Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
Both parties submitted that the other should have called Mr Koeppen, and that the failure to do so enlivened the principle in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. That is, each submitted that the unexplained failure of the other to call Mr Koeppen would sustain an inference that his evidence would not have assisted the other's case. The legal principle is also that the failure enables available inferences to be drawn more confidently. Neither SEA nor CPI sought to explain by evidence why they had not called Mr Koeppen (see West v Government Insurance Office of NSW [1981] HCA 38 ; (1981) 148 CLR 62 at 70), although counsel for SEA did elicit from Mr Cassell that Mr Koeppen had been in Australia shortly before the trial and he had been in contact with him. It seems to me that either party could have called Mr Koeppen, although there may have been problems about requiring his attendance if he had not been willing to give evidence. He is, in a sense, in both SEA's and CPI's camp (to use the term often used in this area of legal discourse) and would have been equally available to both. He has an ongoing commercial relationship, on behalf of the Mill, with CPI. SEO also has an interest in the Mill. There is a division of judicial opinion whether, in circumstances where a witness is equally available to both parties, the principle operates to enable inferences to be drawn against both: see the discussion in AMP Services Ltd v Manning [2006] FCA 256 at [49] and also Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 at [49] . 111 The single most significant fact about which Mr Koeppen could have given evidence was evidence of what Mr Fabrello said at the meeting of 17 June 2003. CPI bears the burden of proving the pleaded statement was made. For reasons discussed later, I am not satisfied it was. However, in my opinion, the principle in Jones v Dunkel does not have a material role to play in this case and, as to that conversation, I would prefer to rest my conclusion on the reasons I gave earlier. 112 CPI submitted that the principle operated more generally, adversely to SEA, and particularly in relation to the issue of whether SEA had made a decision to cut supply to Moore. But again I doubt whether the principle in Jones v Dunkel has a material role to play. The relevant factual issue was the position which had been adopted by SEA by 19 May 2003 in relation to supplying Moore, and what was said by Mr Ellenberg to Mr Cassell about that matter on that day. That particular issue was not a matter about which Mr Koeppen was likely to be able to give evidence beyond giving evidence about the Mill's attitude and contractual obligations. Both of those matters are addressed by contemporaneous records (emails and contracts). 113 SEA filed expert accounting evidence well before the hearing. The expert was Ms Wheatley. At that time no responsive expert accounting evidence was filed by CPI. However, it sought to file such evidence days before the hearing was scheduled to commence. It was allowed to do so. Its expert was Mr Phillips. Ultimately, the two experts conferred and a joint report was prepared, although differences of opinion remained. Somewhat simplified, the experts addressed the question of what a chief financial officer in the position of Mr Akdogan might have gleaned from the financial information provided to him before 26 June 2003. 114 SEA submitted that the purpose of its expert's evidence was not to demonstrate incompetence on the part of Mr Akdogan, but rather to lend weight to the proposition that on the balance of probabilities he and Mr Cassell in fact new that Boomerang would not be able to meet its obligations. CPI challenged the conclusions reached by Ms Wheatley but also submitted that the expert evidence said nothing about the actual knowledge of Mr Akdogan, still less Mr Cassell, and whether they had actual knowledge of the financial position of the Boomerang companies was not a matter for expert evidence.