In Australian litigation, a party’s failure to call a relevant witness or produce important evidence may affect how a court assesses the facts in dispute. The Jones v Dunkel rule allows courts, in appropriate circumstances, to draw an adverse inference where a party fails to provide evidence without a satisfactory explanation. However, the rule has important limitations and does not relieve the opposing party of its burden of proof. Understanding its application can help businesses and individuals manage evidentiary risks during litigation.
What is the Jones v Dunkel rule?
The rule originates from the High Court’s decision in Jones v Dunkel (1959) 101 CLR 298. The case concerned a fatal collision between two trucks. The widow of one driver commenced negligence proceedings. However, the defendant did not give evidence explaining the collision. The High Court held, by majority, that the jury should have been directed that the unexplained absence of the surviving driver’s evidence could support an inference of negligence otherwise available from the established facts.
The resulting principle is that where a party fails to call evidence it would reasonably be expected to provide, the court may infer that the evidence would not have assisted that party’s case.
When can an adverse inference be drawn?
Australian courts generally consider three factors:
- Expected witness: Whether the absent witness would reasonably be expected to be called by one party rather than the other.
- Relevant evidence: Whether the witness could clarify a material issue in dispute.
- Unexplained absence: Whether the party has provided a satisfactory explanation for not calling the witness.
These conditions were reaffirmed by the NSW Court of Appeal in RHG Mortgage Ltd v Ianni [2015] NSWCA 56. In this case, borrowers alleged they had been misled by their son concerning their liability under loan and mortgage arrangements, however, the son was not called to give evidence. The Court of Appeal considered him an obvious witness who could have corroborated the borrowers’ account, and his unexplained absence was significant. An inference will not necessarily arise where the witness is unavailable for a reasonable cause, could not materially assist in resolving the dispute, or would merely repeat evidence already provided.
What are the limitations of the rule?
The Jones v Dunkel rule does not permit courts to speculate about what an absent witness would have said. In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, [63]-[64], the High Court explained that an unexplained failure to call a witness may support an inference that the evidence would not have assisted the party. It does not, without more, establish that the evidence would have been positively damaging. Similarly, in Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61, [49], the NSW Court of Appeal confirmed that the rule cannot fill gaps in the evidence. It may instead strengthen an inference already available from established facts. The rule therefore does not reverse the burden of proof of the plaintiff who must still establish a sufficient evidentiary foundation for the claim.
##How does the rule apply in practice? The rule can arise in negligence claims, contractual disputes, commercial litigation and proceedings involving contested representations or transactions.
Motor accident claims
In Lim v Cho [2018] NSWCA 145, the NSW Court of Appeal considered a negligence claim involving a passenger injured after jumping from a moving vehicle. The plaintiff sought to rely on the driver’s failure to give evidence. However, the Court held that the missing testimony could not establish facts unsupported by the existing evidence. The rule did not assist the plaintiff in proving that the driver had sufficient time to prevent or reduce the injury.
Commercial and contractual disputes
In commercial disputes, the rule may become relevant where a party fails to call a director, employee or representative with material knowledge of disputed events. However, the court must still be satisfied that the circumstances justify the inference, and the opposing party remains responsible for establishing its case.
What should parties consider when preparing for litigation?
Parties should identify relevant witnesses, preserve records and consider whether particular evidence will be necessary to establish or defend their position.
Important steps include:
- Identifying witnesses with direct knowledge of disputed events
- Preserving correspondence, transaction records and other relevant documents
- Assessing whether key witnesses are available to give evidence
- Documenting legitimate reasons where relevant witnesses cannot be called
- Ensuring that factual allegations are supported by admissible evidence
The decision not to call a witness may be justified in particular circumstances. However, an unexplained absence can affect the court’s assessment of evidence already before it. The Jones v Dunkel rule does not allow courts to assume missing evidence proves the opposing party’s case, rather, it permits a limited adverse inference where relevant evidence is absent without satisfactory explanation, provided there is an existing evidentiary basis for the conclusion sought.
Early evidence preservation and careful litigation preparation can help parties manage these risks and present their cases effectively.
References:
- Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61, [49].
- Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312-13 (Menzies J), 320-21 (Windeyer J).
- Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [63]-[64].
- Lim v Cho [2018] NSWCA 145, [39]-[42].
- RHG Mortgage Ltd v Ianni [2015] NSWCA 56.