The defence does not make any relevant allegation against Mr Tran. It simply denies that he was a passenger in the car. The subsequent somewhat infelicitous reference to the Compensation Act does not alter that matter. Of course, had the claim to recover monies paid to Mr Tran been pressed on the basis of a fraudulent misrepresentation, the clear onus would have been on the party making that assertion. That was a matter for a cross claim.
The primary judge appears to have confused the onus imposed on Mr Tran by the Evidence Act to establish, on the balance of probabilities, that he was a passenger in the vehicle at the time of the collision with the onus that would arise if recovery of money paid as a result of fraudulent conduct had been pursued. Her Honour erred in the approach adopted by her in so far as she concluded that the defendant had not established "to the requisite level" that Mr Tran was not in the vehicle.
Leave to appeal is required because of s 101(2)(r) of the Supreme Court Act 1970 (NSW). The President has directed that that question and of appeal, if leave be granted, be heard concurrently. Having regard to the erroneous approach adopted by the primary judge, this is a case where the grant of leave is appropriate.
I have had the advantage of reading in draft form the proposed reasons of the President. For the reasons proposed by her Honour, I agree with the orders proposed and with all of the observations made by her Honour.
BELLEW J: I have had the advantage of reading in draft the judgment of Beazley P. I agree with the orders proposed by her Honour, and with her Honour's reasons.