FEDERAL COURT OF AUSTRALIA Combined Insurance Company of America trading as Combined Insurance Company of Australia v Trifunovski (No 4) [2011] FCA 271 Citation: Combined Insurance Company of America trading as Combined Insurance Company of Australia v Trifunovski (No 4) [2011] FCA 271 Parties: COMBINED INSURANCE COMPANY OF AMERICA T/A COMBINED INSURANCE COMPANY OF AUSTRALIA v BLAGOJA TRIFUNOVSKI, HERACLEA PTY LIMITED ACN 007 437 372, JOSEPH VIVIL RIENZIE PERIES, SHANE PEREZ, WILLIAM DICINOSKI and FETIE VICKI DICINOSKI SHANE PEREZ v COMBINED INSURANCE COMPANY OF AMERICA T/AS COMBINED INSURANCE COMPANY OF AUSTRALIA RIENZIE PERIIES v COMBINED INSURANCE COMPANY OF AMERICA T/AS COMBINED INSURANCE COMPANY OF AUSTRALIA FETIE DICINOSKI v COMBINED INSURANCE COMPANY OF AMERICA T/AS COMBINED INSURANCE COMPANY OF AUSTRALIA WILLIAM DICINOSKI v COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA BLAGOJA TRIFUNOVSKI v COMBINED INUSRANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA File numbers: NSD 1860 of 2008 NSD 643 of 2009 NSD 644 of 2009 NSD 646 of 2009 NSD 647 of 2009 NSD 649 of 2009 Judge: PERRAM J Date of judgment: 14 March 2011 Catchwords: EVIDENCE – Admissibility – Tendency evidence – Evidence Act 1995 (Cth) s 97 – whether evidence admissible under s 97 to show tendency of corporation – whether evidence of significant probative value Legislation: Evidence Act 1995 (Cth) s 97 Cases cited: Australian Competition & Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 cited Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 cited Tesco Supermarkets Ltd v Nattrass [1972] AC 153 cited Date of hearing: 14 March 2011 Date of publication of reasons: 24 March 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr A Leopold SC with Mr T Saunders Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondents: Mr A Britt Solicitor for the Respondents: K P O'Donnell & Associates IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1860 of 2008 BETWEEN: COMBINED INSURANCE COMPANY OF AMERICA T/A COMBINED INSURANCE COMPANY OF AUSTRALIA Applicant AND: BLAGOJA TRIFUNOVSKI First Respondent HERACLEA PTY LIMITED ACN 007 437 372 Second Respondent JOSEPH VIVIL RIENZIE PERIES Fifth Respondent SHANE PEREZ Sixth Respondent WILLIAM DICINOSKI Eighth Respondent FETIE VICKI DICINOSKI Ninth Respondent JUDGE: PERRAM J DATE OF ORDER: 14 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The affidavit evidence of Mr Serge Goldin be admitted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 643 of 2009 BETWEEN: SHANE PEREZ Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent JUDGE: PERRAM J DATE OF ORDER: 14 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The affidavit evidence of Mr Serge Goldin be admitted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 644 of 2009 BETWEEN: RIENZIE PERIIES Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent JUDGE: PERRAM J DATE OF ORDER: 14 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The affidavit evidence of Mr Serge Goldin be admitted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 646 of 2009 BETWEEN: FETIE DICINOSKI Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent JUDGE: PERRAM J DATE OF ORDER: 14 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The affidavit evidence of Mr Serge Goldin be admitted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 647 of 2009 BETWEEN: WILLIAM DICINOSKI Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent JUDGE: PERRAM J DATE OF ORDER: 14 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The affidavit evidence of Mr Serge Goldin be admitted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 649 of 2009 BETWEEN: BLAGOJA TRIFUNOVSKI Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent JUDGE: PERRAM J DATE OF ORDER: 14 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The affidavit evidence of Mr Serge Goldin be admitted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1860 of 2008 BETWEEN: COMBINED INSURANCE COMPANY OF AMERICA T/A COMBINED INSURANCE COMPANY OF AUSTRALIA Applicant AND: BLAGOJA TRIFUNOVSKI First Respondent HERACLEA PTY LIMITED ACN 007 437 372 Second Respondent JOSEPH VIVIL RIENZIE PERIES Fifth Respondent SHANE PEREZ Sixth Respondent WILLIAM DICINOSKI Eighth Respondent FETIE VICKI DICINOSKI Ninth Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 643 of 2009 BETWEEN: SHANE PEREZ Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 644 of 2009 BETWEEN: RIENZIE PERIIES Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 646 of 2009 BETWEEN: FETIE DICINOSKI Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 647 of 2009 BETWEEN: WILLIAM DICINOSKI Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 649 of 2009 BETWEEN: BLAGOJA TRIFUNOVSKI Applicant AND: COMBINED INSURANCE COMPANY OF AMERICA TRADING AS COMBINED INSURANCE COMPANY OF AUSTRALIA Respondent JUDGE: PERRAM J DATE: 14 MARCH 2011 PLACE: SYDNEY REASONS FOR JUDGMENT Ruling on Evidence 1 On 14 March 2011, the sixth day of the trial of these matters, objection was taken by the applicant in NSD 1860 of 2008 (Combined) to the whole of the affidavit of Mr Serge Goldin upon which the respondents to that proceeding (the agents) wish to rely. At the time, I indicated that I would admit his evidence. These are my reasons for doing so. 2 The burden of Mr Goldin's evidence was to establish that whilst he was working as an insurance sales agent for Combined he had a conversation with one of Combined's sub-regional managers during which that manager told him that he could not take time off due to sickness without producing a medical certificate. 3 This evidence is said by the respondents to demonstrate a propensity on the part of Combined to inform agents that they could only take time off in the case of sickness upon the production of a medical certificate. That tendency, in turn, is said to make it more likely that a similar statement was made to a number of the agents, who are the respondents in these proceedings, by employees of Combined. Such a statement, if made, is alleged by the agents to support their contention that the relationship between each of them and Combined was that of master and servant rather than that of principal and independent contractor. 4 Mr Britt of counsel, who appeared for the agents, placed the admissibility of the evidence squarely on its nature as tendency evidence and eschewed any argument that the evidence established directly the existence of a system or procedure within Combined requiring agents to produce medical certificates as a prerequisite to taking time off. It is unnecessary, therefore, to explore the relationship between propensity evidence and evidence of systematic arrangements: cf Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 67 [65]-[67] per Sackville J (with whom Whitlam and Mansfield JJ agreed). 5 The matter is, therefore, governed by s 97(1) of the Evidence Act 1995 (Cth) which provides: Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 6 Combined made two submissions. The first was that s 97 could not apply to a corporation such as Combined which of its nature could only act through human intermediaries. On this view of things, the agents could, if they wished, seek to use s 97(1) to demonstrate a tendency on the part of the particular sub-regional manager nominated by Mr Goldin (in this case, a Mr Nott). Since Mr Nott, however, was not said by the agents the parties to these proceedings to have had any relevant dealings with them, proof of any such tendency on his part would be irrelevant to the case. The second submission was that even if s 97 could apply to Combined, the requirement of s 97(1)(b) that the evidence "have significant probative value" had not been satisfied so that Mr Goldin's evidence remained inadmissible. 7 The first argument turns upon the form of s 97(1) itself. Mr Leopold SC who, with Mr Saunders of counsel, appeared for Combined, accepted that ordinarily the word "person" would include an artificial person such as a corporation. However, in his submission, the text of s 97(1) displaced that ordinary meaning. This was because corporations could not have "tendencies" which were to be seen as a quality of the human agents through whom they acted. 8 If the requirements of s 97(1) are met it permits evidence to be led of: (a) character; (b) reputation; (c) conduct; or (d) tendency but only so as to prove one of two matters: (a) a tendency to act in a particular way; or (b) a tendency to have a particular state of mind. 9 I do not think that any of these concepts are necessarily inapposite to artificial persons such as corporations. Personal characteristics can be attributed to corporations for the purposes of civil and criminal liability, including knowledge and state of mind: Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170 per Lord Reid. I do not think that s 97(1) should be approached on the basis that they cannot. I accept, therefore, that corporations can have semi-anthropomorphic qualities such as reputation, character and tendency. This is, no doubt, because corporations consist of groups of people operating in an habitual way in a given corporate culture. For those reasons, I do not think that Combined's textual point is a sound one. 10 I was not referred to any case where this issue has been considered. I would note however, that in Australian Competition & Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 Lindgren J, whilst rejecting the particular tendency evidence for other reasons, did not reject it on the basis that all that was sought to be done in that case was to demonstrate the tendencies of a corporation. 11 As to the second objection, s 97(1)(b) will be satisfied where the Court "thinks" that the evidence will have "significant probative value". The word "thinks" underscores that the test involves "a degree and value judgment": Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 69 [74] per Sackville J (with whom Whitlam and Mansfield JJ agreed). Beyond the nature of the judgment involved, however, it is doubtful "that it is useful to attempt any more precise reformulation of the terms of s 97(1) of the Evidence Act" for it is the statutory language that is to be applied and "judicial statements as to the construction of the legislation cannot supplant that language": Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 69 [74]. Trivially one can, at least, say that the standard must be higher than the relevance standard contemplated by s 55 of the Evidence Act 1995. 12 In assessing whether Mr Goldin's evidence has significant probative value it is, I think, useful to note that at least one of the agents – Mr Perez – proposes to give evidence that he was required by Combined to produce a medical certificate. There is, I should say, evidence to the contrary – a letter dated 5 September 2005 to Mr Trifunovski from Combined suggests that a medical certificate was not required; there is also evidence from officers of Combined that they knew of no documents tending to prove the existence of such a practice. 13 If Mr Goldin's evidence were to be accepted it is certainly capable of providing assistance to the agents' case that Combined required medical certificates and, thereby, exercised control over them. Of course, there may well be answers to it: for example, the evidence given by Mr Goldin may ultimately relate only to the idiosyncratic tendencies of Mr Nott rather than those of Combined. But in circumstances where it is being put that the evidence of the agents – to the extent that it suggests medical certificates were required of them – ought not to be accepted, Mr Goldin's evidence has significant probative value. It was for those reasons that I concluded that the evidence should be admitted. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 24 March 2011