In a civil circumstantial case where an insurer alleges arson by the insured, the trial judge is not required to exclude reasonable alternative possibilities as probabilities; rather, the judge must weigh all relevant possibilities together to determine whether the insurer has discharged its onus on the balance of probabilities. The passage in Transport Industries Pty Ltd v [name withheld] referring to 'the probable opportunity of others' does not constrain the assessment to alternatives shown to be more likely than not. Under s 57 of the Insurance Contracts Act 1984 (Cth), the insurer's subjective belief in the efficacy of its defence is irrelevant to determining the date from which it was unreasonable to withhold payment.
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