What relevance does the 1938 divorce case Briginshaw versus Briginshaw have, seven decades after the fact, to workplace investigations in the 21st century? Find out in a two part series on WISE Workplace’s blogs.
The husband then appealed on the basis, amongst other things, that the judge had maintained wrongly that the husband had to prove his wife’s adultery beyond reasonable doubt. On appeal, the High Court of Australia decision set a precedent about the standard of proof required in civil cases of this nature.
The High Court decision
Fortunately … at common law no third standard of persuasion was definitely developed. 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 cases such as this, Judge Dixon maintained that that the standard of proof should not be satisfied by “inexact proofs, indefinite testimony, or indirect references.”
Whilst the facts of Briginshaw are somewhat outdated given the introduction of no-fault divorce in 1975, its principles have withstood the test of time and are now enacted in state and federal legislation (see for example section 140(2) of the Evidence Act 1995 (Cth)).
Whilst the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying civil rules of evidence.
Check back with Harriet Stacey’s WISE Workplace blog next week to find out about how Briginshaw vs Briginshaw affects the balance of probabilities and some interesting case studies.