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Jones v Dunkel – the problem of not calling a witness at a hearing

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:-

  • That the witness, in fact, has knowledge of the relevant matter, and,
  • The witness is “available” to the litigant who did not call him or her.

This presents at least two difficulties for a party seeking to draw the inference. The first is that a mere suspicion that a witness has relevant knowledge will generally not be enough. The party seeking to draw the inference needs to know what it is the witness could have said; and be able to satisfy a Court about that knowledge. Secondly, the person seeking to draw the inference needs to be able to show the particular witness was ‘available’ to the party that failed to call them. In the vernacular, they need to show the witness was “in the camp” of the other litigant. That is not always an easy thing. Where a former employee has left (particularly on poor terms), or where a third party witness may be difficult to locate; parties seeking to draw the inference may not be able to establish “availability”.

Each case will certainly depend on its own fact but the discussion of this issue in the case is a reminder (perhaps particularly for trial lawyers) that the mere fact a witness is not called to give evidence will not automatically give rise to a Jones v Dunkel inference: Cape Byron Power Pty Ltd v HSB Engineering Insurance Limited [2017] NSWSC 1081 (particularly at paragraph 48-60).

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