Case: Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123
Outcome: followed
Section 140 of the Evidence Act 1995 (Cth) provides that: "(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." (The defendants did not dispute that the instant proceeding is "a civil proceeding" within the meaning of s 140: cf Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123 at [357] .) 50 There is some debate as to the extent to which s 140 calls for the application of "the Briginshaw test": see, for example, S Odgers, Uniform Evidence Law (6 th ed, 2004) at [1.4.100]. In Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336, Dixon J said at 361-362: "[W]hen the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... 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 or consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent likelihood 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." (The emphasis is mine.) As noted at [7], the plaintiffs claim that the defendants contravened ss 588G(2) and (3) of the Law or the Act. Section 588G(2) is a civil penalty provision. Section 588G(3) creates an offence requiring proof of dishonesty. I think it appropriate, in deciding whether the case against the defendants has been proved, to, in the words of s 140 , "take into account the nature of the cause of action [and] the gravity of the matters alleged". In doing so, I consider that the correct approach to take is to apply Briginshaw while bearing in mind what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 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." (Their Honours then quoted the passage from Briginshaw that I emphasized earlier.) That was the approach taken to s 588G by Mandie J in Plymin at [367]. As to the "debate" I referred to in the opening sentence of this paragraph, it is also the approach supported by Mr Odgers SC in his text I referred to earlier.