Chapter 7
Standard of proof

7.1In our Issues Paper, we asked the question: “Should pecuniary penalty statutes contain a uniform standard of proof provision and, if so, what should it contain?”

7.2Most existing pecuniary penalty statutes specify that the “usual standard of proof in civil proceedings” applies to pecuniary penalty proceedings. Two Acts are silent as to the standard of proof.117 Section 48(4) of the Overseas Investment Act 2005 contains a slightly different formulation: “the court must determine whether a person’s conduct [contravenes a pecuniary penalty provision] on a balance of probabilities”.
117The Financial Advisers Act 2008, s 137K and Financial Service Providers (Registration and Dispute Resolution) Act 2008, s 79A state that the court must be “satisfied” of a contravention before ordering a pecuniary penalty. The courts have held that use of the term “satisfied” does not connote any notion of the correct standard of proof to apply: see Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96].