Jones v Dunkel
53 Jones v Dunkel (1959) 101 CLR 298 ("Jones v Dunkel") provides for the prospect that inferences may be drawn where a party does not call a witness whose evidence may assist in the resolution of a factual dispute. In that case, Kitto J observed (at 308):
any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.
So much was not put in issue by the Appellants.
54 Nor did the Appellants put in issue the fact that Jones v Dunkel could be invoked in proceedings of the present kind, being proceedings of a quasi-criminal nature and where civil penalties may be imposed: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [459] to [463], (2009) 236 FLR 1 at 98 to 100 per Austin J ("Rich"). In subsequently applying this decision, Gilmour J in Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586, (2009) 264 ALR 201 at 225 observed:
[100] Finally, in Rich, Austin J concluded at [458] that, having considered the reasoning in [Dyers v The Queen [2002] HCA 45, (2002) 210 CLR 285] and [Adler v Australian Securities and Investments Commission [2003] NSWCA 131, (2003) 179 FLR 1], the principle in [Jones v Dunkel] is applicable against either party to civil penalty proceedings.
[101] ASIC seeks to draw [Jones v Dunkel] inferences against FMG by reason of the failure of Forrest and the other executives to give evidence. ASIC does not seek to draw the inferences against Forrest himself. Forrest has relied on the privilege against self-incrimination and the privilege against exposure to penalty, privileges which are are not available to corporations … However, even if ASIC had sought to draw inferences against Forrest as well as the corporate entity, on my review of the authorities it would not have been precluded from doing so. There is no reason therefore, in these circumstances, why the inferences cannot, as a matter of law, be drawn against FMG in the present proceedings. The question which then arises is whether I should draw such an inference in the manner urged by ASIC.
[102] The authorities state that two inferences are involved in the rule in [Jones v Dunkel]. First, a court might infer that the evidence of the absent witness would not have assisted the party that failed to call that witness; second, a court might draw, with greater confidence, any inference unfavourable to the party that failed to call that witness, if that witness appears to be in a position to cast light on whether the inference should be drawn …
55 But what the Appellants did put in issue was the proposition that inferences could only be drawn where there was "no sufficient explanation" for not calling the witness.
56 None of the individual CFMEU persons gave evidence before the primary Judge. The adequate "explanation" for their absence was said to be found in the quite proper prospect that each of those persons had a privilege against self-incrimination.
57 Whatever prospect that argument may have, the argument should be rejected for the simple reason that such reliance as was placed by the primary Judge upon Jones v Dunkel was "non-prejudicial". This argument was only an argument that arose in what was known as the Lend Lease proceeding (Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413) and only in respect to five individual Respondents, namely Messrs Kalem, Lomax, O'Connor, Beattie and McDermott.
58 In respect to Messrs Kalem and Lomax, the primary Judge relevantly concluded ([2015] FCA 1293) as follows:
[73] In my opinion, a number of matters indicate that Mr Kalem and Mr Lomax had entered the Flinders University site for the s 484 purpose:
(a) upon entering, the CFMEU officials did not just "look around". All of them held discussions with workers on the site, at the least when walking around the site separately. Even if the CFMEU officials were making contact with the formworkers, introducing themselves and enquiring briefly as to any concerns which they had, their conversations constituted discussions of the requisite kind;
(b) further, all of the CFMEU officials followed the formwork workers into the lunchroom at the 9:30 smoko. Although there is no evidence as to what was said in the lunchroom, it is reasonable to suppose, and I find, that the CFMEU officials discussed matters with the formworkers at that time. I observe also that the lunchroom was a place in which discussions authorised by s 484 may take place ([Fair Work Act] s 492);
(c) following the smoko, the CFMEU officials (by one of their number) asked to meet Mr Crabb and requested Mr Wallace and Mr Grindle, two employees concerned with safety, to join them at that meeting. The CFMEU raised at the outset of the meeting aspects of safety on the site. It is reasonable to suppose that they had been informed of at least some of these during the smoko meeting and were, accordingly, making representations on behalf of their members;
(d) the impression that the CFMEU officials were acting in the manner of union officials exercising s 484 rights is confirmed by the similarity of their conduct with that of officials on previous occasions when entering after giving s 487 notices;
(e) Mr Gava's explanation to Mr Crabb for refusing to comply with his direction that he leave the site is instructive. He said "this is the way it's done now", thereby impliedly referring to the way by which the CFMEU proposed exercising the right of entry and not to some new or different entitlement;
(f) the suggestion that the CFMEU organisers were present simply to look around, as though to satisfy their curiosity, is not plausible. The fact that they were there as a group during their own working hours, wearing clothing and hard hats with the CFMEU logos and insignia, suggests by itself that they were present as part of an organised activity, something seemingly not consistent with a wish to satisfy idle curiosity;
(g) the officials had no entitlement to be on site other than granted by ss 481 and 484 of the [Fair Work Act] and by the [Work Health and Safety Act 2012 (SA)]. They were no more entitled to enter the site to satisfy their curiosity than any other member of the public. In fact, once Mr Crabb had requested them to leave, they were probably committing the criminal offence of trespass: Summary Offences Act 1953 (SA) s 17A. There may be a question, as counsel for the respondents submitted, as to whether the officials other than Mr Gava knew of Mr Crabb's request that they leave. But even if they did not, there is no basis upon which they could have thought, reasonably, that Mr Crabb had granted them permission to enter the site simply to look around or to satisfy their curiosity. The fact that they did not wait at the site office but entered the site without first speaking to Mr Crabb is also pertinent in this respect; and
(h) the CFMEU officials entered the site in the manner of persons entering as of right, and did not wait at the site office or otherwise seek approval to come onto the site. That is to say, the CFMEU officials behaved as though they were entitled to enter pursuant to s 484.
[74] These matters give rise to an inference that each of the CFMEU officials had entered for the s 484 purpose. That inference can be drawn with greater confidence given that neither Mr Kalem nor Mr Lomax gave evidence: Jones v Dunkel (1959) 101 CLR 298 at 308; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, (2011) 243 CLR 361 at [63]-[64].
…
[79] Counsel's submission seemed to rest on the proposition that the possibility that Mr Kalem and Mr Lomax had remained mute during the lunchroom meeting could not be excluded. That may be so, but that would not mean, to my mind, that Mr Kalem and Mr Lomax were not, as part of the larger group, holding discussions of a relevant kind. It is common experience that discussions may take place involving three or more persons even if one of the participants remains silent. It is an ordinary incident of the holding of discussions that those present listen to what others have to say. It is also common experience that in group discussions some persons participate by allowing others to be their spokespersons. In my opinion, it is improbable, in the context of the lunchroom meeting, that Mr Kalem and Mr Lomax did not hold discussions with the formworkers who were present either by speaking themselves, or at least to listening to the statements of the other CFMEU officials made on behalf of the group and to those of the formworkers. The Jones v Dunkel principle adds to the confidence with which this conclusion may be drawn.
In the case of Messrs O'Connor and Beattie, the primary Judge found as follows:
[172] I find (after having regard to the Briginshaw principle), that in the circumstances, Mr O'Connor and Mr Beattie knew that Lend Lease was not waiving the requirement for a notice of entry, nor authorising their entry, but was merely seeking to exercise the same control available to it had the entry been made lawfully. Mr Beattie's statement "good result" is an indication that he understood that that was so.
[173] This conclusion is supported by the failure of Mr O'Connor and Mr Beattie to give evidence in the trial.
In the case of Mr McDermott, the primary Judge found as follows:
[249] It is possible that Mr McDermott's principal purpose on 12 November 2013 was simply to check that safety precautions with respect to cricket balls would be in force during the forthcoming cricket match. It may also be the case that he spoke to the group of Laser Linings' employees only incidentally to the principal purpose of his visit, taking advantage of the opportunity to do so arising from Mr Stephenson's meeting with them.
[250] However, I infer that at least one of Mr McDermott's purposes was to hold discussions with the employees. If his concern had been only to check on safety precautions with respect to cricket balls, he could have done so by a simple telephone call to Mr Jackson. I infer that part of his reasons for attending and speaking to the workers was to demonstrate to the workers his, and the CFMEU's, concern for their welfare.
[251] The inferences in this respect can be drawn more confidently having regard to Mr McDermott's failure to give evidence in the trial.
[252] Accordingly, I am satisfied, having due regard to the Briginshaw principle, that Mr McDermott's contravention of s 500 at the Adelaide Oval site on 12 November 2013 has been established.
59 As is readily apparent from these reasons, it is clear that the primary Judge would have made the same findings of fact irrespective of any reliance upon Jones v Dunkel.
60 In the case of Messrs Kalem and Lomax, the "inference" referred to at para [74] was an "inference" founded upon the eight "matters" detailed at para [73]. It was an "inference" already drawn by the primary Judge and the "confidence" with which that "inference" had been drawn was only "add[ed]" to by reliance upon Jones v Dunkel. Similarly, in the case of Messrs O'Connor and Beattie, the finding was only "supported" by their failure to give evidence. So too with Mr McDermott.
61 Notwithstanding the submission being advanced by Senior Counsel on behalf of these individual Appellants, it was accepted that the submission was weaker as against Mr McDermott, for example, because the finding of fact was made at para [250] whereas reliance upon the failure to give evidence at para [251] came after the finding having been made. In the case of Messrs Kalem and Lomax, the order in which the reasons were expressed was the other way around. But nothing turns, with respect, upon the order in which the primary Judge expressed his findings.
62 This Ground of Appeal is thus rejected.