Chen v State of New South Wales (No 2) [2016] NSWCA 292

  1. It is not necessary, in order to make a finding on the civil standard, to exclude other possible explanations. Authority is scarcely necessary for that proposition. However, that was precisely the point made – by reference to Bradshaw v McEwans Pty Ltd – by a unanimous High Court in Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824 at [47]. It was also the point made by French CJ, Gummow, Crennan and Bell JJ in Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [34]:

“[I]t is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open.”