VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C2613/2020
CATCHWORDS	
Motor vehicle insurance claim for agreed value – insurer refused applicant’s claim – no insurable event occurred – collision did not occur as described by insured – false statement provided during processing of claim  – section 56 Insurance Contracts Act 1984 (Cth).	

APPLICANT	Syed Sarwari	
RESPONDENT	Commonwealth Insurance Ltd (ACN: 067 524 216)	
WHERE HELD	Melbourne	
BEFORE	Member D. Buljan	
HEARING TYPE	Hearing	
DATE OF HEARING	28, 29 and 30 April 2021	
DATE OF ORDER	15 June 2021	
DATE OF REASONS	15 June 2021	
CITATION	Sarwari v Commonwealth Insurance Ltd (Civil Claims) [2021] VCAT 618	

Order

1	For the reasons provided in writing, the proceeding is dismissed.

2	Costs reserved. Any party may apply for legal costs by filing an application supported by submissions in writing by 16 July 2021, otherwise there will be no order for costs.

3		The principal registrar is directed to:

(a)	send a copy of this order; and

(b)	a copy of the Tribunal’s order and reasons in Sawari v Commonwealth Insurance Limited (Civil Claims) [2021] VCAT 618 to the Director of Consumer Affairs Victoria to retain for its records and investigate whether a crime may have been committed by any person associated with SM Motors Pty Ltd LMCT 11517 and, if so, to take such action as it considers appropriate, including referring the circumstances to the Victoria Police.  

D. Buljan
Member 
APPEARANCES:		
For Applicant	In person	
For Respondents	Mr S. Ryan, Counsel
Mr M. Capannolo, Turks Legal	

Reasons

1	On 25 July 2016 the applicant, Syed Sawari, took out a policy of comprehensive motor vehicle insurance (‘the insurance policy’) with the respondent, Commonwealth Insurance Ltd (ACN: 067 524 216) trading as CommInsure (‘CommInsure’) for a 2013 Volvo XC60 Wagon (‘the Volvo / the vehicle’). The vehicle was insured for an agreed value of $38,300.00.   
2	On 26 September 2016 the vehicle suffered extensive damage when it was purportedly involved in an accident with two other vehicles, a 2000 Mercedes Benz S320 sedan  (‘the Mercedes’), and a 2011 Ford Falcon FG GT sedan (‘the Ford’).  As a result, Mr Sawari made a claim under the insurance policy, which CommInsure refused on 6 January 2017 after investigating the alleged accident. 
3	In this proceeding Mr Sawari claims $31,400.00 from CommInsure, being the agreed value of the vehicle under the insurance policy less the $6,900.00 he received from its sale to Pickles Auctions (‘Pickles’) as salvage. CommInsure countered that there was no insurable event under the insurance policy because the accident had not occurred as claimed. In addition, CommInsure submitted that it was entitled to rely on section 56 of the Insurance Contracts Act 1984 (Cth) (‘the Act’) on the basis that Mr Sawari had made the claim fraudulently.     
4	I heard the proceeding on 28, 29 and 30 April 2021 by video conference in accordance with the applicable Tribunal Covid-19 public health response. Mr Sawari was self-represented at the hearing and did not call any witnesses. CommInsure was represented by Counsel and called Mr Michael Edgerton, a senior forensic investigator.  
5	In determining the parties’ respective claims, I have reviewed their documentary evidence together with the oral evidence from Mr Sawari and Mr Edgerton. After the parties had completed giving their evidence and submissions at the hearing, I reserved my decision. 
background   
6	In 2016 Mr Sawari was a licenced motor car trader and qualified panel beater as well as the director of SM Motors Pty Ltd, which conducted a business that purchased repairable write-offs for repair and eventual sale to consumers. 
7	On 8 April 2016 SM Motors Pty Ltd purchased the vehicle as a repairable write-off for $8,155.96. After purportedly spending $20,000.00 in repairs, obtaining a roadworthy certificate and registration, Mr Sawari contacted CommInsure for comprehensive motor vehicle insurance advising that the vehicle was for his personal use. CommInsure issued the insurance policy on 25 July 2016 based on the information Mr Sawari had provided. Mr Sawari also confirmed at the hearing that he was living in Narre Warren at that time.
8	According to Mr Sawari, on 26 September 2016 he arranged to meet his then girlfriend, and current partner, Ms Jade Edwards, at approximately 6:30pm at the Hungarian Hall in Wantirna with plans to attend an Iranian restaurant in Ringwood. After sharing a meal, Mr Sawari left Ms Edwards at the restaurant and made his way home. Mr Sawari claimed that it was a dark and rainy evening. He advised that he was driving on Stud Road at about 7:30pm and, as he approached the intersection near Chem Street Dandenong, the lights turned orange and he stopped behind the Ford. Mr Sawari claimed he was then hit from behind by the Mercedes, the impact of which pushed his vehicle into the Ford.  
9	Mr Sawari claimed that he spoke to both drivers of the Mercedes and the Ford to obtain their details. The Mercedes driver readily admitted fault for the accident and advised that she was insured with Allianz Insurance; the Ford driver left the scene shortly after providing his personal details.  As a result of the Mercedes’s driver’s admission, Mr Sawari did not call the police to attend 

the scene. He also telephoned CommInsure from the roadside to lodge an insurance claim. Based on the information Mr Sawari provided about the incident, the CommInsure call centre operator waived the applicable claim excess and arrangements were made to tow the Volvo. This vehicle was subsequently assessed as a repairable write-off and taken to Pickles for storage whilst the accident was investigated.
10	As part of the claims process CommInsure obtained reports for each of the motor vehicles involved. It also undertook an individual insurance enquiry in respect of Mr Sawari as well as his then residential address.  CommInsure then referred the claim to AusAssess Pty Ltd (‘AusAssess’) for further investigation. 
11	On 2 November 2016 Mr Sawari consented to an interview with Mr Ferguson-McLellan from AusAssess. After this interview, and in response to a written request, Mr Sawari provided Mr Ferguson-McLellan with additional documentary information, including an authority to access his VicRoads records, copies of his telephone records, bank statements, purchase records, repair invoices, details of the businesses that had completed repairs on the vehicle and the photographs he had taken from the scene. AusAssess then provided two reports to CommInsure on 7 and 15 November 2016.
12	After receiving these reports CommInsure referred the claim to Mr Michael Edgerton, a senior forensic investigator with Forensic Collision Investigations, who provided a report dated 20 December 2016 (‘the forensic report’) that cast doubt on Mr Sawari’s claim. 
13	On 28 December 2016 Mr Ferguson-McLellan conducted a second interview with Mr Sawari to discuss the irregularities Mr Edgerton had detected in his forensic report, as well as other issues affecting Mr Sawari’s credibility. On 29 December 2016 AusAssess reported to CommInsure that Mr Sawari was unable to explain the identified inconsistencies and that he maintained the accident had occurred as he had originally reported. 
14	On 6 January 2017 CommInsure refused Mr Sawari’s claim relying on  the discrepancies in his version of events, the documents they had obtained, the forensic report, and section 56(1) of the Act. CommInsure also advised Mr Sawari that he should make appropriate arrangements to collect the vehicle from Pickles. 
15	Mr Sawari was unhappy with this response and complained to the Financial  Ombudsman Service (‘the Ombudsman’) through his then legal representative. On 10 January 2018 the Ombudsman found in favour of CommInsure. The Ombudsman noted that, as fraud is a serious allegation, any such allegation must be supported by clear and cogent evidence. Although not persuaded on the evidence at that time that there was fraud, the Ombudsman found that the inconsistencies in the evidence were sufficient to suggest that the accident may have been staged. Accordingly, the Ombudsman determined that CommInsure was entitled to refuse Mr Sawari’s claim because it was excluded under the terms and conditions of the insurance policy. 
16	Notwithstanding, the decision of the Ombudsman, Mr Sawari commenced this proceeding in the steadfast belief that CommInsure had inappropriately attempted to find any reason to deny his claim. He also told the Tribunal that he felt aggrieved that CommInsure had impugned his good character and felt  that he had been treated unfairly. 
17	CommInsure rejected this characterisation of its decision to refuse the claim submitting the claim was excluded under the terms and conditions of the policy and by section 56 of the Act.   
THE LAW AND ISSUES
18	The issues for determination in this dispute are: 
a.	Has Mr Sawari established that an insurable event occurred on 26 September 2016 in the circumstances alleged by him for the purposes of the insurance policy?
b.	Did Mr Sawari make a fraudulent claim under the insurance policy that entitled CommInsure to refuse payment of his claim?
The relevant legal principles 
19	The Tribunal has jurisdiction to hear Mr Sawari’s claim as a “consumer and trader dispute”. Both parties accepted that the insurance policy issued to Mr Sawari was a contract of insurance for the purposes of the Act and that the relevant provisions applicable to Mr Sawari’s claim were set out in the relevant CommInsure Car Insurance Product Disclosure Statements. 

Specifically, the insurance policy stated that Mr Sawari had a duty of disclosure at the time he entered the insurance contract. This duty required Mr Sawari to provide any information that he knew, and that a reasonable person would include, when answering questions that were relevant to the decision of CommInsure to insure him. Notably, failure to comply with this obligation would entitle CommInsure to cancel the insurance policy or reduce the amount it would pay to Mr Sawari in relation to any claim he made.     
20	The insurance policy also provided cover for an ‘insured event’, which included loss of, or damage to, the vehicle caused by collision or impact. On the other hand, the policy included a range of general exclusions. For example, claims would be excluded where the loss or damage arose because the driver was not licenced, the vehicle was unsafe or not roadworthy, or due to the deliberate acts of the insured, or another person acting with their consent. Importantly, the policy excluded any loss or damage that was not caused by an insured event during the insurance period.    
21	Mr Sawari bears the burden of proving, on the balance of probabilities,  that an insured event occurred on 26 September 2016 that entitled him to a payout of the agreed value of $38,300.00 under the insurance policy. In other words, Mr Sawari must persuade the Tribunal that his version of how events unfolded that evening is more likely than not. If the Tribunal is not satisfied that Mr Sawari is a truthful witness and that his version of events is credible, the application fails. 
22	In relation to fraudulent insurance claims, section 56(1) of the Act relevantly provides:
(1)  	Where a claim under a contract of insurance, or a claim made under this Act against an insurer by a person who is not the insured under a contract of insurance, is made fraudulently, the insurer may not avoid the contract but may refuse payment of the claim.
(2)  	In any proceedings in relation to such a claim, the court may, if only a minimal or insignificant part of the claim is made fraudulently and non-payment of the remainder of the claim would be harsh and unfair, order the insurer to pay, in relation to the claim, such amount (if any) as is just and equitable in the circumstances.

(3)  	In exercising the power conferred by subsection (2), the court shall have regard to the need to deter fraudulent conduct in relation to insurance but may also have regard to any other relevant matter.  
[Tribunal emphasis]
23	Given CommInsure seeks to rely on section 56(1) of the Act and an allegation of fraud, it has the responsibility of proving this defence on the balance of probabilities, even though the allegation may give rise to considerations of potentially criminal activity. As such, whenever there is an claim of fraud, the evidence presented to support such an allegation generally needs to be clear and cogent before it can succeed. 
24	For the purposes of section 56(1) of the Act, the test for fraud is satisfied if Mr Sawari had a dishonest intent to induce a false belief in CommInsure for the purpose of obtaining payment under the insurance policy. CommInsure is not required to prove that the fraudulent statement was material to Mr Sawari’s claim or that it suffered prejudice before it can rely on the defence in subsection 56(1) of the Act. In addition, in Zeait v Insurance Australia Limited t/as NRMA the Court held that where there is an allegation of a staged motor vehicle collision, an adverse inference may be drawn where an insured fails to call the other drivers involved as witnesses to support their account of the facts.
25	Accordingly, the submissions and evidence regarding these matters are discussed as follows. 
Does the claim establish an insurable event under the insurance policy?
26	During the hearing Mr Sawari referred to several factual matters that supported his view that CommInsure was liable to accept his claim. He stated that he was a licensed driver on 26 September 2016 and that his VicRoads records confirmed he had never had his licence cancelled or suspended. Mr Sawari also stated that the vehicle was registered and in a roadworthy condition, and that he had paid his monthly insurance premiums as required. 
27	There was no suggestion by CommInsure that Mr Sawari had failed to pay the monthly premium due under the insurance policy. In addition, CommInsure did not seek to rely on the exclusion provisions relating to Mr Sawari’s licence or the roadworthiness of the vehicle to refuse his claim. Given the evidence presented to the Tribunal, I am satisfied that there is no basis to refuse Mr Sawari’s claim on any of these grounds.
However, CommInsure argued that Mr Sawari’s claim was excluded because the loss or damage was not caused by an ‘insured event’, as defined. Notably, the insurance policy defined an ‘insured event’ to include collision or impact damage that occurred during the insurance period and was accidental, unexpected, and unforeseen by the insured and was not subject to a general exclusion.
28	Mr Sawari submitted that the events that occurred on 26 September 2016 constituted an ‘insured event’ because a collision or impact had occurred that resulted in loss or damage to his vehicle. He repeatedly asserted that CommInsure was merely looking for reasons to refuse his claim in circumstances where he was not at fault, had identified the third party driver, who had also accepted liability, and where he had been honest about the circumstances in which the accident had occurred. CommInsure pointed to the findings of Mr Edgerton’s forensic report and a range of other irregularities in Mr Sawari’s evidence that they submitted cast serious doubt on his credibility as a witness.  
29	For the reasons stated later, I do not consider Mr Sawari to be a credible witness.   
The Forensic Investigation Report
30	Following the interview between Mr Ferguson-McLellan and Mr Sawari on 2 November 2016, AusAssess reported its findings to CommInsure on 7 and 15 November 2016. CommInsure then instructed Mr Edgerton to examine the vehicles involved in Mr Sawari’s claim and the nominated collision scene and to report on the circumstances of the alleged collision.
31	For the purposes of his forensic report, Mr Edgerton had access to the material submitted to the Tribunal including, amongst other things, the  AusAssess report dated 7 November 2016, a sketch diagram of the collision scene, the photographs supplied by Mr Sawari and CommInsure, and relevant weather records. He also conducted physical forensic examinations of the Volvo and the Mercedes on 23 November 2016, and a post-repair physical exam of the Ford on 2 December 2016; relevant measurements were taken of each vehicle during these examinations. 
32	Based on this material and his physical exam of the vehicles Mr Edgerton analysed and reconstructed the circumstances of the claimed collision and found the following:

1.	The damage to the front and rear of the Volvo XC60 station wagon and the front of the Mercedes Benz S320 sedan, as examined, is collision damage.
2.	The damage to the rear of the Ford Falcon FG GT sedan, as shown in the supplied photographs is collision damage. 
3.	The damage to all three vehicles is generally consistent with the type of collision being described: an in-line collision between motor vehicles.
4.	The writer was satisfied, after examining the damage to the rear of the Volvo XC60 station wagon and the front of the Mercedes Benz S320 sedan that there has been a collision between these two vehicles.
5.	Notwithstanding that the general damage between these two vehicles [the Volvo and the Mercedes] is consistent and comparable there is inconsistent damage to both vehicles as outlined above. 
6.	It was also noted that the front number plate was not on this vehicle [the Mercedes] when it was damaged and on the date of this collision the registration was expired.
7.	After examining the damage to the front of the Volvo XC60 station wagon and the supplied photographs of the damage to the rear of the Ford Falcon FG GT sedan the writer could find no consistent or comparable damage between these two vehicles.
8.	The writer could find no evidence that the lights on the Mercedes Benz S320 sedan were operating when it was damaged. 
9.	The writer determined, based on the information obtained from the Mercedes Benz owner’s handbook, that the driver’s seat belt on the Mercedes Benz S320 sedan was not being worn when the damage occurred.
10.	The writer considers it remarkable and unusual that the Insured has taken photographs, at the nominated collision scene, of the Volvo XC60 station wagon and the Mercedes Benz S320 sedan  but none of the Ford Falcon FG GT sedan despite stating he took photographs before that vehicle left.  
33	Mr Edgerton was the only expert witness to appear before the Tribunal to give evidence regarding the likelihood that the alleged accident on 26 September 2016 had occurred in the manner claimed by Mr Sawari. In considering the forensic report prepared by Mr Edgerton, I note that paragraph 10 of his conclusions is a statement of personal, rather than expert, opinion to which I attach little weight.  
34	However, I do give weight to the fact that Mr Sawari did not otherwise dispute Mr Edgerton’s qualifications to give expert evidence regarding the alleged collision. Indeed, Mr Sawari sought to rely on several select aspects of the report to support his claim. Consequently, I accept that Mr Edgerton was well placed to give expert forensic evidence on the likelihood that the collision had occurred in the manner described by Mr Sawari.  
35	Mr Sawari relied on the findings set out at paragraphs 1 – 4 to submit that the damage to his vehicle was collision damage and, as such, an ‘insured event’ covered by his insurance policy. He specifically pointed to the fact that CommInsure’s own expert witness, Mr Edgerton, with 26 years’ experience in forensic investigations, had found that there was a collision between his vehicle and the Mercedes, and that the damage to all three motor vehicles was generally consistent with the type of in-line collision he had described. Mr Sawari further observed that Mr Edgerton had included weather and geoscience reports that confirmed that it had been raining on the day and at about the time of the alleged accident on 26 September 2016. 
36	CommInsure responded that it did not dispute that there were reports of rain at around 7:30pm on 26 September 2016. However, it referred the Tribunal to paragraphs 5 – 10 of Mr Edgerton’s conclusions to support its argument that there was no ‘insured event’ under the insurance policy.
37	At the hearing Mr Edgerton was invited to respond to Mr Sawari’s submissions and to provide clarification regarding the conclusions set out at paragraphs 1 – 4 of his report. Mr Edgerton responded that the forensic report needed to be read in its entirety to understand the context for each of the conclusions he had drawn.   
38	Specifically, Mr Edgerton noted that “collision damage” in paragraphs 1 and 2 was a reference to the fact that the damage identified had occurred between vehicles and was not storm or malicious damage.  Similarly, the reference  to an “in-line collision” in paragraph 3 referred to the fact that the damage had occurred between vehicles lined up one after the other. As such, it was 

intended to distinguish Mr Sawari’s claim from the type of collision that occurs when a motor vehicle is damaged in a rollover, or where one motor vehicle hits another from the side. Mr Edgerton further stated that the finding in paragraph 4 confirmed that at some point in time Mr Sawari’s vehicle and the Mercedes had collided, resulting in damage to these vehicles. 
39	However, Mr Edgerton was firm in his expert testimony that this was not a finding that these vehicles had collided on 26 September 2016 in the way Mr Sawari had described. He elaborated that each of the findings at paragraphs 6 – 9 in the forensic report referred to notable inconsistencies in the damage between the vehicles that suggested otherwise. 
40	For example, Mr Edgerton explained that it is routine to see a circular mark on the front bumper bar of a vehicle that has collided with the rear of the vehicle in front of it in an in-line collision. This is because the hot exhaust tail pipe of the front vehicle will easily cut through the thermoplastic of the bumper bar. Mr Edgerton also stated that such damage is only seen on front bumper bar covers in an in-line collision. 
41	In this case, Mr Edgerton confirmed during his oral evidence that there was damage to the front bumper bar cover on the Mercedes. He was satisfied that this damage was most likely caused when the exhaust tail pipes of Mr Sawari’s Volvo collided with the bumper bar of the Mercedes. However, Mr Edgerton observed that there was a circular contact mark on the rear bumper bar of Mr Sawari’s Volvo. He added that he was unable to find any components on the front of the Mercedes that could have caused this mark to the rear of the Volvo. As a result, Mr Edgerton stated that this mark on the rear Volvo bumper bar did not appear to be consistent with an in-line collision.  
42	Similarly, Mr Edgerton noted that there would have needed to be a relatively severe contact between the Mercedes and the Volvo to cause the damage that was found to the Volvo’s tailgate, number plate and cover. This damage was located approximately 775 – 910 mm from ground level, placing it at about the height of the Mercedes badge on its bonnet. Mr Edgerton explained that the Mercedes was a sedan and the Volvo was a wagon in the style of a sports utility vehicle, which was much higher off the ground than the sedan. Accordingly, he advised that, if the accident had occurred as described by Mr Sawari, and given the height differential of these two motor vehicles, there should also have been damage to the Mercedes badge. Yet, there was none. 
43	Mr Edgerton further observed that there was inconsistent damage to the front bumper cover on the Mercedes, which bore two circular marks centrally located and over the number plate holder.  However, Mr Edgerton was unable to find any parts on the rear bumper bar of the Volvo that would have caused this damage. He noted that, whilst the exhaust tail pipes on the Volvo had 
caused clear damage to the sides of the cover, the exhaust could not have caused these circular marks given their central location on the cover. Mr Edgerton did not elaborate on whether the age of the Mercedes or other factors might have provided a plausible explanation for these markings.
44	Mr Edgerton added that he believed that there had been no one in the Mercedes when the damage to this motor vehicle occurred. There were several factors that assisted him to form this view. The Mercedes was unregistered at the time of the accident. Mr Sawari’s photographs from the accident also showed the Mercedes without a front number plate, which was consistent with it not being registered. Likewise, Mr Edgerton investigated the light globes on the Mercedes and concluded that the filaments indicated its lights were not on at the time of the collision. Mr Edgerton advised that he has 23 years’ forensic investigation experience and that he has completed 1500 forensic investigations during that time. He added that he routinely examines the vehicle lights globes as part of the physical examination he conducts during each investigation. Mr Edgerton explained that, given the severe damage to the front of the Mercedes, together with the photographs supplied by Mr Sawari from the scene of the accident, if the lights of the Mercedes had been on at the time of the alleged accident, then the filament in the offside park light globe would have melted; it had not. Further, whilst the nearside low beam headlight globe was shattered, there should have been oxidisation left behind on the inside of the glass, supports and filaments. Again, there was none.  
45	In addition, Mr Edgerton advised that having consulted the relevant Mercedes manual for this particular model, he noted that the driver, passenger, and rear seat safety systems operated independently of each other. As such, the passenger seat airbag would only deploy if the seat was occupied. Further, the activation of the seat belt re-tensioners required the frontal collision to reach a particular speed threshold and on the belt being buckled. Mr Edgerton stated that, having examined the front seat belts, both belts were retracted. In addition, both belts extended and retracted easily. Mr Edgerton added that, based on his experience, if the pre-tensioner had activated the seat belt during the collision, the belt would be jammed in an extended position if worn. However, the belt was not jammed. Accordingly, Mr Edgerton concluded that  the failure of the driver’s airbag and seat belt tensioners to deploy at the time of the claimed accident supported the view that the Mercedes was turned off when the collision occurred.   
46	Correspondingly, there was also inconsistent damage between the Volvo and the Ford. For example, the contact scrape marks on the Volvo bonnet were inconsistent with the photographs of the damage to the rear of the Ford. Again, given the height difference between these two motor vehicles, the damage to the bonnet of the Volvo suggested that it had partially gone under the Ford upon impact, which was inconsistent with the claim that the Volvo hit the rear of the Ford. Further, whilst the photographs of the Ford revealed it had dual exhaust pipes that had contact damage and appeared to have been dislodged downwards, there was a lack of damage to the front bumper bar of the Volvo. These facets to the evidence did not suggest that there had been any collision between the Volvo and the Ford.
47	In response to these discrepancies in the evidence, Mr Sawari took Mr Edgerton to the photographs he had taken at the scene of the accident. These photographs showed that the front of the Volvo was heavily damaged and that the instrument panel on the Volvo had displayed warning lights regarding the engine temperature, as well as the vehicle airbag. Mr Sawari also pointed to the photographs of a green liquid on a wet road and the bright lights behind his vehicle, as evidence that supported his claim that the collision had caused engine coolant to leak from his vehicle. 
48	Mr Edgerton did not dispute the contents of these photographs at the hearing. However, he observed that they also did little to explain the inconsistencies in the damage between the Volvo, Mercedes and Ford set out in his report. 
49	Mr Sawari submitted that the forensic report contained an alternative explanation for this inconsistent damage. He referred the Tribunal to Mr Edgerton’s finding, and the associated photograph, that there were yellow markings on his Volvo and unrelated damage to the rear nearside quarter panel and tail-light. Mr Sawari asserted that this damage had occurred after the vehicle was outside his physical control when CommInsure had arranged for it to be taken to Pickles.
50	Mr Edgerton confirmed that the unrelated damage referred to in the forensic report went beyond fair and tear. Similarly, he advised he was familiar with the Pickles site and that he knew vehicles are stored there in painted metal racks. Accordingly, Mr Edgerton stated that he believed that the yellow markings on the vehicle probably arose due to paint transfer from these racks to the vehicle when it was moved from one location to another at the Pickles site. 
51	Mr Sawari suggested that Mr Edgerton may have been intimidated by CommInsure to give evidence in their favour. Apart from the fact that Mr Sawari provided little in the way of evidence to support this assertion, Mr Edgerton did not present at the hearing as an easily intimidated witness and I do not accept that was the case. As a result, I do not accept Mr Sawari’s submission that, if there was any damage to his Volvo that was inconsistent with his version of events on 26 September 2016, it was solely due to the actions of unrelated third parties whilst the vehicle was within the control of CommInsure, Pickles or their respective agents.    
52	Significantly, and after Mr Edgerton had completed his evidence and the Tribunal had excused him from any further attendance at the hearing, Mr Sawari put forward another theory for the inconsistent damage to his Volvo. Mr Sawari referred the Tribunal to the photographs that provided a closer view of the circular mark and partial cut on the Volvo bumper bar, as well as plastic debris inside the bumper bar. He noted that the Volvo had two exhaust pipes. Mr Sawari suggested that it was possible that the force of the collision had caused one of these exhaust pipes to hit the inside of the bumper bar causing the circular mark. However, whilst, Mr Sawari should have put this theory to Mr Edgerton for comment as a matter of fairness, he did not do so. 
53	I have considered the fact that Mr Sawari was self-represented at the hearing and did not necessarily know how to cross examine an expert witness. On the other hand, I also note that Mr Sawari gave evidence that his sister had completed a law degree, though she had not been admitted as a legal practitioner. In addition, the respondent filed the joint Tribunal Book on behalf of both parties on 10 March 2021. Accordingly, I am satisfied that Mr Sawari had ample time before the hearing commenced on 28 April 2021 to consider and obtain some advice regarding the forensic report included in the Tribunal Book, including what questions and alternative theories he might wish to put to Mr Edgerton. 
54	In any event, Mr Sawari gave evidence that he holds qualifications as a panel beater and in banking and finance. There is little to indicate that these qualifications confer upon Mr Sawari a knowledge of physics and mathematics that would lend weight to his hypothesis. In the absence of any other supporting expert evidence, Mr Sawari’s theory amounts to little more than speculation about the possible cause for the circular mark on the Volvo bumper bar, and the other inconsistent damage found in the forensic report. Accordingly, I give little weight to the alternative explanations put forward by Mr Sawari in relation to the forensic irregularities identified by Mr Edgerton.  
55	As a result, and in the absence of any competing expert evidence regarding the alleged collusion between Mr Sawari’s Volvo, the Mercedes and the Ford on 26 September 2016, I accept and give greater weight to the findings set out in Mr Edgerton’s report as a whole over Mr Sawari’s submissions that I should  only rely on paragraphs 1 – 4 of the forensic report. Accordingly, I accept Mr Edgerton’s findings that whilst the Volvo and the Mercedes may have collided at some point in time, it was unlikely that this occurred on 26 September 2016 in the manner described in Mr Sawari’s claim. Similarly, I accept that it is unlikely that Mr Sawari’s Volvo and the Ford were involved in the same alleged collision.
56	In reaching this view, and for the reasons set out below, I also give weight to the fact that, on balance, I did not find Mr Sawari to be a credible witness. 
Credibility Issues  
57	CommInsure identified multiple irregularities across Mr Sawari’s claims and the evidence since 2016. In considering Mr Sawari’s credibility as a witness and his version of events, I do not consider it necessary to outline every discrepancy that has emerged in the evidence. Rather, I have focussed on the most significant of these inconsistencies, as well as Mr Sawari’s overall demeanour. In doing so, I have made some allowance for the fact that Mr Sawari was a self-represented party in these proceedings. Notwithstanding, on balance, Mr Sawari’s responses and conduct during the proceeding did not assist me to form a positive view of his claims and credibility as a witness. In turn, this cast significant doubt on the plausibility of Mr Sawari’s version of events. 
58	Accordingly, the submissions and evidence regarding these matters are discussed as follows:
(a) 	Mr Sawari’s 7 June 2016 collision and insurance claim:
59	At the hearing Mr Sawari agreed that he had participated in recorded interviews with Mr Ferguson-McLellan on 2 November 2016 and 28 December 2016. Likewise, he did not take issue with the accuracy of the transcripts submitted to the Tribunal in respect of either of these interviews. 
60	The investigation conducted on behalf of CommInsure revealed that at approximately 8:30pm on 7 June 2016 Mr Sawari was involved in another in-line collision in almost identical circumstances to those alleged on 26 September 2016. Specifically, Mr Sawari claimed that he had been driving along Springvale Road near the intersection of Dunlope Street, Glen Waverley. Mr Sawari stated that when the lights turned yellow he began to slowly stop, when his 2014 Volvo S80 was hit from behind and he was pushed into the vehicle in front of him; the police were not called to attend the accident. On 13 July 2016 the relevant insurer, Suncorp, settled the claim on a total loss basis and paid Mr Sawari $57,122.35. 
61	In response to this issue, Mr Sawari replied that he has owned many Volvo motor vehicles and that he could not recall making this claim to Suncorp. Indeed, he had some difficulty in recalling whether he had even been involved in an accident on 7 June 2016. When CommInsure referred Mr Sawari to the relevant records, he acknowledged that he had received an insurance payout 

of $57,122.35 from Suncorp and that it was probably related to a collision on 7 June 2016. However, he could not recall the details of this accident. Regardless, Mr Sawari submitted that any similarity between the two events on 7 June 2016 and 26 September 2016 was coincidental.
62	Notably, Mr Sawari did not disagree that, like the 2013 Volvo the subject of these proceedings, the 2014 Volvo S80 involved in the June 2016 incident was purchased as a repairable write-off for far less than its agreed insured value. Significantly, Mr Sawari was unable to offer a reasonable explanation for the similarities between both claims. He also became quite unsettled, informing the Tribunal that he refused to be cross-examined on these matters by CommInsure because he felt it was unfair. Mr Sawari’s demeanour in response to this matter did not assist me to form a positive view of his credibility as a witness, or the plausibility of his claims. 
63	Similarly, Mr Sawari’s fluctuating recall across different topics further detracted from his credibility. At various times Mr Sawari reiterated his claim to have issues with his memory. He added that he was on medication that affected his memory. Likewise, Mr Sawari advised, for the first time, that he had suffered dizziness and a headache at the time of the alleged incident in September 2016. However, Mr Sawari did not submit any expert evidence from a medical practitioner, or suitably qualified person, to support these claims. By contrast, at other times, Mr Sawari claimed to have very clear recall of matters that were favourable to him, such as telephone conversations he had with the relevant CommInsure officer handling his claim.  Given this, and in the absence of any evidence to substantiate his claims that he had genuine issues with recall,  I do not find it plausible that Mr Sawari could be involved in two almost identical in-line collisions within the space of a few months, but not have any recollection of these events. Consequently, I do not accept that these incidents were as coincidental as claimed. 
64	Mr Sawari’s credibility as a witness was further undermined by his failure to disclose to CommInsure in July 2016 that he had been involved in an in-line collision on 7 June 2016. Mr Sawari acknowledged that the amended Certificate of Insurance CommInsure issued to him on 2 August 2016 (‘the insurance certificate’) set out his duty of disclosure. However, Mr Sawari asserted that he had properly informed CommInsure that the vehicle was purchased as a repairable write-off, repaired and registered with a roadworthy certificate. He also stated that he had disclosed to CommInsure that, an 

incident with his girlfriend, Ms Edwards, had resulted in charges against him for threatening to injure another person in the last ten years. I accept that the insurance certificate confirms that Mr Sawari provided this information to CommInsure. CommInsure did not actively seek to rely on charges related to Mr Sawari’s relationship with Ms Edwards, and I do consider this matter is not material to my findings for the purposes of this proceeding. Accordingly, Mr Sawari denied that he had withheld any other relevant information from CommInsure when he obtained the insurance policy. 
65	Based on the contents of the insurance certificate, I accept that Mr Sawari answered the question regarding whether he had ever been refused insurance or a claim, or had an insurance policy cancelled, in the five years prior to July 2016 correctly. However, I do not accept that Mr Sawari discharged his disclosure duty under the insurance policy. The insurance certificate clearly indicates that Mr Sawari told CommInsure that he had not been involved in any accidents, incidents, or loss  of licence/restrictions in the five years before obtaining the insurance policy in July 2016. This is incorrect. Mr Sawari had been involved in an accident on 7 June 2016 that resulted in loss, receiving a payout of $57,122.35 on 13 July 2016. Yet, on 25 July 2016, when applying for the insurance policy, Mr Sawari failed to mention to CommInsure that he had been involved in a motor vehicle collision on 7 June 2016, almost 7 weeks earlier, that had resulted in a significant insurance payout on 13 July 2016. Yet, this had occurred only twelve days earlier. 
66	To support his submissions that he was a truthful witness who had discharged his duty of disclosure, Mr Sawari referred the Tribunal to two statements in the AusAssess report dated 7 November 2016. The first statement being the fact that Mr Sawari’s VicRoads driving history indicated he had never had his licence suspended, cancelled, or disqualified. The second statement recorded that Mr Sawari recalled “the disclosure questions and answered all questions honestly”. 
67	However, and contrary to Mr Sawari’s submissions, I am not satisfied that these statements in the AusAssess report indicate that Mr Ferguson-McLellan, had found Mr Sawari to have provided full and honest disclosure to CommInsure. As noted previously, CommInsure did not take issue with the fact that Mr Sawari was a licenced driver on 26 September 2016 whose license had never been suspended or cancelled. Correspondingly, on a plain reading of the AusAssess report, the statement regarding the disclosure questions constituted a reference to what Mr Sawari had told Mr Ferguson-McLellan, 

not a finding by the latter that Mr Sawari had answered those questions honestly. In that context it is significant that Mr Sawari was unable to identify at the hearing where Mr Ferguson-McLellan had actually found that Mr Sawari had answered the disclosure questions honestly, rather than simply reported on what Mr Sawari had told Mr Ferguson-McLellan he could remember. Given this, I give little weight to Mr Sawari’s reliance on these statements in the AusAssess report as evidence of his claimed full disclosure to CommInsure in July 2016.    
68	As a result, I am satisfied that a reasonable person in Mr Sawari’s circumstances would have considered it relevant to inform CommInsure of his June 2016 accident and the insurance payout in July 2016 from Suncorp. In circumstances where Mr Sawari did not do so, I find that he did not discharge his duty of disclosure to CommInsure in July 2016. I do not accept Mr Sawari’s failure to provide this contemporaneous information in July 2016 was due to poor memory, as claimed.  Nor do I accept that the fact that Mr Sawari may not have previously had an insurance claim denied means that he is now telling the truth about the alleged incident on 26 September 2016.    
69	Accordingly, I am satisfied that Mr Sawari’s failure to disclose his prior accident on 7 June 2016, along with the subsequent insurance payout on 13 July 2016, cast serious doubts on his credibility as a witness. This is reinforced by the highly similar circumstances of the two claims filed on 7 June 2016 and 26 September 2016, which I do not accept as coincidental.    
(b)	Inconsistencies in relation to the purchase and repair of the 2013 Volvo:
70	It is not in issue that the 2013 Volvo was purchased from Manheim Fowles in April 2016 as a repairable write-off for about $8,000.00 and that it was later insured for an agreed value of $38,300.00. However, Mr Sawari stated that he clearly recalled that this amount was suggested by CommInsure. On the other hand, CommInsure argued that the agreed value was based on the information Mr Sawari had provided about this vehicle at the time he took out the insurance policy. 
71	CommInsure submitted that the reliability of the information Mr Sawari had provided in July 2016 about the purchase and repairs to his Volvo was suspect for several reasons. It observed that the relevant transcript for his interview on 2 November 2016 indicated that Mr Sawari could not recall when he had purchased the vehicle or its purchase price. In addition, Mr Sawari had stated that he did not have a purchase receipt for the vehicle, yet later produced an invoice from Manheim Fowles dated 8 April 2016 that confirmed the vehicle 

was sold as a repairable write-off for $8,155.96. Mr Sawari responded that he had looked for and found this receipt after his interview because he wished to cooperate with the insurance investigation of his claim. As CommInsure did not take any issue with the authenticity of this purchase receipt, I accept Mr Sawari’s explanation as plausible and place less weight on the late production of this document to AusAssess and CommInsure. 
72	Nevertheless, there are other discrepancies in the documentary evidence produced by Mr Sawari that undermine his credibility as a witness. Mr Sawari had no recollection on 2 November 2016 who had done the repairs to the vehicle that increased its value from $8,155.96 to $38,300.00. He also did not remember whether he had any receipts for this work. Again, Mr Sawari stated that after this interview he was able to provide AusAssess with several invoices regarding the repairs to the Volvo that had improved its market value. These included two invoices totalling $6,000.00 from Airbagsforsale Pty Ltd, and two invoices totalling $16,830.00 from AAR Smash Repairs, all dated June 2016. Importantly, Mr Sawari also advised during his oral evidence that he had paid these invoices.
73	Several aspects of these invoices cast doubt on whether they were genuinely issued, let alone paid. The invoices from both businesses are printed in the same font and on plain copier paper. In addition, even though the email address provided on each of the AAR Smash Repairs invoices correctly states the business email address, each document misspells its business name as “ARR Smash Repairs”. Importantly, each of the AAR Smash Repairs invoices states that it was “invoiced by” Mr Sawari, as manager. 
74	Mr Sawari initially denied that he had manufactured the invoices himself for the purposes of his insurance claim. However, and somewhat unexpectedly, Mr Sawari volunteered that he had, in fact, created the AAR Smash Repairs documents. He added that this was with the authority of its business owners,  Mr Wahid Noori and a Mr Ali, who he claimed had given him access to their computer database to generate the invoice numbers because they did not have good English. 
75	Significantly, and despite this admission, Mr Sawari was unable to recall whether he had generated these invoices before or after his interview on 2 November 2016, even though these documents were dated 5 June 2016. In addition, Mr Sawari could not remember if he had told Mr Ferguson-McLellan or CommInsure, that he had personally generated the invoices for AAR Smash Repairs at any time prior to the Tribunal hearing.  

76	Mr Sawari submitted that the Tribunal should not be concerned about these invoices. Given SM Motors Pty Ltd was involved in the purchase of repairable write-offs for resale, Airbagsforsale Pty Ltd and AAR Smash Repairs were integral to its business, Mr Sawari stated that he had long-standing commercial relationships with each of these businesses. Likewise, Mr Sawari stated that his recollection of the circumstances in which the invoices were generated had been affected by the passage of time since November 2016, and the fact that he had not read the relevant interview transcripts before the commencement of the hearing on 28 April 2021.
77	I am not satisfied that Mr Sawari’s submissions adequately explain the irregularities in the invoices. Nor do they account for his failure to advise anyone prior to the Tribunal hearing that he had personally created the AAR Smash Repairs invoices. In forming this view I note that Mr Sawari did not  provide any written statements of support or call his business associates as witnesses to give evidence that would corroborate his claims.  In doing so I have had regard to Mr Sawari’s status as a self-represented litigant. On the other hand, Mr Sawari also gave evidence that his sister had completed a law degree, which meant he had access to some legal assistance for the purposes of conducting this proceeding. In addition, Mr Sawari was legally represented when he complained to the Ombudsman, and likely received some advice about the prospects of any claim he might pursue against CommInsure. I therefore give weight to the probability that Mr Sawari did not call his business associates as witnesses because their evidence probably would not have assisted his case.
78	I accept that to some extent the passage of more than four years would affect Mr Sawari’s recollection of the details of his 2016 interviews at the Tribunal hearing. Nevertheless, I am not satisfied that this satisfactorily explains his inability to remember the purchase price of the vehicle, or who completed the relevant repairs in November 2016. Similarly, I am not satisfied that Mr Sawari’s failure to read the transcripts before the Tribunal hearing somehow accounts for his inability to answer these questions in 2016.   
79	On the other hand, I place greater weight on Mr Sawari’s admission that he personally created the AAR Smash Repairs invoices. I do not find Mr Sawari’s explanation that he did so due to the owners’ poor English language skills persuasive, given he did not provide any supporting statements from, or call them, as witnesses. 

80	As a result, I find that several factors lend support to the view that the AAR Smash Repairs invoices are sham documents prepared for the purpose of achieving a positive outcome in respect of Mr Sawari’s insurance claim. Mr Sawari’ interview responses on 2 November 2016 indicated that these documents did not exist at that time. The form and content, including the appearance, font, and spelling errors in the AAR Smash Repairs invoices, do not suggest that they were produced during the normal course of operations by the business owners. Although Mr Sawari claimed that he had been authorised by the business owners to create these invoices, he did not call them as witnesses or provide any evidence that would support this claim. Mr Sawari was also unable to remember when he created these documents. Importantly, whenever Mr Sawari found questions uncomfortable at the hearing, he became argumentative, evasive, or responded that he could not remember. Indeed, he did his best to avoid answering whether he had ever advised the investigator, AusAssess or CommInsure prior to the Tribunal hearing that he had prepared the AAR Smash Repairs invoices.  
81	Accordingly, on balance, I do not accept that Mr Sawari was authorised by AAR Smash Repairs to produce the invoices dated 5 June 2016. In addition, having regard to the whole of the evidence before me, I am not satisfied that these invoices were ever genuinely issued for repairs to Mr Sawari’s Volvo in 2016 or that he paid them, as claimed. I find that Mr Sawari manufactured these invoices for the purposes of enhancing a positive outcome in relation to his CommInsure claim. 
(c)	Discrepancies in Mr Sawari’s account of the alleged accident on 26 September 2016:       
82	There are several facets to Mr Sawari’s version of the events leading up to and on the evening of 26 September 2016 that further detract from the reliability of his version of events. 
(i) 	Mr Sawari’s movements prior to the purported collision: 
83	Mr Sawari’s account of the events leading up to the alleged collision are not particularly convincing. Specifically, Mr Sawari stated that he travelled from Dandenong to meet Ms Edwards, at the Hungarian Hall in Wantirna at about 6:30pm on 26 September 2016. He claimed that the couple then went to an Iranian restaurant in Ringwood. Mr Sawari advised that this was a 20-minute drive and that, after sharing a meal, he and Ms Edwards made their own way to their respective homes in Narre Warren separately. In response to questions that this seemed strange, Mr Sawari told the Tribunal that he was not sure why he had not taken Ms Edwards home that evening. Nor did he know how she had arrived home.

84	Mr Sawari also confirmed that he had told Mr Ferguson-McLellan that the alleged accident had occurred approximately 20 minutes after he left the restaurant. Mr Sawari accepted that CommInsure’s records indicated that he had lodged his insurance claim at 7:49pm. He also acknowledged that his telephone records indicated that he had not called Ms Edwards on 26 September 2016 to let her know when he would collect her, as might be expected between two individuals who had arranged to go out for a meal. Likewise, Mr Sawari did not deny that his telephone records show that he had not called Ms Edwards in the days leading up to this supposed pre-arranged meeting.  
85	So, if Mr Sawari’s account is accurate, it means that he and Ms Edwards only spent about 20 minutes at the restaurant in Ringwood, during which time they ordered and shared a meal, paid their bill, before going home separately. Although this scenario is not completely impossible, and even after considering cultural factors, it might be fair to expect that a couple who are not living together would spend more than 20 minutes over a planned evening meal at a restaurant. It is also somewhat odd that the couple did not take the opportunity to travel home together, given their respective homes were in the same suburb. Moreover, Mr Sawari attended the hearing by Zoom video conference from the home he now shares with Ms Edwards. Despite this, Mr Sawari did not call Ms Edwards to give evidence about these matters in support of his claims even though he could easily have done so.  
(ii)	The photographic evidence:
86	Mr Sawari provided photographs to support his account of the events on 26 September 2016. These included  photographs of the business premises for SM Motors Pty Ltd and relevant registration and licensing documents. It also consisted of photographs of the alleged accident scene, including an aerial shot of Stud Road by day and photographs taken the night of the alleged incident. The photographs also depicted the damage to his Volvo and the Mercedes, the drivers’ licences belonging to Mr Sawari and the Mercedes driver, as well as the notes Mr Sawari took at the scene.
87	On the other hand, as discussed below, Mr Sawari did not photograph the Ford driver’s vehicle or driver’s licence. There are also no photographs of all three motor vehicles at the purported accident scene.  I consider that the failure to take such photographs is unusual in circumstances where Mr Sawari was able to take other photographs that were favourable to his claim. Accordingly, I give weight to their absence in assessing the credibility of Mr Sawari’s account of this alleged incident. 

(iii)	The identity of the Ford driver:
88	Mr Sawari’s evidence regarding the identity of the Ford driver fluctuated significantly. At the hearing Mr Sawari was asked to explain why he had not used his mobile telephone to photograph the Ford driver’s licence and vehicle as he had done with the Mercedes and its driver.  Initially, Mr Sawari advised that he had not done so because the Ford driver was in a hurry. Mr Sawari stated that he wrote down the Ford driver’s relevant details on a piece of paper, after which the latter left fairly quickly.  Mr Sawari then changed his evidence and said that he had not photographed the Ford driver and his vehicle because the Ford driver had written down his details for Mr Sawari. A few minutes later, Mr Sawari accepted that the handwritten note he was referring to bore his handwriting and repeated his claim that he had written down the Ford driver’s details himself.  
89	Notably, I do not consider it plausible that the Ford driver, who was not at fault in the alleged collision, did not remain at the scene to obtain the details of the Mercedes and Volvo drivers to lodge his own insurance claim. Although it is possible that the Ford driver was in a hurry to leave the accident scene for his own reasons, thereby denying Mr Sawari the opportunity to photograph his details and motor vehicle, the extent to which Mr Sawari’s evidence on this issue changed during the hearing did not assist me to form a positive view of his claims and credibility as a witness. 
90	Moreover, at different points in time Mr Sawari gave widely different descriptions of the Ford driver. At the hearing Mr Sawari stated that he could not recall what the Ford driver looked like beyond stating that he believed he was a male between the ages of 20 – 35 years. In contrast, the handwritten note provided by Mr Sawari gave the Ford driver’s year of birth as 1947, meaning that the latter  would have been aged approximately 74 years at the time of this alleged accident. In response to the observation that there was an important physical difference of appearance between a man aged 20-35 years and one aged 74 years, Mr Sawari suggested, somewhat implausibly, that the Ford driver may have provided his father’s details. 
91	Further, during the hearing CommInsure played the full audio recording of the telephone call Mr Sawari made to lodge his insurance claim. When asked by the call centre operator if the driver of the Ford was a man or woman, Mr Sawari responded that it was a woman. An exchange was then heard between Mr Sawari and another unidentified individual in his native tongue, Dari, after which Mr Sawari advised the CommInsure operator that the Ford driver was a man. However, during cross-examination Mr Sawari stated that he was unable to recall who he had spoken to in Dari that evening. 
I place some weight upon the fact that Mr Sawari struggled to explain these contradictions in his evidence to the Tribunal.  Although Mr Sawari claimed to have been in shock and dizzy from the impact of the Mercedes colliding with his Volvo, in the absence of any medical evidence that he had suffered any injury at the time of this purported in-line collision, I do not accept that Mr Sawari’s inability to identify the gender of the Ford driver on 26 September 2016 was due to the alleged collision that evening. In particular, I do not consider it plausible that Mr Sawari was capable of taking photographs from the alleged accident scene that were favourable to his claim whilst also suffering a degree of shock and dizziness that prevented him from being able to correctly identify or recall the gender of the Ford driver.
(iv)	The telephone call to CommInsure:
92	Mr Sawari’s credibility is further undermined by the inconsistencies in the evidence regarding the telephone call he made to CommInsure on 26 September 2016. There was no dispute that this call was made at 7:49pm and ended at 8:19pm. Although Mr Sawari claimed to have used his mobile telephone to take photographs of the alleged accident scene and to call CommInsure from the scene,  there is no record of any such call to CommInsure on 26 September 2016 in his telephone records, even though they show a call to  the tow truck company at 8:21pm that evening. 
93	Mr Ferguson-McLellan raised this issue with Mr Sawari on 15 November 2016, who responded that he had used someone else’s mobile to call CommInsure on 26 September 2016. However, Mr Sawari could not say whose telephone he had used, or why he had not used his own mobile, for this purpose. These issues were also put to Mr Sawari at the hearing. Again, Mr Sawari was unable to provide an explanation beyond stating he was not sure why his call to CommInsure did not appear in his telephone records. Instead, Mr Sawari suggested that the Tribunal should find that he was an honest person because he had provided his telephone records to AusAssess and CommInsure.  
94	Importantly, other aspects of the audio recording for the insurance claim reinforce the view that Mr Sawari’s account of his call to CommInsure is not reliable. For example, despite stating that he had made this call from the scene of the alleged accident, no other motor vehicles can be heard in the background. Mr Sawari was also able to readily recite his insurance policy number to the operator over the telephone even though he did not have a copy of it in his Volvo. At first, Mr Sawari claimed that he had accessed these details from his email account on his mobile. However, this unravelled when Mr Sawari stated that he may have used the mobile telephone belonging to the Mercedes driver to do so. Mr Sawari was unable to respond initially to my 

observation that this seemed to be an overly complicated way of providing the required information to the CommInsure operator, given he could have identified himself and his policy by simply providing his personal details and the registration of his vehicle over the telephone. However, the following day, Mr Sawari submitted that he had memorised the policy number because he had provided it to CommInsure on several occasions during the period July 2016 to September 2016. I do not consider this explanation particularly plausible given that Mr Sawari specifically stated during the hearing that he had his mobile telephone with him and, when asked, could not recall whose mobile telephone he had used to lodge his claim. 
95	I also give weight to the fact that during the hearing Mr Sawari sought to deflect questions on this issue by emphasising that the CommInsure operator had waived the applicable claim excess. I note that the audio recording confirms that was the case. However, I do not share Mr Sawari’s opinion that CommInsure were consequently bound to accept his version of the alleged collision regardless of the findings of their investigation and expert witness. I am satisfied that the waiver of the insurance excess on 26 September 2016 was merely a preliminary finding based on what Mr Sawari had told the call centre operator at that time, namely, that he was not at fault. As such, I find that this preliminary finding was always subject to CommInsure being entitled to properly assess the damage to the Volvo and the circumstances surrounding Mr Sawari’s claim. 
96	Accordingly, on balance, I do not find Mr Sawari’s account or submissions particularly persuasive given the evidentiary inconsistencies before me.  As a result, I accept CommInsure’s submission that the only reasonable explanation for the absence of the call from Mr Sawari’s mobile telephone records was that he did not use this telephone to lodge his insurance claim. I am satisfied that this casts further doubt on Mr Sawari’s claim to have lodged his insurance claim from the purported accident scene.   
(v)	Mr Sawari’s contact with the Mercedes owner:
97	Despite his denials to the contrary, there is evidence that suggests that Mr Sawari did know the Mercedes driver. Mr Sawari confirmed that the mobile number for the Mercedes driver was the one he had written down at the alleged accident scene. Mr Sawari also stated that he had tried to call this driver on several occasions after the accident without success, alleging that the number rang out. However, the documentary evidence before the Tribunal indicates that the mobile number Mr Sawari wrote down was incorrect because it only had nine rather than ten digits. Consequently, it is unlikely that any calls to the 

nine-digit number would have connected, as claimed. More importantly, the Allianz Assessment Report for the Mercedes obtained by CommInsure sets out the name of its owner as a Mr Bahrami. This document also sets out Mr Bahrami’s business email address and the correct ten-digit mobile number the Mercedes driver gave to Mr Sawari at the scene. Under cross-examination Mr Sawari denied knowing Mr Bahrami or having had any prior contact with the latter’s business. 
98	However, Mr Sawari accepted that CommInsure had called him at 3:54pm on 13 October 2016 to inform him that his insurance claim was under investigation. Significantly, Mr Sawari’s telephone records indicate that at 3:58 pm that day he called the landline number for Mr Bahrami’s business. Although Mr Sawari accepted that he had called this landline number, he denied that he had ever met Mr Bahrami or the female driver of the Mercedes before or after 26 September 2016. 
99	In assessing this denial I give weight to the fact that Mr Sawari was unable to clarify how he had acquired the landline number for Mr Bahrami’s business, given the Mercedes driver did not provide this to him on 26 September 2016, if he had not known this person before 26 September 2016. Nor was Mr Sawari able to explain why  he would call Mr Bahrami’s business within four minutes of being told that CommInsure planned to investigate his insurance claim. Mr Sawari’s only response to this was to suggest that the owner of the Mercedes, Mr Bahrami, may have attended the accident scene sometime later that evening on 26 September 2016. Even if that were the case, I am not satisfied that this information adequately explains the reasons for, and timing of, Mr Sawari’s call to Mr Bahrami’s business on 13 October 2016.  Accordingly, I do not accept that Mr Sawari did not know Mr Bahrami, the owner of the Mercedes, or the actual Mercedes driver, as claimed. On balance, I consider the most likely explanation for Mr Sawari’s call to Mr Bahrami’s business on 13 October 2016 was to advise that CommInsure had decided to investigate his insurance claim further.
(vi)	Mr Sawari’s failure to call the Mercedes or Ford drivers as witnesses:
100	I give weight to Mr Sawari’s failure to call either the Mercedes or the Ford drivers as witnesses to the events of 26 September 2016. I have considered Mr Sawari’s status as a self-represented party, but as noted previously, his sibling was legally qualified, and he had previously engaged a lawyer to assist him with his complaint to the Ombudsman. As a result, Mr Sawari was better 

placed to obtain appropriate assistance, unlike many self-represented litigants, and in all probability did receive some legal advice about his claim before commencing this proceeding. Even if that were not the case, I observe that despite being self-represented, Mr Sawari was sufficiently aware of the potential implications of the CommInsure investigation to call the business of the owner of the Mercedes within minutes of receiving this advice. 
101	Accordingly, I accept CommInsure’s submission that it would be reasonable to expect that Mr Sawari might have sought the cooperation of the other drivers in circumstances where he believed his insurance claim had been unfairly refused. Given the number of discrepancies that have emerged in the evidence, Mr Sawari’s failure to call potentially helpful witnesses who might shed light on these issues does not assist me to form a positive view of his claims. 
(vii) 	Other discrepancies in Mr Sawari’s version of events:
102	Finally, amongst the many other conflicts that emerged in the evidence, Mr Sawari also gave varying accounts regarding the relevant braking distance, who organised the tow truck for his Volvo, and how he returned home after the accident. Specifically, Mr Sawari told Mr Ferguson-McLellan during his interview on 2 November 2016 that he was about a car length behind the Ford driver, five to six car lengths from the intersection when the lights turned orange. He also said that he slowed down when he saw the Ford slow down in front of him. However, after Mr Edgerton had finished his expert testimony, Mr Sawari stated that he had actually had to  brake “really hard” to avoid a collision with the Ford. 
103	Similarly, at first Mr Sawari alleged that CommInsure had organised the tow truck for him. He also relied on the associated towing receipt to substantiate this claim. Whilst this receipt was issued at 8:25pm on 26 September 2016, its contents fail to refer to CommInsure and it does not otherwise indicate that the insurer arranged the towing service in any way.  In any event, and putting the contents of the invoice aside,  I give weight to the audio recording which confirms that the call centre operator told Mr Sawari that CommInsure could not organise the tow service and gave him the number for this purpose. In addition, Mr Sawari’s telephone records establish that he called the tow truck service at 8:21pm from his mobile. 
104	Likewise, during this interview Mr Sawari told Mr Ferguson-McLellan that he had called Mr Wahid Noori from his mobile to collect him following the alleged accident. However, when it was pointed out to Mr Sawari at the hearing that his telephone records failed to show any call to Mr Noori on 26 September 2016, Mr Sawari responded that he could not recall who had taken him home that evening. 
105	Given these contradictions in the evidence, I do not accept Mr Sawari’s claim that CommInsure organised to tow his Volvo on 26 September 2016. Nor do I find Mr Sawari’s version of how hard he needed to brake before the alleged collision with the Ford, or who took him home that evening reliable.  
(d)	Mr Sawari’s submissions:
106	As discussed above, Mr Sawari submitted his cooperation with AusAssess and CommInsure indicated that he was an honest person. Mr Sawari added that the fact he had completed a banking and financial studies diploma, had a certificate of registration from ASIC for SM Motors Pty Ltd, and was a licenced motor car trader meant that he had been investigated by the relevant regulatory authorities and found to have the required financial means and to be a suitable person to be registered/licenced for these purposes. As a result, Mr Sawari claimed he had no financial motive for staging an insurance claim. 
107	I accept that ASIC, VicRoads, or Consumer Affairs Victoria did not find any reason in 2015 not to register Mr Sawari’s company, or to refuse him a licence as a motor dealer. However, these factual matters do little to corroborate Mr Sawari’s version of events on 26 September 2016 or to explain the various discrepancies identified in the evidence. Therefore,  I give them less weight in assessing Mr Sawari’s credibility. 
108	Mr Sawari also referred the Tribunal to the poor online ratings CommInsure had achieved as an insurer of both home and car insurance. He submitted that the Tribunal should give weight to these reviews as evidence of how unsatisfied other consumers were with CommInsure’s insurance products and claims processes. 
109	In considering this argument I note that the Federal Court held in Pasula v Minister for Immigration and Anor that even the decisions of other Tribunal members are not binding upon a Tribunal member. This is because, whilst consistency of outcomes is desirable, the Tribunal is bound to apply the law to the facts before it, even if this produces outcomes that might appear inconsistent with earlier Tribunal decisions.     
110	I consider that this principle is equally applicable in determining the weight to be given to online product reviews. As explained to Mr Sawari at the hearing, the facts and evidence surrounding each review that led to a poor CommInsure rating is not before me. As a result, it is not possible to assess the veracity of these reports and what they might say about CommInsure’s insurance products or its claims process. Accordingly, I give little weight to the online reviews and ratings Mr Sawari referred to during the hearing. 

111	Mr Sawari asserted that CommInsure’s position was not credible because he believed Pickles was its agent or subsidiary and that he had suffered a significant loss because their combined actions had heavily reduced the salvage fee payable for his Volvo to $6,000.00. To support this claim Mr Sawari pointed to an email exchange between CommInsure’s assessor and Pickles on 7 October 2016 where the  salvage price for the Volvo at auction was estimated as $16,000.00, yet he only received $6,900.00 from Pickles after his claim was refused by CommInsure.  Mr Sawari maintained that Pickles had rung him a few days later and told him that he had to remove the Volvo, or they would charge him storage fees. He explained that, given he could only have sold the vehicle to Pickles or Mannheim Fowles, he felt pressured to accept that sum to avoid these fees, thereby exacerbating his loss.
112	Apart from this email, Mr Sawari did not submit any other independent evidence to support his claim that Pickles was either a subsidiary or agent of CommInsure. In considering this claim I give weight to the CommInsure refusal letter dated 6 January 2017. This letter clearly stated that, given Mr Sawari’s claim had been refused, the vehicle was  his responsibility. It also stated that he could collect the Volvo from Pickles and that any delay in doing so might result in storage fees. As this letter was issued after CommInsure had completed its investigations in late December 2016, I do not accept that the email dated 7 October 2016 reflects any intention to cause Mr Sawari loss. Similarly, I am not satisfied that there was anything improper in Pickles informing Mr Sawari a few days after CommInsure had refused his claim that he could sell the vehicle to them for $6,900.00 to avoid storage fees. I further note that Mr Sawari eventually acknowledged at the hearing that the sale of the Volvo to Pickles was a separate transaction to his dealings with CommInsure. 
113	Finally, Mr Sawari insisted that the fact that CommInsure had extended its investigation to an examination of his criminal record and to members of his extended family meant that it was not acting in good faith. In terms of this submission, I accept that the investigation revealed material about aspects of Mr Sawari’s personal and family life, but this information is unimportant to the issues before the Tribunal. Indeed, CommInsure advised that it was not interested in such matters for the purposes of this proceeding and did not pursue them at the hearing. 
114	Interestingly, during the discussion of these investigations at the hearing Mr Sawari revealed that, prior to being registered as a licenced motor car trader in 2015, he was prosecuted by Consumer Affairs Victoria for selling motor vehicles through his panel beater business without such a licence. Mr Sawari advised that the Magistrate who heard his case had been impressed by his 

entrepreneurial attitude and had ordered him to complete community service. Although that may have been the outcome to the Consumer Affairs Victoria case, this information indicates that Mr Sawari has been somewhat careless with matters of regulatory compliance in the past. Again, that fact does not assist me to form a positive view of Mr Sawari’s credibility.            
Summation
115	For the above reasons, I find that Mr Sawari was not truthful when he lodged his claim over the telephone regarding the claimed collision between his vehicle and two others on Stud Road on 26 September 2016. 
116	Based on the evidence, I am satisfied that the findings in the Edgerton report are sound and should be preferred over Mr Sawari’s non-expert evidence and submissions. Specifically, I accept that it is unlikely that any collision between  the Volvo and the Mercedes occurred on 26 September 2016, or that the Ford was involved on this date, in the manner described by Mr Sawari. 
117	 In addition, there are numerous discrepancies in Mr Sawari’s evidence that are not readily reconciled and that undermine his reliability as a credible witness. Amongst those I have outlined, on any reasonable assessment the almost identical nature of Mr Sawari’s June 2016 insurance claim to the September 2016 claim stretches credible belief. This view is reinforced by Mr Sawari’s unsolicited admission that he created the AAR Smash Repairs invoices to support his insurance claim. There are also conflicts in the evidence relating to Mr Sawari’s timeline of the events leading up to and at the time of the alleged collision. Despite the many photographs submitted by Mr Sawari, there are no photographs depicting all three motor vehicles purportedly involved in the September 2016 incident.  
118	Importantly, Mr Sawari also failed to call relevant witnesses who might have been able to give evidence that resolved these evidentiary inconsistencies. In addition, Mr Sawari’s explanations lack credibility when examined against his propensity to rely on a lack of recall when faced with clear contradictions in the evidence. Further, not only did Mr Sawari prove to be an evasive witness, but at times his manner at the hearing was disrespectful to the other participants in this proceeding that went beyond a self-represented party’s unfamiliarity with Tribunal procedure. 
119	Consequently, while each of the evidentiary discrepancies I have previously outlined might not individually be determinative of Mr Sawari’s credibility as a witness, I am satisfied that on a cumulative basis they support the view that Mr Sawari’s account is not reliable and cannot be accepted. 
120	As a result, I do not accept that  Mr Sawari’s Volvo was damaged in the alleged collision on 26 September 2016 in the manner he has described. On balance, having regard to the evidence as a whole, I am satisfied that the alleged collision between Mr Sawari’s Volvo and the Mercedes and Ford was staged and that he has not established that this incident was an insurable event within the terms of his CommInsure policy. Accordingly, I find that the incident described by Mr Sawari was not an insurable event and came within the exclusionary terms of this policy and he was not entitled to be indemnified by CommInsure for the damage to his Volvo. Therefore, Mr Sawari’s fails on this basis.
Has there been a fraudulent insurance claim under section 56 of the Act?
121	I am mindful that that a finding of fraud under section 56 of the Act has serious ongoing implications for Mr Sawari and should not be made lightly. I also note that the risks of pursuing proceedings were outlined to both parties at the commencement of the hearing. They were also given a brief adjournment in the absence of the Tribunal to discuss possible settlement. Notwithstanding,  Mr Sawari chose to proceed with his application and the hearing. 
122	Accordingly, while the application fails because the evidence did not establish an insurable event within the terms of Mr Sawari’s CommInsure insurance policy, I am also satisfied it fails under section 56 of the Act for the following reasons. 
123	First, Mr Sawari failed to inform CommInsure when he took out his policy in July 2016 that he had been involved in a collision on 7 June 2016 resulting in an insurance settlement of $57,122.35 from Suncorp. As a result, Mr Sawari failed to meet his disclosure obligations under the policy.  For the reasons set out above, I do not accept that Mr Sawari’s failure to do so was related to issues with his memory in any way. Likewise, I do not accept Mr Sawari’s claim that he took out the CommInsure policy because his father had cover with them in circumstances where he previously held insurance with Suncorp.  After considering all of the evidence before me, and given the near identical claims made by Mr Sawari on 7 June 2016 and 26 September 2016, I am satisfied that his failure to advise CommInsure of his accident on 7 June 2016 and the related payout was because he dishonestly intended to induce a false belief in CommInsure for the purpose of obtaining payment under his policy. 
124	Secondly, Mr Sawari admitted during the hearing that he had created the AAR Smash Repairs invoices. He also acknowledged that he had not told CommInsure directly, or through its investigator from AusAssess, that this was the case before he disclosed this information for the first time at the Tribunal hearing. When this admission is combined with the numerous and wide-ranging discrepancies that emerged in Mr Sawari’s version of events, the result overwhelming points to him having made a fraudulent claim. I am satisfied on the evidence before me that Mr Sawari had a dishonest intent when he produced these documents to CommInsure. On balance, I find that Mr Sawari’s intent in producing these documents was to induce a false belief in CommInsure that would support his claim and further his objective of obtaining payment under the insurance policy.  

125	Accordingly, I find that CommInsure has discharged the onus it bears to prove its defence that Mr Sawari made a fraudulent claim.  As a result, I am satisfied that under section 56(1) of the Act CommInsure was also entitled to refuse payment of the insurance claim Mr Sawari made under his CommInsure contract of insurance because the claim was made fraudulently.
126	For the reasons outlined in this decision, I am satisfied that Mr Sawari’s fraud affected the whole of his claim, and not only a minimal or insignificant part of it. As a result, I do not consider that it would be appropriate to order that CommInsure’s liability under the insurance policy simply be reduced under sections 56(2) and (3) of the Act. 
CONCLUSION
127	Accordingly, having regard to the whole of the evidence and for the above reasons, I find that Mr Sawari has not established that the alleged collision on 26 September 2016 was an insurable event within the terms of his CommInsure policy. On the other hand, I am satisfied that the events as described constituted a staged accident and were excluded by the terms of Mr Sawari’s insurance policy. As a result, Mr Sawari was not entitled to receive indemnification from CommInsure for the damage to his vehicle. 
128	In addition, given the evidence presented by both parties, I am satisfied that CommInsure has proven its defence to the required standard that Mr Sawari made a fraudulent claim under section 56 of the Act. I therefore find that CommInsure is also not liable to pay Mr Sawari the agreed value of $38,300.00 under the insurance policy on this basis.
129	Therefore, the proceeding is dismissed.
130	Costs reserved. Any party may apply for legal costs by filing an application supported by submissions in writing by 16 July 2021, otherwise there will be no order for costs. 
131	The principal registrar is directed to:
(a)	send a copy of this order; and

(b)	a copy of the Tribunal’s order and reasons in Sawari v Commonwealth Insurance Limited (Civil Claims) [2021] VCAT 618  to the Director of Consumer Affairs Victoria to retain for its records and investigate whether a crime may have been committed by any person associated with SM Motors Pty Ltd LMCT 11517 and, if so, to take such action as it considers appropriate, including referring the circumstances to the Victoria Police.  

D. Buljan
Member

15 June 2021