Did you know that the Briginshaw-test requires a higher standard of evidence in civil matters where serious allegations are made, such as fraud. This principle was established in the divorce case of Briginshaw v Briginshaw [1938] HCA 34.
Mr. Briginshaw filed a petition for divorce on the basis that his wife, Mrs. Briginshaw, had committed adultery. This was in the days when a party required a specific reason to apply for a divorce. This was denied and disputed by Mrs. Briginshaw and, given the serious nature of the allegation and its severe consequences at the time, the High Court of Australia found that the standard of proof needed to be more substantial. Justice Dixon articulated that the more serious the allegations, the higher the degree of certainty was required to make a finding of that allegation, stating:
“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.”
The decision did not set a new standard of proof, such as beyond reasonable doubt in criminal matters, but rather provided guidance on how such a standard ought to be reached in civil matters where there are serious allegations.
It essentially means that the more serious an allegation, the more substantial the evidence that will be required to prove the allegation. The Briginshaw-test does not require proof beyond reasonable doubt, but does require a level of evidence that is equivalent to the gravity of the allegation being made. It may be simple enough to say or believe someone had committed a fraud, but actually proving the fraud is more challenging as it requires this elevated standard.
The decision in Briginshaw v Briginshaw emphasises that in cases involving serious accusations, such as fraud or professional misconduct, the evidence presented must be clear, compelling, and convincing enough to meet the Briginshaw-test.
About me (Sheldon Venter) – I am a lawyer within the Brisbane Insurance team. I’ve been working within the insurance space for over 9 years but outside of work I’m an avid motorcycle rider and MotoGP enthusiast.
