Evidence in Civil Proceedings (Australia)

Introduction

The law of evidence in Australian civil proceedings governs what material may be admitted as proof of the facts in issue, the manner in which evidence is presented, and the weight it carries. The uniform evidence legislation — the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2008 (Vic), the Evidence Act 2001 (Tas), the Evidence Act 2011 (ACT), and the Evidence (National Uniform Legislation) Act 2011 (NT) — provides a comprehensive statutory code. Queensland, South Australia, and Western Australia retain their own evidence legislation or the common law, though the uniform Acts have had a significant persuasive influence.

Relevance

Section 55 of the uniform Evidence Acts defines the fundamental requirement of relevance: “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” Relevance is a logical, not a legal, concept: evidence is relevant if it has a rational connection to the facts that the party must prove. All relevant evidence is admissible unless excluded by a specific exclusionary rule (s 56). Irrelevant evidence is not admissible.

Section 56 codifies the “rational approach” to relevance: the court must assess relevance as a threshold question before considering admissibility under the exclusionary rules. If evidence is not relevant, it cannot be admitted, regardless of its probative value.

Admissibility

The uniform Evidence Acts establish a default rule of admissibility for relevant evidence, subject to the discretionary and mandatory exclusions (ss 135–138). Section 135 gives the court a discretion to exclude evidence where its probative value is substantially outweighed by the danger of unfair prejudice, misleading or confusing the jury, or causing undue waste of time. Section 137 (in criminal proceedings) requires the court to exclude prosecution evidence where its probative value is outweighed by the danger of unfair prejudice. Section 138 provides for the discretionary exclusion of improperly or illegally obtained evidence.

The Hearsay Rule

Section 59 of the uniform Evidence Acts provides the hearsay rule: “evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.” The rule excludes out-of-court statements tendered to prove the truth of their content, on the basis that the declarant is not available for cross-examination and the reliability of the statement cannot be tested.

In civil proceedings, the hearsay rule has significant exceptions. Section 63 permits the admission of first-hand hearsay (where the representation was made by a person who had personal knowledge of the asserted fact) if the maker of the representation is unavailable to give evidence. Section 64 permits the admission of first-hand hearsay where the maker is available but it would cause “undue expense or delay” to call them, or where the representation was made in the course of the person’s employment or business.

The Business Records Exception

Section 69 of the uniform Evidence Acts creates a broad exception to the hearsay rule for business records. A representation contained in a document that is or was part of the records of a business is admissible as evidence of the asserted fact if the representation was made: (a) by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact; or (b) on the basis of information supplied by such a person. The exception covers records created in the ordinary course of business, including invoices, receipts, medical records, and computer-generated records.

The Opinion Rule and Expert Evidence

Section 76 of the uniform Evidence Acts provides the opinion rule: evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. The rule excludes lay witnesses from giving their opinions or inferences, requiring them to testify only to facts within their personal knowledge.

The expert opinion exception (s 79) permits the admission of opinion evidence where the witness has specialised knowledge based on the person’s training, study, or experience, and the opinion is wholly or substantially based on that knowledge. The exception is central to civil litigation, where expert evidence (medical, accounting, engineering, valuation) is routinely relied upon to prove facts that require specialised expertise. The expert’s evidence must meet the “basis” requirement: the expert must identify the facts and assumptions on which the opinion is based and must explain the reasoning by which the opinion is reached: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.

Admissions

Section 81 of the uniform Evidence Acts provides an exception to the hearsay rule and the opinion rule for admissions: an admission (a previous representation made by a party that is adverse to the party’s interest in the outcome of the proceeding) is admissible as evidence of the fact admitted. The exception reflects the recognition that statements against interest are inherently reliable. In civil proceedings, an admission may be made in pleadings, in answers to interrogatories, in correspondence, or in oral statements.

Tendency and Coincidence Rules

Sections 97–98 of the uniform Evidence Acts restrict the admission of evidence of tendency (evidence that a person had a tendency to act in a particular way or to have a particular state of mind) and coincidence (evidence that two or more events occurred in similar circumstances). Such evidence is admissible only where the party seeking to adduce it gives reasonable notice and the court is satisfied that the evidence has significant probative value. In civil proceedings, tendency evidence is frequently used in cases involving organised fraud, professional negligence, and sexual abuse.

Credibility Rules

Sections 101A–108 of the uniform Evidence Acts regulate the admission of credibility evidence — evidence relevant only to the credibility of a witness. A party may not adduce evidence of the credibility of a party’s own witness unless the witness’s credibility has been attacked (s 102, the “credibility rule”). Evidence that is relevant to credibility but also relevant for a non-credibility purpose (e.g., as proof of the facts in issue) is not subject to the credibility rule.

Privilege

Client legal privilege (ss 118–119 of the uniform Evidence Acts) protects confidential communications between a lawyer and client from compulsory disclosure. The privilege applies where the communication was made for the dominant purpose of giving or obtaining legal advice (advice privilege, s 118) or for the dominant purpose of existing or anticipated litigation (litigation privilege, s 119). The “dominant purpose” test was established by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, overruling the earlier “sole purpose” test. The privilege is the client’s and may be waived.

The privilege against self-incrimination (s 128 of the uniform Evidence Acts) entitles a witness to refuse to answer a question or produce a document on the ground that the answer or document may tend to prove that the witness has committed an offence or is liable to a civil penalty. The court may grant a certificate (under s 128(5)) providing that the evidence is not admissible in subsequent criminal or penalty proceedings, thereby compelling the witness to answer.

Professional confidential relationship privilege (ss 126A–126B, enacted in New South Wales) protects communications made in the course of a sexual assault counselling relationship. The privilege reflects the policy that victims of sexual assault should be able to seek counselling without fear that the counselling records will be disclosed in legal proceedings.

Burden and Standard of Proof

The burden of proof in civil proceedings rests on the party asserting the existence of a fact (the plaintiff in respect of the elements of the claim; the defendant in respect of any defence). The standard of proof is the balance of probabilities — the court must be satisfied that the existence of a fact is more probable than not: s 140 of the uniform Evidence Acts.

The High Court held in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 that the application of the balance of probabilities standard is not mechanically uniform; the strength of the evidence necessary to establish a fact on the balance of probabilities varies according to the seriousness of the allegations made and the gravity of the consequences. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J stated that “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.” The Briginshaw standard requires “reasonable satisfaction” and does not require proof beyond reasonable doubt, but the court will require more persuasive evidence where the allegations are serious (e.g., fraud, professional misconduct).