AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
HFW Level 10, 126 Phillip Street Sydney NSW 2000 Australia
Tel: +61 (0)2 9320 4600 Fax: +61 (0)2 9320 4666 Email: reception.sydney@hfw.com Web: www.hfw.com
1. Fraud Claims 1.1 General Characteristics of Fraud Claims In Australia, fraud is criminalised at a federal and state level, by: • Parts 7.3–7.7 of the Criminal Code Act 1995 (Cth) (the “Criminal Code” ) and • the provisions of the criminal legislation in each state (Criminal Code 2002 (ACT) Part 3.3; Crimes Act 1900 (NSW) Part 4AA; Criminal Code Act 1913 (WA) Section 409; Criminal Code Act 1899 (Qld) Section 408C; Criminal Code Act 1924 (Tas) Section 253A; Criminal Code Act 1983 (NT) Section 43AGA and 43AH-L; Criminal Law Consolidation Act 1935 (SA) Section 139; Crimes Act 1958 (Vic) Sections 81–82). There are many words used to define or cap - ture the act of “fraud” in Australian law, including “dishonesty” , “deception” or “moral turpitude” . Fraud prosecutions are both various and flexible in assisting victims. The main offences that arise in relation to fraud are:
• obtaining property by deception (Section 134.1(1) of the Criminal Code) • obtaining a financial advantage by deception (Section 134.2 (1) of the Criminal Code); • general dishonesty – obtaining a gain (Section 135.1(1) of the Criminal Code); • general dishonesty – causing a loss (Section 135.1(3) of the Criminal Code); and • general dishonesty – causing a loss to anoth - er (Section 135.1(5) of the Criminal Code). Notably, in Nadinic v Drinkwater (2017) 94 NSWLR 518, Leeming JA summarised key con - cepts relevant to a claim of fraud in common law and in equity, as follows (at (22)): “For present purposes, it will suffice to distinguish the two senses in which ‘fraud’ is used in civil litigation which correspond to different meanings at law and in equity. The difference turns on the state of mind of the person said to have committed fraud. At common law, ‘fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false’” Derry v Peek (1889) 14 App Cas 337 at 374. The contrast with equity was explained by Vis - count Haldane LC in Nocton v Lord Ashburton
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