Briginshaw v Briginshaw
Briginshaw v Briginshaw (Briginshaw) is a decision of the High Court of Australia which considered how the requisite standard of proof should operate in civil proceedings.
| Briginshaw v Briginshaw | |
|---|---|
| Court | High Court of Australia |
| Decided | 30 June 1938 |
| Citation(s) | [1938] HCA 34, 60 CLR 336 |
| Court membership | |
| Judge(s) sitting | Latham CJ, Rich, Starke, Dixon and McTiernan JJ |
| Case opinions | |
| On the standard of proof applicable under the Marriage Act 1928 (Vic), the lower court's finding that there was insufficient evidence to conclude Mrs Briginshaw was adulterous, should be upheld | |
The case is notable for having originated the 'Briginshaw standard', a legal doctrine deriving from Justice Dixon's obiter remarks within the case. In its present application, Briginshaw is precedent for the idea that 'the strength of evidence necessary to establish facts on the balance of probabilities, may depend on the nature of what is sought to be proven'. In particular it holds that cogent or strict proof is necessary to support a judicial finding of serious allegations (such as fraud or sexual assault).
The case also served to confirm that the balance of probabilities is the applicable standard of proof in civil proceedings, subject to statute. Prior to Briginshaw, due to the state of the law in England at the time, Australian law regarding the onus of proof in divorce cases 'was a little confused'. Briginshaw is the fifth most cited decision of the High Court.