The civil standard of proof is ‘on the balance of probabilities’. This standard of proof is codified in the Commonwealth Evidence Act 1995 and in the Evidence Acts of some of the states and territories. This page outlines what the civil standard of proof entails.
Evidence Act 1995
Section 140 of the Evidence Act 1995 states that in a civil proceeding, a case must be proven on the balance of probabilities. The court may take into account, when deciding if it is satisfied, the following:
- The nature of the cause of action or defence
- The nature of the subject matter of the proceedings
- The gravity of the matters alleged
Different standards of proof
A standard of proof is the degree of certainty that is needed to establish a fact. Courts and tribunals apply standards of proof to assess whether a matter has been proven.
The Australian legal system has different standards of proof that apply to different types of legal matters. In civil matters, facts must be proven on the balance of probabilities. This means that the court must be satisfied that it is more likely than not that a fact existed. This is a lower standard of proof than the standard that applies in criminal matters, where facts must be proven beyond a reasonable doubt.
How is the standard of proof applied?
Each party bears the burden of proving that, on the balance of probabilities, its version of events is true. The evidence adduced by each party must establish every element of its claim.
To find in favour of a party, the court must be satisfied that that party’s version of events is more likely to be true than the other party’s version of events.
Who decides if it has been met?
The court ultimately decides whether a fact has been proven on the balance of probabilities or not. In a Magistrates Court matter, this will be decided by the magistrate. In a District Court, Country Court, or Supreme Court matter, it will usually be decided by the jury. In some cases, it may be decided by a judge if a trial is being held in front of a judge alone.
What if the court gets it wrong?
In some cases, a court or tribunal may find in favour of one party, and the other party may believe that the evidence did not establish that party’s case on the balance of probabilities.
In this situation, the losing party may initiate an appeal.
There are strict time limits for commencing an appeal so a party considering appealing should seek legal advice immediately.
The Brigginshaw principles
The 1930 High Court of Australia decision of Briginshaw v Briginshaw elaborated on what is required when assessing whether a matter has been proven ‘on the balance of probabilities’ in a case where serious allegations have been made and serious consequences are likely to follow.
The case concerned a man who sought to divorce his wife on the ground of adultery. Mr Briginshaw adduced evidence that his wife had kissed another man as well as hearsay evidence that she had had sexual relations with the other man.
The court would not grant the divorce on this evidence as it could not be satisfied beyond a reasonable doubt that adultery had been committed. Mr Briginshaw appealed, arguing that the criminal standard of proof should not have been applied as adultery was not a criminal offence.
The High Court agreed that the criminal standard of proof should not have been applied. However, it found that as a finding of adultery would have grave consequences for the wife, the evidence would need to be clear and compelling.
The court found that where serious allegations are made, inherently unlikely occurrences are described or serious consequences would flow from a finding, a decision-maker should not be satisfied by ‘inexact proofs, indefinite testimony or indirect inferences’ (Dixon J).
In other words, when a civil court is determining serious allegations with grave consequences, it should proceed cautiously and require the evidence to be of high probative value.
However, notwithstanding the Briginshaw test, the civil standard of proof is always on the balance of probabilities. The formulation of the civil standard in the Evidence Act 1995 essentially codifies the Briginshaw test by including ‘the gravity of the matters alleged’ as one of the matters a court may take into account.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
