Applicant v Respondent

2 The Magistrates' Court found for the respondent. Mr Cayford has now appealed to this Court under s 109 of the Magistrates' Court Act 1989. The appeal is out of time and he seeks an order extending the time by which he was required to commence it. The appeal would be limited to an appeal on a question of law. Mr Cayford has two central propositions. The first is that the Magistrate erred in law by drawing an inference adverse to him from his failure to call evidence from the co-worker, Mr Symbardis, who he says was lifting the furniture with him on 14 March 2018. The second is that the Magistrate erred in law by fundamentally misstating the effect of the evidence when rejecting his alternative argument that he had suffered injury by gradual process. Mr Cayford also contended that the Magistrate's reasons were inadequate.

3 The trial was heard over four days in early June 2019. The Magistrates' Court delivered judgment orally on 6 July 2020 and pronounced orders dismissing Mr Cayford's case on that day. Due to an oversight,[3] the Court did not notify the parties that judgment was to be, or had been, delivered. Mr Cayford's solicitors did not ascertain that judgment had been delivered until 15 July 2020. They only found out because they made enquiries of the Court given the passage of time. The Court sent them a recording of the reasons for judgment that had been delivered. Mr Cayford's solicitors prepared an informal transcript of the reasons for judgment, and retained counsel to advise on appeal prospects. Following receipt of that advice, instructions to appeal were obtained on 10 August 2020. The notice of appeal was filed on 21 August 2020. Because this was more than 28 days after the orders had been pronounced, it was out of time.

4 There was no suggestion that Mr Cayford and his advisers had not acted promptly in the difficult circumstances in which they found themselves. The respondent, sensibly, consented to the extension of time. I will grant the application for leave to extend time for the commencement of this appeal.

C. Did the Magistrate draw a Jones v Dunkel inference against Mr Cayford that contributed to the decision to reject his evidence?

5 It is an established common law principle that an unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that (at the very least) the uncalled evidence would not have assisted that party's case.[4] This is known as 'the rule in Jones v Dunkel' or a 'Jones v Dunkel inference'.

6 The Magistrate was not satisfied that any injury occurred to Mr Cayford on 14 March 2018. In explaining why, the Magistrate first referred to Mr Yates's evidence that Mr Cayford had not mentioned any such incident to him at the time, and then noted that it was 'strange' that there was no contemporaneous record by any doctor. He said that he had noted the evidence of two other witnesses, and expressed 'disbelief' that Mr Cayford had not provided a medical certificate to Mr Yates when he first received it. His Honour then said:

More importantly, there is reference to the co-worker Michael, the person [Mr Cayford] was working with on the day, 14 March 2018, and clearly a witness to the injury. There is the mobile number ... [Mr Cayford] under cross-examination confirmed that this witness would not be called to give evidence.

The court had regard to the rule in Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298 and where there is an unexplained failure ... by a party ... to call a witness, the court may draw an inference that the uncalled evidence would not assist the party.

This witness would have assisted the court to clarify the circumstances that gave rise to the injury. There was no explanation given for not calling the witness. Further, in the Court of Appeal decision RHG Mortgage Limited v Ianni [2015] NSWCA at 56 it [was] stated:

The court reiterated that the circumstances for drawing a Jones v Dunkel inference are found when an uncalled witness is a person presumably able to put the true complexion on the facts relied upon by a party as the ground for any inference favourable to that party. The three conditions to be applied are (1) whether the uncalled witness would be expected to be called by one party rather than the other; (2) whether his or her attendance would elucidate the matter; (3) whether his or her absence is explained.

When having considered the clinical records ... it is on the balance a reasonable conclusion that no such incident or injury occurred on 14 March 2018 in the course of [Mr Cayford's] employment with the defendant.[5]

7 The respondent, sensibly, did not argue against the proposition that the Magistrate drew an inference against Mr Cayford from his failure to call Mr Symbardis, although the actual inference was not expressed. Mr Cayford submitted, that the Magistrate had erred by drawing the inference without first having found that the first criterion was established. I do not accept that submission. In my view, his Honour by implication found that each of the criteria he identified was met. Further, having regard to the prominence and location of the discussion about Jones v Dunkel in his Honour's reasons, and the use of the words 'more importantly' when introducing that discussion, I also conclude that the drawing of the inference was material to his Honour's decision to reject Mr Cayford's evidence.

8 The parties filed written submissions in the Magistrates' Court hearing. Mr Cayford in his written submission did not respond to the respondent's submission that the Magistrate ought to draw an inference against Mr Cayford from his failure to call Mr Symbardis. I do not read this as amounting to a tacit acceptance that the inference could or should be drawn. Accordingly, if the drawing of the inference was infected with legal error, then in my view the appeal should be allowed.

D. Did the Magistrate err in law in drawing a Jones v Dunkel inference?

D.1. The criteria for the drawing of an inference and Mr Cayford's contentions

9 The Jones v Dunkel inference may be drawn 'when a person presumably able to put the true complexion on the facts relied on ... has not been called as a witness ... and the evidence provides no sufficient explanation of [their] absence'.[6] Because this rule is an aspect of the principle that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted',[7] the inference may only be drawn against a party if, as a matter of common sense, the failure to call the witness may be attributed to a decision made by that party more so than the other party. Where it is equally open, in this sense, to both parties to call a witness, the inference ought not to be drawn.[8] The criteria are often expressed in these terms:[9]

(a) the missing witness would be expected to be called by one party rather than the other. This criterion is often expressed as the missing witness being in one party's 'camp';[10]

(b) the witness's evidence would elucidate a particular matter; and

(c) the witness's absence is unexplained.

10 Mr Cayford did not contend that the Magistrate misstated the legal principles. Rather, he submitted that the inference was not open for two reasons:

(a) Mr Cayford had led direct evidence and was not asking the Court to engage in inferential reasoning; and

(b) it was not open to the Magistrate to find the first criterion established.

D.2. Was the inference open in circumstances where Mr Cayford gave direct evidence that the respondent was challenging only by reference to inference?

11 Mr Cayford submitted that because he was going to give direct evidence of the incident of injury, he could 'expect to be believed', and that this precluded a Jones v Dunkel inference from being drawn against him. I understood the argument to be that:

(a) even if a Jones v Dunkel inference could otherwise be drawn, this was an adequate explanation for Mr Cayford not calling Mr Symbardis; or

(b) because Mr Cayford was giving direct evidence and the respondent was challenging that evidence only by reference to inferences that should be drawn from other matters, such as his failure to mention the incident to his doctors, a Jones v Dunkel inference could only be drawn against the respondent.

12 I do not accept either of these arguments. I consider that a Jones v Dunkel inference may be drawn against a party even if that party gives direct evidence and the other party is not able to challenge that evidence by leading contradictory evidence, at least if it is apparent that the reliability of the direct evidence is going to be disputed. It was also clear, in this case, from the matters referred to below, that the respondent was going to dispute Mr Cayford's direct evidence.

13 The employer's claim form, which was completed by the respondent, indicated that the respondent did not accept that Mr Cayford had a work-related injury or condition. It had attached to it a page that stated various matters under the introductory sentence: 'In addition to our completed Employer Injury Claim report we would like to provide some further information detailing our suspicions that Ryan Cayford's claim has been made fraudulently.' The attachment stated that Mr Cayford had:

(a) told the respondent that he had injured his knee prior to his employment;

(b) worn a knee brace 'on and off' for the entirety of his employment;

(c) told the respondent that he was intending to cease work in 2018 to pursue work as a personal trainer;

(d) not reported the incident of injury at the time or afterwards and continued to work full-time on normal duties until he ceased work on 31 May 2018;

(e) given notice of his intention to cease work on 19 May 2018 without mentioning that he had injured his knee; and

(f) acted in a way that caused the respondent concern when he made, and then sought to withdraw and replace, his claim form in early June 2018.

14 Also, as was discussed in the openings of counsel at the Magistrates' Court, Mr Cayford's medical records could support an inference that the 14 March 2018 incident of injury had not taken place. More particularly:

(a) Mr Cayford had attended his general practice on 19 March 2018, 28 March 2018 and 8 May 2018. There was no mention of any knee pain, or any incident of injury, in the notes of those attendances.

(b) On 19 May 2018, Mr Cayford attended his general practice again. The attendance note recorded a complaint of right shoulder pain and bilateral knee pain 'sometimes'. It did not record any mention of any particular incident of injury, and recorded a history of him having worked 'very hard most of his life' and of there being 'no history of major trauma'.

(c) On 23 May 2018, Mr Cayford attended his general practice again. In the meantime, he had had an x-ray of both knees and an ultrasound of his left knee. The attendance note recorded a complaint of ongoing knee pain. Although it indicated that Mr Cayford had said that his pain was getting worse, it did not mention any particular incident of injury, and recorded that Mr Cayford's left knee had been sore for two years.

(d) On 30 May 2018, Mr Cayford attended his general practice again. The attendance note recorded that Mr Cayford requested a WorkCover certificate. There was then, for the first time, a reference to an incident of injury: 'Meniscal tear left knee from March when carrying heavy furniture at work'.

15 Were there any doubt leading into the hearing, the fact that the reliability of Mr Cayford's direct evidence was disputed by the respondent was put beyond doubt in the course of his evidence. When Mr Cayford was being cross-examined, it was put to him, forcefully, that:

(a) Mr Yates, the director of the respondent and the person who dealt with Mr Cayford, would say that Mr Cayford had not told him that he had injured his knee on 14 March 2018. Mr Cayford denied this and said that he had told Mr Yates within a week of the incident;

(b) he had not informed the doctors he saw prior to 30 May 2018 that he had injured his knee in an incident that took place on or about 14 March 2018. Mr Cayford said that he had done so, although his evidence was uncertain; and

(c) his evidence was false, and, in the context of him first mentioning to his doctor that he had injured his knee in an incident in March 2018 only after he had seen a lawyer, that he had 'set this claim up'.[11]

16 For these reasons, this appeal should be approached on the basis that the question of whether the 14 March 2018 incident of injury occurred was in issue and was known by Mr Cayford to be in issue. Accordingly, it was apparent to Mr Cayford, as well as to the respondent, that Mr Symbardis was potentially a relevant witness, in the sense that he might have been able to give evidence that helped either Mr Cayford or the respondent in the resolution of a disputed fact.

17 In any event, and although Jones v Dunkel and Insurance Commissioner v Joyce[12] both dealt with the situation where a finder of fact was being asked to draw an inference from other facts rather than to reject direct evidence, O'Donnell v Reichard[13] made it clear that the principle also has potential application where the Court is asked to reject direct evidence, including by reason of a failure to call corroborative evidence. The Court stated that an unexplained failure to call a witness who might reasonably have been expected to be called (to which concepts I return below) can be used by the finder of fact not just as a reason not to draw an inference of fact in relation to matters to which the person not called could have spoken, but also as a reason to reject particular evidence that has been given which relates to a matter with respect to which the person not called could have spoken.[14]

18 This makes sense. I can see no reason why a distinction should be made in the application of the principle between the different ways in which a party seeks to prove or to disprove a fact. Accordingly, I do not accept Mr Cayford's submission that the rule in Jones v Dunkel does not apply to him because he was asking the Court to accept direct evidence of a fact in issue, and that it was only the respondent that was asking the Court to engage in inferential reasoning.

D.3. Was it open to the Magistrate to conclude that Mr Symbardis was in Mr Cayford's 'camp'?

19 As noted above, Mr Cayford contended that it was not open to the Magistrate to find the first criterion set out in para 9(a) above established, and accordingly it was not open to the Magistrate to draw a Jones v Dunkel inference against him.

20 I accept that drawing the inference would be an error of law if it were not open for the Magistrate to have found that Mr Symbardis was in Mr Cayford's 'camp'.[15]

21 The respondent contended that Mr Symbardis's role as an eyewitness and the person to whom Mr Cayford immediately reported the incident, and thus his potential corroborator, was sufficient to satisfy the first criterion. On the other hand, Mr Cayford contended that, if anything, Mr Symbardis was in the respondent's 'camp'. He relied on the facts that it was the respondent that was seeking to challenge his direct evidence and ought therefore to call Mr Symbardis to do so, and that Mr Symbardis was an employee of the respondent.

22 Listing the criteria for the application of the rule does not expose the reasoning process that must underlie the rule. In order to understand the criteria, it is necessary to consider how an unexplained failure to call an expected witness might rationally lead to a different factual conclusion being reached from that which would have been reached if the failure to call the witness were explained or if there were no such witness in the first place. The criteria need to be interpreted and applied having regard to that underlying reasoning process.

23 In my view, the underlying reasoning process must include as the first step the reaching of a conclusion (or the drawing of an inference) that the party against whom the Jones v Dunkel inference is to be drawn, or those advising that party, appreciated what evidence the witness would likely give if called and made an informed forensic decision not to call that witness. Unless this initial conclusion can be drawn, I do not see how the absence of the witness could rationally alter the approach that would otherwise be taken to the assessment of the evidence that has been called.

24 The next question that then logically arises is why that party, or those advising that party, made the informed forensic decision not to call that witness. In the absence of some other reason going to the inability or impracticability of calling that witness, it may be inferred that the decision was made because a conclusion was reached that the potential witness's evidence would not assist that party's case.

25 But the drawing of that further inference, again, only takes the matter so far. The next question must be why the party, or those advising the party, concluded that the potential witness's evidence would not assist that party's case. The decision not to call the witness may have been made because the potential witness was thought likely to give evidence that neither helped nor hindered the party's case. Or, the decision not to call the witness may have been made because the potential witness was thought likely to give evidence that was positively harmful to the party's case.

26 Unless the finder of fact is able to reach the second of these inferences - that an informed decision was made not to call the witness because of a fear that the evidence would harm the party's case - then the absence of the witness could not rationally affect the decision-making process. If the chain of reasoning concludes only in an inference that the missing witness could not have given evidence that either helped or hindered, I do not see how that absence could rationally affect the decision that would otherwise be made on the facts as presented. On the other hand, if the finder of fact is able to infer that an informed decision was made not to call the witness because of a fear that the evidence would harm the party's case, then that inference could rationally affect the decision that would otherwise be made on the facts as presented. It could, rationally, make the finder of fact more ready to reject disputed evidence, or more ready to draw an inference from the evidence that had been given.

27 It must be up to the finder of fact to assess whether and which of these various inferential steps should be taken in the circumstances of each case.

28 An inference that the party, or those advising the party, refrained from finding out what evidence a potential witness might give because of an expectation or well-founded fear that the witness would give unhelpful evidence would be to the same effect.

29 There is support for the view that an inference is only relevant to the fact-finding process if it is to the effect that a forensic decision was made not to call the evidence because if called it would have been harmful. In Jones v Dunkel, there was a transport accident on a road winding around a hill. The driver going uphill on the inside lane was killed. The issue in the case was whether the driver going downhill had crossed into the deceased's lane. The downhill driver did not give evidence. Windeyer J noted that the inference to be drawn was that the downhill driver was not called because his evidence would have 'exposed facts unfavourable to the party' of which there was 'a fear of exposure',[16] and that 'the true inference ... was that counsel, on his instructions, thought the defendants were more likely to succeed' if the evidence was not called.[17]

30 Windeyer J's observations were quoted with approval by Gillard J in O'Donnell v Reichard.[18] Gillard J stated, in relation to the plaintiff's failure to call treating doctors in a case where the plaintiff's medical condition was in issue:

[T]he defendant should as a matter of commonsense be entitled to rely on the absence of proof of the treating doctors as a basis for the jury to draw an adverse inference that the plaintiff's advisers were afraid to call the doctors, that if they had done so and the doctors had gone into the witness box that evidence would probably be unfavourable to the plaintiff...[19]

31 This is why the failure to call evidence has been likened to an 'implied admission'.[20]

32 This understanding ought then to inform the question as to when the 'criteria' for the application of the rule are satisfied. The criteria are the necessary steps if the chain of inferential reasoning is to be followed to the point where it becomes probative.

33 In my view, it follows that a potential witness is only in one side's 'camp' if the circumstances are such as to allow the finder of fact to assume or infer that, in the absence of evidence suggesting the contrary, the party or the party's lawyers:

(a) have likely conferred with the potential witness and have made a forensic decision not to call them because that witness's evidence would be harmful to their case; or

(b) have made a forensic decision not to confer with that witness in the first place for the same reason.

34 If the relationship and circumstances are not such that these inferences may be drawn, then the potential witness would not be, using the usual nomenclature, in that party's 'camp', and that witness would not be 'expected to be called' by that party rather than the other.[21]

35 This is expressing the same concept as the expression that the witness has 'knowledge' that is 'available' more to one party than to the other.[22] If the same inference could be drawn against either party, then the rule would have no utility.[23]

36 There is some tension between treating the inference as being of significance only if it extends to an inference that the party was 'afraid' to call the evidence and the statement often made that the rule in Jones v Dunkel does not permit an inference that evidence not called by a party would have been adverse to the party.[24] I confess that I find this latter proposition difficult to follow. If the inference that evidence not called would not have assisted a party is not able to associate with an inference that the evidence not called would be adverse to the party, one is left with the conclusion that the evidence not called must be treated as being neither in favour of, nor adverse to, the party - that is, that the evidence, if called, would be benign. If this is the conclusion, then I do not see how the fact that the evidence is not called could rationally affect the factual conclusion to be drawn from the evidence that is called.

37 For this reason, in my view, the notion that an inference may not be drawn that evidence would be adverse to a party is really dealing with the situation where the evidence that has been led does not support an inference that a party seeks to establish. In those circumstances, the fact that a witness has not been called cannot be relied upon to fill that evidentiary gap. This is different to the situation where an inference is open, but the question is whether or not it ought to be drawn. This was one of the issues that arose in Jones v Dunkel itself. In that case, Dixon J, in dissent, considered that the evidence led simply could not support an inference that the other driver had crossed the lane.[25] In those circumstances, the failure by the other driver to give evidence could not fill that gap. That is likely why Dixon J did not have regard to that failure in his reasons. By contrast, Kitto J felt that the inference was open on the evidence that had been called,[26] and then felt able to rely on the failure by the other driver to give evidence as a reason for drawing that inference.[27]

38 Further, I note that the analysis by the High Court in Australian Securities and Investments Commission v Hellicar would seemingly allow that, in an appropriate case, the finder of fact may conclude that the witness not called would have given evidence that was adverse to the party's case.[28]

39 Mr Cayford's claim form dated 30 May 2018 identified 14 March 2018 as the 'date and time the injury/condition occurred'. The form asked for the names and contact details of anyone who witnessed the incident. Mr Cayford wrote in this box 'Michael', and included a mobile phone number. The claim form elsewhere referred to him as the person to whom he reported the injury and described him as the 'jockey'. Mr Cayford gave evidence that on 14 March 2018 he was engaged in a two-person lift with an 'off-sider' he had 'that day'. He identified this person as Michael. Mr Cayford said that the lift was out the front of a house and he was taking the heavier end, when he experienced significant pain in his left knee and dropped the item. He said that he told Michael that he thought that he had 'really hurt' his knee, and they swapped ends so that Michael had the heavier end. They then finished the day's work.

40 The only relevant cross-examination was the following exchange:

Michael Symbardis,[29] is he the fellow work mate that you work with? --- I did.

You're calling him to give evidence in this case? --- I'm not.

41 Mr Yates gave evidence for the respondent but was not asked any questions about Mr Symbardis, either in evidence-in-chief or in cross-examination.

42 It follows that, on the evidence, it was apparent to both sides that there was a potential witness to the claimed incident who might be expected to be in a position either to corroborate Mr Cayford's evidence or to dispute it. Both sides knew his name and what his phone number had been in 2018. There was, however, no evidence that explored:

(a) how often Mr Cayford had worked with Mr Symbardis;

(b) whether Mr Cayford had had any contact with Mr Symbardis since March 2018, or what the nature of their relationship was;

(c) whether Mr Cayford or his lawyers had spoken to Mr Symbardis or made any attempts to do so;

(d) whether Mr Symbardis was still working for the respondent, and if not when he had ceased working for the respondent, and for how long he had worked there, and what role he had occupied other than as a jockey on 14 March 2018; or

(e) as to whether or not Mr Symbardis was still alive, and if so his age, or health, or where he was living.

43 In the circumstances of this case, in my view, it was not open to the Magistrate to infer (in the absence of some evidence to the contrary) that Mr Cayford or his lawyers had conferred with Mr Symbardis or otherwise been aware of what evidence he would likely give, and had made a forensic decision not to call him because they were concerned that his evidence would harm Mr Cayford's case. In terms of the criteria set out in para 9 above, it was not open for the Magistrate to conclude that Mr Symbardis would be 'expected' to be called by Mr Cayford, or that Mr Symbardis was in Mr Cayford's 'camp'. Accordingly, it was not open to the Magistrate to rely on Mr Cayford's failure to call Mr Symbardis as a reason for disbelieving Mr Cayford's evidence, and the appeal should be allowed. It seems to me that, in the language of this area, it was 'equally open' to both sides to call Mr Symbardis.

44 In my view, the necessary criteria could only have been established in this case if there were evidence that established a greater connection between Mr Symbardis and Mr Cayford than the mere fact that they were co-workers on one particular day. Mr Symbardis might have worked with Mr Cayford on that one occasion only, have had no dealings with him since, and indeed might remain in the employ of the respondent. Equally, the mere fact that Mr Symbardis was or had been the respondent's employee was not sufficient to place him in the respondent's camp.[30] That would probably require that he hold some higher position in the respondent's organisation than a 'jockey'. But the fact that he was employed by the respondent, and might still have been, tends, in the absence of evidence of some ongoing relationship between him and Mr Cayford, against him being in Mr Cayford's camp.[31]

45 The respondent placed Mr Symbardis in Mr Cayford's 'camp' because he was present there that day and Mr Cayford's evidence would have benefited from Mr Symbardis's corroboration. It argued that this made the inference open, and that it was up to Mr Cayford to explain why Mr Symbardis was not called. Mr Cayford could have done this by leading evidence, for example, to the effect that he did not have an ongoing connection with Mr Symbardis and had not seen him since that day, or that Mr Symbardis was still employed by the respondent. In this way, the respondent suggested that the first criterion, that of 'camp', is established by reference simply to the circumstances of the incident, and that the matters going to a lack of ongoing contact and the like were relevant instead to the third criterion, where the claimant has an obligation to explain the failure to call the witness.

46 I do not see it that way. It could equally be said that Mr Symbardis was in the respondent's 'camp' because its case would benefit from evidence contradicting Mr Cayford's evidence. Further, a witness ought not to be placed in someone's camp simply based on the circumstances of the relevant incident. Assume, for example, that it was Mr Yates, the owner of the respondent, who was said to have been working with Mr Cayford on that day. It could not sensibly be submitted that Mr Yates was in Mr Cayford's 'camp', and that Mr Cayford would have to rely on Mr Yates's position with the respondent as a reason for not calling him in order to avoid the inference. The better analysis in those circumstances would be that Mr Yates was never in Mr Cayford's 'camp' because of the position he held with the respondent.

47 That said, it does seem that the first and the third criteria are connected, in the sense that the same evidence might be relevant both to show that the missing witness was not someone whom the party might be expected to call and also to explain why the witness was not called.

D.3.3. Final comment - onus in the third criterion

48 The respondent submitted that the onus was on Mr Cayford to establish that Mr Symbardis was not 'available'. The conventional expression of the criteria supports this argument. However, the criteria are a convenient way of setting out the circumstances in which the inference may be drawn; they are not words of a statute and should not be approached as such. It may be that the party seeking the inference is obliged to establish that each of the criteria is met. But in light of my finding, I do not have to determine on whom the onus lay to satisfy the third criterion.

49 The respondent tendered two reports from a medico-legal occupational physician, Dr Economos. It is apparent from the second of his reports that the respondent's insurer had forwarded to him a statement from Mr Symbardis dated 26 June 2018. Dr Economos wrote:

Mr Symbardis' statement of 26.6.2018, (a co-worker), at Point 7, notes that 'he tells me that three years ago he has a problem with his knee. Nothing more than that'.

50 It seems, therefore, that the respondent, through its insurers, had obtained a statement from Mr Symbardis, and had waived any privilege in it. It is not clear whether Mr Symbardis's statement was provided to Mr Cayford, although, on service of Dr Economos's report, Mr Cayford would have been entitled to obtain a copy of it. Also, it seems from Dr Economos's reference to the contents of the statement that Mr Symbardis was probably unable either to support or to dispute Mr Cayford's evidence, but whether that is in fact so remains unclear.

51 Neither party drew the Magistrate's attention to this reference to Mr Symbardis's evidence. Indeed, the fact that there was evidence before the Magistrate that revealed that the respondent's insurer had obtained a statement from Mr Symbardis seems to have been overlooked by both parties. When I invited comment on this document, after oral argument had been heard in this appeal, the parties filed written submissions.

52 It seems to me that, in circumstances where Mr Cayford did not draw the Magistrate's attention to this evidence, it is not open to him to rely on it now in support of his argument that his Honour erred. Similarly, the respondent ought not to be able to support his Honour's approach by reference to it. The parties ought, I consider, to be confined in this appeal to the manner in which they ran the case below - that is, on the basis that no reliance was to be placed on this reference to Mr Symbardis in Dr Economos's report.[32]

53 For this reason, in reaching the conclusions set out above, I have not had regard to the fact that the respondent's insurer had in its possession a statement from Mr Symbardis and that Mr Cayford either had a copy of that statement or the right to obtain a copy of that statement. But if I had considered that fact, it would not have changed my mind. It does not suggest a closer connection between Mr Symbardis and Mr Cayford than the evidence otherwise permits. If anything, it reveals that the respondent had been in contact with and obtained a statement from Mr Symbardis, so that, if he were in anyone's camp, he was probably in the respondent's.

54 In light of my finding above, it is not necessary to consider Mr Cayford's other arguments on the appeal.

55 I propose to allow the appeal and remit the matter for redetermination. I will hear the parties on the form of order and on costs.

[1] He may have worked in the same business prior to this, but it seems that this was when the respondent was incorporated and became his employer.

[2] The concept of 'injury' in workers' compensation legislation extends, of course, to aggravations of pre-existing conditions.

[3] It is to be recalled that this was during the COVID-19 pandemic, which placed considerable stresses on the courts and those who work there, as well as on litigants.

[4] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[5] This has been reformatted. The transcript of the judgment has not been revised by the Magistrate.

[6] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308 (Kitto J).

[7] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969, 970 [65] (Lord Mansfield); Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J), 321 (Windeyer J); O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 920 (Gillard J).

[8] O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 920 (Gillard J).

[9] See, eg, Payne v Parker [1976] 1 NSWLR 191, 201 (Glass JA); Quintis Ltd (Subject to Deed of Co Arrangement) v Certain Underwriters at Lloyd's London Subscribing to Policy Number B0507N16FA15350 [2021] FCA 19; (2021) 385 ALR 639, 704 [260] (Lee J).

[10] See, eg, Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345, 442-3 [254], 446-7 [265] (Heydon J); Claremont Petroleum v Cummings [1992] FCA 446; (1992) 110 ALR 239, 259 (Wilcox J). Reference to a witness being in a party's 'camp' for the purposes of an adverse inference may first have been made in O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 920 (Gillard J), 937 (Newton and Norris JJ). Fullagar J had previously used the expression of a person being in a party's camp, but in a different context: Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 407.

[11] This is not intended to be an exhaustive list of the ways in which his evidence and credit was challenged.

[12] [1948] HCA 17; (1948) 77 CLR 39.

[13] [1975] VicRp 89; [1975] VR 916.

[14] O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 929 (Newton and Norris JJ), 921-2 (Gillard J). See also Payne v Parker (1976) 1 NSWLR 191, 201A (Glass JA).

[15] Payne v Parker [1976] 1 NSWLR 191, 201 (Glass JA), 210-11 (Mahoney JA).

[16] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321, quoting John Henry Wigmore, Wigmore on Evidence (Little, Brown, 3rd ed, 1940) vol 2, s 285, 163.

[17] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 322.

[18] [1975] VicRp 89; [1975] VR 916, 919.

[20] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 385 [64] (Heydon, Crennan and Bell JJ). See also Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321 (Windeyer J), quoting R v Burdett (1820) 4 B & Ald 95; 106 ER 873, 883 (Best J), where it is described as 'something like an admission'.

[21] Payne v Parker [1976] 1 NSWLR 191, 201E (Glass JA).

[22] Ronchi v Portland Smelter Services Ltd [2005] VSCA 83, [82] (Nettle JA); Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, 142-3 [51] (Gleeson CJ and McHugh J).

[23] Payne v Parker [1976] 1 NSWLR 191, 202B (Glass JA). Cf at 208G (Mahoney CJ).

[24] Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361, 385 [64] (Heydon, Crennan and Bell JJ); Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572, 586-7 [76] (Davies AJA).

[25] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 305 (Dixon J).

[28] (2012) 247 CLR 345, 413 [168] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It was, however, a case where the most that could be inferred was that the absent witness could not recall the relevant events, and so the witness's absence could not diminish the cogency of the evidence called: at 411 [162], 413 [168], 414 [170] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), 440 [249] (Heydon J).

[29] I have corrected the spelling of Symbardis.

[30] Ronchi v Portland Smelter Services Ltd [2005] VSCA 83, [33] (Eames JA), [89] (Nettle JA); Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] VR 722, 734 (Lush J).

[31] See, eg, New Broken Hill Consolidated Ltd v Gillespie [1999] NSWCA 109, [6] (Handley JA).

[32] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1608 [51] (Gleeson CJ, McHugh and Gummow JJ).