# The *Briginshaw* principle
URL: https://www.barristerai.com.au/principles/briginshaw
Last updated: 2026-11-09
Publisher: Barrister AI

In civil proceedings the standard of proof is always the balance of probabilities. *Briginshaw v Briginshaw* (1938) 60 CLR 336 explains that the strength of evidence needed to reach that standard depends on how serious the allegation is.

## In short

- There is no third standard of proof. The civil standard remains the balance of probabilities.
- The seriousness of an allegation, the inherent unlikelihood of an event and the gravity of the consequences of a finding all affect whether the court is reasonably satisfied.
- Serious findings, such as fraud or misconduct, should not rest on inexact proofs, indefinite testimony or indirect inferences.
- Section 140(2) of the uniform *Evidence Act* states the same considerations in statutory form.

## The case and Dixon J’s statement

*Briginshaw v Briginshaw* [1938] HCA 34; (1938) 60 CLR 336 was a divorce petition on the ground of adultery. The question was what standard of proof applied. The passage that is now cited daily comes from the judgment of Dixon J at 361 to 362:

> 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.
>
> Dixon J, *Briginshaw v Briginshaw* (1938) 60 CLR 336, 362

Read the judgment in the case index: [*Briginshaw v Briginshaw* [1938] HCA 34](https://www.barristerai.com.au/case/1938/hca/34).

## Not a third standard of proof

The principle is sometimes described as an intermediate standard between the civil and criminal standards. That is wrong. In *Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd* [1992] HCA 66; (1992) 67 ALJR 170 the High Court confirmed that the standard remains the balance of probabilities, and that the strength of evidence needed to establish a fact on that standard varies with the nature of what is to be proved.

## Section 140 of the *Evidence Act*

In jurisdictions that have adopted the uniform evidence law, s 140(1) provides that in a civil proceeding the court must find a case proved if satisfied on the balance of probabilities. Section 140(2) lists matters the court may take into account in deciding whether it is so satisfied:

- the nature of the cause of action or defence;
- the nature of the subject matter of the proceeding; and
- the gravity of the matters alleged.

Courts treat s 140(2) as reflecting the common law position in *Briginshaw*, and continue to cite both.

## Where it arises

- Allegations of fraud, dishonesty or criminal conduct made in civil proceedings.
- Professional disciplinary proceedings against practitioners, doctors and other professionals.
- Employment and workplace investigations, including findings of serious misconduct.
- Family law proceedings where allegations of abuse or violence are made.
- Administrative decisions that make serious findings about a person, by analogy.

## Frequently asked questions

### What is the Briginshaw standard?

It is not a separate standard. It is the civil standard (the balance of probabilities) applied with regard to the seriousness of the allegation, its inherent likelihood, and the consequences of the finding.

### Does the Briginshaw principle apply in criminal cases?

Not to proof of guilt, which must be beyond reasonable doubt. Briginshaw-type reasoning can arise in criminal proceedings where a matter is to be proved on the balance of probabilities.

### Is Briginshaw part of the Evidence Act?

Section 140(2) of the uniform Evidence Acts states the same considerations, and courts treat it as reflecting the Briginshaw principle.

## Sources

- Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336: https://www.barristerai.com.au/case/1938/hca/34
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66: https://www.barristerai.com.au/case/1992/hca/66

General information, not legal advice. Editorial policy: https://www.barristerai.com.au/editorial-policy