What Is the Briginshaw Principle?

In 1938 the High Court of Australia made a decision that has had a long-lasting impact on how evidence is evaluated and weighted in Australia, including workplace investigations. This article explains the Briginshaw principle, common misconceptions about it and how it applies when investigators are making factual findings.

In 1938 the High Court of Australia made a decision that has had a long-lasting and significant impact on how evidence is evaluated and weighted in Australia. This includes the context of evaluating evidence in a workplace investigation.

The case of Briginshaw v Briginshaw (1938) 60 CLR 336 related to divorce proceedings where the husband, Mr Briginshaw, alleged that his wife had committed adultery. Mr Briginshaw submitted evidence that Mrs Briginshaw had received a lift home and a kiss from a man after a dance.

The Judge presiding over the case dismissed the allegation made by Mr Briginshaw concerning adultery as he was not satisfied that it had taken place. Mr Briginshaw disagreed with the judgment and appealed this decision because the Judge had set too high a standard of proof and argued that an inference could be drawn from the actions of Mrs Briginshaw that she had committed adultery.

The High Court considered the appeal and subsequently upheld the original decision. However, in making this decision, the High Court considered the strength of evidence required to prove allegations of a serious nature. Whilst the standard of proof remained, as it still does in civil cases, on the balance of probabilities, the High Court ruled that the strength of evidence required to prove a matter is ultimately dependent upon the seriousness of the allegations.

Justice Dixon, in writing the decision in the High Court appeal, found that serious allegations should be considered cautiously and be determined based upon the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding.

Key takeaways

• The Briginshaw principle is about how strongly evidence must support serious allegations.
• It is not itself a separate standard of proof.
• It remains within the civil standard of balance of probabilities.
• The more serious the allegation, the more compelling the evidence should be.
• It is highly relevant to workplace investigations and factual findings.

Common Misconceptions About the Briginshaw Principle

There has often been a misconception that the Briginshaw principle is a standard of proof. This is not correct and whilst administrative decision-makers, such as those that are required to make substantive findings in a workplace investigation, are not required by law to apply the Briginshaw principle in reaching a decision, it would be remiss not to consider it when making findings of fact.

Application of the Briginshaw Principle in Workplace Investigations

The seriousness of the alleged misconduct, which is the subject of the workplace investigation, will, in applying the Briginshaw principle, impact the strength of evidence required to prove such allegation and the decision of fact.

The Briginshaw principle should be applied to all workplace investigations, with the more serious allegations requiring more compelling evidence to substantiate any allegations. Understanding this principle is imperative and will assist investigators in making a fair, reliable and accurate decision based on facts that can withstand judicial or quasi-judicial review.

Core Integrity is a leader in conducting workplace investigations. If you have any questions regarding the Briginshaw principle or workplace investigations, get in touch with our team. We conduct workplace investigation training for teams and individuals.

FAQ

What is the Briginshaw principle?

It is the principle that serious allegations need stronger evidence before a finding is made, even though the civil standard of proof remains on the balance of probabilities.

Is the Briginshaw principle a separate standard of proof?

No. It is not a separate standard of proof. It affects how decision-makers assess the strength of the evidence in serious matters.

Why does it matter in workplace investigations?

Because serious allegations require careful analysis and compelling evidence, and the principle helps investigators make fair, reliable and accurate findings.