Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 
Outcome: referred to
I am satisfied that such an occasion did occur on 20 October 2003. Evidence to that effect was given by five witnesses for the applicant. Krkovski had only recently made the decision to employ Silvestri P/L in lieu of the previous excavation subcontractor. At the time he gave evidence, he was not employed by LGB and provided no affidavit in advance of the hearing. Matlioski was a contracts administrator employed by LGB based in Sydney who was visiting the site. He was no longer employed by LGB at the time he gave evidence. Matlioski was accompanied to the site that day by one Mr Branco Riklovski, a draftsman employed by LGB based in Sydney. He was not called to give evidence. Because of the absence of that witness, counsel for the respondents sought to rely upon the principle in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Picciau was the Assistant Project Manager employed by LGB. Srbinovski was a leading hand employed by LGB. Hill was a labourer employed by LGB who was no longer employed at the time he gave evidence and had not been employed since April 2004. There were inconsistencies in the detail of the evidence given by these witnesses and there is no contemporaneous note by any of them. There is a reasonably contemporaneous note by Matlioski but it appears to have been produced as a result of a request by the Building Industry Taskforce which was investigating Antonio Silvestri's complaints. However, each witness clearly identified and gave evidence about the same occurrence on the Monday, which was the day before the drama at the site on Tuesday 21 October 2003. Given what occurred on 21 October 2003, it is most unlikely that all of the witnesses would have been mistaken about the timing of the meeting with the Union officials about which they gave evidence. 40 The WorkCover inspector, Childs, recorded in his notebook that, when he met Krkovski and Antonio Silvestri on the morning of 21 October 2003, Krkovski stated that: "The issue started yesterday when they attended" [the Union and] "arrived on site Dave Kelly &amp; Mick Lane. Issues raised by Union 1) Why was the excavation company changed ..." Whilst Krkovski had obviously mistaken the names of Primmer and Kelly, this was significant independent and contemporaneous evidence confirming the version of the witnesses for the applicants. 41 I see no reason to doubt the honesty of any of the witnesses called by the applicants as to this incident. Three had left the employ of LGB at the time they gave evidence and clearly had nothing to gain one way or the other. The newly-appointed site manager would be expected to have a good recall of the events and appeared to do so given the difficulties occasioned by the considerable lapse of time between the events and giving evidence. He presented as a competent and intelligent person. Matlioski appeared to be an honest and competent witness whose nearly contemporaneous note supported the existence of the occasion. Hill was, as his background would suggest, of limited sophistication and was, at times, quite inarticulate. Apart from a tendency to agree, perhaps too readily, to matters that were put to him, his honesty could not be questioned. Srbinovski, although still employed by LGB, appeared to me to be an honest and reliable witness. The same could be said of Picciau. It needs to be borne in mind that LGB itself had little to gain from involvement in the proceedings. It is suggested that the proceeding assists LGB in dealing with or avoiding any claim from Silvestri P/L. In my view, that possibility would rate fairly low on the scale for a developer compared with becoming embroiled in an adversary proceeding against these respondents.