Hammoud Brothers Pty Ltd v Insurance Australia Ltd

[2004] NSWCA 366

Reported Decision: (2005) 13 ANZ Insurance Cases 61-639

Court of Appeal

CITATION:	HAMMOUD BROTHERS P/L v INSURANCE AUSTRALIA LTD [2004] NSWCA 366
HEARING DATE(S):	05/10/2004
JUDGMENT DATE:	5 November 2004
JUDGMENT OF:	Ipp JA; Tobias JA; Bryson JA
DECISION:	Appeal dismissed with costs [37]
CATCHWORDS:	INSURANCE - Motor Vehicle Comprehensive Insurance - appellant claimed loss of vehicle by theft - "If your vehicle is stolen and not found, we will pay you the agreed value." DCJ found "not satisfied ... that the plaintiff company was not, by one, or both of its directors, compliant in the plan to have the vehicle stolen" - consideration whether any special requirement under Briginshaw where plaintiff alleges a negative, declining to find the negative implies that the plaintiff was involved in a crime - held, there is not. Findings of District Court were not set aside.
CASES CITED:	Briginshaw v. Briginshaw (1938) 60 CLR 336 Compania Naviera Vascongada v. British & Foreign Marine Insurance Co Ltd (The Gloria) (1936) 54 LlL Rep 35 Palamisto General Enterprises SA v. Ocean Marine Insurance Co. Ltd [1972] 2 QB 625 Rejfek v. McElroy (1965) 112 CLR 517 Simon v. NRMA Insurance Ltd (NSWCA, 22 October 1991, unrep.)
PARTIES :	HAMMOUD BROTHERS PTY LIMITED - APPELLANT NRMA INSURANCE LIMITED - RESPONDENT
FILE NUMBER(S):	CA 41219 OF 2002
COUNSEL:	G. Reynolds SC & RJM Foord - Appellant R.W. Seton SC & N. Avenell - Respondent
SOLICITORS:	R.F. Bergagnin & Co. - Appellant Abbott Tout - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9115 OF 2001
LOWER COURT JUDICIAL OFFICER :	FREEMAN J

41219 of 2002

IPP JA
TOBIAS JA
BRYSON JA

FRIDAY 5 NOVEMBER 2004

HAMMOUD BROTHERS PTY LIMITED v. INSURANCE AUSTRALIA LIMITED (FORMERLY NRMA INSURANCE LIMITED)

Judgment

1 IPP JA: I agree with Bryson JA.

2 TOBIAS JA: I agree with Bryson JA.

3 BRYSON JA: The appellant, plaintiff in the District Court, sued the respondent, defendant in the District Court, by Ordinary Statement of Claim filed on 7 September 2001, and claimed $54,600 being the agreed value $55,000 less excess $400 of a Holden XU6 HSV vehicle (“Holden HSV”) registered AIP 09X which the respondent held insured under a Comprehensive Motor Vehicle Insurance Policy. The Policy was issued on 18 October 1999 to cover a 1997 Holden Calais vehicle which the appellant then owned, and on 10 May 2000 was endorsed to cover the Holden HSV when the appellant purchased it new from a dealer. Among the events insured against was:

If your vehicle is stolen and not found, we will pay you the agreed value.

Among the exclusion clauses was:

This Policy does not cover:
8. Loss or damage intentionally caused by you or a person acting with your expressed or implied consent.

4 The appellant claimed that in the evening of 12 August 2000 or early in the morning of 13 August 2000 the Holden HSV was stolen when parked in Bunn Street Pyrmont, and that the respondent refused to pay the agreed value. The respondent filed Notice of Grounds of Defence raising a number of matters including a denial that the vehicle was stolen and a defence relying on exclusion cl.8. One defence raised was reliance on a power to refuse a claim or cancel the Policy in these terms:

We may refuse a claim or cancel this Policy, or do both, if:-
1. you are not truthful and frank in any statement you make in a claim or in connection with a claim.

Some other matters of defence were also raised.

5 The proceedings were heard in the District Court at Sydney before his Honour Judge Freeman in November 2002, and his Honour gave judgment for the respondent with costs on 29 November 2002 for reasons then stated. The appellant appealed by leave granted by the Court of Appeal (Meagher and Santow JJA) on 6 February 2004.

6 The shareholders and directors of the appellant were Mr Hussain Hammoud, known as Sam Hammoud, and Mr Mahommed Hammoud. In 1998 the appellant commenced the business of retailing mobile phones from shop premises at Marrickville. In or about 1999 a second shop was opened at Maroubra and Mr Ali Hammoud was employed as the manager of the shop at Maroubra. These three are brothers. Each was provided with a vehicle registered in the name of the appellant, and the acquisition costs and running expenses of the vehicles were met by the appellant, although each had virtually exclusive use of one car. The Holden Calais was so provided for Ali Hammoud but he came to regard it as unsatisfactory, and in May 2000 the Holden Calais was traded in to Suttons Motors at Revesby and the Holden HSV was purchased in its place. Ali Hammoud handled all the practical arrangements relating to the trade-in and acquisition including taking the major part in dealings with the respondent and a finance company. However the Trial Judge found to the effect that, in relation to dealings with the Holden HSV, only the directors were the controlling minds of the appellant and were able to bind it.

7 In the opening passages of his judgment the learned Trial Judge stated the issues to which the judgment referred: (Red 7)

The issue before the Court, initially at least, is whether the plaintiff has established on the balance of probabilities that the vehicle was stolen; that is, removed from the possession and control of the owner or its agent without the consent or connivance of the owner with a view to permanently depriving the owner of the vehicle.

The defendant goes further and asserts that the claim made in respect to the loss of this vehicle is fraudulent. To that I shall return.

The Trial Judge then reviewed of the evidence on these issues. His Honour did not deal with other issues.

8 By alleging that the car was stolen the appellant claimed among other things that it was taken away without the consent of the appellant; of course absence of the owner’s consent to removal is inherent in the concept and meaning of a reference to something being stolen. Absence of consent, an allegation of a negative, was one of the facts which the appellant alleged, and when it was denied by the respondent, the appellant had to prove it at the trial.

9 The appellant set about proving its case principally by calling evidence from Ali Hammoud of the events on 12 and 13 August 2000, to the effect that about 6pm on 12 August 2000 he parked the vehicle in Bunn Street Pyrmont, on the western side of Darling Harbour, a short distance from the entry to a unit block in which Sam Hammoud had a home unit on lease. After parking the car Ali Hammoud went to the home unit where a group of at least six young men including Sam Hammoud gathered to watch a televised game of football. Late in that evening the group travelled in two taxis to the Golden Century restaurant, on the City side of Darling Harbour, and had a meal there. After leaving the restaurant some of the group including Sam Hammoud and Ali Hammoud walked back to the western side of Darling Harbour over Pyrmont Bridge. At some time, either straight away on returning from the restaurant or after going up to the home unit and spending some time there, Ali Hammoud went to get his car but found that it was gone.

10 The appellant’s evidence was not confined to a simple narration of the events at their narrowest. The appellant set about proving in an ample way the facts and circumstances relating to the loss of the vehicle, and this was appropriate as there was a burden on the appellant to prove not only what it claimed were the events themselves, but also all facts and circumstances which tended to make its evidence and its claim credible. Much of the respondent’s case consisted of examining and testing the facts and circumstances put forward in evidence by the appellant; this involved exploration of some material which does not appear in retrospect to be important or cogent. In the nature of things it was not open to the respondent to have direct knowledge of or to adduce direct evidence of events, facts and circumstances relating to what happened to the car on 12 and 13 August 2000, including facts relating to whether it was stolen or on the other hand whether the appellant parted with the car in circumstances which had the consent of one or both of the directors who were its controlling minds. The respondent called evidence relating to the manner in which the claim was made, and to recorded interviews between each of the Hammoud brothers and an investigator on behalf of the respondent. The respondent also proved some facts and circumstances relating to keys to the vehicle which were delivered by the appellant in the course of making its claim. The respondent called evidence of a locksmith in support of a contention that some characteristics of the keys were not consistent with the appellant’s claim.

11 In my understanding an object of proof on behalf of the respondent was that the appellant, in the person of one or both of its directors, in some way had knowledge of, approved of or consented to the disposition of the car by or with the connivance of Ali Hammoud, not necessarily by its being parked in Bunn Street (as his evidence would show) and being removed from there by someone who was stealing it; but its disposition in some unknown circumstances. In stating that this was the object of proof I should not be understood to depart from treating the issue of absence of consent as an issue on which the appellant at all times bore the onus of proof. In the course of cross-examination opportunities were given to each director to admit or deny knowledge of and consent to some scheme for the removal of the vehicle; these parts of the cross-examination were not prominent parts of the proceedings and not much time was given to them. However it is plain, in my view, that each director was given a fair opportunity to understand the allegation made, and to respond to it. They were not really in need of the offer of such an opportunity by the cross-examiner; the pleadings themselves show that absence of consent was in issue, and each director gave evidence in chief of the absence of his consent to the taking of the vehicle.

12 The facts reviewed and the subject of findings by the Trial Judge did not cover the full array of the matters explored in the course of the evidence. It must be understood that the Trial Judge dealt with the parts of the evidence which his Honour regarded as important for the conclusions expressed. A review of the judgment gives the impression that the matters so treated by the Trial Judge were somewhat diffuse, and when taken each by each they fall well short of a demonstration that there was consent to the abstraction of the vehicle. I will refer shortly to the subjects with which the Trial Judge dealt.

13 The Trial Judge reviewed (Red 8-11) the part played by Ali Hammoud in dealings with the vehicle. These events included that Ali Hammoud complained to the dealer within one or two days of its delivery that he did not like the car and that it had a very rigid suspension and a hard ride. He was given assurances by the salesman including that the suspension could be adjusted at no cost if he was dissatisfied. He did not take advantage of this offer, but remained unhappy with the vehicle’s performance, tried to persuade his brothers to exchange it for another, tried to persuade the finance company that he should be allowed to give the car back on the ground that he was having financial difficulties (although he was not actually in financial difficulty), and told the finance company that he was arranging to go overseas for twelve months (although he had no intention to do that and had fabricated the story). The finance company’s officer told him that he should attempt to sell the car. He had already attempted to sell the car by advertising it in the Trading Post, starting on 25 May 2000, 15 days after delivery; he advertised it several times and had to reduce the advertised price to attract buyers. After he learnt that by becoming a second-hand vehicle the car had depreciated in value by up to $10,000 he told callers who answered his advertisement that he changed his mind, that he loved the car and it was no longer for sale.

14 The Trial Judge said: (Red 11)

Mr Ali Hammoud is – I regret to say – a witness in whose honesty I am not prepared to place any trust. He has a criminal history involving significant dishonesty. Whilst it is true that his last conviction was in 1994, he has more recently, in his dealings with GMAC, shown a propensity to be untruthful when he thinks that doing so may be to his advantage. I am not prepared to accept his assertion that he changed his mind about the car. I believe it is at least distinctly possible that he continued to be dissatisfied with it, and when his efforts to return it, to swap it, or to sell it, were unsuccessful, then to this man the temptation to minimise his losses by having it stolen would have been difficult to resist.

This passage followed consideration by the Trial Judge of the advantages which might be seen to flow from arranging to have the car stolen so as to claim the full insurance payout, in the circumstances of Ali Hammoud’s knowing that the car had depreciated in value, and of his experience of attempts to sell it. It also shows, in my understanding, that the Trial Judge was not prepared to accept as true Ali Hammoud’s evidence to the effect that he parked the car in Bunn Street and later found that it had been removed in some way which he did not know of.

15 The Trial Judge turned to the evidence and conduct of Mohammed Hammoud. In addition to his office as the appellant’s director, Mohammed Hammoud also held the office of Company Secretary and was the de facto Financial Controller. There was no evidence from any source that Mohammed Hammoud had any part in the events of 12 and 13 August 2000. The Trial Judge expressed dissatisfaction with the evidence given by Mohammed Hammoud to the effect that he was aware that selling the car would involve a substantial loss, and that he never discussed this either with Sam Hammoud, his fellow director, or with Ali Hammoud. The Trial Judge said: “I simply find that difficult to accept.”

16 The Trial Judge then reviewed evidence and circumstances relating to the part taken by Sam Hammoud. Sam Hammoud gave an account of the events of 12 and 13 August 2000, including the meeting at his home unit in Pyrmont, watching the televised game of football, telephoning the Golden Century restaurant at about 10.30pm to make a booking and travelling there. Of their arrival at the restaurant the Trial Judge said “… It is hard to see that it could have been later than 11pm” (Red 13K). Sam Hammoud then gave evidence to the effect that the group remained at the restaurant for an hour and a half to two hours, and evidence (in conflict with other evidence) about how and by whom the bill was paid. He also gave account of the journey back to the Bunn Street unit, and the discovery of the loss of the vehicle. Sam Hammoud gave an account in a recorded interview with an investigator on 21 September 2000 in which he said to the effect that after returning from the restaurant, several of the group including himself and Ali Hammoud went up to the unit and spent some time there, that Ali Hammoud then announced that he was going home and left, but came back five minutes later saying that his car was gone; and that he then went down with Ali Hammoud to check.

17 The account of events given to the investigator by Sam Hammoud was not the same as the account given by Ali Hammoud either in an interview in September 2000, or in his evidence; Ali Hammoud said that Sam Hammoud and he did not go up to the unit although other persons of the group did so; that they walked to where the car was parked, discovered that it was missing and then went up to the unit and called the police from there. Sam Hammoud gave a similar account in his evidence. The Trial Judge said (Red 14M) “Mr Sam Hammoud changed his story” and “The two versions given by Sam Hammoud are simply not reconcilable.” His Honour went on to find that Sam Hammoud was unable to provide any satisfactory explanation.

18 Although the Trial Judge did not mention it, there is to my mind a strong indication that there was a basis for forming an adverse impression of Sam Hammoud from the following passage in his evidence:

His Honour:
Q: Mr Hammoud, there is just [a] couple of things that I would like to try and understand if I could. It appears that you told the investigator that after the restaurant you had gone back to the unit, that Ali had said “I’m going” and had left and about five minutes later he came back, knocked on the door and said “The car is gone.” You say now that you in fact left the unit together and went down and discovered together that the car was no longer there?
A: Sir, I know, I know I messed up a bit there, I was just saying it like a story and I just got that part wrong because I was down there with him when he realised-
Q: But how does that come about? How could you have got that story wrong?
A: Don’t know, sir, it’s just – a lot of times I do that and I say things and I mean the wrong thing. Um, just talking about it to my friends, I guess, like how we were doing it and like knocking on the door. I put Ali’s shoes, I didn’t put on my shoes, I was in Ali’s shoes, I wasn’t putting my own shoes that he came down knocking on the door because we were going home, we left a couple behind and I all of a sudden just stuffed up the story I guess. I was really going home with my brother.
Q: I understand you stuffed up the story, to use your expression, but I just don’t understand how. How does that come to be?
A: just couldn’t remember exactly accurate what happened that night, I should have just said ‘I just can’t remember what happened then.’ I was like answering questions without thinking about [them], I guess.

19 The Trial Judge also reviewed evidence which was called by the respondent to show anomalies between accounts given in evidence of the times of events, including records of a telephone company with respect to the times at which calls were made on the mobile phones of Ali Hammoud and Sam Hammoud, and records relating to the telephone used by Sam Hammoud’s fiancée, now his wife. The Trial Judge then reviewed evidence about the practicalities of starting the car with or without the car keys, conjecture about what a thief would need to do to start the car if it had been parked in Bunn Street and the thief was not equipped with the keys to the car, and the practicalities of removing it bodily as an alternative to using keys to open it and drive it away. The Trial Judge reviewed evidence of a locksmith relating to keys which the Trial Judge found were given to the respondent by the appellant as the keys of the car; and the Trial Judge found, on the basis of the locksmith’s evidence, that one of the keys was a duplicate, not the original key provided by the manufacturer. Only Ali Hammoud, not the directors, was involved in dealing with the keys. His Honour found (Red 18B) “No explanation is forthcoming for how it is that the keys returned to the NRMA were one original and one duplicate, or ‘after market’ key”. His Honour said: (Red 18J) “The conclusion I have reached on the probabilities is that the car was taken away using a key provided by Mr Ali Hammoud.”

20 The Trial Judge’s conclusions on the appellant’s case and the allegation that the car was stolen are in my understanding set out in the following passage (Red 19-20)

Is it probable that they, or either of them, had an involvement, or more accurately, has the plaintiff company persuaded me, on the balance of probabilities, that each was completely uninvolved? I think not.

I have already remarked on the role of Mr Mahommed Hammoud. I think he turned a deliberate blind eye, giving, thereby, tacit approval to the scheme to be put into effect by his brother Ali. Whether this alone would be sufficient to bind the company is at best arguable.

In the case of Mr Sam Hammoud, however, I think it likely that his involvement was more practical and direct. Whilst there is no suggestion that either of these directors was involved in handing over the key I think the role played by Mr Sam Hammoud was that of an accessory. It was his job to provide cover, and at least support, for the actions of his brother. The fact that he did this job badly, by getting his story so confused, does not mean that this was not his intended function.

The earlier recited facts of the phone calls by Mr Ali Hammoud at 11.19 and the fact that the records do not support Mr Sam Hammoud’s claim that he was forced to unexpectedly summon his fiancée for transport indicate to me that he was aware of, and complaint in, the plot to have the car stolen.

The picture presented by the telephone records is that of a pre-arrangement, whereby the now Mrs Hussain would come and collect her husband.

Other people were present at this evening’s function, but it is not unexpected that they were not in a position to either note or log the movements of Mr Ali Hammoud. I record as well that the majority of those present, although apparently available, were not called to give evidence.

The evidence speaks to me of full knowledge on Mr Sam Hammoud’s part. At least he knew that he would not be being driven home in his brother’s car.

Of course, I do not know exactly what went on in this evening. I am not satisfied, however, that the plaintiff company was not, by one, or both of its directors, complaint in the plan to have the vehicle stolen.

That is sufficient to dispose of the plaintiff’s claim. It has failed to overcome the onus of proving on the balance of probabilities that the car was stolen without the company’s connivance.

21 The appellant’s argument turned largely on the reading of this passage. On a fair view of the passage, taken alone and also even more clearly when taken in the context of the whole of the judgment, I regard it as not making a positive finding of complicity of the appellant and its directors in the abstraction of the vehicle.

22 In my opinion no part of the material to which the Trial Judge referred before stating this conclusion is cogent evidence that there was consent of the appellant in the person of one or both its directors to the removal of the car. None of the material is capable of forming the basis of an inference to that effect. The facts that Ali Hammoud is the brother of the directors and was very highly trusted by the financial controller, that the financial controller showed little interest or concern about Ali Hammoud’s dealings with the car although they were likely to involve the appellant in a loss, that Ali Hammoud showed signs of wishing to dispose of the car, and that he was a dishonest person could not rationally produce that result. The fact that Sam Hammoud gave different accounts at different times of the circumstances in which he came to know that the car had been removed or stolen could not rationally be the basis for a finding that he connived in its being removed.

23 Anomalies relating to the times of telephone calls also have little force, when taken alone, towards establishing consent to abstraction of the car. As an example, the records show that Ali Hammoud was telephoning Sam Hammoud at 6.19 and 6.29pm when, if the times he gave for parking the car and going to the unit were reliable, they were probably both in the unit together. The phone records also show that Ali Hammoud was telephoning Sam Hammoud at a time when it appears probable, from their evidence, that they were both together in the restaurant. In Sam Hammoud’s evidence he alleged that he made a call to his fiancée for the purpose of getting her to come and pick him up as the car had been stolen and he could not be taken home by Ali Hussein. This alleged phone call was not recorded. The records instead show two calls from Sam Hammoud’s fiancée’s phone to Sam Hammoud’s number at times when she said she did not call. These are mysteries and anomalies. However they are not proofs of consent to abstraction of the vehicle.

24 The same is true of the anomaly, on the facts as found by the Trial Judge, of the two car keys delivered to the respondent by the appellant. Each of these anomalies taken on its own is of relatively little importance, and a reasonable person might well not be able to explain them even after a fairly short interval, although conceivable explanations can readily be conjectured. Recollections of times of events, including recollections of who originated a telephone call and of circumstances of having a lost car key replaced, are not inherently important and are events of a kind which can readily pass beyond the capacity of a person to recollect or explain. In my understanding however, the Trial Judge’s finding was not based upon any direct inference, but on overall lack of confidence in the evidence given on behalf of the appellant in view of a cumulation of apparent anomalies, no one of which could, in my own view, reasonably be regarded as important if it existed on its own.

25 My access to the evidence is by way of the printed record, whereas the Trial Judge had the advantage of seeing and hearing the evidence, and of forming an impression of the demeanour of witnesses. His Honour did not express any reliance on observations of demeanour, or point out any particular observations which he had made, but overall it must be understood that his Honour was in a position of considerable advantage over myself, sitting on appeal, in coming to an appreciation of such influences. The influence of demeanour has been spoken of as subtle, although it is not always subtle, and the Trial Judge was in a position, legitimately, to allow his own impressions to have an influence on the appraisal of the evidence, including what were suggested to be anomalies.

26 It is important to keep in mind that the respondent did not bear any onus of proof on the appellant’s claim that the vehicle was stolen. The responsibility of making a finding based on the facts was a responsibility of the Trial Judge. There is every indication that his Honour took this responsibility with appropriate seriousness. It was open to the Trial Judge and indeed it was his Honour’s duty to come to a view about whether evidence tendered in support of matters in respect of which the appellant bore the onus of proof was reliable, and no rule of law prescribes that a Trial Judge must find satisfactory and accept evidence given by a party which bears the onus of proof.

27 The Trial Judge, in the passage from pages 19 and 20 of his judgment which I earlier set out, uses language which falls a little short of making findings of fact with respect to a number of matters. His Honour repeatedly said what he thought of factual matters by using subjective language such as “I think he turned a deliberate blind eye …” and so on, and also said what some circumstances indicated. In my view although these statements are not affirmative findings, they are statements of matters on which his Honour felt a lack of satisfaction and some suspicion with respect of the evidence presented. Overall the passages express, on what I regard as a reasonable basis, the Trial Judge’s reasons for not accepting the appellant’s case, and lead to the conclusion at the end of the passages that the Trial Judge was not satisfied that the vehicle was stolen without the appellant’s connivance. In my view this was a conclusion which it was reasonably open to the Trial Judge to reach.

28 The Trial Judge went on to refer to the question whether the claim was made fraudulently, to which in the opening passage of the judgment he said he would return. As the Trial Judge had not found that the vehicle was stolen, an essential element of the appellant’s case, it was not necessary to dispose of the defence that the respondent was entitled to refuse a claim which was not truthful and frank, or the defence alleging that the claim was made fraudulently. His Honour referred to Rejfek v. McElroy (1965) 112 CLR 517 at 521 and the citation there from Briginshaw v. Briginshaw (1938) 60 CLR 336 at 360, and to the high degree of satisfaction required to find such serious misbehaviour. His Honour also said that it was unnecessary to go to the extent of finding actual fraud and (Red 21):

I decline to do so without more cogent evidence on several aspects, such as, for example, the positive identification, without question, of the keys, and so on.
In the circumstances I find only that the plaintiff has not made out its claim.

29 The appellant’s Senior Counsel made submissions to the effect that the Trial Judge had disposed of the appellant’s case on a finding of fraud, and had not correctly applied the law as stated in Briginshaw in so doing. In Briginshaw, Dixon J said at 361 to 363:

…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found…at common law no third standard of persuasion was definitely developed… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

The passage is very well known, and I have given emphasis to a few words.

30 The judgment of Dixon J in Briginshaw shows that there is no different standard of proof of an allegation of fraud than there is of allegations which do not involve grave adverse implications; but the nature of the allegation is important, and the Court should act in accordance with (and it is prudent for the Court to direct itself expressly in accordance with) the principle in Briginshaw, have regard to what Dixon J said about the insufficiency of inexact proofs, indefinite testimony or indirect references, and give weight to the presumption of innocence.

31 Nothing in Briginshaw suggests any special difficulty or standard to be met by the party denying, and in principle it is not possible that there should be any special standard. The principle stated in Briginshaw relates to an allegation which is or involves fraud. The principle does not apply when the party with the burden of proof makes an allegation of a negative, the allegation is denied, and the denial means or strongly implies that that party has been guilty of fraud. A party who denies an allegation encounters no special tests relating to the standard of proof established by the decision in Briginshaw, or established in any other way. The whole subject of Briginshaw is the standard of proof, including the standard of proof where the fact alleged has serious adverse implications for some person; there is in my view nothing in Briginshaw which suggests the existence of any special burden upon a party who traverses an allegation.

32 We were referred to other authority on the subject. Compania Naviera Vascongada v. British & Foreign Marine Insurance Co Ltd (The Gloria) (1936) 54 LlL Rep 35 (Branson J) at 50-51 contains a statement which is inconsistent with the view that any special burden rests upon a party who denies an allegation that a crime was not committed. His Lordship said:

The law is, in my opinion, clear. The onus of proof that the loss was fortuitous lies upon the plaintiffs, but that does not mean that they will fail if their evidence does not exclude all reasonable possibility that the ship was scuttled. Before that possibility is considered some evidence in support of it must be forthcoming. Scuttling is a crime, and the Court will not find that it has been committed unless it is proved with the same degree of certainty as is required for the proof of a crime. If, however, the evidence is such that the Court, giving full weight to the consideration that scuttling is a crime, is not satisfied that the ship was scuttled, but finds that the probability that she was is equal to the probability that her loss was fortuitous, the plaintiffs will fail.

33 That is to say, in his Lordship’s view, where the probabilities are equal, the party denying succeeds, although the denial appears to imply that a crime was committed. This passage was referred to with approval in Palamisto General Enterprises SA v. Ocean Marine Insurance Co. Ltd [1972] 2 QB 625 at 636, and that passage in turn was referred to with approval in Simon v. NRMA Insurance Ltd (NSWCA, 22 October 1991, unrep.) Samuels AP at p7. The facts in Simon v. NRMA Insurance Ltd have some general resemblance with the facts in the present case, but that decision does not in my view establish any principle which is not otherwise well established; its significance is its approval of the dictum of Branson J in Compania Naviera Vascongada.

34 On a true reading of the judgment of the Trial Judge it is not correct to say, as Senior Counsel for the appellant submitted, that scattered through the judgment there are references and words where the Trial Judge focussed on whether the appellant had made out its case. Counsel described the judgment as a pastiche, an amalgam and a confusion, and said that different parts of the judgment were chalk and cheese. Counsel further contended that, while there were internal inconsistencies, the judgment did include positive findings of fact which had the substance and effect of findings of fraud, of criminality or of like gravity.

35 This submission was presented with earnestness and in several forms, but it can be disposed of fairly by saying that it has no substance. The Trial Judge did not dispose of the proceedings on the basis of a finding of fraud. The Trial Judge disposed of the proceedings upon a finding that he was not satisfied that the appellant was not complicit in a plan to have the vehicle stolen. When the appellant alleged that the vehicle was stolen and that it did not consent to the removal of the vehicle, the appellant did not raise any issue of fraud, and did not raise any issue upon which anything put forward by the respondent fell to be tested by any special principles relating to the standard of proof of criminal or fraudulent activity. The respondent did not raise an issue of fraud by denying the allegation that the vehicle was stolen. It raised fraud in another way, but did not obtain a decision on that basis.

36 The Trial Judge’s careful expressions show that his findings did not go so far as to find fraud against each of the Hammoud brothers. The judgment is a carefully structured document with a strong inner logic, and there is no wavering between one line of reasoning and the other; the progression to the finding that “I am not satisfied … that the plaintiff company was not … compliant in the plan to have the vehicle stolen” is considered carefully and stated consistently.

37 In my opinion the appeal should be dismissed with costs.

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Last Modified: 11/09/2004