Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 
Outcome: referred to
I have already made reference to the mediation session held on 20 November 2002. Mr Lever and Dr Doherty were in attendance at that mediation session. There were apparently two other parties at the session, namely Ms Lynne Blackbourn and Ms Linda Houseman, who were both associated with ANSTO's Human Resources Department. Neither testified for ANSTO in the proceedings, and it was submitted by Mr Lever that given those witnesses were 'clearly [ANSTO's] witnesses', Mr Lever was able to rely on inferences open to be drawn against ANSTO, consistently with what was said by Kitto J in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308 as to the evidentiary principle which applies where there is a failure to call a witness, as follows: '... any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.' No authority was cited in support of the proposition that attendees at a mediation meeting are compellable or at least qualifiable witnesses as to what may have been asserted or acknowledged at that meeting. Mr Lever contended in any event that his 'detailed evidence as to Dr Doherty accepting [Mr Lever's] analysis of [his] then role, being consistent with at least band 6, as opposed to band 5' should be accepted, and I was referred in that regard generally to pars 29 to 33 of Mr Lever's affidavit. 56 On any view of the evidence, so Mr Lever further contended, his then role involved a significant degree of 'specialisation' as defined in the 'Role Characteristics document' that formed Exhibit D in the proceedings. I was referred in that regard to 'the enabling quadrant in the role analysis' appearing in annexure 'RL 15' to Mr Lever's affidavit sworn on 1 June 2006. The so-called 'lowest graded role' that was referred to in the 'enabling Quadrant' section of that Exhibit D that required specialisation was said by Mr Lever to be 'at least Band 6'. Mr Lever contended that such analysis, and his evidence as to the outcome of the mediation session held on 20 November 2002, was 'entirely consistent with any rational analysis of Exhibit A (being a colour photocopy of Exhibit RL 11)'. That Exhibit A was described by him as 'a combined role analysis document that contains the analysis of Mr Crakanthorp, [Mr Lever] and Dr Doherty', and in that context '[t]he fact that it was an accurate portrayal of those individuals... was not seriously challenged in [Mr Lever's] cross-examination'. Mr Lever yet further contended that '[i]f the document being Exhibit A is accepted on face value, together with the evidence of [Mr Lever], a simple reading of the Role Characteristics document together with the inferences available against [ANSTO] referred to above ... [demanded] the only viable factual finding open to the Court [to be] that, at least as at 20 November 2002, [Mr Lever's] substantive role was the equivalent of at least band 6 and not the band 5 at which [ANSTO] was formally characterising him'. 57 The Court was informed by Mr Lever that the mediation session did not resolve Mr Lever's substantive classification dispute, and that as a result he eventually sent to Dr Doherty an email advising him of his intention to progress the matter by way of a so-called 'peer review process'. Dr Doherty's response to that stated intention was recorded in an email bearing date 12 December 2002 to Mr Lever stating 'Ron, for your own sake, I beg you one last time not to pursue this' . It was submitted by Mr Lever that such ANSTO conduct was directed to preventing Mr Lever 'from accessing his entitlement to a benefit (namely an entitlement to access a peer review process) under an industrial instrument', and that ANSTO's conduct in refusing to acknowledge Mr Lever's so-called 'substantive position' as at least band 6, and to then seek to deter the applicant from the peer review process, was 'further evidence of conduct in breach of s 298K(1)(b), (c) and (e)'. I have difficulty with the purported description of that outcome in terms of an attempt by ANSTO to prevent Mr Lever from 'accessing' any so-called 'peer review'. 68 It was said to be not disputed by ANSTO that on 23 May 2003, ANSTO's then Executive Director, Professor Garnett, refused to hold a reference panel (Mr Lever's request for a reference panel appears in annexure 'RL 16' to his 1 June 2006 affidavit). Professor Garnett was not called to give evidence in the proceedings, and on that footing, Mr Lever contended that ANSTO was 'unable to effectively meet the reverse onus', being a circumstance said by Mr Lever to have been 'further compounded by the inference available to be drawn against it from the failure to call Professor Garnett to give evidence pursuant to the authority of Jones v Dunkel [101 CLR 298] ' . It was submitted further by Mr Lever that the refusal to convene a reference panel 'had the deleterious effect of preventing the applicant from having an effective resolution of his then classification dispute in mid 2003', that being described as 'a clear injury and/or alteration of the applicant's position to his detriment'. 69 Hence the submission of Mr Lever's case, based on those asserted breaches, was contended to be made out on the evidence placed before the Court, being a conclusion further said to be 'comfortably assisted by the reverse onus'. 70 The sixth series of breaches propounded by Mr Lever were outlined in pars 51 and 52 of his points of claim, as follows: '51. The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice or discriminated against the Applicant in the terms or conditions on which ANSTO offered employment or continuing employment to the Applicant in breach of Section 298K(1)(b), (c) and (e) of the pre-reform WR Act. Particulars of Breaches ANSTO breached Section 298K(1)(b), (c) and (e) by making a threat to the Applicant in relation to his employment with the intent of dissuading or preventing the Applicant from pursuing any industrial proceedings in resolution of his classification dispute. 52. The Applicant alleges that ANSTO's conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 50 and 51 above was carried out for a prohibited reason as specified by Section 298L of the pre-reform Act. Particulars of Prohibited Reasons (a) The Applicant repeats paragraph 34(a) to (d) above. (b) Section 298L(1)(n) ; the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to July 2003.' (Emphasis in original.) 143 As to the above third false representation pleaded by Mr Lever, ANSTO acknowledged that Professor Garnett was its Executive Director at the material time, and moreover that Dr Doherty agreed that he said words to similar effect, though upon the basis that so much represented his personal opinion. It was ANSTO's response nevertheless that it would be 'irrational to assert that the expression of such an opinion by Dr Doherty prevented [Mr Lever] from pursuing any review available to him of Dr Doherty's decision not to promote him', being a response to which Mr Lever did not rejoin adequately or at all. Mr Lever submitted in reply in any event that such so-called representation as to Professor Garnett 'had no basis in fact and was false', pointing out that Professor Garnett was not called by ANSTO as a witness and the Jones v Dunkel inference must be applied. I have difficulty in drawing any such inference in the circumstances attending the present issue, but in any event, the ANSTO response was not shown to be otherwise than correct, and I am unable to understand where the submission effectively took Mr Lever's case as to alleged actionable representation. 144 As to the fourth false representation so particularised above by Mr Lever, being that 'ANSTO/Dr Doherty was not able to retrospectively address the issue of Mr Lever's classification', ANSTO observed that the evidence, on which that representation was said to have been falsely made, was seemingly based on the statement attributed to Dr Doherty by Mr Lever that 'I cannot do something retrospectively'. ANSTO pointed out in relation to Mr Lever's account of the conversation that it was not clear what was that 'something' to which Dr Doherty might have been referring. In Dr Doherty's narrative of that conversation, he explained in any event that his words were to the effect, 'I can't go back and retrospectively set your objectives at that level', referring thereby to the predetermined work objectives by reference to which an ANSTO employee's work performance in each financial year fell to be measured. Under the CAS in operation at that time, so ANSTO further pointed out, at least one method for an employee to obtain promotion to a higher grade was to demonstrate, in the course of an assessment year, his or her capacity to work at the relevant higher grade by achieving predetermined work objectives commensurate with work at the grade to which the employee was seeking promotion. ANSTO emphasised accordingly that the setting of such work objectives retrospectively 'would obviously be highly artificial', that 'Dr Doherty's statement was quite unremarkable, and unlikely to have been false', and that '[Mr Lever] has tendered no evidence from which it can be concluded that the statement was false'. ANSTO submitted moreover that none of the four alleged false representations prevented Mr Lever from pursuing any review of ANSTO's decision-making otherwise available to him, and that Mr Lever had 'only asserted that they were intended to induce him not to seek, or to discourage him from seeking, a review', but had not asserted 'his right to make his own decision about a review was taken away from him'. Consequently ANSTO contended that Mr Lever was in reality charging merely that '[ANSTO] sought to influence the decision [Mr Lever] made'. 145 In any event, in relation to the second series of breaches pleaded by Mr Lever in his points of claim, ANSTO submitted that the same were propounded in his submissions in merely 'a cursory way'. From what I have already detailed earlier in relation to Mr Lever's presentation of that series of breaches, it was not a simple task for Mr Lever to obviate the validity of that submission. Even if there was nothing contained in the so-called 'relevant industrial instruments in place at the time [which] support the assertions of Dr Doherty as to the reasons for not advancing [Mr Lever] to [SPO1]', so ANSTO's submissions continued in relation to this second series of breaches , it did not follow that 'those representations were false or that they injured [Mr Lever] in his employment'. ANSTO was at least substantially correct in its contention to the effect that Mr Lever's submissions upon the second series of breaches were lacking in persuasive force and did not have the purported nature, effect or legal consequences for which Mr Lever contended. There was in my opinion clear force in that submission. The impression I tended to gain from the presentation of the case articulated by Mr Lever generally was that it was enough for Mr Lever to advance a purported proposition in the course of addressing an issue he had raised, whether by pleading or submission, in order that ANSTO become obliged to establish the converse or suffer the consequences of the operation of the reverse onus of proof pursuant to s 298V. In other words, there was a tendency on the part of Mr Lever to misstate the operation in his favour of s 298V, which is confined in scope relevantly to '[allegations] that ... conduct was ... carried out for a particular reason or with a particular intent '. 162 Those foregoing submissions of ANSTO concerning the theme and detail of the so-called fifth series of breaches have in my opinion inherent cogency. Mr Lever's response was essentially to join issue and assert that '[a]gain, the failure to call Professor Garnett who signed the letter leaves the necessary Jones v Dunkel inference open and, in the light of the presumption in s 298V, the breach ought to be found proved', but I do not think that in all the circumstances there was substance in that rejoinder. 163 This segment of ANSTO's responses was formulated in the context of Dr Doherty's commencement of a period of extended leave in or about April 2003 and his subsequent retirement from his employment at ANSTO shortly afterwards on 17 July 2003. At 5.17 pm on that last day, Dr Doherty sent an email to Mr Lever headed 'Industrial Commission' and which contained the following: 'Ron, I heard that you had decided to not to [ sic ] proceed to the final IRC process. Is this true? I hope so. I would not like to see you destroy your career prospects here unless you are planning to leave any way. You still have good will amongst your ANSTO clients.' Mr Lever replied however in the following terms: 'Greg. Thanks for your concern. What I am trying to do is to get on with my work. I have spoken to Crackers and we have agreed on some training and a future direction for this assessment year. I want the past issues handled separately. You will be sorry to hear that I am still trying to resolve these issues by other means. Hopefully this will not interfere with my future.' On the following day Dr Doherty responded as follows: 'I am sorry to hear it, because I think it's inevitable that it will affect your career here, but maybe you are not intending to stay in any case. I'll let it rest.'