Briginshaw v Briginshaw

Briginshaw v Briginshaw
CourtHigh Court of Australia
Decided30 June 1938
Citations[1938] HCA 34, 60 CLR 336
Court membership
Judges sittingLatham 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

Briginshaw v Briginshaw[1] (often known simply as Briginshaw) is a 1938 decision of the High Court of Australia which considered how the requisite standard of proof should operate in civil proceedings.[2]

Portrait of Owen Dixon, who wrote the most frequently cited passage of Briginshaw v Briginshaw

The case is notable for having originated the "Briginshaw standard", a legal doctrine deriving from Justice Dixon's obiter remarks within the case.[2] 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).[3]

While the case related to divorce law, it also served to confirm that the balance of probabilities is the applicable standard of proof in all 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".[4] Briginshaw is the fifth most cited decision of the High Court.[5][6]

  1. ^ Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336.
  2. ^ a b "Still unsure about Briginshaw?". McCabe Curwood. 12 November 2019. Retrieved 19 September 2020.
  3. ^ Cite error: The named reference :3 was invoked but never defined (see the help page).
  4. ^ Wyatt, Judith, "Briginshaw v Briginshaw" (1954) 6 Res Judicatae 541 – via Austlii.
  5. ^ Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=&section=&large-search-ok=1&sort-order=cited
  6. ^ Note: data is as of June 2022