Civil standard of proof in NSW Administrative Decisions Tribunal

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Civil standard of proof in NSW Administrative Decisions Tribunal

The NSW Administrative Decisions Tribunal has dismissed an appeal as misconceived, ruling that the appropriate standard of proof in all Tribunal matters was the civil standard – on the balance of probabilities.

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The NSW Administrative Decisions Tribunal has dismissed an appeal as misconceived, ruling that the appropriate standard of proof in all Tribunal matters was the civil standard – on the balance of probabilities.
 
At first instance, the finding was not based on circumstantial evidence or on 'inexact proofs, indefinite testimony, or indirect inferences'. The original tribunal carefully weighed the testimony, closely examined the facts and was comfortably satisfied that it had reached both a correct and just conclusion.
 
Standard of proof
 
The Briginshaw principle finds statutory expression in s140 of the Evidence Act 1995 (NSW):
‘(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. …’
Does the Briginshaw principle apply to all allegations in anti-discrimination cases or only to 'serious' allegations?
 
The Appellate Tribunal stated:
‘In our view the Briginshaw principle applies universally to all allegations, in the sense that the seriousness of the allegation and other relevant factors areto be taken into account before determining whether the Tribunal is satisfied 'on the balance of probabilities' that an allegation has been proved.‘
The appeal was dismissed.
 
See: Dutt -v- Central Coast Area Health Service; (EOD) [2003] - Hennessy N - Magistrate (Deputy President); Goode P - Judicial Member; Mooney L – Member – 28 February 2003.
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