Winning a case requires being able to have necessary evidence given and accepted, and then showing how the applicable law means the result you argue for is the correct one. But sometimes the evidence given by your client is not quite enough to allow all the dots to be joined. In the heat of giving evidence, a witness may forget to say something important to your case, or they may put it differently than they had previously to you in conference. Either way, you are left with a missing – essential – piece of your proof. What then?
In certain situations, the court will infer that a particular fact must have occurred for your client to act a certain way.
Yesterday judgment in one of my* cases was handed down, clarifying one of the times such an inference can be made. It was a statutory misrepresentation case (a plea of misleading and deceptive conduct). To succeed on that claim, a plaintiff must show the necessary casual connection between a misrepresentation being made and the loss he suffered. Direct evidence of relying on the misrepresentation would show the causal connection. But in this case, the evidence given by the plaintiff about reliance was not accepted by the Court as being enough to show the causal connection. The Court was asked by the plaintiff to infer that (on the basis of the facts that were proved) the plaintiff must have relied on the misrepresentation, and that led to the loss (the Gould v Vaggelas test (1985) 157 CLR 215). Amongst other things, the defendant argued that as some direct evidence of reliance was given but not accepted by the Court, an inference could not be drawn (differentiating this from cases where no direct evidence of reliance was given at all).
The Victorian Court of Appeal (Weinberg and Tate JJA and Vickery AJA) confirmed the circumstances in which such an inference can be drawn. In particular, it held that in applying the Gould v Vaggelas principles, the drawing of the inference is not per se precluded because some direct evidence is given, even if the thrust of that evidence is rejected. In each case the totality of the evidence in its context, including any possible inference to be drawn when assessed against the effect of any direct evidence, needs to be examined.
In this case it upheld the trial judge’s decision. (He had inferred that the misrepresentations found to have been made about a land sale were relied on by the purchaser in entering into the purchase, and led to his loss.)
For more details see: Lord Buddha Pty. Ltd. v Harpur  VSCA 101.
* Barristers and solicitors often refer to a court case as ‘my case’ when we have worked on it. Of course any case it is first and most importantly the client’s case – but after working hard on it we can feel quite a sense of ownership! In this case I was instructed by Ms Chantal Reigo of Mills Oakley Lawyers, and my junior counsel was Ms Kathleen Foley.