District Court New South Wales Medium Neutral Citation: Younan v GIO General Limited [2012] NSWDC 67 Hearing dates: 25 August; 22 and 23 September; 14 November; 13 December 2011 and 9 February 2012 Decision date: 27 April 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant. (2) Plaintiff pay defendant's costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days. Catchwords: INSURANCE - fraudulent claim - insurer entitled to refuse payment Legislation Cited: Evidence Act 1995 (NSW), s 135 Insurance Contracts Act 1984 (Cth), ss 28 and 56 Cases Cited: Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578 Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100 Hammoud Bros Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 NASA v AAMI (New South Wales Court of Appeal, 22 October 2001, unreported) Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170 R v Logue (New South Wales Criminal Court of Appeal, Gleeson CJ, McInerney J, Mathews J, 31 March 1994) Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2010] NSWSC 1036 Simon v NRMA Insurance Ltd (New South Wales Court of Appeal, 22 October 1991, unreported) Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279 Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 Victor Stanley Inc v Creative Pipe Inc et al 269 FRD 497 Walton v Colonial Mutual Life Assurance Society Ltd [2004] NSWSC 616 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Jennifer Younan Defendant: GIO General Limited (ABN 22 002 861 583) Representation: Plaintiff: Mr T Di Francesco Defendant: Mr B Burke Plaintiff: AYS Legal Defendant: Courtenay & Co Solicitors File Number(s): 2010/366490 Publication restriction: None Judgment 1The plaintiff brings proceedings for damages for breach of contract. The defendant has refused to pay a claim (insurance claim number 7811004845) for the agreed value ($80,000) of the plaintiff's vehicle, which became a total loss after it was damaged by another vehicle. The sum claimed in the statement of claim is $70,000, being the difference between the insured value of the vehicle and the amount achieved when the vehicle was sold for salvage for $13,500 (Exhibit B). 2In a letter dated 21 September 2010 (Exhibit B) the defendant reduced to nil its liability to pay the claim on the following bases: (a)The plaintiff failed to comply with the terms and conditions of the GIO General Limited Motor Vehicle Insurance Product Disclosure Statement in providing information and documents (in relation to the whereabouts of Mr Raymond Younan); (b)Breach of s 13 Insurance Contracts Act 1984 (Cth). 3The defendant admits that an insurance policy existed and was current as at the date of the accident (1 August 2010), that the policy was an "agreed value" policy, and that the amount agreed was $80,000. The defendant also admits that it was a term of the insurance contract that the defendant would cover the plaintiff for any claims arising from accidents incurred by the plaintiff during the insured period, which includes 1 August 2010, and (following the provision of additional submissions in February 2012; including the tender of the insurance policy) that the vehicle was a total loss. 4The defendant raises defences under ss 28 and 56 Insurance Contracts Act 1984 (Cth) ("the Insurance Contracts Act"). The defence under s 28 is based upon the non-disclosure of the fact that the plaintiff's licence had been suspended, which non-disclosure the defendant submits was fraudulent (s 28(2)) or, alternatively, pursuant to s 28(3). 5Sections 28 and 56 of the Insurance Contracts Act provide as follows: "28 General insurance (1)This section applies where the person who became the insured under a contract of general insurance upon the contract being entered into: (a)failed to comply with the duty of disclosure; or (b)made a misrepresentation to the insurer before the contract was entered into; but does not apply where the insurer would have entered into the contract, for the same premium and on the same terms and conditions, even if the insured had not failed to comply with the duty of disclosure or had not made the misrepresentation before the contract was entered into. (2)If the failure was fraudulent or the misrepresentation was made fraudulently, the insurer may avoid the contract. (3)If the insurer is not entitled to avoid the contract or, being entitled to avoid the contract (whether under subsection (2) or otherwise) has not done so, the liability of the insurer in respect of a claim is reduced to the amount that would place the insurer in a position in which the insurer would have been if the failure had not occurred or the misrepresentation had not been made. 56 Fraudulent claims (1)Where a claim under a contract of insurance, or a claim made under this Act against an insurer by a person who is not the insured under a contract of insurance, is made fraudulently, the insurer may not avoid the contract but may refuse payment of the claim. (2)In any proceedings in relation to such a claim, the court may, if only a minimal or insignificant part of the claim is made fraudulently and nonpayment of the remainder of the claim would be harsh and unfair, order the insurer to pay, in relation to the claim, such amount (if any) as is just and equitable in the circumstances. (3)In exercising the power conferred by subsection (2), the court shall have regard to the need to deter fraudulent conduct in relation to insurance but may also have regard to any other relevant matter." The circumstances of alleged non-disclosure 6The first issue for determination is what happened when the insurance policy in question was taken out. The plaintiff, Ms Younan, has put her case before me on the basis that the motor vehicle insurance policy was taken out following a telephone call made by a Mr Raymond Younan, on her behalf, on 12 December 2009 to a person identified in these proceedings as "Mrs AB". 7Mrs AB has no recollection of the call, which was one of thousands she had in the course of her employment, and said so in her evidence in this court. The plaintiff and Mr Younan, the person identified in the plaintiff's written submissions as the initiator of the conversation which led to the insurance policy, both gave evidence about the circumstances in which the policy was taken out. 8In determining issues of fact as to what was said in this conversation, I must consider the following: (a)The evidence of Ms Younan's statements as recorded by Mr Younan in Exhibit 1; (b)The evidence of Mr Lipovac, and challenges to it due to the absence of the original tape of the interview; (c)The evidence of Ms Younan in these proceedings; (d)The evidence of Mr Younan, the person identified by the plaintiff as the person who took out the insurance policy for the vehicle; and (e)The evidence of the GIO employee, Mrs AB. Ms Younan's statements on 7 August 2010 9Ms Younan was interviewed Mr Ron Lipovac on 7 August 2010, a week after the vehicle was damaged and a claim made by the plaintiff on the insurance policy. What Ms Younan said on this occasion is of assistance for two reasons. Firstly, it was very soon after the accident, when these events were likely to be fresher in her memory. Secondly, although the accuracy of Mr Lipovac's transcript of the interview (Exhibit 1) is challenged because the tape from which it was typed was not available to corroborate its contents, no challenge was made to the questions asked on this topic, or to Mr Lipovac's demeanour towards Ms Younan at the time he asked the questions (at the commencement of the interview). 10In this interview, which took place at the Georges Hall residence at which Ms Younan was staying, Mr Lipovac (Exhibit 1), asked a series of questions about how the vehicle was purchased and then how the vehicle was insured. Ms Younan was asked general questions about where she lived, her occupation and income, whether her driver's licence had ever been cancelled or suspended and how the vehicle was purchased (Q4 - Q22). She was asked about how the vehicle was serviced, who drove it and its condition (Q23 - Q29), as well as whether she had had previous insurance policies or claims (Q30 - Q32). 11She was then asked (at Q33 - Q43) about how she took out a policy with the defendant: "Q33. Can you recall the circumstances of when you took out a policy with the GIO?A. I think I or Raymond rang up on the telephone and took the policy out, dealing direct with GIO on the telephone.Q34. Do you recall the application process?A. What do you mean by that?Q35. Well, can you recall what it involved?A. I think there was questions asked about the vehicle.Q36. Can you recall what are they?A. I think they asked when I purchased the vehicle.Q37. Can you recall what was discussed about the sum insured for the vehicle?A. It was Agreed value.Q38. Were you advised of your duty of disclosure?A. What do you mean by that?Q39. Do you understand your duty of disclosure?A. I answered all the questions they asked me.Q40. Tell me your interpretation of duty of disclosure?A. Well, I think I just had to tell them what information they needed.Q.41. Have you held any previous insurance policies prior to this?A. Yes.Q.42. Have you ever been refused an insurance policy or ever had a policy cancelled by an insurer?A. No.Q43. Do you recall being asked details about the car when you took out the policy in question?A. I believe so." 12She said she received a certificate of insurance (Q47) and was asked how she paid for the certificate of insurance. She replied (Q48), "I think by credit card." She was asked whether, when she received the policy, that she checked to see if all the information was correct, to which she replied, "I think so, there wasn't [sic] any problem" (Q49), that she did not note any errors (Q50) and that she was happy with the policy (Q51). She added that she had the insurance policy "somewhere at home" (Q52). 13Mr Lipovac's evidence dealt not only with the interview but the circumstances in which the tape from which the transcript was typed was lost. Mr Lipovac's evidence concerning the 7 August 2010 interview 14Mr Lipovac, who gave evidence in these proceedings, had to be called out of turn, and was the first witness to give evidence (T 3ff). This meant that he gave evidence before Ms Younan. 15Mr Lipovac gave evidence that he used his DS5000 Sony voice recorder to record during the interview with Ms Younan. This had been transcribed but the original taped conversation has since been lost. He was cross-examined about the interview, and it was put to him that he was aggressive in relation to questions at the end of the interview (T 31-32) but the accuracy of the portion of the transcript relating to the conversation he had with Ms Younan about how the insurance policy was taken out was not challenged. 16Mr Lipovac also made notes as he went along, because he had a standard list of questions. That document has been produced (Exhibit 2). There is no claim that anything in this document, including the handwritten notes, in any way conflicts with the conversation as recorded in the transcript. This means that there is a contemporaneous handwritten list, noting parts of answers to these standard questions, which corroborates the transcript. 17After the interview ended at 9.37am on 7 August 2010, Mr Lipovac said that he needed to interview Mr Younan (Exhibit 2). Ms Younan said she did not know where he lived but it could be Baulkham Hills. She also said "I do not have his [telephone] number". Mr Lipovac jotted these details down on his handwritten notes. (The GIO had already written to the plaintiff on 4 August 2010 seeking details of Mr Younan and wrote again on 14 September 2010). 18In evidence taken on a voir dire (T 9 ff) which was later admitted as evidence in the proceedings, Mr Lipovac was asked a series of questions about the accuracy of this transcript, and concerning the circumstances in which the tape was destroyed. 19Mr Lipovac was asked how the wrong date (1 August instead of 7 August) came to appear at the top of page 1. He said that this was a typing error (T 12) in a heading which was not part of the transcript of the tape. This error appears on every page of the interview transcript, because the heading appears on the top of the page. The reasons for this date being wrong are unclear, but suggestive of failure to proof-read, in that the most likely explanation is that Mr Lipovac gave the date of the accident as the date for the interview, and the typist has typed this. 20The most significant issue, in relation to the missing tape, was whether Mr Lipovac intimidated the plaintiff. She certainly said, at the end of the tape, that she felt intimidated, in that she had brought a claim she expected to be processed in the usual way, and she was being asked a lot of questions about issues unrelated to the accident. If Ms Younan thought the transcript did not accurately reflect what was said, her version could have been put to Mr Lipovac. As counsel for the defendant noted in his final submissions, no errors or omissions in the questions about factual matters were put to Mr Lipovac. In particular, no challenge was made to the questions about the initial phone call made to take out the insurance policy on 7 December 2009. 21Mr Lipovac was asked to explain how the tape came to be deleted. He explained that the system for retaining the original after it was typed had failed, and that he had been informed of this by the secretary responsible for the typing: "A. She said, "The audio file relating to the Younan matter in relation to the interview with Jennifer Younan, is not on the system." I said, "What do you mean?" She said, "Well it's not on the system." I said, "Well can we find out what's going on?" And she referred to another issue with a folder, a folder going missing." (T 15) 22Mr Lipovac went on to explain: "Q. And what did she say in relation to that? A. She said, "It looks like it could have been accidentally deleted." Q. Did she expand on how it might have been accidentally deleted? A. Two issues. One, human error; and two, the system being transferred from analogue to digital, we'd only just come on in the last few months. Q. So this was a new system to your office, is that right? A. That's correct." (T 16) 23Evidence was given corroborating these events by the secretary, Ms Louise Waddick (T 282-287). 24The challenges were made to the transcript were, as I have noted, to the that at the end of the conversation, Ms Younan had complained that Mr Lipovac was intimidating her, and a voir dire was held as to the absence of the taped conversation on which the transcript was based. 25I summarise my reasons for admission of this document. The admissibility of Exhibit 1 26The objection to the admissibility of the transcript is, firstly, that the taped conversation should have been retained, and the failure to do so made tender of the transcript inadmissible (T 18). The second basis for objection is based upon s 135 Evidence Act 1995 (NSW). 27I gave only a brief ruling upon the admissibility of the document (T 19), on the understanding that I would provide fuller reasons in my judgment, due to constraints on the court's time by reason of the witness's availability problems. 28Although not specifically stated by the parties, it was no surprise to the plaintiff that the tape could not be found; the parties had discussed this problem before the case started, and at the request of the plaintiff the defendant's legal advisers had made inquiries, the substance of which was passed on to the plaintiff. The defendant agreed to call the witnesses in order for the explanation to be tested by cross-examination (see Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307). 29Mr Di Francesco relied upon Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578, where Collier J helpfully summarised the principles as follows: "[14] Third, I note that the admissibility of documents as "business records" has been the subject of consideration in a number of recent cases in this court, namely Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 4) [2011] FCA 338 and Fig Tree Developments Ltd (formerly Village Life Ltd) v Australian Property Custodian Holdings Ltd (as responsible entity for the Prime Retirement and Aged Care Property Trust) [2009] FCA 390, as well as cases in the Supreme Court of New South Wales, in particular National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 and in particular Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 ; [2005] NSWSC 417. Principles emerging from these cases include: · It is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions. That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and likely to be a far more reliable source of truth than memory (Rich at [116]). · The party tendering the document must establish authenticity, which cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance (Rich at [117]). · Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves (Rich at [118]). · There is a distinction between matters of authenticity going to the adducing of evidence and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible (Rich at [118])." 30The warning not to set the bar too high is significant, but this warning relates to business records. The interview process carried out by Mr Lipovac did not result in the creation of a business record. Greater caution is, therefore, required. The correct path is then to weigh up the explanations provided for the circumstances in which the tape was not retained. 31One of the problems with electronically stored information ("ESI") is that the sheer volume of it, and the complexity of the systems required to retain it, may result in its accidental misplacement or deletion. Principles of law developed to deal with spoliation of documents prior to the widespread use of ESI need to be exercised with care. There are a number of United States decisions on this problem, which are helpfully summarised in Victor Stanley Inc v Creative Pipe Inc et al 269 FRD 497, although these go further than Australian decisions, in that they assert that where there is a requirement to preserve, a culpable state of mind must be established. That was not an issue here. It is a question of weighing up the explanation given with the circumstances of the case. The evidence of Mr Lipovac and his secretary concerning new technology and inadvertent destruction is an acceptable explanation in the circumstances described in their evidence. The prejudice pointed to by the plaintiff, namely lack of forensic advantage from comparing the tape to the transcript, would have more force if some error of fact could be established. The transcript does contain the plaintiff's complaint of feeling intimidated. No error of significance (except the 1 August date, which is not actually part of the interview) can be pointed to. 32The second issue is the problem raised in the final point of Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) and in Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 at [118], namely matters going to the question of credibility and weight of documentary evidence once it has been authenticated and judged admissible. Mr Di Francesco referred me to Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2010] NSWSC 1036 and submitted that the document was unfairly prejudicial in that the plaintiff is unable to verify the accuracy of the transcript because the plaintiff did not have the benefit of the recording to check its accuracy. 33Whether a forensic disadvantage in being unable to check the tape is sufficient to satisfy s 135 (which is not the case, as I noted during argument) will depend upon the facts of the case. As I noted when giving my ruling, no specific part of what was said was challenged, beyond the claim that, at the end, the plaintiff said she felt intimidated, and it was asserted that there was a statement to this effect. The accuracy of the plaintiff's answers, and the contents of the documents in terms of what she said, is not challenged. The alternative objection to admissibility based on s 135 is therefore also rejected. 34This brings me to a consideration of Ms Younan's evidence. Ms Younan's evidence about the taking out of the policy 35Ms Younan's evidence in both examination-in-chief and cross-examination was very different from her answers to Mr Lipovac during the interview on 7 August 2010. First of all, in response to a leading question: "Q. Did Mr Younan, prior to 1 August 2010, ever say anything to you about the insurance he arranged with GIO? A. In regards to what? Q. Well just firstly, did he tell you he had organised the insurance? A. Yes, Q. When did he tell you that? A. It would've been the end of 2009, I'm sorry around 2009, the end of 2009." (T 44-45) 36The asking of a leading question about evidence which was in apparent conflict with statements Ms Younan had made to Mr Lipovac means that the form of the question will affect the weight of the answer: s 37 Evidence Act; ALRC 26, vol 1, para 619. 37After an objection as to this leading, the plaintiff was asked: "Q. Did Mr Younan ever tell you about anything that was said between him and the GIO in relation to your insurance? A. Not that I can recall." (T 45) 38As Mr Lipovac was called first, there had been an opportunity for Mr Di Francesco both to challenge the accuracy of that portion of the transcript and to put any alternative version, such as that the plaintiff told him the insurance policy was taken out by Mr Younan. This did not occur. All that Ms Younan could say (and then only in response to leading questions) was that Mr Younan had been the person to contact the GIO. 39Ms Younan could not even remember if she was in Sydney on 7 December: "Q. Were you there when Mr Younan rang the GIO? A. Not that I recall. Q. Were you in Sydney on 7 December 2009? A. I can't recall." (T 101) 40Ms Younan's response that she could not recall (T 45) was her answer to many questions. Her explanation for her inconsistent answers to Mr Lipovac was that she was "confused" (T 102, T 103) during the interview. 41In re-examination, Ms Younan put forward other explanations for her problems in giving evidence. The first was that her son had been in hospital for three nights from 5 September to have his tonsils and adenoids removed because of serious sleep apnoea problems, and as a result she had had very little sleep. The second was that Ms Younan was pregnant, and that she had been pregnant earlier that year (and miscarried) (T 198). In both cases Mr Younan was the father. Ms Younan said she was not receiving any counselling about the miscarriage. 42Mr Di Francesco sought an adjournment of the proceedings so that he could obtain a psychiatric report on the impact of the plaintiff's pregnancy, miscarriage and concerns about her son's health on the plaintiff's mental health (T 204). 43I rejected this application (T 208). Witnesses in ill health give evidence on a regular basis in personal injury cases. There was no evidence that the plaintiff had any physical health problems, or suffered from any more serious problems than lack of sleep and the natural distress any person who suffered a miscarriage would feel. These events would not prevent the plaintiff from being truthful, or being able to remember events in a fairly narrow compass. 44The lack of recall, and its frequency, are explicable on other grounds. The first is that her recollection of these events was better in August 2010, and should be preferred. The second is that her repeated answers to the effect that she does not recall should be viewed with suspicion, for the reasons explained by Gleeson CJ in R v Logue (New South Wales Criminal Court of Appeal, Gleeson CJ, McInerney J, Mathews J, 31 March 1994). In addition, the circumstances in which she became pregnant to Mr Younan is indicative that the relationship which led to the birth of their first child is of a continuing nature, whether it is a de facto relationship or not, and that the claim that the car and a sum of $15,000 were paid as a property settlement should be viewed with caution. 45It has, however, been necessary for me to set out in detail the transcript for Ms Younan's claims of failure of recall, so that a true picture of the evidence given can be seen, rather than to summarise the evidence in the usual manner. 46This brings me to a consideration of Mr Younan's evidence about the circumstances in which he said he effected a policy of insurance on behalf of the plaintiff by telephoning the GIO. Mr Younan's evidence about his phone call of 7 December 2009 47Mr Younan, who described himself as a former de facto partner of the plaintiff, with whom he has fathered a child, was the previous owner of the vehicle. He purchased it on 10 December 2008 for $35,000, from a person he had not met before, and on or about the same date insured the car in his own name (T 301). 48Mr Younan said that he gave this car to the plaintiff, Ms Younan, as part of a property settlement following the termination of their de facto relationship shortly after the birth of their son. According to RTA records, Mr Younan sold the plaintiff the vehicle the subject of the insurance for $35,000 on 23 September 2009 (Exhibit 3). The price of this vehicle, $35,000, was below its market value as part of this informal "property settlement". Mr Younan also gave Ms Younan a sum of cash. 49Mr Younan said that he telephoned the defendant's offices on 12 December 2009, he was seeking to effect motor vehicle insurance on behalf of the plaintiff in relation to this vehicle. 50The conversation which Mr Younan described in his evidence in chief has taken place is as follows: "Q. Did you have any involvement in obtaining insurance with the GIO for the Porsche? A. Yes, I did. Q. In the second half of 2009, what was your involvement with obtaining insurance for the Porsche? A. I took out insurance on Jennifer's behalf. Q. Do you recall how you did that? A. Yes, I rang them up on the phone. Q. When you say you, "Rang them up", who did you call? A. GIO, 131010. Q. Do you recall anything about that conversation when you called up GIO? A. Yes. Q. What do you remember about it? A. The make. They ask you the make, the model, condition, agreed value. Q. What did you answer in relation to those questions? A. Answered to the best of my knowledge on the make, the model, condition, owner's name, details, date of birth. Q. Was anything asked of you about Ms Younan's driving record? A. Yes. Q. What was asked? A. I don't know. Q. Do you have any recollection of what you said in relation to Ms Younan's driving record? A. I said I didn't know. Q. Was anything said in response to that? A. They could find out because they've got communication with the RTA database. Q. Did they say anything else? A. No, that's it. I took out the policy, there was a premium of a couple of thousand dollars. I paid with my Visa card, over the phone and took it out." (T 224, lines 5-45) 51Mr Younan told the court that he "didn't know nothing" (T 225, line 29) about the plaintiff's driving history, and that he had never discussed it with her prior to, or subsequent to, this application for insurance from the defendant. He told her he took out full comprehensive insurance on the vehicle (T 225 line 49) and said that she "didn't say nothing" (T 226 line 2) in reply. 52In cross-examination concerning the reference to the RTA database, Mr Younan said (at T 251-252): "Q. You were also asked in relation to those initial words: "In the past five years have you or anyone to be insured under the policy had their driving or boat licence suspended, cancelled or restricted or driven without the appropriate licence?" Q. Do you recall that; was that asked? A. That wasn't said. Q. That wasn't asked? A. No boat licence was - came up in conversation. Q. So she asked had they had their, "driving licence suspended, cancelled or restricted or driven without the appropriate licence?"; is that right? A. Well, I ..(not transcribable).. wasn't sure about that - about her licence being suspended, cancelled or-- Q. But do you recall that question was asked of you on that-- A. Yeah, but not with the boat licence in it and that. Q. No. So is it your evidence that what was asked of you was: "In the past five years have you or anyone to be insured under the policy had their driving licence suspended, cancelled or restricted or driven without the appropriate licence?" A. Yes, I told her, "I wasn't sure." Q. So that's what was asked? A. Yeah, in similar words, but it wasn't exact. Q. Do you recall the exact words? A. No, I couldn't remember the exact words. Q. So they were those exact words or something very close to it? A. Yes. Q. What was your answer to that? A. "I wasn't sure." Q. So what did you actually say to the girl? A. "I wasn't sure." Q. What did she say to that? A. She said, "We can find out cause we could - we can - we can find out through the RTA database.", because they communicate with each other on some network thing. Q. May I put it to you that your answer to that was in fact "No."? A. No." 53Mr Younan's claim that his statement "I don't know" was accepted without complaint, and that the GIO employee said this information could be obtained from the RTA, was contrary to the GIO's practice, according to the person who took the call, Mrs AB. Mrs AB's evidence as to the telephone conversation of 7 December 2009 54Mrs AB was the person who took the call. She has no independent recollection, and her response is based on GIO procedure. The evidence of Mrs AB was as follows (T 382 line 44 to T 391 line 13): "Q. In relation to the fourth bullet point, if you asked the question about suspension or cancellation of licence and you were given an answer to the effect that the person on the phone wasn't sure, what was it your practice to do? A. He'd need to get the information and call back. I'd delete the policy and give him a quote number. Q. What was it your practice to say if you were given an answer such as that? A. "I can't see any insurance policy. You need to get the information and when you have that, call back. I'll give you a quote number only". Q. What does the fact that you issued the policy suggest to you in relation to the answer? A. He would have said, no. Q. I want you to assume that Mr Younan has said to the court that his answer was that he wasn't sure, and that you said to him words to the effect that you, or somebody within GIO could find out as you had communications with the RTA through some database. Is that something that you may have said? A. Definitely not. We don't have access to people's records. HER HONOUR Q. Why is that - why don't you have access? Do you know? A. No, I don't have access to people's criminal history or driving history. This is a duty of disclosure. It's up to him to give me an honest answer. BURKE Q. Did you have any method by which information could be obtained from the RTA in relation to driving records? A. Definitely not, no. Q. To your knowledge, did anybody within GIO at that time have any method whereby they could obtain information from the RTA in relation to driving records? A. No. As far as I'm aware, no." 55In cross-examination, it was put to Mrs AB that Mr Younan did not actually refer to any purchase price for the vehicle, to which she replied: "Q. I want to suggest to you that at no time in the conversation with Mr Younan did you actually for what was the purchase price of the vehicle. What do you say to that? A. I think it's unlikely because I can't imagine me deciding he had purchased this vehicle for $75,000. I wouldn't know what this car's worth. Q. But if you had reached an agreed value of $80,000 with extra's of $5,000, is it not possible that you worked backwards-- A. No. Q. --from $80,000 and put a purchase price of $75,000? A. No." 56Mrs AB also denied that she would have gone ahead with the insurance despite Mr Younan saying he was not sure if Ms Younan has any prior cancellations or suspensions: "Q. Now I suggest to you that when you spoke with Mr Younan you asked him whether Jennifer Younan had had in the last five years any licence cancellations, suspensions or restrictions. Do you agree that's likely? A. Yes. Q. I suggest to you that what Mr Younan said to you was words to the effect "I'm not sure". Has a customer ever said that to you? A. I can't recall them saying that to me. Q. Now do you agree it's possible Mr Younan said to you "I'm not sure"? A. It's unlikely. Well - it - it - it is unlikely. If he'd said that, I wouldn't have continued with the insurance. Q. If Mr Younan said to you "I'm not sure", and you continued on with the policy anyway, would the only way you could do that would be for you to input "No" in respect of any cancellations, suspensions or restrictions? A. That's correct. Q. And it's entirely possible, isn't it, that Mr Younan said to you "I'm not sure", and you inputted "No" in relation to whether there had been any suspensions, restrictions or cancellations? A. No. Q. Well you could have made a mistake when filling in the form. Isn't that possible? A. No because I'd be reading him the scripting and I have to - I'm at the end of a policy, if he says he's not sure, that would mean I'd have to go back to the front of the policy to accept it, and I wouldn't do that. If he said he was unsure, I'd tell him he'd need to call back. Q. You say that's what the procedure is at GIO for you follow? A. Yes. Q. If you didn't follow that procedure, would you get in trouble with GIO? A. Yes. Q. You don't have any independent recollection of this conversation with Mr Younan, do you? A. No. Q. So if you were to say it's possible that you put a "No" in, in response to the answer of I'm not sure about suspensions, what you would be saying is it's possible that you breached GIO policy. Is that right? A. If I'd accepted the policy after he said he was unsure, then yes. Q. Would you get in trouble with your employer if you had put a "No" in relation to that answer if the answer was "I'm not sure"? A. It's unlikely. I doubt it because they know me. I'm very cautious. If I have any doubts, I ask a manager." 57Mrs AB said that not only would she not say the GIO could obtain this kind of information from the RTA, but she would "never" say that to a customer: "Q. Now I want to suggest to you is you said something to this effect to Mr Younan "We can find out because we can find out through the RTA data base". What do you say to that? A. Definitely not. I'm incapable of finding out anyone's details. I would never say that. Q. But, to your knowledge, you could refer it to the other underwriters in GIO. Is that correct? A. No. I'm 100% I would never say that. As far as I'm aware, noone in GIO has access to people's driver details. I - I wouldn't even know - I wouldn't bother going to another department because to the best of my knowledge, noone has access to driver history. Q. If you had said those words, would that have been a mistake by you in completing this underwriting policy? A. If I had said those words? Q. Yes? A. Yes, but I wouldn't have said those words. Without a doubt. Q. If you had said them and your employer found out, would you be likely to get in trouble with your employer? A. Yes because that's an outright lie. Q. By that do you mean that it's a serious mistake on your part if that's what you've said? A. Yes. It's - it's a lie. It's not true. We have - we - we can't do it." 58The issues in these proceedings essentially turn upon what I make of this transaction. The plaintiff submits that I should accept Mr Younan's account of what he said because: (a)Both the plaintiff and Mr Younan gave evidence that the plaintiff had not informed him of her driving suspensions and cancellations (T 44, 225, 256-262) (page 3, submission (a)); (b)Mr Younan told the court that at the time of taking out the policy he was not aware of the plaintiff's driving suspensions (T 225, 256-262) (page 4, submission (b)); and (c)The court should take into account the nature of the domestic relationship between the plaintiff and Mr Younan at various times and that the "rocky" relationship between them would explain why Mr Younan was unaware that the plaintiff had lost her licence (page 4, submission (c)). 59In response to each of these submissions, I propose to take into account: (a)The plaintiff's explanations about her driving suspensions and cancellations; (b)Mr Younan's claims of lack of knowledge in light of attacks on his credibility; and (c)Whether Mr and Ms Younan in fact had a "rocky" relationship. (a) The plaintiff's explanations about her driving suspensions and cancellations 60The plaintiff did not only claim she did not tell Mr Younan about her driving suspensions and cancellations, including a suspension of licence prior to her relationship with Mr Younan. What she said was that she had no recollection of even receiving the fines (T 81, 86, 86, 87, 92, 97, 102), or paying them. Nor was she aware when or for how long her licence was suspended or cancelled. She was similarly uncertain when she spoke to Mr Lipovac. He asked her: "Q16. Have you had your licence cancelled or suspended for any driving offences?A. No, however, I have had my licence suspended for the non payment of fines.Q17. When was that?A. A few years ago." 61The plaintiff asks the court to accept that while she cannot remember even incurring the fines, let alone paying them, or having her driver's licence suspended, and that this is a reason for her vague answer to Mr Lipovac. Inconsistently, she submits that she did know, but that she did not inform Mr Younan about any of this (including suspension prior to their relationship) because she was anxious about how he might react. 62Mr Younan's evidence did not, however, suggest that he was a person whose reactions should be feared. (b) Mr Younan's claims of lack of knowledge in light of attacks on his credibility 63Mr Younan knew it was important that an insurer be informed of licence suspensions. His knowledge meant that he knew it was likely he would be asked for this kind of information when he telephoned the GIO to organise insurance in the plaintiff's name. 64Mr Younan denied that this was the case. He said that he did not know in 2007, 2008 and 2009 that it was important for an insurer to know whether an insured person had had their licence suspended: T 311-312. Not only is this contrary to Mr Younan's other evidence, but it is contrary to his own experience of taking out insurance. 65An example of the inconsistent evidence Mr Younan gave on this subject can be seen on T 311-312 as follows: "Q. Did you know, in late 2008, that when a person rings for insurance-- A. Yes. Q. --they are asked, have you ever had insurance refused? A. Yes. Q. Were you also aware that when somebody rings for insurance they are asked whether they have had a claim refused? A. Yes. Q. Were you aware that when you ring for insurance an insurer asks whether you have had previous claims? A. Yes. Q. Were you aware that when you ring for insurance an insurer asks whether the driver's licence of the insured person has been suspended or cancelled? A. Yes." 66In addition, Mr Younan's actions in relation to vehicles he had insured where he made a claim demonstrate his knowledge of the importance of informing insurers of licence suspensions at the time a policy is taken out. 67Mr Younan insured his Mercedes with AAMI in a policy purchased on 30 October 2007. On 5 November 2007 he telephoned AAMI saying he wanted to obtain written confirmation that AAMI knew about his two prior licence suspensions (Exhibit 19, "Policy messages" lines 5-9). These licence suspensions were not shown on the cover note (see Exhibit 19, line 32). 68Mr Younan called AAMI a second time on 19 November 2007 saying he was still waiting for a cover note with the correct details and that he would not make payment until he received the correct paperwork (Exhibit 19, lines 53-55). When he still did not receive confirmation, he made a third telephone call on 21 November 2007 (lines 61-62). 69Mr Younan's answer, when this documentation was shown to him in cross-examination, was that he did not recall these telephone calls. Nevertheless, they are clear evidence that Mr Younan was well aware of the importance of having suspensions noted on the policy document in the event that a claim was made. In other words, he must have known, if and when he took out the policy of insurance the subject of these proceedings, that this was a question the insurer would ask, and that an honest answer was expected. 70It is against this background that the plaintiff asks the court to accept that the evidence of Mr Younan should be preferred to Mrs AB. Ms Younan's licence had been suspended on not one but two occasions in the five years prior to December 2009. This is the reason why the answer failing to disclose this material is asserted to amount to non-disclosure or misrepresentation for the purpose of s 28 Insurance Contracts Act. 71In particular, Mr Younan had previously insured the vehicle the subject of the claim in these proceedings in his own name. He would have answered questions of this kind at that time. He knew that these questions were going to be asked. Mr Younan's knowledge of the importance of licence suspension and prior claims 72If the importance of information of this kind was known to Mr Younan, it would be difficult for him to explain not having at least inquired of the plaintiff whether she had had her licence cancelled (whether she answered him truthfully is another issue, which is dealt with elsewhere in this judgment). 73Mr Younan's denial of the importance, to an insurer, of such information (T 311 - 312) is one of a series of statements made by him which are relied upon by the defendant to allege fraud. The defendant points also to Mr Younan's evidence on a range of issues, including the circumstances in which he obtained a Queensland driver's licence for the time when he was living with Ms Younan (and working for the RTA) in New South Wales, the circumstances in which he maintained a carsales account which was used to advertise the vehicle the subject of these proceedings for sale in the months prior to the vehicle being damaged, and inconsistencies in the nature and extent of the relationship between Mr Younan and the plaintiff which, the defendant submits, nails the lie that their relationship was (in Ms Younan's words) "rocky", and one in which she was afraid to tell him about her licence suspensions. 74I shall first deal with Mr Younan's car sales account, which the defendant relies upon to establish the nature and extent of Mr Younan's "car fanatic" activities, as well as the reality of who owned the Porsche. Mr Younan's other cars 75The Porsche was advertised for sale through Mr Younan's account with carsales.com.au. Ms Younan said she did this because it was a spur-of-the-moment thing (T 104) and that she had not taken the photographs for sale purposes, but to show the car to her sister in Dubbo. When asked why that was necessary, since Ms Younan was purportedly living in Dubbo and driving her car around the area, she said they had been taken when "we'd" (meaning herself and Mr Younan) had first purchased it. She was, however, unable to explain how, if she was living in Dubbo, she had put her contact details as being at Georges Hall in Sydney (T 106). 76The Porsche was advertised for sale using specific language well beyond Ms Younan's fairly rudimentary car knowledge (she could not even tell Mr Lipovac accurately how many kilometres the car had travelled). The defendant submits, and I accept, that Mr Younan, or someone with similar skills, must have written this car description. If the car was advertised for sale with Mr Younan's knowledge, that is not evidence of fraud. It is, however, evidence of the true nature of the relationship between these parties, namely one of mutual confidence and intermingling of monies. It also undercuts their claim that the car was part of a property settlement (the defendant submits it was transferred to her for other reasons) and that Mr Younan's anger at the car being advertised was conduct which proved the relationship was "rocky". 77Mr Younan was very specific about his conversation with the GIO employee he spoke to on 7 December 2009, but very general about other matters, such as how many cars he had owned and driven. Despite having detailed knowledge of cars and a carsales account which had been used to sell about 14 cars, including the attempted sale of the vehicle the subject of this claim, Mr Younan was not able to tell the court how many cars he had owned in the last three years: "Q. How many cars have you owned over the last three years? A. Can't - couldn't - couldn't tell you to be honest. Q. Is that because it's a very large number? A. No. Q. How many would it be roughly? Between one and five, or between five and 10, or between-- A, In the last three years? Q. Yes. A. Probably between one and five, to be honest. Couldn't give you exactly. I'd be lying to you if I told you a number. Wouldn't be accurate." (T 232) 78The relevance of ownership of other cars was that since the Porsche was transferred to the plaintiff, Mr Younan had not owned any other car that he had regularly driven: "Q. It's the fact, isn't it, that since you gave the Porsche to Jennifer you haven't had any other car that's been a regular drive car for yourself, have you? A. A regular drive car? Couple utilities. Q. A car that you've driven regularly on the road. A. Depends when I get sick of them, I get rid of them." (T 335) 79This was despite explaining, in relation to having a car sales account through which about 14 cars had been advertised (T 349 - 50, 353 - 4), that he was a car enthusiast (T 232, T 335). He agreed that he had owned several utilities and a bike (T 336). However, he denied using this car sales account to sell vehicles he owned or had an interest in, saying it was used by his friends or the plaintiff, and that he never used the email account which was the account address: "Q. And coming down that lefthand side, it says account details? A. Account details, yes, yes. Q. And a little bit further than that, it's got contact details, email, Felony888@optusnet.com.au? A. Yeah I see that. Q. Now you held an account with Carsales over the last few years, didn't you? A. Yes. Q. You used it quite a number of times to advertise cars? A. Not myself, no. Q. I beg your pardon? A. No. Q. Did you ever use the account to advertise cars? A. Sometimes. Q. I want you to have a look at the list of cars that appear there. The first one is a Toyota Kluger? A. Toyota Kluger, yes, yes, there it is there. Q. The registration AY81ZD? A. Yep. Q. Is that a car that you owned? Is that a car that you owned? A. I'm not sure. That's a Toyota, I'm not sure. Q. Is it possible that's a car that you owned? A. I'm not sure. Q. Is it possible that it's a car that you advertised on Carsales.com.au? A. No. Q. It's not possible? A. Sometimes my mates use my account sometimes or Jennifer did. Q. Your mates or Jennifer? A. Mm-mm. Q. Did you ever use this account? A. Sometimes. Q. When did you use this account? A. I can't remember when I'd used it. Q. You can't remember when you used it. How many times did you use it? A. Can't remember. Q. That's certainly your email address, isn't it? A. Yes. Q. Felony888@optusnet.com.au? A. That's correct. Q. You received the emails at that address? A. I hardly use my email. Q. Why do you have that email address if you hardly use it? A. I had it and the people wanted to advertise and I - I helped them cause they didn't have an account at the time. Q. So you just had that email address to help other people? A. No, I had it but I didn't use it so I. Q. So did you ever use this account? A. As I said to you sometimes. Q. Can you tell her Honour one of the cars you advertised through Carsales.com.au? A. A Mazda. Q. It's the very next one on the list, isn't it? A. Yes. Q. No way of denying that one is there Mr Younan? A. No. Q. Did you sell that car? A. No. Q. And it's a Mazda RX3? A. Yes. Q. Have you told her Honour anything about that car during these proceedings? A. Yes. Q. That's in fact the Mazda 808 you referred to? A. Yes." 80Mr Younan was unable to remember the next car on the list: "Q. Then the next one is a Mazda Bravo. Is that a car you owned? A. I can't remember. Q. Is it a car you had any financial interest in? A. No, I can't remember. Q. Have you ever owned or had a financial interest in a Mazda Bravo? A. ..(Not transcribable).. I don't know. I told you already I don't know the make and model. Q. Do you understand what a financial interest is, Mr Younan? A. No. Q. A financial interest, just so that I can ask the question and you can have the best opportunity to answer it - a financial interest is when you own or partly own a car or you've put some money towards its purchase. A. Sorry? Q. Now, it doesn't mean a registered owner. It just means you either own or it you partly own it or you've put some money towards it, okay? A. A not registered owner? Q. No, not necessarily. You may or may not be registered. Was there ever a Mazda Bravo that you ever had a financial interest in? A. I can't remember, no." (T 353) 81This was the case generally: "Q. The next car is a Toyota HiLux SR; do you see that? A. Yes. Q. Was that a car that you owned or had a financial interest in? A. Can't remember. .. Q. Can you tell her Honour about any of the cars listed in this list that you owned at any time? A. As I asked you, what does that mean? Q. I'm not here to answer your questions, Mr Younan, unfortunately. A. Well, I'm not going to answer yours I don't know the answers for. I can't answer them." (T 353 - 4) 82Mr Younan eventually agreed he had owned the Mazda and the Porsche and said he would provide a printout from the RTA, which was later provided with the written submissions of 10 January 2012. However, he had no recollection of other transactions on his account: "Q. Did you buy and sell any cars in 2009? A. Could of. Q. Did you buy and sell any cars in 2010? A. No, I'm not sure." (T 355) 83Mr Burke concluded by asking: "Q. Mr Younan, I put it to you that the majority of the cars that are shown on that list of carsales.com.au are, in fact, cars that were advertised by you; what do you say about that? A. No. Q. And I put it to you that that includes the Porsche Cayenne as a car that was advertised by you? A. No. No. Q. And I put it to you that you were aware, at all times that that car was advertised for sale, you were aware that it was advertised for sale? A. Not at all." (T 356-357) 84I do not accept Mr Younan's claim that unnamed friends had his carsale account password, his email address and password, and used these to buy and sell cars without his knowledge, and that the plaintiff was one of these persons. I find that Mr Younan knew about the Porsche being advertised, and used his expertise to describe the car accurately, including the reference to the car wheels being a special feature. This means I reject the plaintiff's explanation of the circumstances in which she claimed to have advertised the car on his carsales account without his permission or knowledge. I also find that Mr Younan's many sales and purchases of vehicles meant he had considerable familiarity with the insurance process. (c) Whether Mr and Ms Younan in fact had a "rocky" relationship 85The principal reason for Mr Younan not knowing about Ms Younan's driving record was, it was asserted, that they had such a "rocky" relationship that she feared telling him. 86The plaintiff and Mr Younan say that from July 2008 they lived together for 12 months (T 222-223) in a de facto relationship. This would mean that they ceased living together in or about July 2009. Ms Younan's son was born in May 2009 and they ended their de facto relationship soon after his birth. The plaintiff told Mr Lipovac she had lived in Brocklehurst (about 420 km, or a 5 - 6 hour drive, from Sydney) "all my life" (Q8) and told the court that when the relationship ended, she went back to live with her parents in this country town, although she came to Sydney from time to time, so that Mr Younan could see his son for access. She said she rarely saw Mr Younan after this, other than in relation to access. As an example, she said that between July 2009, when they separated, and 23 September 2009, she saw him between one to five times, and that she travelled from Dubbo each time (not vice versa) so that he could see his son for access. 87The motor vehicle the subject of these proceedings had been purchased on 10 December 2008 and insured by Mr Younan, in his own name, shortly afterwards (T 301). He gave the plaintiff this car, and a sum of money, as a form of property settlement, in September 2009, when he executed a transfer which was lodged with the RTA. However, the car was not insured in Ms Younan's name until 7 December 2009. 88No satisfactory explanation was given for why, if he transferred the car to her on 23 September 2009 (the date shown in the RTA records tendered as Exhibit 3) the car was not insured for almost three months, namely until 7 December. Ms Younan said: "Q. And what was your understanding of the insurance of the car between September 2009 and December 2009? A. I didn't know anything about the insurance. I had no understanding in regards to-- Q. Did you drive the car regularly prior to September 2009? A. I did drive the car. [(T 68)] ... Q. Is it the case that you didn't bother to check whether the car was insured between September 2009 and December 2009? A. I can't remember. Q. Was it your understanding it was insured during that time? A. I can't remember. Q. And so is it the case that you may have been driving an uninsured car for that three months? A. It could have been. Q. Would have that have concerned-- A. I can't remember." (T 71) 89The evidence of Mr and Ms Younan about who drove this car, with whom and when, and when they were living together and living apart, is wholly at variance with contemporaneous documentation, including: (a)The plaintiff's driving record; (b)The plaintiff's banking records, which show she remained in Sydney; (c)The mileage on the Porsche, which was 100361 as at 23 September 2009 (Exhibit 3); and (d)Mr Younan's driving record. 90The most significant issues are the plaintiff and Mr Younan's driving records. The defendant argues that the explanation for the non-disclosure is that Mr Younan was about to lose his licence (or be on probation) and that he took out a Queensland licence and transferred his car to the plaintiff because, for him, loss of his licence had significant employment consequences, as well as impacting on his "car fanatic" activities of buying, selling and repairing cars. (a) The plaintiff's driving record 91The plaintiff failed to pay a speeding fine in May 2005 (T 74) and suspension commenced on 2 November 2005. The fine was paid in April 2006 and the fine was lifted. The plaintiff could not remember any of this: "Q. Does that mean that on 19 April 2006, you paid the fine and the suspension was lifted? A. I'm not sure. Q. Is it the case that you paid the fine in about 19 April 2006? A. I can't be sure. Q. Do you recall getting the speeding fine in May 2005? A. I can't recall getting it, but I obviously did. I can't recall - I can't recall, no." (T 74) 92Ms Younan was living in Deakin, ACT, for about 12 months, and had an ACT licence (T 75). She was aware that during the period of time that she held an ACT licence, her NSW licence had been suspended for speeding: "Q. And so you handed in your New South Wales licence, did you, to get the ACT licence? A. Yep. Q. Do you have to declare whether the New South Wales has been suspended? A. I can't recall. Q. And in fact, your New South Wales licence was suspended during that year, wasn't it? A. I can't - ..(not transcribable).. Q. Well, from your recollection, do you recall whether it was suspended during that year? A. Yes. Q. You do recall it was suspended? A. Yes. Q. And what was the period of the suspension during 2007, or, from your recollection do you recall roughly how long it was suspended for during that year? A. No. Q. And what was the reason for the suspension that year? A. For speeding. Q. So it was a demerit point suspension? A. Yes. Q. So you were aware in 2007 that your licence was suspended during that year for demerit point suspension? A. Yes. Q. And when did you become aware of that? A. When I had transferred my ACT licence to my New South Wales. Q. And when did that occur? A. I'm not entirely sure. Q. Did you find out when you tried to transfer back to New South Wales that your licence in New South Wales was in fact suspended? A. Yes. Q. And what happened then with the transfer of the licence back? A. What do you mean? Q. Did the transfer of the licence back take place? A. Yes. Q. And so you then held a suspended New South Wales licence, is that right? A. Yes. Q. And did you drive while that licence was suspended? A. I can't recall. Q. Do you recall how long it was after you came back to New South Wales that that suspension ended? A. No. Q. So you can't recall how long it was that you weren't supposed to be driving? A. No." (T 77 - 78) 93Ms Younan's NSW licence had, however, been suspended because of a speeding offence on 31 December 2006, which meant that she had a NSW licence about six months after she said she had moved to Deakin: "Q. You see, that shows that you still held you New South Wales licence on 31 December 2006, didn't you? A. Yes. Q. Which seems to be about six months after you moved to Deakin? A. I wasn't entirely sure of the dates I've moved. Q. But you certainly didn't transfer your licence quickly after moving to Deakin and certainly didn't do it at three months, did you? A. I'm not entirely sure of the date when I moved. Q. And is it the case that you in fact took the licence in Deakin when you realised that your licence was going to be suspended because of that speeding fine? A. No. Q. You see, I put to you that it's entirely inconsistent - I withdraw that. I put it to you that having kept your licence for more than six months, or around six months, is inconsistent with taking an ACT licence simply because you moved there? A. I don't understand." (T 80 - 81) 94Ms Younan then lost her licence again: "Q. Now you were still on a provisional licence at the time, is that right? A. Yes. Q. For those offences you'll see the entry above says, "Demerit Points Suspension of PT2 Provisional to commence on 18 April 2008 until 17 July 2008 inclusive", and it refers to the three offences below. Do you see that? A. Yes. Q. You were aware at the time that the three offences below caused you to accumulate sufficient demerit points that caused you to lose your licence or have your licence suspended-- A. Yes. Q. --is that right? And you were aware of that at the time. You were aware of that prior to your licence being suspended on 18 April 2008, is that right? A. Yes. Q. You received a letter saying that your licence would be suspended for those months. A. I would have, I don't recall receiving it, but I would have. Q. You were aware during those months that your licence was suspended. A. Yes. Q. We then see that on 17 April 2008 you received a fine for not displaying P plates, is that right? A. Yes. Q. You received a letter about that, did you ? A. No, I was given a fine on the spot. Q. You paid the fine shortly after, is that right? A. I must have, yes. Q. Immediately above that, "Exceed speed limit by not more than 15 kilometres an hour while driving a motor vehicle" on 12 September 2008. A. Yes. Q. During the period inbetween those is the time at which you met and began living with Mr Younan, is that right? A. Yes. Q. Then did you tell Mr Younan about that speeding fine? A. I can't recall." (T 86) 95On 21 August Ms Younan was in trouble again: "Q. Thank you. When we come to the front page of the document we see that on 21 August 2008 you again were fined for speeding and it was for speeding more than 15 kilometres an hour but less than 30 kilometres an hour, do you recall that occasion? A. Yes. Q. Do you recall whereabouts it was? A. No. Q. Do you recall what car you were driving? A. No. Q. Can you tell her Honour roughly where it was? Whether it was near Dubbo or whether it was in Sydney? A. Sydney. I'm not too sure." (T 87) 96She failed to pay her fines and her licence was cancelled: "Q. The next entry shows that the fines were not paid or some fines were not paid for some time and there was a default fine, suspension of your licence that commenced on 23 January 2009, do you see that? A. Yes. Q. Do you recall your licence was suspended on 23 January 2009? A. No, I do not recall. Q. Do you recall receiving any letters in relation to it being suspended at that time? A. No. Q. Did you become aware that it was suspended around that time? A. Yes. Q. How did you become aware of that? A. I was pulled over by the police and they informed me." (T 87 - 88) 97The plaintiff's fines were paid and her licence reinstated very quickly, in February 2009, but the address on her licence remained her Dubbo address, even though this was during her de facto relationship with Mr Younan. 98Ms Younan agreed that she was pregnant and not working, that she was reliant upon Mr Younan to pay the bills, and that she did not have the money to pay these fines: "Q. Your financial support was coming from Ray at the time, is that right? A. Yes. Q. What was the method by which things such as fines were paid? A. I can't recall. Q. Was it the case that when you had to pay something such as a fine you went to Ray and asked him for the money? A. It could've been. Q. But you certainly didn't have enough money of your own to pay fines of $243 and $185, did you, at the time? A. No. Q. So it's your evidence that you would've asked Ray for the money to pay those fines, is that right? A. I had access to his money if I needed it myself. Q. Did you ask him for money to pay for those fines? A. I can't recall. Q. Did you tell him about those fines? A. No. Q. So does that mean it's impossible that he paid the fines for you? A. No. As I said, I had access to his money myself. Q. How did you have that access to his money? A. I had his card and if I needed money I could just take it. Q. Roughly how much would you have withdrawn from that account each week? A. There was no specific amount. Q. Did he ever ask you what the amounts were for? A. No. Q. So is it your evidence that you just withdrew money whenever you liked and he never questioned it? A. Yes." (T 93) 99The plaintiff could not, however, recall how she had paid the police in order to have her licence reinstated (T 94). She thought it "more than likely" that she drove her vehicle during the three month suspension period (T 95). After she says she was advised by police on 24 December that her licence had been suspended, she had it restored on 25 December (T 98). 100It was during this most recent suspension period that Mr Younan telephoned the GIO, on 7 December 2009, to take out an insurance policy on the car that the plaintiff had been driving for the past three months. (b) The plaintiff's banking records 101The plaintiff provided banking records (Exhibit B) to demonstrate that although she subsists on a supporting parents benefit, she receives sums of cash from Mr Younan which would mean that the making of a false insurance claim by deliberately damaging the vehicle was not necessary (this part of the defence was not pressed, but the documents are relevant to other issues). The significance of these documents is that they place Ms Younan continuously in Sydney, making her claim of a "rocky" relationship, which had come to an end, implausible. 102The substantial amounts in the bank book in the plaintiff's name are also hard to understand. They do not, for example, include the $15,000 that Mr Younan gave her as a property settlement, but they do include much large amounts, sometimes paid within days of each other, as well as showing large withdrawals for very similar sums. Ms Younan was not working. The sums came from Mr Younan and his family members, further evidence of a relationship that was not "rocky". 103Ms Younan was uncertain what most of these sums were for: "Q. You'll see that there is a deposit of $25,000 shown there. A. Yep. Q. Were you working at the time? A. No. Q. Where did that $25,000 come from? A. From his birthday presents from different people. Q. Who was that - was it one present or several presents? A. No, it would have been several. Q. Was it one present or several? A. No, several. Q. Who were those presents from? A. Family. Q. Can you name members of the family? A. His grandparents, aunties, uncles. Q. On which side of the family? A. Both. Q. So your parents gave him money? A. Yes. Q. How much did they give him? A. I can't remember at the time. Q. Roughly how much did your parents give him for his first birthday? A. Five hundred. Q. $500. Were there any other gifts of money from your side of the family? A. From my sisters. It wouldn't have been around - it wouldn't have been five hundred though. Q. How much did he get from your sisters? A. I'm not too sure. Q. Was it an amount less than $500 was it? A. Yes. Q. Were there any other gifts from your side of the family? A. There would have been my uncle, my grandmother was there. Q. How much did your grandmother give him for his first birthday? A. A few hundred. Q. You say your uncles and aunties gave him money for his first birthday? A. My uncle. Q. Your uncle. How much did your uncle give to him for his first birthday? A. I can't recall. Q. Roughly how much did your uncle give to him for his first birthday? A. Probably around the same amount as my parents. Q. So about $500? A. Yep. Q. Were there any other monetary gifts that he received for his first birthday from relatives on your side of the family? A. No." (T 144 line 15 - T 145 line 28) 104Ms Younan said she just kept these sums at home: "Q. How much money was that? A. I can't be sure, it was a few years ago. Q. Well, it was two years ago wasn't it? A. Yes. Q. This money that you had at home, was that in Dubbo or in Sydney? A. It was in Sydney at the time. I was living in Sydney at the time. Q. How much was it in cash that you had during that first year of his life, held at home? A. There would have been thousands. Q. How many thousands? A. I can't be sure. Q. Roughly two thousand, five thousand, ten thousand, twenty thousand? A. From - I'm not too sure. Probably around - I would have received at least - probably around ten thousand when he was born from gifts from family. Q. Was that all from Ray's side of the family? A. It would have been bits and pieces." (T 146 line 30 - T 147 line 1) 105She could not remember who gave her some of the money, or how much: "Q. But you can't tell her Honour who that money came from? A. I could give some names but there was a lot of people that came in and out." (T 147) 106In addition, on the question of where the plaintiff was living in the months before the claim, I note that the documents relating to the plaintiff's attempted sale of the vehicle do not give an address of Dubbo. They give the address in Sydney at which she denies living. 107Although the plaintiff claimed she lived in Brocklehurst, a small town near Dubbo, this account was operated in Liverpool, Sydney, with deposits and withdrawals made by hand, and not by internet banking; the entries are individually date-stamped. Ms Younan did have an account with the Commonwealth Bank in Dubbo (Exhibit 6), but the entries all indicate payments from organisations such as Big W Liverpool, Woolworths Wetherill Park and Fernwood Liverpool, to whom the plaintiff paid a monthly stipend for use of their gymnasium facilities. The plaintiff said she only ever went to Fernwood once, and the monthly withdrawals for gym membership were made because she had never gone back to cancel her membership, an explanation I find implausible, since the payments to Fernwood are significant for someone on a pension, and furthermore payments to Fernwood are listed as an outgoing on a list of her expenditure (T 187). 108Items withdrawn by cashcard paint the same picture. Mr Di Francesco could not point to a single transaction which occurred outside Sydney, let alone in or near Dubbo, for the bank statements between 3 May and 3 August 2010. Many of these transactions, many within a day or two of each other, were put to Ms Younan (T 121-124) but she continued to insist that she was not living at Universal Drive and that she could have gone back to Dubbo during this time: "Q. So in fact you were in Sydney the whole of May, June and July of 2010? A. I could have gone back to Dubbo in those times, I can't recall. Q. Well we just went through all of the dates, Ms Younan, and you've said that you were in Sydney during that time? A. Yes, during the dates of the transactions, yes, I agree. Q. Those transactions covered the whole of that period and I went through all the dates, they all linked up and they give - it is your evidence that for each of those periods in May, June and July you were in Sydney? A. Yes. Q. So is it the case that you were in Sydney for the whole of those three months? A. I don't recall but I could have been, yes. Q. See, I put it to you that you were in fact living in Sydney at that time at 32A Universal Drive? A. No. Q. There is certainly nowhere else that you lived other than Dubbo or Universal Drive, is there? A. What do you mean - yes - no, that's true, yes. Q. There is certainly nothing in those records that show that you were in Dubbo at any time when you spent any money or withdrew any money? A. Yes, but when I go back to Dubbo I don't go to the shops, there's nothing there." (T 124) 109The trip to Dubbo is a long one. The plaintiff thought she could complete this trip in four and a half hours (T 124). She said that the long trip did not trouble her baby, as he would go to sleep in the car. The odometer of the car the plaintiff drove, namely the vehicle the subject of these proceedings, tells a different story. (c) The mileage on the Porsche 110At the time Mr Younan gave the car to the plaintiff (23 September 2009), the odometer showed it had travelled just over 100,000 km (Exhibit C). At the time of the accident (August 1, 2010) the plaintiff told Mr Lipovac the car had only gone about 100,000kms. Her estimate was wrong, but that is irrelevant. The mileage on the car from the time it was transferred to her was as follows: (a)From September 2009 until March 2010 the car only travelled 6,000 kilometres, making about 106,000 kilometres (T 184). The plaintiff said she was travelling between Dubbo and Sydney about once a month, but when it was drawn to her attention that her licence was suspended for half this period, and that the distance between Sydney and Dubbo would mean even one trip a month could exceed 6,000 kilometres, she said her father had driven her on one or more occasions. (b)From March 2010 until 2 July 2010, when the car was serviced and the mileage noted, the car travelled around 7,000 kilometres (T 183), with the result that the odometer on 2 July showed 113,000. However, this was the period when the plaintiff's bank records show she was in Sydney, making purchases in the suburbs around Liverpool. To have travelled backwards and forwards to Dubbo for one or two days in between these financial transactions would have been unlikely. Someone was driving this car for long distances over this period. (c)Between 2 July 2010 and the date of the accident, the car travelled a further 4,000 kilometres, with the result that the odometer at the time of accident showed 17,000 kilometres (T 182). Again, the plaintiff's financial records do not show a single entry for purchases (including petrol) or handybank withdrawals in Dubbo. The plaintiff's explanation that there is nothing to spend money on in Dubbo is implausible. 111The plaintiff was unable to explain who was driving so many kilometres during this period while she was shopping and banking in Liverpool, or the reason for the dramatic increase in mileage over the last part of this period while she was in Sydney. 112Mr Burke put it to Ms Younan that she had not been driving the car during the period September to March because her licence was suspended, and that this was the explanation for the low mileage during this period (T 184). Ms Younan agreed she probably would not have driven when she did not have her licence, adding, "I can't remember" (T 184). She denied, however, that Mr Younan knew she was not driving because her licence was suspended during this time. 113What the car records show is that someone was driving the car a great deal, particularly just before the vehicle was damaged. The plaintiff's shopping records over this period show her visiting the same shops and bank outlets in Liverpool and adjoining suburbs as appear elsewhere in her financial documents. Whatever, the explanation, the plaintiff's claim that she was regularly making an 850 km return trip to and from Dubbo with her baby in the car is difficult to maintain given the inconsistency between the dates of her Sydney shopping and the car's mileage pattern. 114While this evidence, by itself, is far from conclusive, evidence concerning Mr Younan's driving, working and living arrangements over the same period is more persuasive. (d) Mr Younan's driving record 115When Mr Younan bought the Porsche on 10 December 2008, he gave details of a Queensland driver's licence (T 232-233). Mr Younan explained his having a Queensland driver's licence because he had been living there for about four months. He said: "A. Yeah I was trying to start a new life in Queensland and I kept - kept coming back down and see my son and family." (T 233). 116He explained that although he had held a Queensland licence for a year, this was because he had overlooked transferring to a New South Wales licence, but that he had been living in Queensland for only four months in total. It was never suggested that Ms Younan, the plaintiff, lived in Queensland with him; in fact Mr Younan's evidence was that while in Queensland he lived in a house belonging to an old man whose name he did not knew and whom he never met. 117Mr Younan's son to the plaintiff had, however, not yet been born (he was born in May 2009, shortly after his de facto relationship ended). This raised the question of what "son" he was travelling these long distances to see. When it was pointed out that the plaintiff's son Enrique was not born until May 2009, Mr Younan said that he was coming down to visit a step-son named Johnny: "Q. What's your son's name? A. Enrique, ENRIQUE. Q. When was he born? A. On 12 May 2009. Q. You're talking now about a period from August 2008 till December 2008? A. Sorry? Q. You're talking now about a period from August 2008 until December 2008? A. Yeah roughly, just, yeah. It wasn't accurate, yeah. Q. Well that's the year prior to his birth, isn't it? A. Yep. Q. So is it the case you were travelling up and down to see him or was that wrong? A. I come down to visit family and that. Q. But you said a few minutes ago it was to see your son. Is that right? A. As I said I wasn't accurate about the dates. Q. Were you travelling up and down to see your son in 2009? A. I got a stepson from somewhere else. Q. Right, and what's the stepson's name? A. Johnny. Q. Where does he live? A. He's with my ex. Q. So is he the son that you were travelling up and down to see? A. He was, yeah, I used to call him my son but he's really my stepson so. Q. What's his name? A. Johnny. Q. What's his last name? A. Shami. Q. When was he born? A. I'm not sure. Q. How old is he now? A. Probably about - round about seven, something there. Q. How long ago did you last see him? A. Probably beginning of 09. Q. So you were travelling up and down to see him from August 2008 until December 2008? A. ..(Not transcribable).. that's way, yes, somewhere around there to that time. Q. Had your relationship with his mother finished at that time? A. Yeah yeah. I was just friends and visit him, yep. Q. So the stepson was in Sydney, you were trying to live in Queensland and you were travelling up and down to see the stepson? A. Yep. Q. And-- A. Not only him, not only visiting him, come and see my friends and my family, my nieces and that. Nieces and nephews, mum and dad, brothers. Q. When you lived in Sydney, whereabouts were you living when you were down here during that four month period? A. As I said to your Honour, Baulkham Hills, Dee Why. I was sometimes at 32A Universal Avenue, near Georges Hall. Q. So you had three of those addresses from August 2008 till December 2008? A. I was - yes. I didn't have them addresses but I was sharing accommodation at that times at different - at different times sharing accommodation at them places. Q. And was that-- A. But I didn't have them actual addresses. Q. So when did you start living at Baulkham Hills? A. I can't remember the exact date, I can't recall exactly the date. Q. Which year was it? A. I can't recall exactly the date or the year. Probably 2009. Q. Well we're talking here about August 2008? Is it the case that you weren't living in Baulkham Hills at all in August 2008? A. I - I was coming back and forth. I was sleeping there. You mean I was 100/% at the address at that time." (T 235-236) 118When he was at Baulkham Hills, he was not living with the plaintiff. He was living in share accommodation with another young woman: "Q. So given that you were travelling up and down to Queensland from August to December 2008, can you tell her Honour how long prior to August 2008 was the first time you stayed at Baulkham Hills at all? A. Sorry I can't hear you properly. Q. Can you tell her Honour when the first time was that you stayed at Baulkham Hills? A. I'm not sure of the exact date. Q. Did you rent that-- A. Share accommodation. Q. It's share accommodation? A. Yes, share accommodation. Q. Who owns the-- A. I'm not sure who owns it. I'm not sure who owned the property. Q. Does somebody rent the property and allow you to stay there? A. I'm not sure, I don't ask questions. I was just sharing accommodation at that time. Q. Do you pay for your accommodation there? A. No I don't. Q. Who do you see when you go there? A. There's a girl. Q. So it's a girl that you know who lives there-- A. Yes. Q. --and you stay with her occasionally? A. Yes. Q. Right, and was she the mother of Johnny? A. No." (T 237) 119He thought the young lady in Baulkham Hills might be named Elissa, but could not remember who else lived at Ashmore, in Queensland, apart from an old man whose name he did not know and who was never there: "Q. Who was living there? A. Just an old man. Q. What was his name? A. I can't remember his name. Q. But you used to go and stay with him did you? A. Yeah but he never used to be there."(T 239) 120A further problem was that Mr Younan said he was employed in a workshop in a garage in Queensland during 2008 (T 234), but his work records show that he was employed by the RTA in Sydney from 2006 until after his son was born (T 340). He said that he was on leave from the RTA between August and December 2008. However, his work records showed that he was working for the RTA for at least part of this time, namely September 2008: "Q. So were you not working for the GIO between July and November 2008? Is that right? A. GIO sorry? Q. Sorry, RTA. You weren't working for the RTA between July and November 2008? A. I was probably on leave on worker's comp or something. Q. You were on worker's comp? A. Yeah. BURKE Q. For the whole of that time? A. Yes. Q. Yet your car was parked there on 21 September 2008 and was burnt out? And yet your car was parked there on 21 September 2008 and you've told her Honour that you were working there that day. A. Yeah I don't know that when I left Queensland, I didn't know if I was on worker's comp because I can't - I don't know the dates. Q. Well prior to the night that your car was burnt out at the RTA how long before that was it that you had your last amount of time off? A. I'm not sure. I can't answer questions if I don't have documentation in front of me." (T 342-343). 121It later transpired that he was working on a major RTA project for at least two months during this period: "Q. Did you work on the Cahill Expressway for very long around that time? A. It was a - it was a big project, it was the Cahill Expressway. Q. How long were you involved in that project for on a continuous basis? A. What do you mean by a continuous basis? Q. Day to day, week to week? A. I couldn't tell you. Q. It was a big project you said? A. Yes it was a fair - it was a massive project. We were changing all the expansion joints. Q. So does that mean it would take two months? A. It could take years, depends on whether there's - according to the weather, traffic, emergency jobs that come up." (T 344) 122Mr Younan continued to insist, however, that despite working for the RTA in August and September, he lived in Queensland, because it was only an hour's flight away, and when he drove it took only 7 - 8 hours (T 345). He paid cash for these flights, so he had no records, and could not remember the airline (T 346). 123He did see the plaintiff, who was living at Georges Hall, during this time: "Q. You in fact told the court a little earlier that you started a defacto relationship with her in July 2008, didn't you? A. That's correct. She was staying at Georges Hall, so. Q. So she was living at Georges Hall. You've said to the court you were living with her, is that right? A. Yes. Q. Yet now you say to the court that you were travelling up and down to Queensland and staying at Baulkham Hills? A. That's right, I was living all over the shop. Q. So this wasn't really a defacto relationship with Jennifer. You weren't sleeping in the same house-- A. To me it was. Q. --as her-- A. At times I was. Q. --even five nights a week. Is that right? A. To me it was a defacto relationship. Q. How many nights a week did you stay in the same house as Jennifer during that time? A. Minimum two nights a week." (T 241) 124Mr Younan agreed that, at the time he obtained a Queensland driver's licence, his NSW licence was about to be suspended: "Q. At the time you got your Queensland licence, was your New South Wales licence suspended? A. No it wasn't suspended. Q. Was it about to be suspended? A. That could be the case. I can't remember exactly." (T 242) 125Mr Younan agreed that, if he had been stopped by police for a traffic infringement in New South Wales during the period of time that he held his Queensland licence there could have been a problem, but declined to say what it was, as his case was before the Supreme Court: "Q. But you had accumulated demerit points? A. At this stage it's before the Supreme Court so I can't disclose much information, sorry. HER HONOUR: I'm sorry. Q. It was before the Supreme Court? A. Yeah, at this stage my licence is before the Supreme Court. Q. I think you mean-- A. In the question-- Q. He means that it was an appeal? A. No, it's some - some - it's before the Supreme Court. It's been going through the Supreme Court the last six months regarding this issue with my licence. Q. Is this something I shouldn't hear about perhaps? A. And that's why I don't want to disclose my defence. DI FRANCESCO: Sorry, it's not a criminal matter, your Honour. As I understand it, it's an administrative appeal. WITNESS: That's correct." (T 243) 126He had accumulated 12 demerit points and was already "on probation": "Q. You said a few minutes ago that when you took the Queensland licence you thought it might have been the position that your New South Wales licence was in a probationary type period? A. No. I'd already filled in the agreement. I was already on probation. Q. You were on probation prior to August 2008? A. Yes. I'm not sure of the date but I was on - I filled on the form, went to the RTA and that - the application was successful. Q. So that application was to have a 12 month period where you could drive without having your licence suspended and that was an alternative to having your licence suspended; is that right? A. Yeah. Something like that. But I don't know the - I can't remember the time frame of the penalty, but I think it was two points or one point for a certain time, but I can recall exactly. Q. So you were given an option just before August 2008 to either lose your licence for three months or to have this period of 12 months where you are on a good behaviour bond - or good behaviour? A. Something like that, but I can't remember the exact timeframe of losing it. So I wasn't notified by the RTA; I was notified by a police officer. Q. Then you continued on that Queensland licence you say into 2009; was it late 2009 still held it? A. I can't remember. Q. You don't recall? A. No." 127Counsel for the defendant asked Mr Younan to produce his current driver's licence from his pocket (T 245). This only created further confusion about the plaintiff's addresses over this period of time: "Q. So is it the case that this is the licence that you surrendered when you took your - or the photocopy is the licence you surrendered when you took your Queensland licence then-- A. No. I'm not sure about the address that I had on my licence at that time. HER HONOUR: Well, hang on. What is the address? Can somebody tell me? WITNESS: On this? Q. Yes-- A. It's - it's 94 R-E-N-O-W-N Avenue, Punchbowl, New South Wales, 2196, your Honour. Q. All right. Does that address ring a bell with you? A. Yes, it's my oldies' old address. HER HONOUR: Yes-- BURKE Q. It's a house that you've lived at many times over the years, isn't it? A. Yeah, when I was a - when I was young; a young pup. Q. What's the address on your licence currently? The licence you've taken out of your pocket now that's current? A. Now. Yes. Q. What's the address on that licence? A. That's not - it's not a current - I don't have a current address on it at the moment cause I can't do business with the RTA at the moment while my licence is upheld for the Supreme Court before Rothman J. Q. Is there a licence - is there an address written on the licence that you have in your hand? A. There's two addresses." (T 246) 128It was finally put to Mr Younan: "Q. I put it to you that the whole story about living in Queensland is false. What do you say about that? A. No it's not. Q. And the purpose of having this Queensland address was in fact so that you could have a Queensland licence because you had difficulties with your New South Wales licence? A. Not at all." (T 347) 129I am satisfied that the evidence of living in Queensland is false. Although he had a Queensland licence, and placed a Queensland address (the Ashmore address) on the notice of sale of the car to Ms Younan on 23 September 2009, this was part of an elaborate scheme to avoid losing his licence in New South Wales. 130The question of what inferences I draw from Mr Younan's false evidence, and from the circumstances in which he obtained a Queensland licence to avoid suspension of his New South Wales licence, is considered in more detail below. The relevance of this false evidence is whether or not I can accept Mr Younan's evidence that the relationship he had with the plaintiff was "rocky", and that she did not tell him about her own licence problems. 131This brings me to consideration of issues of onus and burden of proof, and to the question of the credit of Mr and Ms Younan and of Mrs AB, whose credit was challenged by the plaintiff. The onus and burden of proof 132The plaintiff bears an evidentiary burden to satisfy the court that she has established the elements of her case, and I note the defendant refers me to Simon v NRMA Insurance Ltd (New South Wales Court of Appeal, 22 October 1991, unreported), NASA v AAMI (New South Wales Court of Appeal, 22 October 2001, unreported), To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279 and Hammoud Bros Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366. 133However, the elements of her case relate to such matters as the occurrence of an insured event within the terms of the policy, loss occasioned by this event, a breach by the defendant of the policy by failure to meet a proper claim, as well as the damages claimed. The burden of establishing the defences under ss 28 and 56 of the Insurance Contracts Act lies upon the defendant, and that burden must be satisfied to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100). 134Counsel for the plaintiff and defendant both refer me to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170 at 171: "The ordinary standard of proof required of the party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary `where so serious a matter as fraud is to be found'. A statement to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that the Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. ... There are, however, circumstances in which generalizations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading." 135In making findings of fact I have applied the Briginshaw test in relation to onus. I have been careful, in relation to the question of burden of proof, not to cast the burden upon the plaintiff where that burden should not exist. The correct approach to findings as to the credit of witnesses 136The most valuable evidence, in cases where there is an attack on credit of witnesses, and/or where one or more of the parties is unable to remember events, is the evidence to be found in contemporaneous records from third parties. Courts should not lightly make findings of credit about witnesses or parties, and in particular should refrain from considering issues such as demeanour or the manner of giving evidence, as such matters may be affected by the health or cultural background of the witness in question. 137Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] as follows: "[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1-27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not. (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. [74] Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.... ... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."" 138The written submissions of the plaintiff assert that Mr Younan was a truthful witness because he "answered questions put to him and gave evidence about himself and his relationship with the plaintiff that could be said to be unflattering to him", that his answers were "to the point and accurate" and that his answers were corroborated by documentary evidence. 139Mr Younan, like Ms Younan, answered a number of questions by claiming he could not recall. On occasions, when confronted with answers that were clearly inconsistent, he gave the dismissive, argumentative or non-responsive answers I have set out in the extracts from the transcript in this judgment. Contrary to the submissions of counsel for the plaintiff, he did not give evidence about his relationship with the plaintiff of an unflattering kind; for example, he did not say that he had ever hit or even frightened her, or admit that his conduct made her feel she needed to keep things from him. Counsel for the plaintiff's written submissions do not identify this unflattering evidence, apart from describing how he became angry when he first saw the damage to the car. His reaction to this sounded very understandable. In addition, the claim that he became angry when he found out the plaintiff was advertising the car for sale when he did not want her to sell was hardly conduct of the kind which would frighten anyone, if (which I have not accepted) such conduct had happened at all. 140The only documentary evidence which corroborates Mr Younan's evidence are uncontroversial material, such as the carsales documents which show he indeed did not own all the cars sold in his carsales account, but only some of them. That does not, however, mean that his explanation that he did not use this account or know who used it should be accepted. It in fact corroborates that he did know who used this account, namely persons to whom he gave the passwords. The fact that there is corroborative evidence to show that Mr Younan owned utilities is irrelevant, as that is not a disputed issue in this case. Nor is the fact that there are court documents consistent with an appeal from the suspension of his licence proof of his truthfulness. 141Mr Younan's evidence about the circumstances in which he obtained a Queensland licence is contradicted not only by contemporaneous records, but is in conflict with his claims about his de facto relationship with the plaintiff. All the evidence points to his obtaining this licence to avoid potential suspension of his New South Wales licence. 142Both Mr and Ms Younan have difficulty explaining one significant part of the evidence, namely the statements by Ms Younan to Mr Lipovac that she could not contact Mr Younan, did not know his phone number and was not in regular contact with him. It is relevant to the credit of both, because if Mr Younan was upset about the damage to the car, he should have been both in touch with the GIO and anxious to help. 143Ms Younan was cross-examined about this evidence at T 126-127: "Q. Ms Younan when you spoke to Mr Lipovac on 7 August 2010 at the end of the interview he said words to you words to the effect "I need you to supply documentation, do you recall he asked you about some documentation? A. Yes. Q. He said, "I need to interview Ray Younan" and you said, "I don't know where he is, could be in Baulkham Hills", do you recall that? A. Yes. Q. He said, "I need his telephone number" and you said, "I do not have his number" do you recall that? A. Yes. Q. I put it to you that in giving those answers you're attempting to create an impression that you had no contact details for Mr Younan is that right? A. No. Q. So what were you conveying with those answers? A. That I didn't - that I didn't know Ray's actual address. Q. Well you said, "I don't know where he lives and I do not have his number", now having been asked-- A. I'm - I'm sorry go ahead. Q. Having been told I need to interview Ray Younan and you then saying, "I don't know where he is, could be in Baulkham Hills" and then, "I do not have his number", you're attempting to convey the idea that you didn't have any contact details for Mr Younan weren't you? A. Sorry, what I said to him was correct about the - where he lived in the Baulkham Hills but what I said to him was normally if I need to contact him I will speak to his - through his parents. Q. You certainly said in answer to the question, "I need his telephone number", you said, "I do not have his number" didn't you? A. Yes. Q. When in fact I put it to you that you did have Mr Younan's contact details at that time, what do you say about that? A. No. Q. I put it to you that you having just stayed for the previous three months in a house owned by Mr Younan, Mr Ray Younan, you had seen him regularly during that time? A. I didn't stay there the whole time. Q. I also put it to you that you were able to contact Mr Raymond Younan and you had his contact details at that time? A. No." 144This was not in fact the case, as she admitted at T 166-167: "Q. You were in constant contact with Ray over that weekend? A. I had seen Ray that - I'd seen Ray on the Sunday; yes. Q. Had you been in contact with him on the Saturday? A. I can't recall if I spoke to him on the Sunday. I know I spoke to him on the - on the Saturday, sorry. I know I had spoke to him on the Sunday. Q. What about the few days before that weekend and the few days after that weekend; were you in constant contact with him then? A. Yes, I would have spoken to him a few times previously before that weekend and I know I spoke to him in - numerous times after that weekend. Q. And those numerous times after that weekend extended over the next two weeks; is that right? A. Yes. Q. So you were in constant contact with him during the two weeks following 1 August 2011? A. Yes. Q. How did you contact him during that time; by telephone? A. He spoke to me on the phone, yes. Q. And you telephoned him during that time? A. No he would have telephoned me or telephoned his parents' house. Q. So he was ringing you constantly during that time? A. Not constantly, but I did speak to him several times. Q. You knew what his phone number was during that time? A. No, I - don't think I did at the time. I can't be sure. Q. Do you have caller ID on your telephone? A. Yes. Q. So when he rang you, you would have seen his telephone number, wouldn't you? A. Yes, I guess. Q. So you knew during that two weeks what his telephone number was? A. I can't recall. His - he changes his numbers several times. Q. You were in constant contact over that two weeks by telephone with Ray? A. Yes. He had called me. Q. Yet on 7 August you said to the investigator from the GIO that you had no way of contacting Ray? A. I didn't say I had no way of contacting him, no. Q. Well, you said you didn't have a telephone number for him? A. I said sometimes it was hard to get through to him as he did change his numbers and that at times if I really needed to contact him I would contact his parents. I knew where he lived. He lived in Baulkham Hills. Q. But you didn't know an address? A. No. Q. You see, I put to you that you did know how to contact Ray for the whole of that time and you were withholding that information on purpose from the investigator? A. No." 145Ms Younan's explanations for not telling Mr Lipovac where Mr Younan was are untruthful. She continued to fail to provide this information despite the GIO sending several letters to her. The explanation offered is that she was not at the address to which the letters were sent. That address was, of course, the address in Brocklehurst (see exhibit A). The plaintiff's family, however, resided at that address. I find the plaintiff's explanation of problems with the mail service in Dubbo implausible. 146Just as serious a problem for the plaintiff was her failure to make full disclosure to Mr Lipovac about her driving history: "Q. You knew that Mr Lipovac was there to ask questions for the insurer? A. Yes. Q. I'm putting it to you that, that illustrates that you had a knowledge that those things, the suspension for driving offences or suspension for nonpayment of fines were very different for the purposes of insurance? A. No. Q. I also put it to you that the formulation of that answer illustrates that at least at that time during the interview you were not anxious or confused? A. No, that's how come I answered that way, I was confused and I was anxious. Q. You see you answered that way I will be putting to her Honour very deliberately and in a calculated fashion, what do you say about that? A. No." (T 128) 147The plaintiff's explanation was that she was confused and anxious, but she exhibited very different emotions in her subsequent dealings with the GIO: "Q. On 18 August you telephoned GIO, this is two weeks after, just over two weeks after the damage occurred to your car, you telephoned GIO and during that conversation you were told by the person on the other end, "We need to interview Raymond Younan" and they discussed that with you and you were abusive and rude, do you recall that? A. No. Q. I put it to you that that occurred, what do you say about that? A. That's not true. Q. Did it occur at any time? A. That I was rude and abusive? Q. Yes? A. No. Q. Were there any discussions over the telephone with GIO personnel about the need to interview Mr Raymond Younan? A. Yes. Q. How many of those occasions do you recall? A. I cannot recall how many. Q. Roughly how many, were there between one and five or between five and ten? A. One and two that I recall. Q. I put to you that one of those was on 18 August 2010, is that right? A. It could have been." (T 129) 148The contents of subsequent telephone conversations and correspondence were also put to the plaintiff, and she denied that she had spoken aggressively as claimed. However, these documents paint a very different picture of the plaintiff, in that she does not appear confused or intimidated in any of these transactions. 149Counsel for the plaintiff, although referring to Mr Younan's credibility in written submissions, does not discuss the credibility of the plaintiff herself. It is submitted that her claim that she did not inform Mr Younan of her driving record, and that Mr Younan organised the policy for her, should be accepted (written submissions, page 3) because Mr Younan's evidence that he did not know about Ms Younan's suspensions, and of what was said when he telephoned, should be preferred to the evidence of Mrs AB. 150This is a circular argument. The central point of weakness is the unconvincing explanation the plaintiff gives for having told Mr Lipovac she took out the policy, when she now says in her evidence that Mr Younan did so, that she cannot remember anything about it, and is not sure she was even in Sydney at the time. I find that her evidence in court is untruthful and given for the purpose of disguising her fraudulent non-disclosure of prior licence suspensions. She knowingly withheld this information from the defendant for the purpose of obtaining car insurance which would not, had the truth been known, have been offered, for the reasons explained by Mrs AB in her evidence. She similarly sought to mislead Mr Lipovac by giving a less than accurate picture of her driving record when he asked if she had had any prior suspensions or cancellations. 151I am satisfied, taking into account the matters referred to above, that there is overwhelming evidence that neither the plaintiff nor Mr Younan are witnesses of credit, and that their evidence should not be accepted unless corroborated by independent and unimpeachable evidence. 152However, the fact that a party and/or a witness is not a witness of credit is only a finding to that effect. The question is whether the defences pleaded by the defendant have been made out. Credit is only one issue (and in many ways the least important). The first issue is whether the non-disclosure was fraudulent and, if not, what findings the court should make. Was the non-disclosure fraudulent? 153As the defendant's Underwriting Guidelines and Practices show, the policy would not have come into existence if the true position had been disclosed (T 398-400). It is on this basis that the defendant asks for its liability to be reduced to nil pursuant to s 28(3). Alternatively, if the non-disclosure or misrepresentation was not fraudulent, the defendant submits that liability should be reduced pursuant to s 28(3). 154As I have noted in the sections above, the onus of proof is to the Briginshaw standard, and I should be slow to infer that the evidence of witnesses is untruthful. 155The plaintiff submits that I should find that Mr Younan did not misrepresent Ms Younan's driving history when taking out the policy, in that I should accept that he answered to the effect of "I am not sure" or "I don't know" and that the GIO operator then said words to the effect of "don't worry" on the basis that GIO would look into that information (plaintiff's outline of submissions, paragraph c). 156The submissions of the plaintiff concentrate upon the credit of Mr Younan. However, the principal question is the credit of the plaintiff. That she made false statements to Mr Lipovac during her interview of 7 August 2010 is obvious. This included her false statement in answer to Q16 concerning whether her licence had been cancelled or suspended and whether the vehicle had been advertised for sale. 157The principal difficulty the plaintiff faces is that she told Mr Lipovac that either she or Mr Younan had taken out the policy and then proceeded to answer a series of questions as if she had taken out the policy. She confirmed in re-examination the correctness of some of her answers such as those to Q16, 17, 68 and 69. Beyond stating that she was "confused" at the time of the interview, the offers to explanation for giving a version of events to Mr Lipovac which is completely contradicted by her evidence in these proceedings, as well as that of Mr Younan's, in that she now states that she cannot remember and she is not even sure if she was in Sydney at the time when the insurance policy was taken out. 158What is a false statement knowingly made in connection with the claim for the purpose of inducing the insurer to meet the claim? Section 56 Insurance Contracts Act provides that where a claim is made fraudulently, the insurer may refuse payment of the claim (as opposed to avoiding the contract). Section 56 did not, however, alter the common law position as to what amounts to a fraudulent claim. 159In To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279 the Court held at [19]-[20]: "[19] ... In my opinion if a false statement is knowingly made in connection with a claim for the purpose of inducing the insurer to meet the claim, the claim is one made fraudulently within the meaning of s 56(1). It is not necessary to analyse the false statement to determine whether or not the falsity attaches to the basis upon which the insurer is claimed to be liable. [20] It was submitted on behalf of the appellant that a fraudulent claim required knowledge on the part of the claimant that he or she was not entitled to the claimed benefit. Belief was not sufficient. Thus an insured who was entitled to indemnity could not make a fraudulent claim. The submission was founded upon the definition of fraud formulated by the Chief Justice in Norton v Royal Fire and Life Assurance Co set out at [12] above. Counsel for the appellant submitted that the judge erred in extending the definition to include claimants who believed they had no entitlement under the policy. In my view the mental element required to establish fraud is an intention to deceive, that is, an intention to create a false belief in the person deceived for the purpose of obtaining money or some other benefit. It is not necessary to go further and stipulate knowledge or belief as to a lack of entitlement to the money or other benefit claimed. In fact most fraudulent claimants, like the claimant in Norton, know they are not entitled to that which they claim, but the claimant who lies because of a mistaken belief as to entitlement is equally dishonest." 160The Court went on to note at [21]: "[21] To the same end it was submitted on behalf of the appellant that it is not possible for a claimant to defraud another of a benefit to which the claimant is entitled. Counsel relied upon the dictum of Viscount Dilhorne in Scott v Metropolitan Police Commissioner, a case concerned with the crime of conspiracy to defraud, that "'to defraud' ordinarily means, in my opinion, to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled". In my opinion the meaning of the word "fraudulently" in s 56 is not governed by the law relating to the crime of conspiracy to defraud. Even if it were the case that the latter is not concerned to punish persons seeking to recover by lies property to which they are entitled, the law relating to contracts of insurance is concerned to discourage dishonesty in connection with insurance claims. In my view the word "fraudulently" in s 56 of the Act encompasses a lie which could not prejudice the insurer even if it were believed as well as a lie which does not prejudice the insurer because the insurer is not deceived. The claimant's dishonesty is commensurate in both cases." 161The Court went on to explain at [23]: "[23] Unlike the appellant, the insured in Ormsby knew that they were entitled to indemnity under the policy. In my view that is not a material distinction. Both the appellant and the insured in Ormsby intended to deceive the insurer by a representation they knew to be false. In the case of the appellant the representation was a statement that the insured vehicle had been stolen by a gang of youths; in Ormsby the representation was that the damage displayed in the photographs given to the insurer was caused by thieves. I regret to say that I find I cannot agree with the conclusion in Ormsby. For the reasons set out above, I consider that the existence of an underlying valid claim does not render fraud irrelevant; the dishonest intention required for fraud is at least one to induce a false belief in the insurer for the purpose of obtaining payment or some other benefit under the policy, with or without belief or knowledge of a lack of entitlement; and fraud which relates to the claim made with the requisite intent will disentitle the claimant even if made subsequent to the first presentation of the claim." 162A false statement may also be made recklessly. However, I am satisfied, on the evidence before me, that the false statements that were made by either Ms Younan or Mr Younan, or both, at the time of taking out the insurance policy, were knowingly falsely made. 163In Walton v Colonial Mutual Life Assurance Society Ltd [2004] NSWSC 616, Einstein J sets out the relevant principles for the interpretation of s 56 as follows: "[144] The operation of s 56 of the Act has been considered in a number of cases. Relevant principles include the following: · the test for fraud is satisfied if the insured has a dishonest intent to induce a false belief in the insurer for the purpose of obtaining payment or some other benefit under the policy. As such, where the insured makes a false statement with knowledge in a claim to induce the insurer to meet the claim, the claim is made fraudulently. The fraudulent statement need not be material to the insured's claim nor is the insured absolved of any responsibility by asserting that he considered his claim to be valid. (See Tiep Thi To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279; Naomi Marble & Granite Pty Ltd v FAI General Insurance Co Ltd (No 1) [1999] 1 Qd R 507 and Mourad v NRMA Insurance Ltd (2003) 12 ANZ Ins Cas 61-560); · it is not necessary to show prejudice as having been suffered by the insurer for s 56 to be relied upon. The only restriction upon an insurer's right to refuse payment of the claim is the discretion granted within s 56(2) of the Insurance Contracts Act (see Tiep Thi To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279)." 164The plaintiff submits, in relation to the explanation by Einstein J, that I should not find that Ms Younan failed to provide the address of Mr Younan, on the basis that Ms Younan told Mr Lipovac the address of his parents and this was where Mr Younan lived. 165This is only one of the false statements that were made by Ms Younan. The claim that the delay in providing this information is due to the uncertainties of mail in Dubbo, and that at the time, the plaintiff and Mr Younan's relationship was "rocky", are contradicted by all of the documentary evidence, which indicates that the plaintiff and Mr Younan had been living and socialising together, intermingling their monies, engaging in a sexual relationship which has resulted in the plaintiff becoming pregnant on two occasions since the birth of their son in May 2009. 166Doing the best I can to sift through the inconsistent and often implausible claims of Ms Younan and Mr Younan, I find at all relevant times, they have had a close financial and personal relationship and have lived together in terms of such intimacy that it is impossible to accept that Mr Younan would not know Ms Younan's driving history. The impetus for the transfer of the car and the taking out of the insurance policy was, I find, the circumstances in which Mr Younan face the loss of his own driver's licence following the accumulation of 12 points, which led him to take out a licence in Queensland, transfer his motor vehicle to the plaintiff, and, three months after his transferring his motor vehicle to her, take out insurance with the defendant. For Mr Younan, loss of his licence would have been both financially and personally catastrophic. Not only did he work for the RTA at various periods of time, but he was a car fanatic who, together with friends, sold cars through a carsales account. He could not afford even the threat of losing his licence. 167The plaintiff (and Mr Younan) had the dishonest intent to induce the insurer into providing a policy. Accordingly, the insurer is entitled to refuse payment by reason of the conduct of the plaintiff, which the defendant has satisfied me, to the Briginshaw standard, amounted to fraud. 168If I have erred in finding that the non-disclosure was not fraudulent, I would nevertheless have reduced liability to nil pursuant to s 28(3). 169Accordingly there will be judgment for the defendant. Orders (1)Judgment for the defendant. (2)Plaintiff pay defendant's costs. (3)Liberty to restore in relation to costs. (4)Exhibits retained for 28 days. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2012