There is a rule of evidence which applies in the Australian courts to the effect that where a party does not call a witness who can reasonably be expected to explain an act or event of significance to the case, and fails to do so without an adequate explanation why, the court may draw an inference, adverse to the party’s case, that if the witness had been called the evidence wold have been adverse to that party’s case.
Does it apply in the Fair Work Commission: The answer is yes.
“The Respondent invited the Commission to draw a Jones v Dunkel inference because, in its submission, the Commission should be rightfully suspicious of Ms Sharkey’s refusal to give evidence or to call Mr Mullally to do the same – a step which would have been reasonable, logical and predictable in this matter. 113
A breach of the rule in Jones v Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case, or positively favourable to the opposing party’s case. 114 A breach of the rule in Jones v Dunkel may also result in a more ready acceptance of the opposing party’s evidence on the fact in question.115
Section 591 provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s 590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. Further, s 577(a) provides that the Commission must perform its functions and exercise its powers in a manner that ‘is fair and just’. The ‘rule’ in Jones v Dunkel is said to be fundamentally concerned with issues of fairness, and therefore the Commission will give consideration to its application in an appropriate case. 116”
Sharkey v Life Without Barriers (2019) FWC 2287 delivered 21 June 2019 per Beaumont DP