Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: cited
The appellants contend that the primary judge has mis-applied the rule in Jones v Dunkel (1959) 101 CLR 298 and that the primary judge has relied upon the evidence of Mr Breed in reaching conclusions about the evidence of Mr Tracy and matters going to Mr Tracy's credit. Further, the appellants say that they have been denied procedural fairness as they were not provided with an opportunity to cross-examine Mr Breed in respect of his affidavit tendered in evidence by the respondents. These matters concerning Mr Breed are said to involve errors of law affecting fact-finding and give rise to arguable grounds of appeal. Mr Lynch gives emphasis to these matters particularly the contended denial of procedural fairness in the opportunity to cross-examine Mr Breed, in his oral submissions in support of the stay application. Mr Lynch says that the appeal is not frivolous and raises arguable grounds. He says that if the first and second respondents resist the stay of the orders on the cross-claim on the ground fundamentally that the appellants have failed to reach the threshold of an arguable ground of appeal, the challenge to the findings on credit and their relationship with the evidence of Mr Breed raises at least an arguable ground of appeal. 19 The notice of appeal recites 63 grounds of appeal. It is not useful in these reasons to recite all of the grounds of appeal nor is it useful to undertake an analysis of the merits of any of them. It is useful however to identify the focus of the grounds of challenge in exercising the discretion in relation to the stay of the orders on the cross-claim, in particular. 20 By grounds 1, 2, 7, 14, 17, 18, 21, 23, [23 again], 26, 27, 28, 31, 32, 34, 37, 38, 43, 44, 45, 46, 49, 52, 54, 55, 58 and 60, the appellants contend that the primary judge reached findings which are against the weight of evidence. By grounds 5, 7, 8, 9, 10, 12, 13, 20, 25, 30 and 36, the appellants contend for errors of law in the reception into evidence of Mr Breed's affidavit, the denial of an opportunity to cross-examine Mr Breed (procedural unfairness), the refusal to draw an adverse inference against the first and second respondents in accordance with Jones v Dunkel and errors of law in reliance upon the affidavit in relation to particular findings. By ground 3, the appellants say that the adverse finding on credit based upon a failure to adduce evidence of a serious accusation is unreliable because the appellants did not plead such an allegation and were not obliged to adduce evidence of it. By ground 4, the appellants say that credit findings concerning Mr Tracy which rely upon allegations by him of the use by the first respondent of a particular pesticide are unreliable and made in error as the particular allegation was not pleaded against the first respondent. 21 By grounds 15 and 15A, the appellants say that the primary judge erred in law by finding that the first respondent when authorising the provision of a valuation dated 1 June 2004 to Mr Tracy, did not contravene s 52 of the Act on the basis that the valuation mentioned financial years not crop years. 22 By grounds 22 and 23, the appellants contend that the primary judge erred in law in concluding that the contended failure to disclose particular matters was misleading or deceptive.