The subpoena was then admitted without objection.
44 Although not directly relevant to these grounds of appeal, relevantly to grounds of appeal 3.3 and 3.4 the transcript then records -
"SHELDON: The other matter is this, I would seek your Honour's leave to deal with the question of the Jones v Dunkel inference about the records in this way. It's intended that my solicitor should obtain from Dr Coyne an affidavit setting out what he did and when as the basis for that document which is exhibit B to Mr O'Keefe's affidavit. I propose that course because it seems to me that that's the most expeditious way of dealing with it on the assumption that the probabilities favour there not being much or any issue about the fact that he couldn't find the records. Now if I'm right about that that there can be some satisfaction on the plaintiff's part, on the plaintiff's side of the record with an affidavit from Dr Coyne, that would obviate the need for him to be cross-examined. If on the other hand there is contention about it, he can be cross-examined on the affidavit but I should say your Honour that I hadn't anticipated until shortly before the adjournment that there was an issue about those records, having regard to the fact that there'd been prior occasions on which a call had been made for their production. Perhaps this may be slightly off the track but there is a remedy which should have been taken when that subpoena which I've tendered was called upon and that is to require a person to appear to answer the subpoena. Now that course wasn't taken. The inference which arises from that, if not the finding which must arise from that was that the plaintiff was satisfied with the non-production of documents and I don't mean by that that the plaintiff thought it was a windfall but that the plaintiff thought or her advisers thought that there were no documents and that the subpoena had been legitimately answered so that that combination of events gave rise to a situation in which the defendant's side of the record or my submission reasonably assumed that no issue was to be taken with the fact that the records couldn't be found.
Now for that reason your Honour I'm not in a position to call Dr Coyne and necessarily there's been no attempt to ascertain his availability or his whereabouts. I understand that he is known to be alive and I understand that he lives in Sydney but more than that we don't know at this stage. Now your Honour because I didn't anticipate this was going to be an issue looming as large as it apparently does, in my submission, the appropriate course and this is the only matter which is outstanding in the defendant's case is for an affidavit to be obtained and served on the other side and then for the other side to notify the defendant whether they wish to cross-examine Dr Coyne or not and for them, if they do, time to be allocated to do that and if not, written submissions to follow accordingly."
45 The appellant's response, after some rather misdirected discussion, was that no significant reason could be put forward against the course proposed by the respondent.
46 It was common ground on appeal that the respondent did not serve an affidavit from Dr Coyne.
47 The trial judge said in his reasons -
"The are no records of Dr Pelly relating to his consultations with the plaintiff, pre-operatively nor do we have anything emmanating [sic] from Dr Pelly concerning the operation itself nor the events that transpired thereafter. So far as the absence of Dr Pelly's records are concerned, and the consequences which flow from that, the defendant says such records could not be located after Dr Pelly's death and no inference should be drawn from their absence. I did comment, at the time this issue was first raised, that my experiences in the past in other cases had shown that the whereabouts of Dr Pelly's records was apparently unknown. By contrast the plaintiff says, the defendant, despite an undertaking to the Court, has neglected to provide an innocent explanation for not providing such notes, as it is required to do to avoid some damaging inferences ( Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181). That, in my view is a very different position for the plaintiff to take, compared to what was said on the first day of the trial when, concerning such notes, the plaintiff's Counsel informed the Court 'as far as the plaintiff is aware they have been mislaid'.
The plaintiff seeks to make much of the absence of these records and asserts there is no evidence before the Court on which the Court can find the absence of the notes is innocent. I must say that is not my recollection of the evidence on this issue. The plaintiff submits I should draw an inference adverse to the defendant, resulting from non-production of these records, that the notes if produced would not support the defendant's case and, if produced would have supported the plaintiff's case. The defendant's reply is that it is required to provide an adequate explanation which has been given, in the context of the affidavit of Mr O'Keefe, a solicitor employed on behalf of the defendant, who was not cross-examined on this evidence.
The defendant says it is not a question of the innocence of that explanation but its adequacy. It says that if the plaintiff had, in the course of the trial, chosen to make more of the issue the appropriate course to be taken was to issue and call on a subpoena directed to the appropriate person or persons, requiring production of the records. It was then necessary for the plaintiff to question whosoever responded but the defendant says the plaintiff did not choose that course and cannot now be heard to complain at the state of this evidence.
I believe the submissions of the defence to be correct as to the procedure available to the plaintiff and as to the consequences of the absence of Dr Pelly's records and, as a result, I will make no inference, adverse to the defendant, as a consequence of the absence of such notes. At the same time I propose to recognise there is a prejudice to the plaintiff in not having access to any such notes and, generally, flowing from an inability to cross-examine Dr Pelly. To a degree, if not entirely, that prejudice is off-set by the defendant's inability to call Mr Pelly to respond to the plaintiff's allegations. It seems to me, ultimately these matters balance out fairly evenly."
48 Going specifically to ground of appeal 3.1, I take the appellant to have meant by "the procedure in Waind v Hill " a course by which on the return of a subpoena such as the subpoena dated 18 June 1996 the person subpoenaed can be questioned in relation to the existence of documents answering the description in the subpoena. That is not in fact a procedure discussed in Waind v Hill (1978) 1 NSWLR 372 at 381-2, but was the course to which the trial judge relevantly referred.
49 The trial judge did not draw an adverse inference from the appellant's failure to take that course. The issue as it was ultimately put to the trial judge was promoted by the appellant, and was whether an inference adverse to the respondent should be drawn from the absence of Mr Pelly's records. The respondent sought to meet the contention that such an inference should be drawn inter alia by the evidence and common ground that the appellant had subpoenaed the records and they had not been produced in answer to the subpoena, which it was suggested provided in company with the O'Keefe's affidavit an inference that the records could not be found. The trial judge did no more than accept, with respect correctly, that it had been open to the appellant to explore the non-production of records in answer to the subpoena, that she had not done so, and so that the evidence was left in a state in which the respondent could rely on non-production in answer to the subpoena for such support as it gave to the respondent's position. What support it gave was not the subject of a ground of appeal.
50 Going specifically to ground of appeal 3.2, the trial judge considered that the O'Keefe affidavit provided an explanation for the non-production of Mr Pelly's records adequate to prevent, in company with the non-production in answer to the subpoena, the drawing of an inference adverse to the respondent. The issue arose through the appellant's reliance on Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181.
51 In Katsilis v Broken Hill Pty Co Ltd the worker alleged that he was injured when a fragment of a pick head being struck by a hammer flew off and entered his eye. The pick in use at the time was not produced at the trial by the employer. The worker submitted that this founded an inference adverse to the employer. Stephen, Mason, Jacobs and Murphy JJ considered it unsafe to reach any such inference because the pick "may quite well have been allowed to sink into the anonymity of [the employer's] general stock of hand tools without either design or even neglect on [the employer's] part" (at 203). Barwick CJ, who dissented in the result in the appeal, discussed the matter in more detail, including (at 197-8) -
"Ordinarily, though a case is normally better tried on the evidence which is produced than on that which is not, it can properly be said that the failure of a party to give or produce evidence which, in the circumstances of the case, that party in its own interest would be expected to give or produce, warrants the conclusion that, if given or produced, the evidence would not support that party's case. Indeed, in some circumstances it might be inferred that it would support the opponent's case; but, if so, it must depend very much on the circumstances. But, in any case, the inference would depend upon some element of conscious repression or withholding of the evidence. The warrant for the inference must depend upon the deliberation with which the evidence is withheld and the appreciation or likely appreciation of the party of its significance in the case. In my opinion, these propositions are in accord with the decided cases which I have taken occasion to examine.
A passage towards the end of their Lordships' advice in The Ophelia [1916] 2 AC 206 at 229, may call for comment in this connection. Their Lordships said: 'If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which his intention to destroy evidence may fairly be conceded to be rebutted, still he has to suffer. He is in the position that he is without the consideration which might have been expected in his case.'
I would make two comments on this passage. First, the use of the word 'presumption' might seem to put the matter too high. Of course, in the supposed circumstances the inference that the document, if produced, would not assist the spoliator is, in the circumstances, quite strong. But it merely becomes part of the body of evidence to be considered. Secondly, if the destruction is innocent no such inference can be drawn - that is to say, innocent because the significance of the document is not known or because the destruction was not deliberate but, for example, accidental. But bereft of the opportunity to produce the document to support him, the party who has thus innocently destroyed it is at the disadvantage of its absence. I take no more than this from the quoted passage from their Lordships' advice.
It thus seems to me that before any adverse inference is drawn, it must be possible to conclude that the failure to give evidence or to produce a piece of real evidence is deliberate and that it is likely that the party against whose interest the inference is to be drawn has or has reason to have an appreciation of the relevant nature of the evidence.
Thus, it seems to me that, having regard to what I have said already, there is no reason in this case for drawing any inference from the unavailability of the actual pick in use: … "