Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
number of miscellaneous matters should be briefly addressed lest it be thought that they have been overlooked, namely: (i) a number of Jones v Dunkel submissions advanced on behalf of both the Applicants and the Third Respondent, Dr Beaini; (ii) a submission advanced on behalf of the Applicants as to the non-production of documents; (iii) the use that could be made of the evidence of Mr Gambell; (iv) the need to address the manner in which the evidence given by the Fourth and Fifth Respondent should be assessed; and (v) an application made by the Applicants for the waiver of hearing fees otherwise payable pursuant to reg 7 of the Federal Court of Australia Regulations 2004 (Cth) (the " Regulations "). Jones v Dunkel Both the Applicants and the Third Respondent made submissions founded upon the failure to call available witnesses. These competing submissions invoked the following observations of Kitto J in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308: ... any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The rule is one of common sense reasoning. An unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might have been expected to call the witness: Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 343 per Kirby P. A court must see that a person who has not given evidence not only could shed light on a matter, but also would ordinarily be expected to do so: 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. But reliance upon Jones v Dunkel , it is considered, is of limited assistance to either the Applicants or the Third Respondent. The Applicants are correct in their submission that one or both of the two daughters could have been called to give evidence as to their involvement in the business of the Bade Medical Institute and that the accountant for that business could also have been called. Indeed, the accountant may have been able to assist in the calculation of (for example) the profits earned by that business. But it is considered that little significance is to be attached to the failure to call such witnesses. All Respondents were represented at the outset of the proceeding &#8212; but only the Third Respondent was represented at the hearing itself. The Fourth and Fifth Respondents were unrepresented and both experienced their own medical disabilities, especially the Fourth Respondent. The Fourth and Fifth Respondents conducted their cases with as much care and skill as they were able to muster. It is not considered an appropriate course to pursue &#8212; in the present case &#8212; to proceed to draw inferences based solely upon the fact that one or other possible witness was not called. Some limited significance has been attributed to the failure to call one or other of the daughters. But the preferable course, and the course in fact pursued, has been to assess what each witness said by reference to the available documentary evidence. A failure to call the " compounding pharmacist " attracts potentially different considerations. It may have been expected that the Third Respondent, being a party who was represented by both Counsel and instructing solicitors for a large part of the hearing, may have called this witness. He, again, may have been a witness who could have provided assistance as to the calculation of profits of the Bade Medical Institute. The failure of the Applicants to call Dr Vaisman also attracts different considerations. The Applicants were at all material times represented by both solicitors and Counsel. The prospect of the Third Respondent himself calling Dr Vaisman was raised during the course of a Directions hearing shortly prior to the commencement of the June 2009 hearing. The Applicants undertook to make Dr Vaisman available to give evidence upon the Third Respondent providing an outline of the facts sought to be established. Such an outline was sought so that agreement could be reached, if possible, as to those facts which were not in dispute. Even short of such an undertaking, a course available to the Third Respondent was to issue a subpoena seeking his attendance. It remained a matter for the Third Respondent to decide whether he wished to: rely upon Jones v Dunkel and seek to gain such assistance as was possible from whatever inferences may have been available; attempt to secure agreement with the Applicants as to uncontentious facts; or simply seek leave to serve a subpoena for the attendance of Dr Vaisman. If called by the Third Respondent, Dr Vaisman could not ordinarily be cross-examined by that Respondent. But no outline of the facts sought to be established was provided. The Applicants were released from the undertaking and (as events transpired) no subpoena was sought by the Third Respondent to secure Dr Vaisman's attendance. Submissions were nevertheless invited at the outset of the hearing as to the " inferences favourable " to the Respondents which it was said were available and which should be drawn by reason of the failure to call Dr Vaisman. There may perhaps be no need for a party to foreshadow at the outset of a hearing what particular inferences the Court may ultimately be invited to draw at the conclusion of the hearing. There is no necessity for a party to in effect provide at the outset an " advice on evidence " to his opponent. There may be no necessity for a party to even foreshadow that a submission will be made founded upon Jones v Dunkel . In the case where both the Applicants and the Third Respondent were represented by Counsel, the manner in which each sought to run its own case may safely be left in their hands. But the skirmish over whether Dr Vaisman was to be called or by which party ultimately assumed little relevance. Although it remained unclear what inferences the Third Respondent wanted the Court to draw by reason of the Applicants' failure to call this witness, at the end of the day it is not considered that the state of the evidence was affected by the fact that he did not give any evidence.