11 Mr Young in his submissions asserted that since Tower was asserting fraudulent non-disclosure and misstatement on the part of Mr Shakir it had to discharge a heavy onus. He made reference to the test in Briginshaw v Briginshaw (1938) 60 CLR 336 per Barwick CJ at pp. 361-362:
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, 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. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency".
Reference was also made to the case of Neat Holdings Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170; 110 ALR 449, in which it was said at p.450 that a Court should not lightly make a finding on balance of probabilities that a party to civil litigation has been guilty of fraudulent or criminal conduct per Mason CJ, Brennan, Deane and Gaudron JJ. To these citations can be added Rejfek v McElroy (1965) 112 CLR 517, 521 in which it was said that what is required is proof that is clear and cogent, so as to induce, on a balance of probabilities an actual persuasion of the mind as to the existence of fraud and that the degree of satisfaction required may vary according to the gravity of the fact to be proved.