AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
ian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 [26]). • A finding of fraud is a serious one that man - dates strict adherence to Section 140 of the Evidence Act 1995 (NSW), which sets out the balance of probabilities 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 testimo - ny or indirect inferences” will not suffice (see Briginshaw v Briginshaw [1938] HCA 34). • The seriousness of a finding of dishonesty or reckless indifference to the truth will ordinar - ily mean that it may not be made without providing an opportunity to the party against whom the allegation 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 find - ing that the fraud, or the contravening con - duct, 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 coverage maintained, a claimant may be able to seek compensation for loss suffered by reason of an “unknown” fraudster from their insurer. There are various victim compensation schemes in Australia which may provide both corpora - tions 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 Assistance) Act 2016 (ACT); Criminal Injuries Compensation Act 2003 (WA); Victims of Crime Financial Assistance Act 2009 (Qld); Vic - tims 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 Vic - tims Rights and Support Act 2013 (NSW), an “aggrieved person” ie, someone who has sus- tained loss through or by reason of the relevant offence, can apply for a direction that compen - sation 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 discre - tionary. Such power can be exercised suo moto, that is, on the court’s initiative, or upon an appli - cation 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 proceedings against the offender and obtain damages, even if a direction for compensation is obtained; however, 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) Section 43E(2); Civil Liability Act 2002 (WA) Section 5AM; Proportion - ate Liability Act 2005 (NT) Section 16(2); Civil Law (Wrongs) Act 2002 (ACT) Section 107I(2); Wrongs Act 1958 (Vic) Section 24AK(2); Law
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