This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Balance of Probabilities


When a court decides whether a matter has been proven, it does so according to a benchmark which must be reached. This is generally known as the standard of proof. Courts and tribunals must apply the appropriate standard of proof when deciding whether a matter has been proven. The court must decide whether it is satisfied to the requisite degree that the matter alleged has been proven. In civil matters, the decision-maker must be satisfied that the allegation has been proven on the balance of probabilities, while criminal matters require that the court be satisfied beyond a reasonable doubt. 

Legislative framework

The civil standard of proof is contained in Section 140 of the Evidence Act. The Act also provides a framework for courts to use when deciding whether a matter has been satisfied on the balance of probabilities. This is

  1. The nature of the cause of action or the nature of the defence; and
  2. The nature of the subject matter; and
  3. The gravity of the matters being alleged.

How to satisfy the court

Section 140 of the Act leaves a substantial amount of room for discretion in how much weight a court gives to each of the above considerations. The way the standard of proof of balance of probabilities is applied by courts depends largely on the subject matter before the court. The more serious the factual matter is, the higher the standard of proof that will be required.

Case law on determining balance of probabilities

Case law is also used to clarify how one goes about satisfying the standard of proof of balance of probabilities. In the 2012 decision of NOM v DPP, the Victorian Court of Appeal noted that:

“The standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision”

The 1930 case of Briginshaw v Briginshaw, established two very important considerations for use in assisting decision-makers in determining what succeeds or fails in reaching this standard of proof. These are that a decision-maker must be satisfied of the matters before it on the balance of probabilities both:

  1. to a comfortable degree; and
  2. based on very clear and cogent evidence

However, it should be noted that courts have often warned against a strict mathematical approach.

Holistic approach

A holistic approach should be taken to what has to be proven on the balance of probabilities. A court should not simply weigh up the case of party A against the case of party B and come to a determination based on which is more plausible.

Sufficient evidence must be provided to affirm the arguments made out to the court. The court must be satisfied on the balance of probabilities that one case is more plausible than the other and that the case is backed up by the evidence that is before the court. Where there is a sufficient argument and sufficient evidence, there is a greater likelihood that the standard of proof will be met. 

In conclusion, the civil standard of proof of balance of probabilities can be interpreted differently by different decision-makers in different forums. In its simplest form, where the decision-maker deems that one version of events is 51% more likely than the other version, then the requisite standard of proof of balance of probabilities is met. While the balance of probabilities is a notion that is simple to understand at face value, it can be difficult to establish whether the threshold has been met in a given situation.

If you require legal advice or representation in a civil law matter or in any other legal matter, please contact Armstrong Legal. 

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