Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
consequences of contempt proceedings are grave, and potentially include fining and imprisonment. In considering the application of the civil standard of proof, Dixon J observed in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , 361-362, in summary, that: In determining whether I am satisfied on the balance of probabilities that HFAT has proven the facts it needs to prove, I take into consideration the matters required by s 140(2) of the Evidence Act as well as Dixon J's comments in Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. What are the booking records the subject of HFAT's claim? I understand that it is not seriously in dispute that booking records for HFAT existed or that HFAT had booking records. The dispute in this case is as to the composition and nature of the booking records the subject of this claim. Background I understand that the general position and practice in relation to taking bookings for HFAT tours was as follows: Because of the onset of the "build up" and the monsoon season in northern Australia, the period from approximately November until March each year was off-peak season for tourists. HFAT did not conduct regular tours during this period. However tour bookings were able to be taken at this time in respect of tours for the 2009 tourist season (scheduled to begin around April 2009) by employees of the HFAT business, including Ms Chaloner. A number of tours bookings were recorded by Ms Chaloner and (apparently) Ms Shelley Ratcliffe between October 2008 and the end of January 2009 when Ms Chaloner left HFAT. As I have already noted, no evidence was given by Ms Ratcliffe in these proceedings. Bookings were made with HFAT for tours by tour desks around Australia (in particular Broome and the Kimberley Holidays) on behalf of clients and by individuals directly. Bookings were made by email and telephone. Ms Cummins gave evidence that when individuals made bookings directly with HFAT, they were required to make immediate payment in order for their booking to be confirmed (TS 22 June 2009 p 6 ll 31-36). I have already noted Ms Chaloner's evidence that when an individual customer booked and paid for a tour she would send the customer a confirmation email in respect of the booking and the day of travel. Usually, telephone bookings for HFAT tours were recorded in a hard copy diary acquired by the HFAT business, and an Excel spreadsheet on a computer (operated by Ms Chaloner). The relevant diaries were yearly calendar diaries. Both the hard copy diary and the computer with the Excel spreadsheet were kept at the HFAT office, located at Hangar 5, Broome Airport. Identification of booking records Part A para 7(a)(i) of the Application identifies the booking records sought by the applicant as "the originals and all copies (whether in hard or soft copy) of all and any booking records for forward bookings of tours made by persons who booked tours to Horizontal Falls with the Applicant". During the proceedings however HFAT's definition of the booking records narrowed. In HFAT's written submissions the booking records were more specifically identified as: However in determining an issue on the balance of probabilities, as Dixon J observed in Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences (at 362). As I have already observed, potentially many other people had an opportunity over several months to remove the booking records perhaps inadvertently, perhaps deliberately. There is absolutely no direct evidence before the Court that Mr Rhys Thomas took the booking records from the HFAT office in Hangar 5 at Broome Airport, only hearsay from Ms Bishop as to alleged comments by Ms Chaloner, which Ms Chaloner denies having made. The only basis on which I could find that Mr Rhys Thomas had taken the booking records would be on the grounds of speculation, conjecture, and inference. I am not persuaded on the balance of probabilities, particularly taking into account the material before the Court which I have already discussed, the seriousness of HFAT's allegations, and the gravity of the consequences should Mr Rhys Thomas fail to (or be unable to) comply with an order as sought by HFAT, that Mr Rhys Thomas removed the relevant booking records. Form of Order On the facts of this case HFAT has not substantiated its claims against Mr Rhys Thomas in respect of his alleged removal of HFAT booking records from the HFAT office. It follows that the Application against him so far as concerns Pt A para 7 should be dismissed. While HFAT conceded that there was no basis for an order against Mr Troy Thomas in relation to the relief sought by HFAT pursuant to Pt A para 7 of the Application, HFAT also submitted that: In my view however there is no basis for adjourning the case against Mr Troy Thomas, because: Accordingly, it follows that the appropriate order is to dismiss HFAT's claim against Mr Troy Thomas so far as concerns Pt A para 7 of the Application. Concluding comments