Chong & Neale v CC Containers Pty Ltd & Ors

(2015) 49 VR 402; [2015] VSCA 137

Victorian Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Conspiracy
3. › Conspiracy to injure by unlawful means
4. › Inference of participation from circumstantial evidence
5. › Payments to entities controlled by alleged conspirators
6. › Whether open to infer conspiracy from pattern of payments
1. Evidence
2. › Standard of proof in civil proceedings
3. › Briginshaw standard
4. › Allegations of fraud
5. › Whether every rational inference inconsistent with fraud must be excluded
6. › Evidence Act 2008 (Vic), s 140
1. Evidence
2. › Circumstantial evidence
3. › Drawing inferences
4. › Innocent hypotheses
5. › Whether innocent hypotheses excluded as unlikely possibilities
6. › Bradshaw v McEwans Pty Ltd
1. Evidence
2. › Privilege against self-incrimination
3. › Section 128 of Evidence Act 2008 (Vic)
4. › Whether privilege properly claimed by declining to enter witness box
5. › Whether Jones v Dunkel inference available where privilege claimed

Quick Take

The Briginshaw standard in civil fraud cases requires actual persuasion having regard to the gravity of the allegations, but does not require the exclusion of every rational inference inconsistent with the requisite state of mind — that higher standard applies only in criminal proceedings. A party who declines to enter the witness box entirely cannot claim the privilege against self-incrimination under s 128 of the Evidence Act 2008 (Vic), which requires a witness to object to giving particular evidence while under oath. Amounts recovered for the tort of conspiracy are not 'a debt or sum certain' within s 58 of the Supreme Court Act 1986 (Vic), and interest must be calculated under s 60. The question whether a properly claimed privilege against self-incrimination precludes Jones v Dunkel reasoning was left open but the Court expressed serious reservations that it would.