By Nicola Johnson, Partner

Key lesson:

• It is erroneous for a court to rely on s 140(2)(c) find that a party to the proceedings has failed to prove a matter which is not in dispute and for which the evidence is one way.

The ordinary standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities. It is this standard that has been codified in s 140 of the Evidence Act 1995 (Cth). Subsection 140(2) provides that in reaching this satisfaction, the court must at least take into account the following:

1. the nature of the cause of action or defence
2. the nature of the subject matter of the proceeding, and
3. the gravity of the matters alleged.

These mandatory considerations reflect a legislative intention that courts must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence – the more serious the consequences of what is contested in litigation, the more a court will have regard to the strength and weakness of the evidence before reaching a conclusion on that evidence.[1]

Although a court is not bound to find facts which are agreed between the parties, it will not depart from such agreements where there is no reason to doubt their correctness.[2] As the recent Full Court decision in Prodduturi v Minister for Immigration and Border Protection (2015) 144 ALD 243 (Prodduturi) demonstrates, this principle has particular significance when the court looks to s 140(2) in determining whether a matter has been proved on the balance of probabilities.

In Prodduturi, the primary had found at first instance that the appellant had not proved that his migration agent had acted fraudulently and, since he bore the onus of proof, concluded that his case that his visa application was affected by third party fraud was not made out.

The Full Court found that it was not in dispute that the false statement contained in the visa application had been made by the appellant’s migration agent without his actual knowledge. Further, there was nothing on the face of the visa application suggesting the existence of that migration agent, who had been found by the Department of Immigration to have lodged applications with the Department which contained false and misleading information. The Court concluded that not only was the falsity of the agent’s actions not in dispute it was the subject of uncontradicted evidence. It followed that it was erroneous for the primary judge to rely on s 140(2)(c) to find that the appellant had failed to prove a matter which was not in dispute and for which the evidence was one way.

[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [30]:

[2] Damberg v Damberg (2001) 52 NSWLR 492, 522