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Why the Right Evidence, In the Right Way, At the Right Time is Essential for Success In Litigation


A golden rule in litigation is: never make an allegation unless you can prove it. However simple this concept may appear to be, applying it in real cases is often a complex exercise. Getting it wrong can have disastrous consequences. There are many cases where litigants have failed to prove allegations which they were quite confident would be proven, or appeared obvious.


Proving an alleged fact means different things in different circumstances depending on what evidence is allowed to be used to prove that fact, what standard of proof applies and whose job it is to prove a particular fact. These are all technical legal issues.  However, whether, how and when you should use certain evidence are as much strategic decisions as they are legal.


In criminal cases, the prosecutor alone carries the burden of proof of all facts required to prove the charge.   It is different in civil cases, where individuals and corporations seek to enforce their private rights and interests.  In these cases, proving a cause of action or a ground of defence requires that a party show simply what is more probable than not (called the “balance of probabilities”). Where there is a claim and a defence each party has a burden of proof.  The general rule is that the person who asserts a fact must prove it.  This rule has exceptions, though. For example, in some cases, certain facts are presumed to be true unless they are disproven or, in rarer cases, are considered so obvious that they need not be proven at all.


The most common standard of proof in civil and commercial cases is proof to a balance of probabilities. This means proving that an alleged fact is more likely than not to be true.  However, in certain cases, the law may require a party to lead enough evidence to:



(a)  establish a merely arguable case or “triable issue”;




(b)  prove a fact to the reasonable satisfaction of a decision-maker; or




(c)  prove a fact to a degree of certainty that is proportionate to the seriousness of the consequences if that fact were proven.



The following example illustrates what can happen if a litigant does not properly deal with evidence at the right time.


Jim (not his real name) bought a pub from an owner/operator and leased it back to the seller who agreed to keep operating the pub until Jim could find new tenants.  He later found new tenants and leased the pub to them.  For the first few years, they operated the pub successfully, made good money, and paid their rent on time.


All that changed when the pub started to fall apart.  The tenants investigated and discovered that the cause was termite damage to the timber structures.  When the tenants reported this to Jim, Jim blamed the tenants for failing to ensure proper pest control, which was their responsibility under the lease.  The tenants denied they had neglected to control pests, demanded that Jim pay for the repairs and restore the pub to its former condition, Jim refused, the tenants refused to pay rent and the relationship irretrievably broke down.


Predictably, Jim sued for unpaid rent and the tenants counterclaimed for failure to effect structural repairs under the lease.  Throughout the court case, Jim demanded to see evidence that the tenants had arranged pest inspections and treatments. The tenants insisted they had such evidence but failed to produce it. Jim assumed the evidence did not exist and took the case to trial on that basis.


Shortly before the trial, the tenants finally gave Jim a copy of their pest control certificate.  Jim was so surprised by this that he rang the pest controller to make sure the certificate was authentic.  The pest controller’s advice to Jim was even more shocking.  According to the pest controller, not only had the tenants called him out regularly to inspect and treat the pub for termites, but damage to the pub had likely been occasioned before the tenants had even moved in.  When asked how this was possible if the pub had only begun to fall apart several years after the tenants had moved in, the pest controller explained that as they eat through the timbers, termites fill in the tunnels they form with a natural “cement”.   This “cement” takes a long time, often many years, to dry out, and it is usually only then that the termite-infested structures show signs of failure.


Luckily for Jim, the original owner, having leased the pub back from Jim and then assigned the lease to the new tenants, had thereby assigned all his rights and liabilities under the lease to the new tenants.  This included the original owner’s liability to Jim for failing to control pests in breach of the lease.  So Jim was able to salvage his case against the tenants based on evidence of the original owner’s breaches.


Things could have been a lot worse for Jim.  He was lucky that the law made the tenants liable for the original owner’s breaches because of the lease-back arrangement.  Otherwise, Jim might well have:



(a)  been ordered to compensate the tenants for the loss of trade caused by the dilapidation of the pub; and




(b)  lost his right to sue the original owner for compensation under the relevant statute of limitations (which bars claims for breach of contract made more than six years after the breach occurred).



The lesson is, before commencing legal action, always ensure you have clear, written legal advice on the following matters:


(a)  What are the relevant facts?




(b)  Which of those facts do I have to prove?




(c)  Do I have enough evidence to prove the facts that are mine to prove?




(d)  What additional evidence do I need and where can I find it?




(e)  If the other party has stated its intended defence:


  • what facts must it prove to establish that defence;


  • do I have evidence to rebut those facts;
  • if not, where can I find such evidence;


  • if I cannot access such evidence through my own investigations, how else can I protect my rights (e.g. apply for pre-action discovery, make enquiries of third parties or expert witnesses or join other parties as co-defendants to the claim)?


Unless you are under pressure to act quickly (eg because of a statute of limitations, a risk that the other party will dissipate their assets, etc.), you should usually only take formal legal action in a Court or tribunal once you have (with the help of your lawyer) thoroughly prepared the factual basis of your claim and taken legal advice about its merits, about your prospects of success and the claim’s value, as well as the likely risks and costs involved.

This is general information only, and does not constitute specific legal advice. Murray Thornhill is the Director at HHG Legal Group with the Litigation/Commercial Law team. Daniel Morris is an Associate with the Litigation/Commercial Law team at HHG Legal Group. If you would like further details in relation to this information, please contact HHG Legal Group on 1800 609 945.


*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.  

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