In
Repatriation Commission v. Smith, M. J., the Court considered in some detail the relevant standard of proof that applies in relation to special rate matters. The Court held as follows:"s.120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Briginshaw v. Briginshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at p 362):
'... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'
"Similarly, in Rejfek v. McElroy (1965) 112 CLR 517, the Full High Court spoke of the civil standard of proof (at p.521):
'No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied ...'
"Difficulties have arisen because of the use of different expressions in describing the civil standard but, as the learned authors of Cross on Evidence (Third Australian Edition-DM Byrne QC and JD Heydon) say of this standard (at p.246):
'In ordinary civil cases it is usually expressed as involving the "preponderance of probability", the "balance of probabilities", or the "preponderance of evidence". It might be argued that the last of these seems to involve no more than the preponderance of the evidence produced by the proponent of an issue over that produced by its opponent. It is more common, however, to regard all of these terms as synonymous, and as connoting not really relative preponderance over the evidence of the opponent but satisfaction of a prescribed level of probability. The possibility of a contrary finding does not prevent a finding reached on that standard from being appropriate. It is not enough for a plaintiff to fail that his account "may not be correct".'
"The foregoing is, of course, dealing with the standard required in court proceedings where the rules of evidence are applicable. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit (Administrative Appeals Tribunal Act 1975 s.33(1)(c); McDonald v. Director-General of Social Security (1984) 1 FCR 354, 6 ALD 6). Yet, whilst the Tribunal was not bound by the technical evidentiary rules, especially the exclusionary rules, natural justice may require that it act on material that is relevant and logically probative (see Mahon v. Air New Zealand Ltd. (1984) AC 808; Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 ALR 666; Enid Campbell, Well and Truly Tried (Ed. by Campbell and Waller) at pp 70-1, 86; Cross, op. cit. at pp.11-13; Aronson and Franklin, Review of Administrative Action at p.95; p.174).
"Even if the Tribunal is not bound by the traditional evidentiary principles, s.120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. McDonald's case, supra, dealing with social security legislation is not authority to the contrary. Rather, it is a case of s.120(4) introducing the civil standard for our purposes (see Minister for Health v. Thomson (1985) 60 ALR 701 at p 712; Campbell, op. cit. at p 53; see East v. Repatriation Commission, unreported, 22 July 1987, per Jenkinson, Neaves and Wilcox JJ. at p 32; cf. under the English legislation, Miller v. Minister of Pensions (1947) 2 All ER 372 per Denning J. at p 374).
"It follows, in my view, that the Tribunal erred in adopting the Bishop test. Instead, it should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou 9 ALD 358; Easton and Repatriation Commission, Administrative Appeals Tribunal, unreported, 29 June 1987; Repatriation Commission and Faulkner, Administrative Appeals Tribunal, unreported, 22 May 1987)."
While there is no onus of proof on either party (see subsection 120(6)), it remains for the Tribunal to be satisfied that there is sufficient material to comfortably satisfy it that the veteran meets all of the relevant criteria. In
Cavell v. Repatriation Commission, Burchett J said:"it was for [the veteran] to make his case and to elect whether to go into evidence, and what evidence to adduce. A party cannot present material to the tribunal step by step, demanding at each step to know whether what has been adduced is sufficient."
In Epeabaka v. Minister for Immigration and Multicultural Affairs, Finkelstein J spoke of the standard of proof applying to the Refugee Review Tribunal, but his comments are applicable to any administrative decision-maker. He said:
"Thus, the tribunal must simply listen to all of the evidence and decide the case on the basis of that evidence. ... Most usually the evidence will be adduced by the applicant, but the tribunal has power to require the secretary to provide it with information ... and can also inform itself of relevant facts. In considering the evidence the tribunal is 'under a duty to arrive at the correct or preferable decision in the case': compare Bushell at CLR 425. ...
"When deciding a case the tribunal must have regard to what is an appropriate standard of persuasion. In Sodeman v. R (1936) 55 CLR 192 at 216 Dixon J said that the common law only knew of two such standards, that applicable to criminal cases, beyond a reasonable doubt, and that applicable to civil cases, the preponderance of probability. However, Dixon J pointed out that 'questions of fact vary greatly in nature and, in some cases, greater care in scrutinising the evidence is proper than in others, and a greater clearness of proof may be properly looked for'. ... It is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate."