District Court New South Wales Medium Neutral Citation: Galab Arabi v CIC Allianz Insurance Limited [2017] NSWDC 436 Hearing dates: 29 November 2017 Decision date: 07 December 2017 Jurisdiction: Civil Before: Norton SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $45,157.72, plus interest if applicable. (2) The defendant is to pay the plaintiff's costs. (3) If any party seeks a special order as to costs, or any other order, they should do so by filing and serving a Notice of Motion with a supporting affidavit and brief written submissions within 14 days. (4) The exhibits are to be retained until the expiration of the appeal period. Catchwords: CIVIL PROCEDURE - Motor Vehicle Accident – s118 Motor Accidents Compensation Act – Future Care – False or Misleading Statements Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995(NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Accidents Regulations 2015 (NSW) Cases Cited: Checchia v Insurance Australia Ltd t/as NRMA Insurance [2013] NSWSC 674 Commercial Union v Ferrcom Pty Limited [1991] 22 NSWLR 389 Insurance Australia Ltd t/as NRMA Insurance v Checchia [2011] NSWCA 101 Jones v Dunkel (1959) 101 CLR 298 Prentice and Another v Cummins [2003] FCA 102 Texts Cited: S. Odgers, Uniform Evidence Law (Thomson Reuters, 10th Edition, 2012). Category: Principal judgment Parties: Mr Galab Arabi (Plaintiff) CIC Allianz Insurance Limited (Defendant) Representation: Counsel: Mr W. Carney (Plaintiff) Mr W. Fitzsimmons (Defendant) Solicitors: PK Simpson & Co (Plaintiff) Mallos Davis Lawyers (Defendant) File Number(s): 2017/158888 Judgment 1. This is a claim by the plaintiff for liquidated damages based on his acceptance of a CARS award. 2. The plaintiff suffered injuries in a motor vehicle accident which occurred on 11 December 2014. He bought a claim under Motor Accidents Compensation Act 1999 (NSW) (MACA). Following a hearing Assessor Wall issued a certificate on 29 February 2016 specifying that damages had been assessed at $37,092.65 and costs at $8,065.07. 3. The plaintiff accepted that amount of damages in settlement of his claim within the 21 day period allowed in MACA. 4. In the statement of claim filed 26 May 2017, the plaintiff alleges that pursuant to section 95(2) of MACA the assessment is binding on the defendant and claims that amount together with interest. 5. The defendant admitted that the plaintiff had suffered injuries in the motor vehicle, the claim had been assessed at that amount by an assessor and that assessment had been accepted by the plaintiff. The defendant denied that it was obliged pursuant to section 95(2) of MACA to pay that assessment relying on section 118 of MACA. In the Defence filed 28 September 2017, it was alleged that the plaintiff had made statements concerning his claim which were false or misleading within the meaning of that section. 6. The particulars of those statements were as follows: 1. Prior to the accident on 11 December 2014 (the accident) the plaintiff would perform garden maintenance; 2. The plaintiff struggles to perform garden maintenance following the accident; 3. Prior to the accident the plaintiff performed household duties, but he was no longer able to perform those duties; 4. Prior to the accident the plaintiff performed lawn mowing and weeding of the garden and would spend 2-3 hours doing such work; and, 5. The plaintiff was unable to perform lawn mowing and weeding, and his children now perform these tasks or alternatively the plaintiff would pay somebody if money was available. 1. It was alleged that those statements were false or misleading and were made for the purpose of obtaining a financial benefit, namely, an award of future domestic assistance. 2. The particulars of why they were false or misleading were as follows; 1. The plaintiff was conducting a landscaping business; 2. The plaintiff in the course of conducting the landscaping business was training other persons in landscaping business including training in the use of lawnmowers, whipper-snippers and blowers; and, 3. The plaintiff was supervising others in the landscaping business for the purpose of performing work with his landscaping business. 1. It was alleged further, or in the alternative, the plaintiff had omitted to provide information relevant to the assessment of damages for future care. The same particulars were relief upon. It was pleaded that by virtue of the provisions of section 118(2)(b) of MACA the defendant is relieved from liability for payment of those parts of the award which relate to future commercial care. 2. At the hearing the plaintiff was represented by Mr Carney and the defendant by Mr Fitzsimons. Statutory Provisions 1. Section 94 of MACA provides for an assessor to have regard to such information as is conveniently available to the Claims Assessor and make an assessment which specifies the amount of damages and issue a certificate as to that assessment. 2. Section 95 of MACA deals with the status of assessments, relevantly, it provides when an assessment of the amount of damages under a claim is binding on the insurer and the insurer must pay the claimant the amount of the damage specified in the certificate. The section applies if the insurer accepts liability under the claim and the claimant accepts the amount of damages of settlement within 21 days after the certificate was issued. 3. As the claim was made after 1 October 2008, section 95(2A) and the provisions of the Motor Accidents Regulations 2015 (NSW) provide that if damages are not paid within 20 business days interests may be payable. The rate of that interest may be rates prescribed in section 101 of the Civil Procedure Act 2005 (NSW) but may not exceed that rate. 4. Section 118 of MACA provides the remedy available where a claim is found to be fraudulent. Relevant to this matter it reads - …if it is established that, for the purpose of obtaining a financial benefit, the claimant … did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading. … a person who has a liability in respect of a settlement or judgment relating to the claim is relieved from that liability to the extent of the financial benefit so obtained by the claimant. 1. The construction of this section was determined by the Court of Appeal in Insurance Australia Ltd t/as NRMA Insurance v Checchia [2011] NSWCA 101. The principles were summarised by Hall J in Checchia v Insurance Australia Ltd t/as NRMA Insurance [2013] NSWSC 674 at [16] - "In the determination of the construction issue, Beazley JA in her Honour's judgment in the appeal proceedings, made the following observations: The word "purpose" within s 118(1) means the subjective intention of the claimant [at [34]], The purpose or intention is to be inferred from the whole of the evidence [34]. The false and misleading conduct must be engaged in for the purpose of obtaining "a financial benefit". A person may knowingly engage in false or misleading conduct in circumstances where no claim is available. Alternatively, there may be conduct where that person may be entitled to compensation under the MAC Act but engages in false or misleading conduct, such as, for example, by exaggerating the extent of disability, or not disclosing a pre-existing injury, and this is done for the purpose of obtaining greater compensation than that to which he or she is entitled. Whatever be the content of the false and misleading conduct, it must be for the purpose of obtaining a financial benefit under the MAC Act: at [37]. Although an insurer may have established the factual matters necessary to satisfy s 118(1) it will not be known whether an insurer will be relieved of liability under s 118(2)(a) (in respect of a payment, settlement, compromise or judgment): … until it is known whether the financial benefit in fact obtained by the claimant was one to which he or she was not entitled. That requires a determination of the financial benefit to which the claimant was entitled on the premise that no misleading statement was made. The quantitative difference between the two, if any, is the extent to which the insurer is relieved from liability pursuant to s 118(2)(a): at [38] Section 118(1) specifies the circumstances in which the section is engaged. Section 118(2) specifies the consequences which may flow where the section is engaged: at [39]. Section 118(2)(a) is directed to the quantification of the amount of the liability which an insurer is relieved from paying where subs (1) has been engaged. Where a settlement is involved, s 118(2) expressly provides that the insurer is relieved from the legal liability to pay under the settlement "to the extent of the financial benefit obtained by the settlement". Beazley JA stated that the Court is required to determine, not what the person guilty of the false and misleading conduct would have obtained in a judgment, but the financial benefit obtained in the settlement, as a result of the false and misleading conduct: at [46]." 1. I accept that similar principles are relevant if what is alleged is an omission. Evidence Reasons for Decision 1. The plaintiff tendered the certificate of Assessor Helen Wall dated 29 February 2016 and the associated reasons for decision of the same date (Exhibit A). 2. The assessment conference took place on 15 February 2016 and the reasons are dated 29 February 2016. The certificate sets out that the amount of damages assessed was $37,092.65 and costs had been assessed at $8,065.07 inclusive of GST. 3. The background facts are set out in the reasons. The plaintiff sustained injuries in a motor accident which occurred on 11 December 2014. At that time a taxi which was driving in the lane to the left of the plaintiff changed lanes and hit him on the left-hand side of his car. The claim was for injuries to the neck, left and right shoulders back, and right arm. The medical certificate attached to the claim form was prepared by the plaintiff's general practitioner Dr Rifi. It stated that in relation to the injuries sustained the plaintiff had lower lumbar spinal pain, right thoracic pain, and right forearm pain. The insurer who is the defendant admitted the taxi was wholly at fault. The claim was for past out-of-pocket expenses, future out-of-pocket expenses, and future paid care. There was no claim for economic loss. 4. The issues in dispute were noted to be the extent of the injuries sustained, entitlement and quantum of damages under the above heads, and the effect of prior injuries on that assessment. 5. The reasons record that the plaintiff had suffered injuries in motor vehicle accidents which occurred in 1996, 2010 and 2013. It is noted that it was put to the plaintiff in cross-examination that he had not attended Dr Rifi in relation to this accident until after he had settled the claim for injuries arising from the 2013 accident but that the plaintiff denied that categorically stating that because he was on medication from that previous accident he continued to take that until the pain did not ease and then he decided to see Dr Rifi. It appears the Assessor accept that explanation. 6. The injuries suffered in 1996 were listed as nervous shock, injuries to the lumbar and thoracic spine, left elbow, and soft tissue damage to small and ring fingers. The plaintiff received treatment and settled that claim. 7. In relation to the accident in 2010 the listed injuries were lower back, neck, and left shoulder. The Assessor had access to the medical reports relating to those injuries and to at least one MAS assessment. 8. The claim with respect to 2013 accident was for injuries to head, back, neck, both hands and both elbows, and shock. The medical certificate attached to the claim form was signed by Dr Rifi and stated the injuries as - "neck pain, lower back pain, concussion and loss of consciousness." 1. The assessor had other medical reports and documents relating to Centrelink assessments of the various injuries. 2. The Assessor noted - "37. The claimant before me stated that in the subject accident he aggravated pain in his neck and lumbar spine and developed pain in his right shoulder radiating down the front of his right arm and that the pain in his right shoulder and right arm were not in existence prior to this accident. He conceded that he had some pain in the right scapula region prior to this accident, but it was not the same type of pain." "38. He said that he and his wife separated before the June 2013 motor accident and he lives in the garage in the house and she and the six children in the other parts of the house. He states that before the subject accident he could do some gardening, but he struggled to do this now. He also did some household duties but said he cannot do it now. He lives in the same house with his wife and six children and they range in age from twins who are nine up to a child who is aged 23. He stated that after the 2013 accident he had tried to get involved with a youth organisation which was volunteering to help use in the date today living. He tried to get back into that before the 2014 accident but was unable to do so" "40. The insurer did not qualify a medicolegal doctor to comment on any need for future treatment or any need for future care in relation to the subject accident. The insurer relies on its submissions which essentially are to the effect that he needed treatment and care before this accident and nothing has changed." 1. The assessor then quoted from a medical report of Dr Giblin (the date of that report is not given). The history to the doctor included a history that "he still mows the lawns, but only does it in a piecemeal fashion and is trying to encourage his son to do it more often for him. He is unable to do any of the home maintenance such as climbing ladders, cleaning gutters painting etc." 1. The assessor was satisfied that the plaintiff had sustained injuries "by way of aggravation of a pre-existing condition to his neck and lumbar spine and injury to his right shoulder with pain into his right upper arm, I find the claimant did not sustain injury to his left shoulder in this accident." 1. Under the heading 'future paid care' it is noted that the plaintiff claimed 1hour per week at a commercial rate of $44 per hour for life. The defendant submitted there should be no allowance future care on the basis of comments of doctors referred to earlier in the reasons in relation to the care the claimant required for previous accidents. The defendant also submitted that the care should not be given on a commercial basis. 2. The assessor then noted - "61. The claimant before me stated that before this accident he did half of the house work as he was separated from the rest of the family and had to look after himself. He also attended the lawn mowing and weeding the garden and would spend 2 to 3 hours per week but he cannot do that now. He said he dabbles in gardening, but his children do it and that he would pay somebody if he had the money." 1. The words underlined are the words relied on by the defendant as amounting to false and misleading statements. 2. The assessor found that prior to the accident the plaintiff required care from time to time but - "had returned to doing some house work for himself and had returned to gardening duties albeit limited and not as regular as prior to the accident" 1. She also accepted that the claimant was unable to do any of the - "home maintenance such as climbing ladders, cleaning gutters, painting etc." 1. She found that the appropriate level of care related to the subject accident was 1 hour per week - "given that the claimant is separated from his wife and his children are either young or at school I deem it appropriate that any future care be allowed on a commercial basis to assist claimant." 1. The Claims Assessor allowed care for 20 years applying the present value tables 1 hour per week times $40 per hour times 666.4 equals $26,656.00. Defence Evidence James William Taylor 1. In 2016 Mr Taylor was a reporter working for the Canterbury Bankstown Express Newspaper. He attended the plaintiff's claim to do a feel good story entitled 'Garden Gangs on the Job' (Exhibit 2). Whilst he was there 5 photographs were taken (Exhibit 1). Mr Taylor could recall speaking to the plaintiff who showed him a trailer with landscaping equipment on it. He could not remember if it was hitched to a car or a ute. He could recall there was some labelling on the car but not what it was other than it was business branding concerning landscaping (T5.23). The equipment was on the trailer when he first saw it and it was moved off but he could not recall who did that (T5.46). 2. Mr Taylor recalled that the plaintiff had said to him that - "he owned a landscaping business. [He] set up an organisation to help youth by giving them work in this business, paying them like that, yeah" (T6.8) 1. He recalled being told that the youths would do the work and the plaintiff would pay them and take the rest for overheads (T6.17). 2. Mr Taylor said that the interview was recorded on his phone and that any quotes in the article would be verbatim. 3. It article contains the following quotes: "I thought these guys needed help, for rule. Because parents haven't got time for the kid, that's why they turn out that way" "If you don't get onto these kids now, and they start getting into that, being drug dealers… they will never work for a normal job… They make so much they'd rather sell drugs" "I came up with the idea of starting gangs, in the sense of home and garden care gangs. I've trained a couple of youths already (and) my son as well… I've trained in how to use a lawnmower and whipper-snipper and the blower, just the normal instruments you need for garden care" "Once I see that a person is suitable to be a supervisor, I will put on to with him and that's the gang" 1. Mr Taylor was there for about 45 minutes and when asked whether he had seen the plaintiff handling the various pieces of equipment he answered "yes, as in the pictures" (T8.40). Mr Taylor did not notice him to have any difficulty. 2. In cross-examination Mr Taylor confirmed he could not remember who took the equipment off the trailer. He could not remember what he saw on the ute but there was definitely writing on it. Mr Taylor said there were no demonstrations as to how the equipment was used, the 3 men just held them for the photos. Mr Taylor left before they were put away. Exhibits 1. Exhibit 1 is 5 photographs, 4 of which show the plaintiff standing behind a lawnmower and holding onto the handle. The fifth photograph shows him leaning on a picket fence. 2. Exhibit 2 is the article which appeared in the paper. As well as the quotes listed above, there is a statement that 'Support your Local Youth' was born and that the plaintiff, with the help of his son, compiled a list of 10 boys they would 'give a start through his self-owned business'. The plaintiff's son said he was happy to support his father because he was around youth heaps. The article ended by saying that they were looking for sponsors to expand and that the youth's take home everything they earn minus overhead. There was then a reference to an email address. The caption to the photograph reads "Gary Arabi has launched a youth program called SYLYIDEA through his landscape business". 1. Exhibit 6 is an extract from that email address which states it was created on 8 December 2014 the long name is Support your Local Youth and Initiate Dreams Engage Action (slylyidea@hotmail.com). Plaintiff calls on people in the local area to rally together to support youth and is asking for members of the community to step forward and sponsor local youth by contributing $99 towards SYLYIDEA. The contribution will go towards clothing, safety gear, and boots for youth's engaged in performing supervised homecare and garden work in the local community. In return the youth's will come to the sponsor's home one weekend and cut the lawn. There are then some indications of other people or liking this idea. 2. There is an extract from the Daily Telegraph with a date of Saturday, 23 January 2016. Under a heading 'Burning with Aussie Pride' and a subheading 'Heritage Lebanese' is a photo of the plaintiff again leaning on a lawnmower and someone standing next to him operating a barbecue. There are other photographs of people with other ethnic backgrounds. The article appears to be something relating to Australia Day celebrations. 3. Exhibit 4 is a download from the Facebook of the plaintiff's daughter Laura Arabi dated 18 February 2016 where she has named her father and brother and commented "that's my daddy! Go daddy" with a red heart, followed by a photograph of the article in the local paper. There are other articles the relevance of which is not obvious. 4. Exhibit 3 is a printout of historical details for ABNs. This shows that the plaintiff had an ABN in the name of Galab Gary Arabi from February 2007 to September 2013, and in the name of Galab Arabi from September 2013. 5. It is noted that there is a business name 'Revive a Car' from 16 February 2007 to 17 May 2010, and a trading name of 'Revive a Car' from 16 February 2007 to current. The ABN site was last updated on 31 August 2017, and the record extracted on 15 November 2017. 6. Exhibit 5 is a letter from the plaintiff's solicitors which attaches copies of subpoenas issued to both the plaintiff and his daughter, Laura Arabi. Attached to his daughters subpoena is a copy of Exhibit 4. Also produced is an Australian Business Register printout entry name the trustee for SYLYIDEA. ABN registration date 2 April 17, an email address of one of the plaintiff's daughters, type of entity discretionary service management trust gardening services, and the associates are Mrs Laura Arabi and Ms Rosa Arabi as trustees. 7. There is a further document from Australian government Australian business register dated one September 2017 which provides - "We have reviewed the Australian Business Register and Australian Taxation Office information. We did not find any evidence to support your carrying on a business. As a result your Australian Business Number… Has been cancelled effective 31 August 2017" Submissions Defendant 1. Mr Fitzsimmons who appeared for the defendant indicated that the statements relied upon to support the relief claimed under section 118 were those set out, and numbered 1-5 in the defence. 2. It was submitted that on the basis of Mr Taylor's evidence the court would find that the plaintiff was conducting his own business as a landscaper and working in landscaping. Leave was given for the parties to make additional submissions when the transcript of Mr Taylor's evidence became available. 3. In oral submissions Mr Fitzsimmons submitted that the words at paragraph 38 of the Assessor's reasons amount to a statement by the plaintiff that he, before the accident, could do some garden maintenance but struggles to do this now and he did some household duties but cannot do it now. Reference was then made to the words in paragraph 61. It is said it is clear that the Assessor relied on those statements as a basis for the award for future care 4. It was pointed out that those statements were made at the assessment hearings which took place on 15 February 2016, only a short time after the plaintiff had spoken with Mr Taylor on 3 February 2016. 5. It was said the court would be entitled to draw an inference that at the time the statements were made to the Claims Assessor the plaintiff was conducting his own landscaping business and using equipment such as lawnmowers, whipper-snipper's and blowers and training others. It was submitted that the statements that he used to spend 2 to 3 hours in the garden and now dabbles amounted to a statement that he cannot mow and weed now, as mowing is not dabbling (T23.12). 6. It was submitted that when the plaintiff made those statements they were false or misleading because the interview with the reporter shows that the plaintiff was in fact conducting a land scape business. It was then submitted that as the plaintiff had not given evidence the inference was that he feared to do so. It was submitted a further inference could be drawn from the failure of the plaintiff's son to give evidence as he was it clearly involved in the activity. It was said that in the absence of any such evidence the defence had been made out. 7. Mr Fitzsimmons then referred to the court to the decision of the Court of Appeal in Checchia, particularly at paragraphs [4] - [37], and it was claimed that the financial gain was the entire amount of the award for future paid care. This was because the focus in the assessment was on that claim for gardening. 8. It was submitted that the evidence established that the helping youths was part of his business and he had his own machinery and thus there was an overwhelming inference that he was doing hands on work and that was sufficient to shift the evidential burden to the plaintiff which would in turn result in the drawing of a Jones v Dunkel inference. 9. Additional written submissions referred to evidence of Mr Taylor which has been set out above. It was submitted that the reference to the plaintiff owning and operating a landscape business is consistent with the caption contained in the article "through his landscape garden business". It was said this evidence was said to be sufficient to discharge the evidentiary onus on the defendant and raise a Jones v Dunkel inference against the plaintiff. 10. Mr Fitzsimmons referred to the decisions of Prentice and Another v Cummins [2003] FCA 102 and Commercial Union v Ferrcom Pty Limited [1991] 22 NSWLR 389 and said that the court would draw an inference that the plaintiff was afraid to give evidence as it would disclose facts unfavourable to him. Plaintiff 1. Mr Carney, who appeared on behalf the plaintiff, pointed out that the onus of proof is clearly on the defendant. It was said the proof needs to be to the standard required by the considerations in section 140 of the Evidence Act 1995 (NSW). It was submitted that the evidence of Mr Taylor did not establish that the plaintiff was running his own landscaping business at the time of the interview. It was noted that Mr Taylor could not recall what was on the ute and that he could not confirm that the plaintiff had played any part in taking the tools out of the trailer. It was said that the photographs show him resting on his lawnmower whereas his two accomplices are carrying a blow or a whipper-snipper. It was submitted even in the article itself it is no more than a reference to his own business and being a bright idea which predates the accidents. It does not provide any evidence of what, if anything, the plaintiff is doing in the business. As the business number had been cancelled due to lack of activity, the evidence was not sufficient to allow an inference that the plaintiff had made fraudulent statements. 2. It was submitted that the Assessor had found that the plaintiff was unable to do home maintenance such as climbing ladders, cleaning gutters, and painting, which are different matters to lawn mowing, whipper-snippering, or indeed using a blower. In those circumstances there had been no misleading statements acted upon by the assessor. It was submitted that the reason the business may not have been referred to was because there was no claim for economic loss. The surrounding evidence suggested the Assessor knew and based her opinion on the fact that the plaintiff could do some lawn mowing and that it was the heavier aspects of gardening and home maintenance that he couldn't do. It was pointed out that one can own a business and not physically work in it, and the ABN documentation does not take the matter anywhere. It was said that there was simply insufficient evidence presented by the defendants to discharge their onus 3. In additional written submissions dated 30 November 2017 the plaintiff contended that the evidence of Mr Taylor was too vague to allow any assessment of what "operating a landscape business" means, especially as there is no mention of the duties performed by Mr Arabi apart from some instructions to young men on how to use garden equipment. The context of the article was the setting up of a scheme to help young men in the Greenacre area, not business activities of Mr Arabi. It was repeated that there is not enough evidence presented by the defendant to raise any Jones v Dunkel inference either against the plaintiff or his son. It was said his son could only give evidence as to his involvement in youth training and that would not assist the defendant. 4. It was the plaintiff's contention that the transcript did not further the defendants case. Consideration Has the defendant established that the statements it relies on were false and misleading conduct engaged in by the plaintiff with the intention of obtaining a financial benefit? 1. I do not have a transcript of the evidence the plaintiff gave at the assessment hearings. I am asked to rely on what is in the Claim Assessor's reasons. I do not accept the construction placed on those words by the defendant. In particular I do not accept that the plaintiff saying he "dabbles" in the garden amounts to a statement that he can no longer weed or mow. It does not appear to me that the assessor gave the words the meaning pressed by the defendant. The assessor referred to the report of Dr Giblin which had a history that the plaintiff mows the lawns in a piecemeal fashion. This clearly suggests he can do some lawn mowing and the assessor was aware of this. 2. Further, I find that the award of paid future care does not relate entirely to compensation for the inability to mow and weed the garden or even do all the heavy aspects of garden maintenance. The assessor accepted the plaintiff's evidence that he had difficulties with heavy aspects of general household duties. The plaintiff is quoted as saying he did 2 -3 hours per week in the garden prior to the accident. The assessor allowed one hour for gardening and home maintenance such as climbing ladders, cleaning gutters, painting etc. I find the defendant has not established that the plaintiff has obtained any financial benefit from the statements it relies on. Has the defendant established that the plaintiff has omitted to do or say anything with the intention of obtaining a financial benefit? 1. The plaintiff did mention to the Assessor that he had tried to volunteer to help youth and had not been able to get back to that before 2014. There is no indication in the reasons that there was any exploration of the nature of that volunteering. 2. The omissions relied on by the defendant are that he failed to tell the assessor he was conducting a landscaping business, that in the course of that business he was training other persons in landscaping business (including in the use of lawnmowers, whipper-snippers and blowers), and was supervising others in the landscaping business for the purpose of performing work in his landscaping business. There is some evidence that the plaintiff was conducting a landscaping business. 3. The caption to the photograph in Exhibit 2 is – "Gary Arabi (Middle) has launched a youth program called SYLYIDEA through his landscaping gardening business.". 1. Mr Taylor gave evidence the plaintiff said - "he owned a landscaping business" "it set up an organisation to help youth by giving them work in this business, paying them like that, yeah." (T6.7) 1. Mr Taylor also agreed that Mr Arabi told him he was operating a landscape business, "yep, self-owned" (T8.18). 2. Mr Taylor does not give any evidence relevant to what, if any, hands-on work the plaintiff said he did in the business. There is no suggestion in his evidence that he was told the business was being operated for any purpose not associated with helping youth. 3. In Exhibit 6 there is a request for contributions towards safety gear and boots for those youths engaged in performing supervised work such as home and garden care in the local community. There is no reference in that article to the plaintiff running a for profit operation of his own. 4. The photographs in exhibit 1 and exhibit 2 show the plaintiff, his son, and another young man posing with gardening equipment. None of the three are wearing any safety gear or high visibility clothes often worn by those involved in such a business. The plaintiff is wearing a T-shirt that does not advertise either a business of his own or SYLYIDEA. 5. Exhibit 3 is evidence that the plaintiff had an ABN. I accept that persons who hold ABNs would generally do so because they are operating a business or plan to do so. The business name referred to on that document is 'Revive a Car'. 'Revive a car' is also nominated as a trading name. No documents have been tendered relevant to a business with the name of 'Revive a Car' but the most obvious inference is the ABN related to that business. 6. Exhibit 5 shows that at least since 2 April 2017 the trustees for SYLYIDEA were Ms Laura Arabi and Ms Rosa Arabi. There are no such printouts covering the period of the article and the assessment. The letter from the Australian business register to the plaintiff shows that he is ABN was cancelled as at 31 August 2017 because there was no evidence to support he was carrying on a business. There is no documentation provided as to what period the registrar is referring to. There were no tax returns prepared by the plaintiff preferable to that ABN number 7. The letter establishes that they could find no evidence to support a finding the plaintiff was carrying on a business. This included making enquiries of the Australian Taxation Office. The period assessed is not specified no indication that any evidence was found that a business ever operated. This letter does little of anything to support an inference the plaintiff was conducting a landscaping business in 2016. 8. The plaintiff did not tell the assessor that he was conducting a landscape business. The assessor was aware, however, through the Dr Giblin's reports that she "that he was encouraging his son to do more gardening work for him". 1. Encouraging his son to do gardening work would involve much the same kind of physical work as would be involved in SYLYIDEA. 2. The defendant placed some emphasis on the fact there was some kind of landscaping logo on the ute which Mr Taylor saw but could not describe. The defendant did not present the court with any evidence that Mr Arabi owned a ute, or indeed any vehicle, at the relevant time. 3. There is no evidence such as surveillance evidence which shows that the plaintiff had been operating any business. There were no copies of advertisements in local papers or the like indicating the plaintiff was operating a business for profit or seeking work as a landscape gardener. 4. The defendant is required to establish that the plaintiff failed to disclose the existence of a landscaping business and his activities in that business with the subjective intention of misleading the assessor so as to gain more compensation then he was entitled to. 5. Taken at its highest there is some evidence that the plaintiff owned and may have operated an enterprise which was involved in training and supervising young men. There is no evidence the plaintiff made any profit from that business. The available evidence is that after overheads were deducted the overheads were paid to the young workers. There is no evidence the plaintiff did any hands on work nor that supervising and instructing youth involved physical exertion. 6. The lawn mower, whipper-snipper, and blower that feature in the article are tools which could be found in many homes that have a garden. The request for funds and for safety gear suggests that these items were required for the young men being trained and not for the plaintiff. If the plaintiff were operating a landscaping business with the aim of making profit would have expected him to take the opportunity to advertise that business in that article. He did not do this. 7. The plaintiff may not have disclosed the information because he did not realise it was relevant. He was not making a claim for economic loss and if he was not doing any physical work but merely instructing and training the young men, there would be no reason for him to realise that it could be relevant. The fact there was such an enterprise did not mean his statement that he would pay someone to do the work was false. He may well have wanted to pay the young men to work for him. 8. Mr Fitzsimmons in effect submitted that the Court would draw an inference that the omissions were made with the intent to mislead the assessor and thus obtain compensation he was not entitled to because the plaintiff and his son did not give evidence in response to that allegation. 9. Whilst in some circumstances it may be appropriate to conclude that evidence called by a party which might have been contradicted by evidence from the other party, may more readily be accepted and the inferences open on the evidence called more easily drawn the failure cannot fill an evidentiary gap in the opponents case (S. Odgers, Uniform Evidence Law (Thomson Reuters, 10th Edition, 2012) at [1.3.110]). 10. Section 140 of the Evidence Act provides that the gravity of a matter alleged is something the court should take into account when determining if a party has discharged an onus. The graver the consequences, the stronger the evidence required before a court can conclude the allegation is established on the balance of probabilities. 11. The evidence called by the defendant does not establish the plaintiff was able to perform more household chores or work in the garden more than what he disclosed to the Assessor. I find that the evidence called by the defendant did not reach a level where the plaintiff could be expected to call evidence in reply and thus no Jones v Dunkel inference is available. 12. Even if the defendant had established that there were relevant omissions it would not be relieved of liability under s118 until it was shown that the plaintiff had obtained a financial benefit to which he was not entitled. As noted earlier, the plaintiff's evidence was that prior to the accident he did 2-3 hours' work in the garden and was able to do other household chores. The Assessor allowed 1 hour per week of paid care for 20 years to encompass both these matters. The defendant has therefore not established that the plaintiff has received a benefit to which he was not entitled. As noted by the Assessor they called no evidence on this point and submitted that he had required the same amount of care before and after the accident. 13. I therefore make the following orders: 1. Judgment for the plaintiff in the sum of $45,157.72, plus interest if applicable. 2. The defendant is to pay the plaintiff's costs. 3. If any party seeks a special order as to costs, or any other order, they should do so by filing and serving a Notice of Motion with a supporting affidavit and brief written submissions within 14 days. 4. The exhibits are to be retained until the expiration of the appeal period. ********** 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: 12 July 2018