Briginshaw v Briginshaw
High Court of Australia · 1938
Briginshaw v Briginshaw (1938) 60 CLR 336
The allegation is serious and the consequences severe. Does the civil standard of proof rise to meet it?
What happened?
A husband petitioned for dissolution of his marriage on the ground of his wife's adultery. Martin J dismissed the petition, ending: "I have done my best to decide, but the petitioner must satisfy me that his story is true. I think I should say that if this were a civil case I might well consider that the probabilities were in favour of the petitioner, but I am certainly not satisfied beyond reasonable doubt that the evidence called by the petitioner should be accepted."
The husband appealed, arguing those words showed the criminal standard applied to a civil proceeding.
What did the Court decide?
The appeal was dismissed with costs, four to one. Latham CJ would have ordered a new trial: Martin J "(in my opinion, wrongly) considered that he was bound to be satisfied of the fact of adultery beyond reasonable doubt" and so "did not actually consider the evidence according to the relevant and proper standard of proof".
The other four did not reason alike. McTiernan J read Martin J as indicating only "that it was not a case in which the mere preponderance of evidence would suffice". Starke J went further, treating the formulations as close to interchangeable on a charge of this kind: proof that brings "no strength of conviction to the mind of the tribunal or, what is much the same thing, does not satisfy the tribunal beyond reasonable doubt ... especially in the case of serious allegations such as adultery or fraud or crime" leaves the allegation unproved.
Proposition
What is the principle?
The civil standard of proof remains the balance of probabilities throughout, but the quality and strength of evidence needed to reach that state of satisfaction may properly vary with how serious the allegation is and how grave its consequences would be.
Dixon J, at 361–363: "at common law no third standard of persuasion was definitely developed ... 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." And directly: this "does not mean that some standard of persuasion is fixed intermediate between" the two. "It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained."
Why does this case matter?
Because of where it has ended up. Dixon J was construing ss 80 and 86 of the Marriage Act 1928 (Vic) in a 1938 divorce suit. That jurisdiction is gone; the paragraph outlived it, and is now run wherever a court decides a grave allegation on the civil standard — disciplinary proceedings, fraud claims, serious misconduct in commercial litigation. In uniform Evidence Act jurisdictions the same ground is legislated, in s 140.
Its reach into administrative decision-making does not follow automatically. In Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 the appellant argued the Administrative Appeals Tribunal was bound to apply Briginshaw when making grave findings of fact. The Full Court dismissed the appeal. Logan J, in his own reasons, said that what was decided in Briginshaw "is applicable only by analogy for the reminder it offers about what may be necessary in particular kinds of case to induce reasonable satisfaction in the mind of a decision-maker", and that a decision-maker need not mention the case so long as the reasons show an awareness "that conclusions carrying grave consequences ought not lightly to be made". Flick and Perry JJ, in separate reasons, rejected the submission outright: a tribunal freed from the rules of evidence by s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) is doing the task its statute gives it.
And notice how the case is usually invoked. Counsel submit that "the Briginshaw standard" applies, or that it "raises the bar". Neither phrase is in the reasons — and the party arguing the trial judge had set the bar too high is the party who lost.
Exam and application relevance
Never write that the standard is "raised" or that a "Briginshaw standard" applies. Say the standard is the balance of probabilities, then explain why an allegation of this gravity needs cogent evidence before the tribunal could reasonably be satisfied. In a uniform Evidence Act jurisdiction work from s 140: sub-s (1) states the standard, and sub-s (2) requires the court to take into account "the nature of the cause of action or defence", "the nature of the subject-matter of the proceeding" and "the gravity of the matters alleged".
Then argue about this evidence. Dixon J was not saying inference is second-rate — he expected circumstantial proof to do real work — only that satisfaction should not be produced by proofs that are inexact, testimony that is indefinite or inferences that are indirect. So identify the actual weakness in what the other side relies on and say what it does to reasonable satisfaction on a charge of this gravity. "The allegation is serious" is not an argument on its own.
Check your understanding
What is the difference between raising the standard and requiring stronger evidence to meet it?