number of matters relevant to: (a) the onus of proof in a justification or substantial truth case (at [93]–[94]); and (b) the standard of proof in a case where there is a serious allegation (at [95]–[110]). With respect, his Honour's exposition in relation to these matters is comprehensive. I gratefully adopt the above-mentioned paragraphs.
95 At the risk of supererogation, I will, however, say something in my own words. I will also deal with the agreed facts relevant to Ms Higgins' credit and some miscellaneous matters, which have informed my approach to the evidence.
E.2Relevant Observations as to Standard of Proof
96 As to the standard of proof, the starting (and end) point is s 140 of the Evidence Act 1995 (Cth) (EA), which relevantly provides:
Civil proceedings: standard of proof
(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.
97 The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations; other considerations may also be relevant, including the inherent likelihood of the occurrence of the fact alleged and the notion that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield).
98 The concept used in subsection (1), being the "balance of probabilities", is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as
