• Burden of proof (in the context of contracts)

    ‘Burden of proof’ refers to the responsibility borne by a party in legal proceedings to actively prove their case, in contrast to the answerable party, who is only called to respond to the claims against them.

    Usually, the burden of proof is on the party who brings a claim to establish their case by adducing sufficient supporting evidence.

    The burden of proof should be distinguished from the standard of proof, which is the degree of certainty to which a case must be established for it to succeed. In a civil case, the standard of proof is on the balance of probabilities, while in a criminal case, the standard of proof is beyond a reasonable doubt.

    In civil matters in Australia, the applicant (also known as the plaintiff) usually bears the burden of proof. This means that in order for an applicant to be successful in a matter involving a breach of contract, the onus is on them to establish on the evidence before the Court that their version of events resulting in the breach are more likely to have occurred than not.

    There are specific circumstances whereby the burden ‘shifts’ from an applicant to a respondent. An example of this arises in the context of contract law, where there exists the duty of an applicant to mitigate their loss. An applicant is under a duty to mitigate their loss that arises from a breach a contract, meaning that they must take all reasonable steps to reduce their loss. In a case where this is at issue, the onus shifts from the applicant to the respondent, and it is up to the respondent to prove on the balance of probabilities that the applicant has not taken reasonable steps to reduce their loss. In a situation where the respondent is able to prove that the applicant has not mitigated their loss, the award of damages may be reduced by the Court.

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