In a recent decision, The Estate of Shirley Gardner, Bernengo v Leaney [2019] NSWSC 1324, the NSW Supreme Court was asked to consider the circumstances in which the Briginshaw principle may be invoked. In this case, the Court declined to apply the Briginshaw principle and instead had regard to the factors set out in section 140(2) of the Evidence Act 1995 (NSW), which effectively subsume the Briginshaw principle. The decision serves as a timely impetus to clarify exactly what the oft-cited Briginshaw principle actually stands for.

Brigin' it back to basics – what is the Briginshaw principle?

Briginshaw v Briginshaw (1938) 60 CLR 336 considered how the requisite standard of proof should operate in civil proceedings. The case affirmed that the standard of proof that applies to all civil matters is the balance of probabilities.

The Briginshaw principle derives from obiter remarks in the decision of Dixon J. In essence, the principle stands for the proposition that more convincing evidence is necessary to meet the standard of proof where an allegation is particularly serious, or unlikely to have occurred. Contrary to popular belief, the Briginshaw principle in no way alters the standard of proof in civil matters – it simply means that cases involving allegations of a more serious nature may require stronger evidence to be adduced to establish the cause of action. This principle is typically applied in cases involving fraud or dishonesty.

Statutory equivalent

The Briginshaw principle is reflected in the uniform evidence law. In New South Wales, section 140(2) of the Evidence Act 1995 (NSW) sets out the factors that a court may consider in determining whether it has been satisfied that a case has been proven on the balance of probabilities.

These factors include:

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

The Briginshaw principle is effectively subsumed within subsection (c) above.

This list is not exclusive, and so, while it sets out the matters that the court must consider when determining whether the matter has been proved on the balance of probabilities, it does not limit what additional matters the court may also take into account.

The decision of The Estate of Shirley Gardner, Bernengo v Leaney [2019] NSWSC 1324

We previously published an article summarising the decision.

As set out in that article, the proceedings concerned an estate dispute involving a de facto partner who was in a secret relationship with the deceased. The reason that the plaintiff and the deceased kept their relationship secret was because the plaintiff had previously been in a relationship with the deceased's daughter.

The defendant submitted that because of the unusual nature of the relationship, and inherent unlikelihood of its existence, the Briginshaw principle applied and convincing evidence was needed to prove the existence of the relationship.

Bell P (sitting as a trial judge in the Supreme Court of New South Wales) refused to apply the Briginshaw principle, which his Honour stated was generally invoked in cases involving fraud or dishonesty. In other words, the nature of the claim was not so serious or unlikely to have occurred that more persuasive evidence was required to establish it.

In any event, his Honour noted in the decision that he had regard to the matters set out in s 140(2) when determining that the plaintiff had proven on the balance of probabilities his claim that he was the de facto partner of the deceased.

Key takeaways

The Briginshaw principle does not in any way impact the standard of proof in civil cases.

Bell P's decision reinforces the scope of the Briginshaw principle. It affirms that the application of the principle should be confined to cases involving serious allegations analogous to fraud or dishonesty.

However, the Evidence Act will continue to operate even when the Briginshaw principle is not invoked, meaning that the court must always consider the gravity of the claim when determining whether it has been proven on the balance of probabilities