Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: applied
On the contrary, the evidence which I accept is that Mr Sathaar, to whom Mr Coon answered, praised Mr Coon for his work on 9 December 2005. Mr Sathaar is still employed by the respondent and was available to give evidence. He was not called. Consequently, the Court is able more confidently to conclude that the evidence of Mr Sathaar would not have assisted the respondent on this question and to accept the evidence of Mr Coon that he was praised for his work on the day: Jones v Dunkel (1959) 101 CLR 298 ( Jones v Dunkel ) 47 Then, the evidence of the nature of the failings in Mr Coon's work was unsatisfactory and cast doubt on the accusation that Mr Coon had failed to fulfil his duties. There were a number of allegations made by Mr Thornton against Mr Coon which were so extravagant or so lacking in detail as to make them improbable. There were sufficient occasions of such evidence as to indicate that Mr Thornton's accusations against Mr Coon should not be relied upon. 48 For instance, in [6] of the respondent's contentions filed on 10 July 2007 prior to the hearing and authored by Mr Thornton prior to the respondent securing legal representation, it was said: The second applicant was placed on a dimensional checking role which he performed very poorly and resulted in the respondent shipping incorrect work and receiving rectification costs of approx $250,000. The respondent was served with a notice to produce which sought production of any documents relating to these costs. The respondent produced a credit note dated 30 June 2007, for $50,000 in favour of Monodelphous Pty Ltd. This represented the amount accepted by the respondent for rectification costs of the dispatch of steel on 9 December 2005. When this document was put to Mr Thornton in cross examination he said that he did not mean the contentions to say that Mr Coon was responsible for the whole $250,000 rectification costs. He said that the paragraph was just poorly worded and was prepared by him without assistance. Having regard to the centrality and seriousness of the allegations made, these explanations were, and came across in the witness box as, unconvincing. Further, the credit note came into existence well after the dismissal and could not have been the reason for it. Perhaps sensing these shortcomings Mr Thornton took the opportunity shortly afterwards and following a lunch break to use a question in cross examination as a means to seek to retrieve the situation. The exchange was as follows: Well, you don't point us to any other instance of his alleged poor performance at any time than 9 December, do you?---Yes, well, I will say one thing, which was in relation to this $250,000, point six, which is made on the contentions of fact, saying that we had that he just worked that one day and we made $250,000 worth of errors that day. He didn't, but he was working for about two weeks prior in the beamline as a QO man, effectively letting errors go through, I believe, intentionally. When do you say he was working for two weeks in the beamline as a QO man?---You might need to ask Mr Coon exactly, but I spoke to Mr Sathaar at lunch time. He said, "No, he worked for about two weeks in the beamline as a like a QO person in the same role." You went and telephoned Mr Sathaar in the lunch break?---Am I not allowed to do that? Well - - -?---Sorry, I didn't realise that was something I wasn't allowed to do. It was explained to you, I think before the before we broke when we broke for lunch by your counsel that you weren't to be having any discussions over the break, wasn't it?---He said I couldn't talk to him. All right, but you thought you were at liberty to go off and speak to Mr Sathaar to find out the situation?---Well, if you want clarity on what happens, isn't that the best thing? 50 Further, the information was obtained over lunch from Mr Sathaar. Mr Thornton said, in effect, that this was the obvious thing to do because Mr Sathaar had the relevant information. And yet Mr Sathaar was not called to give evidence. He was supervising Mr Coon in the job as quality inspector and was present in the yard when, as Mr Thornton alleged, the errors were found. Mr Sathaar was involved in correcting the errors also. Mr Coon denied each of these facts. Mr Thornton also said that he and Mr Sathaar discussed Mr Coon's unsuitability for the job and the reasons for dismissing Mr Coon at the end of his trial period. It can be concluded from the failure of the respondent to call Mr Sathaar that he would not have assisted the respondent's case on these issues: Jones v Dunkel . 51 Another obstacle faced by the respondent in its argument that Mr Coon caused significant cost to the respondent by failing to inspect the steel in the yard properly was that Mr Thornton said that he, his father, and Mr Sathaar had to do the job which Mr Coon had failed to do. If this were so, and they had done the inspection, one would expect that there would have been no faulty steel dispatched on that day. Consequently, there would have been no rectification costs incurred. When faced with this suggestion in cross examination Mr Thornton responded that: ... I'm not sure we rechecked everything. 52 The lack of certainty expressed in this answer is at odds with Mr Thornton's evidence of his extreme level of anxiety arising from the circumstances of the day which Mr Thornton had previously described. 94 Both Mr Sathaar and Mr Thornton's father could have given evidence as to how far away from the meeting they were standing, whether they were checking steel as Mr Thornton said, and whether the speakers were audible to them. Both men were available to the respondent and are in its camp. Their absence from the witness box leads to the conclusion that their evidence would not have assisted the respondent: Jones v Dunkel . 95 I prefer the evidence of Mr Kemmis, Mr Coon and Mr Taylor that Mr Thornton was no more than 30 metres from the meeting. In particular Mr Taylor had a recollection of the location of the management group by reference to a particular door of the plate work factory. This was a level of detail not found in Mr Thornton's recollection. I also accept the evidence of Mr Taylor that the speakers aimed to have Mr Thornton hear what was said and that it was said loudly for Mr Thornton to hear. 96 I find that the evidence positively establishes that Mr Thornton was present within 30 metres of the meeting for the purpose of observing and listening to what was said. I further find that he heard Mr Coon and Mr Kemmis speak at the meeting in favour of union involvement in negotiating a collective agreement with the respondent, and he observed workers at the meeting vote in favour of this course.