Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
His Honour regarded the evidence presented by both parties as unsatisfactory. He noted that ICE 2000 had not called Mr Hasturk as a witness. There was some hearsay evidence from Ms Anne Gardner, on behalf of ICE 2000, to the effect that Mr Hasturk had "since returned to his homeland of Turkey", and that his whereabouts at the time of the trial were unknown. In these circumstances, his Honour declined to draw a Jones v Dunkel inference against ICE 2000. 10 After judgment in this matter was delivered, Computer World discovered that Mr Hasturk had not in fact gone to Turkey, but had at all material times been in Melbourne and available to give evidence. Moreover, he was easily capable of being contacted by ICE 2000 because he retained the same mobile telephone number that he had used when employed by that company. 11 By notice of motion dated 11 April 2005, Computer World sought leave to lead further evidence on the appeal to this Court. Essentially, that further evidence is contained in an affidavit sworn by Mr Hasturk in which he deposed to his understanding of the arrangement he had entered into with Mr Yuvarajah at the time that the credit facility was signed. 16 Computer World submits that had the evidence of Mr Hasturk been led before his Honour, it may well have caused him to accept the evidence of Mr Yuvarajah, rather than rejecting that evidence. That in turn might have led his Honour to find that there was a collateral agreement of the type alleged by Computer World, rather than a trust, as his Honour ultimately found. Computer World also submits that, had his Honour been aware that Mr Hasturk was available to give evidence, but had not been called by ICE 2000, he may well have been prepared to draw a Jones v Dunkel inference against ICE 2000, rather than refusing to do so. 24 Ground three contends that his Honour erred in failing to draw a Jones v Dunkel inference in relation to the non-appearance of Mr Hasturk, and also of Ms Serif Memis, who was another employee of ICE 2000 at the relevant time. For the reasons set out above in relation to the further evidence ground, a Jones v Dunkel inference in relation to Mr Hasturk could not have assisted Computer World. Such an inference would not overcome the legal impediment to its claim created by the High Court's decision in Equuscorp . 26 As part of ground three, Computer World claims that his Honour erred in drawing a Jones v Dunkel inference against it in relation to a particular witness who prepared the spreadsheets exhibited to Mr Yuvarajah's affidavits, but was not called ("Pinky"). However, "Pinky" seems to have played a more central role in preparing the accounting documents that were tendered on Computer World's behalf. It was open to his Honour to distinguish between "Pinky" and Ms Memis in that regard. 27 Ground six complains that his Honour misconstrued the nature of the evidence by equating "stock transfers" with "invoices" when these are in fact different concepts. His Honour dealt with this issue at [24] of his reasons for judgment. Regardless of whether stock was transferred from Computer World to ICE 2000 for on-sale to customers, or for display purposes, the transaction and transfer of stock was evidenced by Computer World's "stock transfer" documents. These stock transfers were at times referred to as "invoices", which is effectively what they were, but the debate is somewhat sterile, and merely involves semantics. There is nothing to suggest any error of the kind alleged in his Honour's reasons. 28 Ground seven complains that his Honour misunderstood the nature of the evidence in that ICE 2000 was the only party in a position to generate invoices and associated documentation, and not Computer World. Once again, there is nothing in this point. His Honour was plainly aware of the distinction between Computer World's "stock transfer" documents, and the tax invoices generated by ICE 2000 for sales to customers. 29 Ground eight asserts that his Honour erred in finding for ICE 2000 on its claim pursuant to s 52 of the Trade Practices Act 1974 (Cth). In particular, it alleges that even assuming that Computer World engaged in misleading or deceptive conduct by representing that the security amount would be kept in a separate trust account in favour of ICE 2000, there was no evidence that ICE 2000 relied upon any such representation when Mr Hasturk handed over the cheque for $50,000. 30 There is some substance in this ground. Without Mr Hasturk's evidence, his Honour must have inferred reliance. There was little, if any, evidence upon which such an inference could be based. Mr Hasturk's evidence, if it were to be received, would tend to negate reliance because as he put it, he regarded the credit facility as nothing more than a formality. 31 The difficulty confronting Computer World in relation to ground eight is that it leads nowhere. His Honour found in favour of ICE 2000 primarily on the basis of breach of trust. No issue of reliance arises in relation to that cause of action. Any findings that he made in relation to the alternative claim under s 52 of the Trade Practices Act were dicta, as his Honour specifically noted at [88] of his reasons for judgment. The relief to which ICE 2000 was entitled in relation to its claim for breach of trust was exactly the same as the damages that might have been awarded under s 52. It follows that, irrespective of whether his Honour fell into error on this point, no appealable error is demonstrated. 32 Ground nine complains that his Honour erred in finding contrary to the evidence that Ms Gardner was at all material times the managing director of ICE 2000. Ms Gardner was the managing director from at least 1 April 2002, and possibly earlier, through to February 2003. By the time of the trial, she was a consultant. If his Honour erred in the manner alleged in this ground, it was an error of a minor kind. It did not infect his overall reasons for judgment with appealable error, and did not lead to an incorrect result. 33 Finally, ground ten complains that his Honour acted upon hearsay, particularly hearsay derived from the various affidavits of Ms Gardner. No objection was taken to those affidavits at the time that they were read. Subsequently, during cross-examination of Ms Gardner, counsel for Computer World purported to object to her affidavit evidence except for her analysis of business records which was conceded to be appropriate and unobjectionable. The hearsay objection was never properly particularised, and the matter was never thereafter pursued. This ground cannot succeed. 34 It follows that the application for leave to rely upon further evidence will be refused, and the appeal itself dismissed. The appellant must pay the respondent's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg Associate: Dated: 16 June 2006 Counsel for the Appellant: Mr H.A. Aizen Solicitor for the Appellant: Andma Legal Pty Ltd Counsel for the Respondent: Mr A.R. Kirby Solicitor for the Respondent: Tony Hargreaves &amp; Partners Date of Hearing: 14 June 2006 Date of Judgment: 16 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/752.html