{"id":3901,"date":"2013-10-29T14:16:49","date_gmt":"2013-10-29T04:16:49","guid":{"rendered":"https:\/\/www.wiseworkplacetraining.com.au\/2021\/09\/11\/how-does-briginshaw-vs-briginshaw-affect-the-balance-of-probabilities\/"},"modified":"2021-09-11T14:17:00","modified_gmt":"2021-09-11T04:17:00","slug":"how-does-briginshaw-vs-briginshaw-affect-the-balance-of-probabilities","status":"publish","type":"post","link":"https:\/\/www.wiseworkplacetraining.com.au\/2013\/10\/29\/how-does-briginshaw-vs-briginshaw-affect-the-balance-of-probabilities\/","title":{"rendered":"How does Briginshaw vs Briginshaw affect the balance of probabilities?"},"content":{"rendered":"
Jill McMahon – Tuesday, October 29, 2013<\/div>\n
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\u00a0\"\"<\/p>\n

Last week, I looked at how the 1938 divorce case of Briginshaw vs. Briginshaw<\/em> has significant impact on workplace investigations today. This week, I look at the importance of the balance of probabilities and applying Briginshaw in practice. <\/strong><\/p>\n

The balance of probabilities<\/strong><\/p>\n

Usually the role of an investigator is to determine whether alleged events occurred.\u00a0 To do this, the investigator needs to determine whether there is a sufficient amount of evidence to prove allegations. The amount of evidence required is known as the \u201cstandard of proof\u201d.<\/p>\n

The standard of proof differs between civil and criminal matters. Case law has established that in civil matters, the standard is the \u201cbalance of probabilities<\/em>\u201d. This is a lesser standard than the proof required for criminal matters. (Criminal allegations must be proven \u201cbeyond reasonable doub<\/em>t\u201d).<\/p>\n

But in Briginshaw v Briginshaw<\/em> (1938) 60 CLR 336, the High Court cautioned against a purely mechanical comparison of mathematical probabilities and stated at pages 361\u20132 that the balance of probabilities test requires the tribunal to:<\/p>\n

“feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality \u2026 [A]t common law \u2026 it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal<\/em>.”<\/p>\n

Applying Briginshaw in practice<\/strong><\/p>\n

Subsequent cases have applied the Briginshaw principle when, depending on the nature of the allegation, the strength of the evidence required to meet the standard of proof in civil cases may change. However, the civil standard of proof is always the balance of probabilities (see the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd\u00a0 (1992) 67 ALJR 170 at 170 \u2013 171).<\/p>\n

De Plevitz (2003) categorises the types of cases where the Briginshaw principle has been applied as follows:
\n1.\u00a0\u00a0 <\/strong>\u00a0where there are allegations of serious misconduct including:<\/p>\n