Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: followed
The explanation provided by Mr Wieland as to why the inspections may well have occurred at an earlier point of time, namely that the dates appearing on the records are the dates upon which those " in the office " subsequently completed the records, is rejected. Such an explanation is inconsistent with that which the records expose -- the records requiring those conducting the inspections to certify that which they found and to state (for example) the " date of testing ". Mr Wieland ultimately accepted that the explanation he was advancing as a " possibility " was but " speculation ". In such circumstances, there is no reason not to find that the test records were carried out upon the dates set forth. The findings of fact that the machines were inspected on the dates appearing on the face of individual documents, it is considered, is supported by both the form of the documents themselves and the conclusion that Mr Wieland's evidence, especially in this respect, was considered to be unpersuasive. Moreover, those findings of fact are only further reinforced by the absence of any evidence being called from those persons employed in the Chinese factory to either support the " speculation " of Mr Wieland or to expressly state what the practice was in respect to the dating of inspection reports: cf Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J. Given the importance of the dates upon which inspections did in fact occur, being evidence centrally relevant to when the SLP 1100s were manufactured and were in fact in operation, it is considered that those persons who in fact completed the inspection reports (or at least perhaps one of them) could have shed light on the matter and would have been expected to have done so: cf RPS v The Queen [2000] HCA 3 at [25] , [2000] HCA 3 ; 199 CLR 620 at 632 per Gaudron ACJ, Gummow, Kirby and Hayne JJ. 177 In the absence of the " as built " drawings for the second SLP 1100 which failed, and in the absence of Mr Sun being called to give any evidence, the best evidence available to the Court as to the critical dimension presently in issue remained the measurements of Mr Better. That evidence, together with his conclusion, should be accepted. Even in the absence of recourse to the principle in Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, it is considered that the evidence of Mr Better was to be accepted. 178 Rejected is the express written submission advanced on behalf of the Respondents that " there was no explanation provided as to why the centre tongue in each of the samples was so badly decomposed ". It was Mr Better who provided that explanation. 179 A further line of cross-examination was to suggest that, if there had been insufficient axial clearance, the SLP 1100 would not have been operable at all -- or would not have been able to operate from April to August 2003. Mr Better's June 2008 Report addressed this possibility by maintaining that: Likely reasons for the operation during the 4-month period could be attributed to a combination of it being exposed to reasonably constant temperatures and the bearing assembly being greased regularly. It is also probable that there was some misalignment of the shaft and bearings and this would tend to cause point contact in the labyrinth, which would reduce the risk of seizing.