AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
respect to pleading fraud as stated by Leeming JA at [45]–[49]. • A fraud allegation in the sense of deliberate false - hood or reckless indifference to the truth must be pleaded specifically and be particularised. This requires the party making the fraud allegation to “focus attention upon what it was that the person making the statement intended to convey by its making. And the pleading must make plain that it is alleged that the person who made the statement knew it to be false or was careless as to its truth or falsity” (citing Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 [26]). • A finding of fraud is a serious one that mandates strict adherence to Section 140 of the Evidence Act 1995 (NSW), which sets out the balance of proba - bilities standard in a civil proceeding. To reasonably satisfy a court in reaching a finding of fraud, a party must provide clear and cogent proof to support the allegation; “inexact proofs, indefinite testimony or indirect inferences” will not suffice (see Briginshaw v Briginshaw [1938] HCA 34). • The seriousness of a finding of dishonesty or reck - less indifference to the truth will ordinarily mean that it may not be made without providing an opportunity to the party against whom the allega - tion is made to deal with the criticism. • A finding of fraud should be made clearly and the reasons for the finding must be well articulated. This is because “the seriousness of a finding of fraud, including statutory fraud, does not permit of other than a specific finding that the fraud, or the contravening conduct, has in fact occurred” ( Sgro v Australian Associated Motor Insurers Ltd (2015) 91 NSWLR 325, 336 [54] per Beazley P). 2.8 Claims Against “Unknown” Fraudsters Depending on the type and level of insurance cover - age maintained, a claimant may be able to seek com - pensation for loss suffered by reason of an “unknown” fraudster from their insurer. There are various victim compensation schemes in Australia which may provide both corporations and individuals with a means of obtaining restitution in cases where the unknown identity of the fraudster(s)
would otherwise leave them without redress (see R v David Michael Wills, Application by Woolworths Ltd for a direction for compensation pursuant to Section 77B of the Victims Support and Rehabilitation Act 1996 (NSW) [2013] NSWDC 1); Victims Rights and Support Act 2013 (NSW); Victims of Crime (Financial Assis - tance) Act 2016 (ACT); Criminal Injuries Compensation Act 2003 (WA); Victims of Crime Financial Assistance Act 2009 (Qld); Victims of Crime Assistance Act 2006 (NT); Victims of Crime Compensation Act 1994 (Tas); Victims of Crime Assistance Act 1996 (Vic); Victims of Crime Act 2001 (SA)). For example, under Section 97 of the Victims Rights and Support Act 2013 (NSW), an “aggrieved person” – ie, someone who has sustained loss through or by reason of the relevant offence, can apply for a direc - tion that compensation be paid out of the property of a person, which includes corporations, convicted of that offence. The court’s power to make the order is discretionary. Such power can be exercised suo moto, that is, on the court’s initiative, or upon an application by or on behalf of an aggrieved person. Any amount granted by the court cannot exceed the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for debt recovery. An aggrieved person can also commence civil pro - ceedings against the offender and obtain damages, even if a direction for compensation is obtained; how - ever, double recovery is not permitted (Civil Liability Act 2002 (NSW) Section 37 (2); Civil Liability Act 2003 (Qld) Section 32B; Civil Liability Act 2002 (Tas) Sec - tion 43E(2); Civil Liability Act 2002 (WA) Section 5AM; Proportionate Liability Act 2005 (NT) Section 16 (2); Civil Law (Wrongs) Act 2002 (ACT) Section 107I(2); Wrongs Act 1958 (Vic) Section 24AK(2); Law Reform (Contributory Negligence and Apportionment of Liabil - ity) Act 2001 (SA) Section 12). 2.9 Compelling Witnesses to Give Evidence Depending on the type and level of insurance cover - age maintained, a claimant may be able to seek com - pensation for loss suffered by reason of an “unknown” fraudster from their insurer.
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