(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.
Expressions defined in the Dictionary are identified in bold print. Click here to access the Dictionary.
Continuity and change – no change
Like the common law, the standard of proof in civil proceedings is the balance of probabilities.
The Evidence Act 2008 also incorporates the principle from Briginshaw v Briginshaw that a court may take into account the nature and gravity of the subject matter when deciding whether the standard of proof is met.
Standard of proof in civil proceedings
Section 140 specifies that the standard of proof in civil proceedings is the balance of probabilities. This standard applies to the facts which a party has a legal burden of proving.
The Act does not specify when a party has a legal burden of proving a fact. This is a matter of substantive law, not the law of evidence (ALRC 26: 1 at ).
A 'civil proceeding' is a proceeding other than a criminal proceeding (Evidence Act 2008, Dictionary).
Determining whether a proceeding is civil or criminal may depend on the language of the relevant legislation and whether the proceeding seeks a 'conviction' or the provision creates an 'offence' (CEO of Customs v Labrador Liquor Wholesale (2003) 216 CLR 161;  HCA 49 at  per Gleeson CJ and - per Hayne J).
Matters to consider when determining proof
Section 140(2) requires a court to consider the following matters when determining whether a case is proved on the balance of probabilities:
the nature of the cause of action or defence; and
the nature of the subject matter of the proceeding; and
the gravity of the matters alleged.
In assessing the nature of the cause of action or defence, the court may take into account the gravity of the consequences which flow from a particular finding (Morley v Australian Securities & Investments Commission  NSWCA 331 at ).
Thus, the graver the consequences of a particular finding, the stronger the evidence needs to be in order to conclude that the allegation is established on the balance of probabilities (Morley v Australian Securities & Investments Commission  NSWCA 331 at ).
The ‘gravity of the matters alleged’ examines the particular factual allegations in the case, and does not examine the cause of action or issues at a level of abstraction (Qantas Airways Limited v Gama (2008) 167 FCR 537;  FCAFC 69 at  per Branson J; Granada Tavern v Smith (2008) FCA 646 at ).
The three matters specified in s140(2) do not exhaustively state the matters the court may take into account when deciding whether a matter is proven on the balance of probabilities. A court may, for example, take into account the inherent unlikelihood of the alleged conduct, and common law principles concerning weighing evidence (Qantas v Gama (2008) 167 FCR 537;  FCAFC 69 at  per Branson J).
Where a civil proceeding involves allegations of criminal conduct, the standard of proof remains the balance of probabilities. Judicial statements that clear, cogent or strict proof is required to establish serious matters such as fraud do not address the standard of proof. Instead, the statement reflects the conventional view that people do not ordinarily engage in criminal conduct and courts should not lightly make such findings (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  HCA 66).
Similarly, in a civil proceeding involving circumstantial evidence to prove allegations of criminal conduct, it is not necessary to exclude all other rational explanations. The direction in criminal cases that the prosecution must exclude all rational explanations consistent with innocence is a function of the higher standard of proof and does not apply in civil proceedings (see Chong v CC Containers Pty Ltd (2015) 49 VR 402;  VSCA 137 at -; Chen v State of New South Wales (No 2)  NSWCA 292 at ).
Section 140(2) and the common law
Section 140(2) reflects the principles Dixon J set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 that ‘reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ are relevant to deciding whether a matter is proved on the balance of probabilities (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466;  FCAFC 132).
Standard of proof and ‘actual persuasion’
The standard of proof on the balance of probabilities requires the fact finder to reach a state of ‘actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (NOM v DPP (2012) 38 VR 618;  VSCA 198 at ; see also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262;  NSWCA 29 at  per Spigelman CJ; Nguyen v Cosmopolitan Homes  NSWCA 246; Ballard v Multiplex  NSWSC 426 at - per McDougall J; Morley & Ors v Australian Securities and Investments Commission  NSWCA 331 at –; Chen v State of New South Wales (No 2)  NSWCA 292 at ).
A ‘[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact’ (NOM v DPP (2012) 38 VR 618;  VSCA 198 at ; see also Brown v New South Wales Trustee and Guardian  NSWCA 431).
Odgers criticises this approach, arguing that requiring actual persuasion is inconsistent with the intention of the ALRC that ‘a belief that the facts in issue were as alleged is not and should not be required’ (Stephen Odgers, Uniform Evidence Law (12th ed, 2016) [EA.140.60]; ALRC 26 at –).
Under s140, a party will not have proven its case if the likelihood of the plaintiff’s case and defendant’s case is perfectly balanced (Carney v Newton  TASSC 4 at ).
Similarly, a plaintiff will not succeed merely be establishing that his or her case is more likely than the defendant’s. The plaintiff must show that his or her case is more likely than not (Jackson v Lithgow City Council  NSWCA 312 at - per Allsop P; Carney v Newton  TASSC 4 at ).
Standard of proof for inferences
When a case relies on circumstantial evidence, the party bearing the burden of proof must establish that the more probable inference supports the case alleged. The court cannot choose between several, equally likely, possibilities where the competing possibilities can only be resolved by conjecture (Jackson v Lithgow City Council  NSWCA 312 at  per Allsop P; see also Holloway v McFeeters (1956) 94 CLR 470; Bradshaw v McEwans Pty Ltd (unreported, High Court of Australia, 27 April 1951)).
In some cases, it will be dangerous to examine merely whether the case put forward by one party is more likely than that of the other party. Such an approach is only suitable when the respective cases address all possible explanations (Guest v The Nominal Defendant  NSWCA 77 at  per Mason P).
Significant other sections that are or may be relevant
Admissibility of evidence – standard of proof (s142)
Stephen Odgers, Uniform Evidence Law (12th ed, 2016) [EA.140.30]-[EA.140.120].