Case: Qantas Airways Ltd v Gama [2008] FCAFC 69
Outcome: applied
In any event, it may be that, if anything, his Honour's application of Briginshaw was too favourable to the appellants. I say that because the true nature and effect of Briginshaw has recently been the subject of detailed analysis by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama [2008] FCAFC 69. 93 Gama itself was a case of alleged racial discrimination. Branson J noted the various considerations which s 140 , in the circumstances of the case, required to be taken into account. With regard to "the gravity of the matter alleged", her Honour said at [137]: 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. Her Honour had earlier noted at [133] that The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President [of the Human Rights and Equal Opportunity Commission] 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. In conclusion, her Honour said at [139]: ...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. 95 In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7. 96 Gama is an important decision, not least for throwing light on an intriguing phenomenon in Australian professional legal culture. The resilience of the common law is such that in practice the Evidence Act is often overlooked. In my own experience, in the period of well over a decade since the Evidence Act was introduced Briginshaw is without fail cited in witness actions with the possible exception of patent infringement cases but I do not recall ever being referred to s 140. This is not to say it never happens, but a search of the Federal Court internal judgment database reveals only six decisions, apart from Gama , (including one in the Full Court) in which the covering list of legislation and cases cited refers to both s 140 and Briginshaw .