Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: followed
The High Court's enunciation of the civil standard of proof in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 is frequently cited, but Dixon J's statement at 361-362 bears repeating: '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. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.' I have applied these principles to the determination of the issues in this case. 143 Based on the factual findings and applying the legal principles which I have set out above, I am satisfied that prior to 23 August 2001 Edison and the CEPU made or entered into an arrangement that included a provision that Edison would not engage electrical contractors to perform work at Loy Yang B unless they have a current certified agreement with the CEPU prior to commencing work at the site. The arrangement involved a commitment on Edison's part not to permit electrical contractors who did not have a certified agreement with the CEPU to work at Loy Yang B. In exchange, the CEPU committed to signing the Simon Engineering site agreement. The evidence establishes, in my view, that Edison and the CEPU made or entered into this arrangement prior to 15 August 2001. The heads of agreement was entered into in accordance with, and was controlled by, this arrangement. I will elaborate my reasons for these findings in the course of considering the arguments advanced by the CEPU. 144 The CEPU submitted that the evidence showed only one 'meeting of the minds' between Edison and the CEPU that is, the heads of agreement of 23 August 2001. The CEPU contended that the communications and events surrounding the making of the heads of agreement are insufficient to prove that there was a meeting of the minds between Edison and the CEPU; rather, they are evidence of the negotiations and canvassing of proposals which ultimately culminated in the heads of agreement on 23 August. In my view, these submissions do not grapple with the overall force and effect of the evidence that is before the Court. 203 In his reasons for judgment, Dixon J explained why Mallan could not be held liable as an accessory to the principal offence, at 215-216: 'On the interpretation I have given to s. 230 (1), for more than one reason s. 5 of the Crimes Act cannot apply to a public officer so as to make him an accessory to the offence of the company. In the first place, the public officer's act on behalf of the company making it an offender ipso facto amounts to a substantive offence on his part under s. 230 (1). In the second place, the sub-section makes him the actor, the principal, for whose guilty conduct the company is responsible vicariously. It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts. But if the interpretation were placed on s. 230 (1) opposed to that which I have adopted, I should think it would equally follow that s. 5 of the Crimes Act could not be applied to make the public officer liable under that provision. For it would mean that by s. 230 (1) the legislature had made the company responsible as an offender for the knowing and wilful understatement of income by the public officer to the exclusion of any such liability of the public officer. If that conclusion were reached it would be impossible to make him liable for the same conduct under a provision dealing with accessories. There is a number of cases which show that the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created: cf. R. v. Tyrrell ; Morris v. Tolman ; Ellis v. Guerin .'