Application of Briginshaw
85 His Honour said:
32 I accept, as both parties submitted, that the principles applicable in Briginshaw v Briginshaw and Another (1938) 60 CLR 336 ("Briginshaw") should be applied to allegations such as duress. I note that, not surprisingly, the Respondents sought to place the definition of duress, as it were, at the highest level. It was submitted (First and Second Respondents' outline of closing submission) that "clear, cogent, strong and strict proof is required" (paragraph 1).
33 The authority cited in support of that proposition as a footnote was the observation of Ryan J in Canturi at [44]. What Ryan J actually said at paragraph [44] was:
I accept that the onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336.
34 In my view it is preferable to approach an issue such as a finding of duress in accordance with what are well established principles. To seek to elevate duress to any particular level of significance is only likely to cloud the issues. While I bear well in mind the observations of the Courts as to the hesitations that should be borne in mind in considering issues both of duress generally and even more so of economic duress, it seems to me that in the ultimate the Court is faced in this instance with an alleged breach of the terms of a subsection of the Act, which is required to be proved to the satisfaction of the Court in accordance with Briginshaw principles.
86 Later at [295] his Honour said that he was satisfied of "all the above matters" (ie the matters in [292]-[294] quoted at [70] above) "to what Ryan J in Canturi described as 'the requisite degree' when referring to Briginshaw principles".
87 The complaint of the appellants on the appeal centred on his Honour's statement that the appellants "sought to place the definition of duress at its highest level" (at [32]). This was said by the appellants to manifest a misunderstanding "of the application of the Briginshaw principle to the case before him".
88 I think that all his Honour was conveying was that the appellants had submitted, as might have been expected, that duress was a serious allegation. It is inherent in the forensic process that a defendant will stress the seriousness of the charge alleged, be it civil or criminal. As counsel for the respondents submitted, correctly (and, in the light of the recent Full Court decision to be discussed hereafter, presciently), the principle in Briginshaw is simply that serious misconduct is not lightly to be found because it is not ordinarily engaged in by members of the community.
89 In any event, it may be that, if anything, his Honour's application of Briginshaw was too favourable to the appellants. I say that because the true nature and effect of Briginshaw has recently been the subject of detailed analysis by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama [2008] FCAFC 69.
90 Branson J explained that expressions like "the Briginshaw standard" and "the Briginshaw test" should be avoided because of their tendency to mislead. Her Honour cited (at [124]) the well known passage from the judgment of Dixon J in that case at 361-362:
Fortunately... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Her Honour emphasised at [125]-[126] that Dixon J was speaking of "allegations", that is to say individual allegations of material fact, rather than, for example, causes of action. Nor did Dixon J identify any particular standard; rather that the tribunal of fact, before accepting the truth of evidence of a particular allegation, should give consideration to the nature of the allegation and the likely consequences which follow should it be accepted.
91 Her Honour pointed out that the Evidence Act 1995 (Cth) contained a provision dealing with standard of proof in civil matters, viz s 140, which is as follows:
(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.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
As her Honour had noted, with the concurrence of Kenny J, in Employment Advocate v Williamson (2001) 111 FCR 20 at [65], s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.
92 Her Honour referred to a number of authorities, including the High Court decisions in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 and Rejfek v McElroy (1965) 112 CLR 517. In the latter case the High Court at 521 made it plain that
the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. (Emphasis added by Branson J in Gama at [131].)
93 Gama itself was a case of alleged racial discrimination. Branson J noted the various considerations which s 140, in the circumstances of the case, required to be taken into account. With regard to "the gravity of the matter alleged", her Honour said at [137]:
Without wishing to diminish the significance of the factual allegations made by Mr Gama, which themselves varied in gravity, more serious allegations of racial discrimination can be brought to mind.
Her Honour had earlier noted at [133] that
The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President [of the Human Rights and Equal Opportunity Commission] reflects a recognition, as it seems to me, that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.
In conclusion, her Honour said at [139]:
…in my view, for the reasons given above, references to, for example, "the Briginshaw standard" or "the onerous Briginshaw test" and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved.
94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery (Briginshaw) or fraud (Rejfek). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan. While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers.
95 In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst (1980) 144 CLR 1 at 7.
96 Gama is an important decision, not least for throwing light on an intriguing phenomenon in Australian professional legal culture. The resilience of the common law is such that in practice the Evidence Act is often overlooked. In my own experience, in the period of well over a decade since the Evidence Act was introduced Briginshaw is without fail cited in witness actions - with the possible exception of patent infringement cases - but I do not recall ever being referred to s 140. This is not to say it never happens, but a search of the Federal Court internal judgment database reveals only six decisions, apart from Gama, (including one in the Full Court) in which the covering list of legislation and cases cited refers to both s 140 and Briginshaw.