Standard of proof

The standard of proof in civil proceedings is the balance of probailities: s140. In determining whether the matter is proved to the requisite standard, the court ought take account of the matters set out in s140(2), namely:

  • the gravity

These matters reflect the common law position as espoused in Briginshaw v Briginshaw, which requires that, rather than engaging in a mathematical exercise of determining probailities, the court needs to feel actual persuasion.

Although, according to Odgers, it is Briginshaw which is more commonly cited, the language of s140(2) must take precedence over the common law.


Unreliable evidence

Where evidence is of a kind listed in s165(1), namely:

(a) hearsay or admissions; (b) identification evidence; (c) age, ill health or injury of the witness; (d) criminally concerned (e) prison informer (f) unadopted questioning (g) deceased estate by person seeking relief

and at the request of a party, the judge must direct the jury in the terms set out in s165(3). This warning must (a) note that the evidence is of a kind that may be unreliable; (b) inform the jury as to the matters that may cause the unreliability; and (c) the need for caution in accepting the evidence, and in determining its weight.

s165(5) covers traditional common law warnings, such as the Murray direction; and the Edwards direction.

Compelling production

s36 – if a document is called for in court, must be produced by any person present in court, compellable, whether subpoenaed or not. Once the document is produced, it is in the discretion of the court whether to make the document available (Maddison v Goldrick).

s193 – application for order as to discovery. Wide discretion to make orders, including as to the method of inspection, adjournment and costs.