VCAT’s President, Justice Garde, lays out the law of the rule in Briginshaw v Briginshaw

As I mention in this post, Justice Garde, VCAT’s new President, set out the law relating to the application in cases involving allegations of serious wrongdoing of the civil standard of proof helpfully and authoritatively in GLS v PLP [2012] VCAT 221:

‘The standard of proof

  1. This case concerns serious allegations levelled against Mr PLP, the principal of a suburban law firm, and a practising solicitor. Proof of the issues in this proceeding is at the civil standard – the balance of probabilities. Mr Selimi of counsel for Mr PLP submitted that the matter is a grave matter and has the potential to cause serious consequences to Mr PLP’s professional and personal reputation. He also contends, and counsel for Ms GLS accepts, that I should apply the principles outlined by Dixon J (as he then was) in Briginshaw v Briginshaw.[15]
  2. The key passage of Briginshaw is often quoted:[16]

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.

  1. Briginshaw has been considered by the Victorian Court of Appeal in Clark v Stingel,[17] and more recently in NOM v DPP.[18]
  2. In Clark v Stingel, the Court of Appeal referred to the High Court case of Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[19] and said that:[20]

The majority in that case confirmed that the ordinary standard of proof required of a claimant in civil litigation is proof on the balance of probabilities even where the matter to be plead involves criminal conduct or fraud. Their Honours pointed out that statements in cases ‘that clear or cogent or strict proof is necessary’ before such serious conduct is to be found, relate to the strength of the evidence that is necessary to establish such a fact on the balance of probabilities. The strength of the evidence necessary to establish that matter may vary, their Honours said, according to the nature of what is sought to be proved. But that does not bear upon what is the standard of proof – that remains the balance of probabilities.

  1. While the standard of proof in a civil case remains the balance of probabilities, the matters to be considered by the tribunal of fact may be of such seriousness that clear and cogent evidence may be required before there is reasonable satisfaction that the allegations have been made out on the balance of probabilities.
  2. Section 140 of the Evidence Act 2008 (Vic) provides:

140 Civil proceedings—standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

  1. Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides:

98 General procedure

(1) The Tribunal—

(a) …

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) …

(d) …

(2) …

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

  1. Section 98(1)(b) permits the Tribunal to adopt the rules of evidence. In my opinion, it is appropriate in this proceeding to take into account the matters listed in s 140(2)(a)-(c) in deciding whether I am satisfied that the allegations made in this case are satisfied on the balance of probabilities. This is a claim of sexual harassment with serious consequences for Mr PLP, and the allegations made are serious allegations of repeated sexual harassment of a female graduate law student working in his office.
  2. The Court of Appeal considered the Briginshaw principle in the context of s 140 in NOM v DPP and held that:[21]

In allied submissions under cover of ground 5, the appellant argued the judge below erred by holding that the Court should make its decision applying the civil standard of proof subject to the gloss in Briginshaw v Briginshaw, more recently articulated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. The Secretary agreed that the judge had erred but placed a slightly different complexion on these issues; whereas the Attorney-General contended his Honour was entitled to approach the proceedings on the basis that the civil standard, subject to Briginshaw, applied.

We accept the Attorney-General’s contention that the principle in Briginshaw is applicable. For the reasons that follow, whether evidentiary questions are governed by the common law or s 140 of the Evidence Act 2008, the process of reasoning by which reasonable satisfaction is attained must necessarily be affected by the gravity of the consequences flowing from findings in this jurisdiction.

  1. I accept that the Briginshaw principle is applicable. Whether evidentiary questions are considered under the common law or under s 140, the process of reasoning must necessarily be affected by the nature of the complaint, the nature of the subject matter, the gravity of the matters alleged and the consequences flowing from a finding of sexual harassment.
  2. As this is a case in which the matters alleged by the complainant represent serious misconduct by Mr PLP, strong evidence is required – clear and cogent – assessed with care and caution, before I can find that it is more probable than not that Mr PLP sexually harassed Ms GLS in the manner alleged.
  3. This analysis requires also the drawing of inferences in this case. I take the view that, in assessing contradictory accounts of the incidents, I should not draw an inference adverse to Mr PLP or make a finding of fact adverse to his case unless, after having examined the evidence with care and caution, I am satisfied that the incidents took place in the manner alleged by Ms GLS and that the inferences sought to be established from the evidence by Ms GLS can be drawn.’

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