Quis Custodiet Ipsos Custodes has a useful post today about two matters of interest to this blog: how the rules of evidence apply in tribunals which are not bound by them, and the reminder in Briginshaw v Briginshaw (1938) 60 CLR 336 that the more serious the allegations, the more positively persuaded of them a decision maker should be before finding them made out. (You will note I did not refer to the ‘Briginshaw standard of proof; Justice Dixon’s whole point is that there is no Briginshaw standard of proof.) Too much ink has been split interpreting Briginshaw given how clearly Justice Dixon expressed himself, but it is always useful to have fresh perspectives. The authors consider the issues in the context of intervention order applications, a civil phenomenon in which the criminal law is mixed up by virtue of the police’s penchant for alleging the commission of crimes as grounds for obtaining an intervention order.
- VCAT’s President, Justice Garde, lays out the law of the rule in Briginshaw v Briginshaw
- Briginshaw and the uniform evidence law
- Whether Briginshaw applies depends on the nature of the allegations, not the nature of the proceedings
- Onus of proof in costs disputes between lawyers and clients
- Disciplinary tribunal can’t find misconduct by commission of crime
2 Replies to “More on Briginshaw”
there is just such a matter that I am going through now that seems most appropiate to this onus of proof.
I wish I had another person to discuss this matter more closely with.
The “higher standard of proof” misconception has long been a pet peeve of mine. How many times have you heard that something attracts the “Briginshaw Test”? Ooh, I get shivers.