Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: considered
submits that one important aspect of this matter is the application of the principles found in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 to himself. He points to the seriousness of the allegations made by ASIC and the severity of the penalties it seeks in the form of large financial penalties and his disqualification from managing a corporation. He submits that these are more severe than many criminal punishments and would cause enormous harm to him and FMG. He says that, in these circumstances, the level of satisfaction that the Court requires to reach before accepting any of ASIC's contentions is as close to the criminal standard as could be in any civil proceeding. FMG also cited Briginshaw [1938] HCA 34 ; 60 CLR 336 , saying that, because these are civil penalty proceedings, the Court should not lightly make findings of contraventions, even applying the balance of probabilities standard, given the seriousness of the causes of action and the gravity of the matters alleged and their consequences. FMG and Forrest are relying on the principle emerging from Dixon J's judgment in Briginshaw 60 CLR at 361-362 that in considering whether an allegation is made out to its "reasonable satisfaction", a tribunal should take into account the seriousness of the allegation and the gravity of the consequences that would follow if the allegation were to be accepted. In Qantas Airways Limited v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 , French and Jacobson JJ stated at [110] that the "so-called Briginshaw test" does not create any third standard of proof between the civil and the criminal. Their Honours said the standard of proof remains the same, that is proof on the balance of probabilities, and that the degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. Section 140(1) of the Evidence Act 1995 (Cth) (the Evidence Act ) prescribes the standard of proof in a civil proceeding as the balance of probabilities, and s 140(2) provides that the Court may take into account, in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 the Full Court noted at [31] that Dixon J's classic discussion in Briginshaw appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Section 1332 of the Act differs from s 140 of the Evidence Act in that it does not contain the 'Briginshaw' considerations found in s 140(2) of the Evidence Act . However this does not require s 140(2) of the Evidence Act to be read down. In any event given that s 1317L requires the Court to apply the rules of evidence and procedure for civil matters when hearing proceedings for a declaration of contravention or a pecuniary penalty order, the considerations expressed in Dixon J's Briginshaw discussion are nevertheless relevant. In conclusion, the standard of proof that I must apply is the balance of probabilities as prescribed by s 1332, and I accept that in deciding whether ASIC's allegations are made out on the balance of probabilities I am required to take into account the causes of action and the gravity of the matters alleged and their consequences: s 140(2) Evidence Act ; Briginshaw [1938] HCA 34 ; 60 CLR 336. If inferences are to be drawn, ASIC has to establish that the circumstances appearing from the evidence give rise to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability: Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 ; (2009) 256 ALR 199 at [186] ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; 162 FCR 466 at [38] .