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Briginshaw v Briginshaw (1938) 60 CLR 336

Updated: Jul 20, 2021

Evidence, Standard of Proof, Civil Proceedings

Facts; Frederick Briginshaw sought to divorce his wife-Clarice Briginshaw – on the grounds of adultery. He alleged that she had committed adultery while she was living in a boarding house in Tasmania having moved out from the marital home in Victoria two years earlier. The evidence supporting that allegation was circumstantial, consisting of admissions said to have been witnessed by an inquiry agent who had been sent to Tasmania in an attempt to secure a confession. The trial judge was not satisfied that adultery had occurred, stating I do not know what to believe. I have been very troubled… 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’m certainly not satisfied beyond reasonable doubt.

Law; The Briginshaw standard is not a third standard of proof. It is a requirement that in applying the civil standard of proof, tribunal must be actually persuaded of the facts tilting the balance: the law goes on to say that the judge is at liberty to be satisfied upon a balance of probabilities. It does not say that he is to balance probabilities and say which way they incline. If in the end he has no opinion as to what happened, well it is unfortunate but he is not satisfied and his speculative reactions to the imaginary behaviour of the metaphorical scales will not enable him to find the issue mechanically (Murray v Murray 1960 33ALJR 521 at 524).

Holding; the High Court dismissed the appeal by a 4 to 1 majority, its charge considering that on any standard of proof higher than the civil standard, the trial judge was right to find against the petitioner. Dixon J elaborated upon the standard of proof that ought to have been applied (before finding that, even on that standard, the trial judges’ decision remained correct).

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