Briginshaw v Briginshaw

Briginshaw v Briginshaw,[1] is a decision of the High Court of Australia concerning the standard of proof and quality of evidence in civil cases.

Briginshaw v Briginshaw
CourtHigh Court of Australia
Decided30 June 1938
Citation(s)[1938] HCA 34, 60 CLR 336
Court membership
Judge(s) sittingLatham CJ, Rich, Starke, Dixon and McTiernan JJ

The case is notable for having originated the 'Briginshaw principle', a legal doctrine deriving from Justice Dixon's obiter remarks within the case.[2]

In its present conception, the Briginshaw principle is understood to mean that 'the strength of evidence necessary to establish facts on the balance of probabilities, may depend on the nature of what is sought to be proven.' In particular the principle requires that clear, cogent or strict proof be necessary to support a judicial finding of serious allegations such as fraud.[3]

The case also served to confirm that the balance of probabilities is the applicable standard of proof in civil proceedings, subject to statute. Prior to Briginshaw, due to the state of the law in England at the time; Australian law regarding the onus of proof in divorce cases 'was a little confused'.[4]

Briginshaw is the eighth most cited decision of the High Court.[5][6]

Facts

At dispute was a petition for divorce by a Mr Frederick Briginshaw against his wife Clarice Briginshaw.[7] The petition relied upon an allegation that Mrs Briginshaw was adulterous. This petition was dismissed by Martin J of the Supreme Court of Victoria, who had found insufficient evidence to support an adultery allegation. The judge had evaluated the evidence presented at trial at the beyond reasonable doubt standard.[8]

The High Court appeal was pleaded on the grounds that: (1) The judge had wrongly decided he needed to be satisfied at the beyond reasonable doubt standard, before making a finding that adultery had occurred; (2) The judge's reasons showed he would have made that finding if the balance of probabilities standard had been applied; (3) He should have been so satisfied, or (4) a new hearing should take place. All submissions relied upon the plaintiff's contention that the balance of probabilities should have been the standard to apply.[8]

Judgement

On the facts

The court found that divorce matters were within the court's civil jurisdiction, with onus of proof determined by statutory interpretation.[4]

The applicable statute was the Marriage Act 1928 (VIC), which relevantly stated:[9]

"... upon any petition for dissolution of marriage it shall be the duty of the Court to satisfy itself so far as it reasonably can as to the facts"

and

"... if the Court is satisfied ... it shall pronounce a decree ..."

The court held that in a civil jurisdiction the word 'satisfied' did not mean proof 'beyond reasonable doubt', but something lower.[4] However, by majority the court held that the primary judge's reasons didn't indicate he would've found in favor of the plaintiff, even if he'd evaluated the evidence at that lower standard.[7] Therefore, the appeal was dismissed.

The Briginshaw principle

In a passage often cited by subsequent courts, Justice Dixon stated what has since become known as the 'Briginshaw principle' by writing:

'Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency' - Dixon J [10]

Justice Rich said of the standard of proof;

'In a serious matter like a charge of adultery, the satisfaction of a just and prudent mind could not be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion'.[7][11]

Significance

The Briginshaw principle has since been enacted in Australia's uniform evidence law. For example, s140(2)(c) of the Evidence Act 1995 (NSW) sets out that 'gravity of the matters alleged' as a relevant consideration for proving a case on the balance of probabilities; a subsumption of the Briginshaw principle.[2]

The principle has been applied in civil cases relating to anti-discrimination and sexual harassment, due to the relative seriousness of those types of civil allegations. It has been argued by the academic Loretta De Plevitz that Tribunals have misunderstood the Briginshaw principle as establishing an additional standard of proof, rather than as articulating a nuance subsumed within the balance of probabilities standard.[12] In the judicial context, similar remarks have been made by Justice Heerey in 2008.[13]

The High Court restated the principle sixty years later in an attempt at clarification. They wrote:[12]

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [3]

In a 2019 decision,[14] the New South Wales Supreme Court held that application of the Briginshaw principle should be confined to cases involving serious allegations analogous to fraud or dishonesty. However in assessing the evidence, the matters in s 140(2) of the Evidence Act 1995 (NSW) remained applicable.[2]

See also

References
  1. Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336.
  2. "Still unsure about Briginshaw?". McCabe Curwood. 12 November 2019. Retrieved 19 September 2020.
  3. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, 110 CLR 445 at p 449-50, High Court.
  4. Wyatt, Judith, "Briginshaw v Briginshaw" (1954) 6 Res Judicate 541 – via Austlii.
  5. Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=&section=&large-search-ok=1&sort-order=cited
  6. Note: data is as of September 2020
  7. "Appeal fails: standard of proof in divorce". The Age. 1 July 1938. p. 13. Retrieved 19 September 2020 – via Trove.
  8. Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 at p 341 per Latham CJ.
  9. Marriage Act 1928 (VIC) s80 & 86
  10. Briginshaw v Briginshaw8 [193] HCA 34, 60 CLR 336 at p 362 Dixon J.
  11. Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 at p 350 Rich J.
  12. de Plevitz, Loretta, Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger' (2003) 27(2) Melbourne University Law Review 308 – via Austlii.
  13. Granada Tavern v Smith [2008] FCA 646 at [93], Federal Court.
  14. The Estate of Shirley Gardner, Bernengo v Leaney [2019] NSWSC 1324 at [203] per Bell P, Supreme Court (NSW).
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