107 Authorities which have followed Briginshaw have also referred to the presumption of innocence (CEPU v ACCC at [32] and Hurley v Clements [2010] 1 Qd R 215; [2009] QCA 167 at [27]).
108 Briginshaw has been followed in subsequent High Court cases. The civil standard of proof applies, but the degree of satisfaction required may vary according to the gravity of the facts to be proved (Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521–522). In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (Neat Holdings); the plurality said (at 449–450):
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(Citations omitted.)
109 Authorities applying Briginshaw have emphasised, among other things, the requirement that actual persuasion on the part of the fact finder is required (NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 at [123]; Morley v ASIC at [749]–[751]; and Citadel Financial Corporation Pty Ltd (Administrator Appointed) v Action Scaffolding & Rigging Pty Limited (In Liq) [2019] FCAFC 145 at [57]).
110 With respect, a helpful statement of the application of Briginshaw to a defamation proceeding appears in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 per Mahoney JA (at 226):
In approaching this question it is, as the plaintiff urged, proper at the outset to bear in mind the gravity of that which was alleged against the plaintiff, and, correspondingly, the nature of the proofs required to establish it. No objection has been taken in this Court to the directions given by the learned trial judge to the jury in this regard, nor could it have been. But the gravity of the allegations bears peculiarly upon the defendant's defence of truth and public interest. For the defence as to truth was based upon circumstantial evidence: it depended upon the existence of the plaintiff's association with the fraudulent scheme being derived as a "reasonable inference" from the facts: Director of Public Prosecutions v Kilbourne [1973] AC 729 at 758. This, as the plaintiff has urged, is of particular significance. The allegations and their consequences are very serious. If the plaintiff was a principal in the fraud, he was guilty
