97 It is well established that other matters may be taken into account. In Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (Gama) at [138], Branson J (with whom French and Jacobson JJ agreed on this issue) identified two other matters which may be taken into account. One of those matters was identified by reference to the well-known decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) being the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged. The other matter identified by Branson J in Gama is the common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict. The examples given by Branson J in Gama of the "other matters" which may be taken into account are not exhaustive.
98 It has been said that as a general proposition the statute, that is, the Evidence Act, made changes to the common law and is not to be approached as involving an attempt to codify the common law. Gleeson CJ and Hayne J in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 said the following (at [10]):
… It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. …
99 Nevertheless, s 140(2) of the Evidence Act has been treated as reflecting, in part at least, the common law. In Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 (Morley v ASIC) (there was an appeal to the High Court: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (ASIC v Hellicar), but not on this point), the New South Wales Court of Appeal said that s 140, while superimposing a mandatory statutory requirement, reflects the common law as stated in Briginshaw and as explained and applied in subsequent authority. In Musa v Alzreaiawi [2021] NSWCA 12 at [40], the New South Wales Court of Appeal referred with apparent approval to authorities which have said that s 140(2) provided for no new principle and reflected the principles stated in Briginshaw (see also the discussion in Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [128] and Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [24]–[29] per Wheelahan J).
100 In a well-known passage in Briginshaw, Dixon J (as his Honour then was) said the following (at 361–362):
Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the
