Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: followed
Parallel conduct can constitute circumstantial evidence from which an arrangement or understanding may be inferred: Email at 386. Where there is no direct evidence of an arrangement or understanding, an inference that such an arrangement or understanding existed may be drawn from evidence that the parties' conduct exhibits 'a concurrence of time, character, direction and result': David Jones at 468 applying R v Associated Northern Collieries [1911] HCA 73 ; (1911) 14 CLR 387 (' Northern Collieries' ) at 400. Inferences of an arrangement or understanding are apt to be drawn from circumstantial evidence when the facts are particularly within the knowledge of a party who is not called to give evidence: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (' Jones v Dunkel' ); see also David Jones at 465. 158 Senior counsel for the ACCC urged me to apply the principles enunciated by the High Court in Jones v Dunkel to support the inference that Edison and the CEPU made an arrangement to the effect alleged by the ACCC. While it is clearly open to me to infer from the CEPU's failure to call evidence from key players at the CEPU who would have direct knowledge of the events in question that those witnesses would not assist the CEPU's case, there are limits to the Jones v Dunkel principle. The principle allows me to draw inferences that are open on the evidence more confidently than might otherwise be the case; but it cannot be used to make up for gaps in the evidence. In this case, the inferences that I have drawn from the evidence are so clear that I do not need to rely upon Jones v Dunkel . It is, nonetheless, correct that the absence of evidence adduced by the CEPU from Mighell and Mooney allows me to infer with greater confidence that the CEPU received the letter of 13 August from Sutherland and that it did so before Mooney signed the Simon Engineering MOU on 15 August. More generally, the absence of evidence from the CEPU allows me to conclude, more confidently, that Edison had communicated to the CEPU by 15 August the fact that Edison agreed to the CEPU's requirement that electrical contractors not be permitted to perform work at Loy Yang B unless they had a current certified agreement with the CEPU. 159 The CEPU advanced a series of reasons why I should infer that the 13 August letter was not sent to the CEPU. 160 First, it argued that to infer that the 13 August letter was sent is inconsistent with the fact that Burns and Sutherland agreed to seek advice from Corrs on 10 August or in the week of 13 August. Sutherland gave evidence that he recalled having some discussions by telephone with Burns at Loy Yang B and arising from those discussions they thought that Edison should get some advice from Corrs. He said that Burns agreed to approach Corrs to get the advice. He also said that he believed his discussion with Burns by telephone took place on 10 August and that the proposed legal advice was to relate to both the site access issue and the electrical contractors issue. Sutherland said that Burns made the contact with Corrs, although Sutherland was involved in an initial meeting with Corrs. Sutherland confirmed that Corrs drafted the heads of agreement. On the other hand, Burns said he was not involved in giving any instructions to Corrs to prepare the draft heads of agreement.