Qantas Airways Limited v Gama [2008] FCAFC 69 discusses the interrelationship of the uniform evidence legislation and the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336. The relevant bit is in the separate decision of Justice Branson, with whom Justices French (now of the High Court) and Jacobsen agreed at [110]. Briginshaw informs the interpretation of s. 140. There is detailed explanation of how the three factors which must be taken into consideration in applying s. 140 work in practice. The case considered allegations that Qantas engaged in racial discrimination against one of its workers. A useful point clearly made by the decision is that Briginshaw is relevant to allegations, not to causes of action. So it is only the inherently unlikely and/or very serious allegation which attracts more careful scrutiny. Other factual allegations which must be proved to establish the cause of action attract only routine scrutiny.Soon enough, we Victorians will be regulated by the uniform evidence law — The Evidence Act, 2008 (Vic.) in our case — in the state courts (such as the Court of Appeal, the Supreme Court, the County Court, and the Magistrates’ Court), as well as in the federal courts (such as the Family Court, the Federal Court, and the Federal Magistrates’ Courts). The laws of evidence do not apply in VCAT, but it has a duty to act fairly. That made a lot of sense given some of the nuts rules of evidence to be found in the Evidence Act, 1958 (Vic.), which are probably properly regarded in the modern age as unfair for being overly technical and removed from the modern day experience. But now the parliament has turned its mind to what is a fair and modern rule of evidence, and has decided to go with what the Australian Law Reform Commission thought was fair and reasonable at the time of the monumental law reform project which spawned the uniform law, as modified by recent reviews by the same Commission. It will be interesting to see whether VCAT will see any distinction between fair procedures and those which the parliament has decided are fair procedures in courts. And with that thought in mind, I bring you the latest explanation of what Briginshaw means, especially when the uniform law applies, s. 140 of which says:
‘(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.’
Justice Branson said:
‘The Alleged Briginshaw Test
123 The learned Federal Magistrate included in his reasons for judgment what his Honour described as a “discussion about the Briginshaw standard”. Mr Gama contended by his cross-appeal that his Honour erred in using “the Briginshaw test” when applying the civil standard of proof. For the reasons set out below it seems to me that each of the expressions “the Briginshaw standard” and “the Briginshaw test” should be avoided because of its tendency to mislead.
124 It is appropriate to start by referring to the well known statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362:
Fortunately … at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
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.
125 I note, incidentally, that in the above passage Dixon J speaks of ‘allegations’ rather than, for example, causes of action. His Honour was concerned, as it seems to me, with the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding.
126 More importantly for present purposes, Dixon J did not purport to identify any particular standard; rather his Honour made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not developed a third standard of persuasion; it acknowledges only the two standards – the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction.
127 Briginshaw v Briginshaw, of course, long pre-dated the enactment of the Evidence Act 1995 (Cth) (“the Evidence Act“) which now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s 140 as follows:
(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.
128 In Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 at [65], in a section of my reasons for judgment with which Kenny J expressed her agreement (see [108]), I expressed the view that s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. I referred to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 (“Neat Holdings“) at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
‘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 …’.
(footnotes and citations omitted)
129 I went on at [66]-[67] to question the accuracy of certain judicial observations to the effect that in cases of a particular kind a “standard of proof above mere satisfaction on the balance of probabilities is appropriate” and suggested that in every case it was necessary to consider not only the nature of the case but also the nature of the particular fact in issue, of which proof is required, including its inherent gravity and unlikelihood.
130 It does not seem to me that the Full Court decision in Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 is to be understood as adopting a different view from that which I expressed (with the agreement of Kenny J) in Employment Advocate v Williamson. As the Court noted in Sharma v Legal Aid (Qld) at [40], it was common ground at first instance in that matter “that the standard of proof for breaches of the RDA [Racial Discrimination Act 1975 (Cth)] is the higher standard referred to in Briginshaw v Briginshaw” and no contrary argument was put on the hearing of the appeal.
131 Nor do I understand the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [29]– [38] to have adopted a different view. Their Honours noted at [31] that Dixon J’s classic statement in Briginshaw v Briginshaw appositely expresses the considerations that s 140(2) of the Evidence Act now requires a court to take into account. They went on at [33] to draw attention to the judgment of the High Court in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517. I note that in that case at 521 the High Court made it plain that “the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused” (emphasis added).
132 The conclusions relevant to the proceeding the subject of this appeal that can be drawn from the above analysis of the authorities can be simply expressed as follows. The Federal Magistrates Court was required to find Mr Gama’s case proved if it was satisfied that his case had been proved on the balance of probabilities (s140(1) of the Evidence Act). Mr Gama’s case in the relevant sense was comprised of the facts in issue on which he bore the onus of proof. In deciding whether it was satisfied of the facts in issue on which Mr Gama bore the onus of proof the Federal Magistrates Court was bound to apply s 140 of the Evidence Act. His Honour was therefore free to take into account any relevant matter but he was required to take into account the three matters specifically mentioned in s 140(2) of the Evidence Act.
133 I therefore turn to consider the three matters specifically mentioned in s 140(2) of the Evidence Act. The first of the three matters was, relevantly, the nature of the cause of action. As the gravity of the matters alleged constitutes the third of the matters specifically mentioned in s 140(2), it may be assumed that this is not the primary concern of the reference to the nature of the cause of action. Mr Gama’s cause of action was founded on s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) (“the HREOC Act”). It is not possible to identify exhaustively the factors to which the Federal Magistrate was entitled to have regard in taking into account any of the matters to which s 140 refers. However, in my view, his Honour was entitled to have regard to the fact that s 46PO only operates where a complaint has been terminated by the President of the Human Rights and Equal Opportunity Commission (“the President”). The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President reflects a recognition, as it seems to me, that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.
134 The second of the three matters specifically identified in s 140(2) of the Evidence Act is the nature of the subject matter of the proceeding. The nature of the subject matter of the proceeding before the Federal Magistrates Court was a complaint that Qantas had done acts rendered unlawful by s 9(1) of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act“). Among the factors that it would have been appropriate for his Honour to take into account in this regard was the fact that the Racial Discrimination Act was, as its preamble discloses, enacted to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination (“the Convention”). As Weinberg J observed in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 (“the Macedonian Teachers’ case”) at p 29, “anti-discrimination legislation should be regarded as beneficial and remedial legislation”.
135 Additionally, s 9(1) of the Racial Discrimination Act is concerned with acts involving a “distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin”. That is, it is not concerned to proscribe only conduct motivated by an intention or purpose to discriminate. Moreover, s 9(1) reaches to conduct “based on” the factors identified by the subsection and not merely to conduct undertaken “by reason of” those factors (Macedonian Teachers’ case partic. at p 40). Each of these factors tends to diminish the opprobrium likely otherwise to attach to a finding that an act was unlawful by reason of s 9(1) of the Racial Discrimination Act. Together they tend to diminish the gravity of such a finding.
136 Sections 18 and 18A of the Racial Discrimination Act, where relevant, may also tend to diminish the gravity of a finding that an act was unlawful by reason of s 9(1) of the Racial Discrimination Act. Section 18 provides, in effect, that where an act is done for two or more reasons and one of the reasons is proscribed by the Act, then, even though that reason is not the dominant reason or even a substantial reason for doing the act, the act is to be taken to have been done for that reason. Section 18A of the Act imposes vicarious liability on a person whose employee or agent does an unlawful act in connection with his or her duties as an employee or agent unless it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
137 The final matter specifically identified in s 140(2) of the Evidence Act is, as mentioned above, the gravity of the matter alleged. Without wishing to diminish the significance of the factual allegations made by Mr Gama, which themselves varied in gravity, more serious allegations of racial discrimination can be brought to mind.
138 As identified above, in addition to taking into account the three matters specifically identified in s 140(2), it was open to his Honour to have regard to other relevant matters. Other relevant matters could include the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged (see the passage from Briginshaw v Briginshaw set out in [4] above) and the long standing common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict (Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 per Branson J at [76]).
139 As I have already indicated, I agree with the conclusion of French and Jacobson JJ that the Federal Magistrate’s reasons for judgment do not disclose any error in the application of the applicable standard of proof to Mr Gama’s allegations. However, in my view, for the reasons given above, references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.’
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