In general protections’ cases, one of the critical legal issues is whether (a) the applicant has established a coherently arguable case, sometimes wrongly termed “a prima face case” to trigger the reverse onus of proof and (b) whether the respondent (usually the employer in these cases) has discharged the reverse onus of proof. The orthodox way in which this is attempted by lawyers with the conduct of such cases, is to produce a witness to provide evidence to convince the trial judge that the prohibited reason contended for the applicant was not a material factor in the event, usually the dismissal of an employee.
But what are the technical implications if suchga witness is neither avaiala nor called to give evidence? Here is the answer.
“In my opinion Lagardère’s failure to call Ms Pritchard in circumstances where no adequate explanation has been given for not calling her brings into play the principles Handley JA considered in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd:
In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.
There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates “as the most natural inference that the party fears to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to the party”: see Jones v Dunkel… Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.
There is in fact extensive case law in the United States on this question although it is not referred to in Wigmore, Evidence, 3rd ed (1940). It may be found summarised in 5 ALR 2d, par 25 at 949-951. One of the leading cases is Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), a decision of the Appellate Division of the Supreme Court of New York. The judgment of the Court was given by Follett J who said (at 276):
“In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favourable to the party … The existence of this rule is not disputed but it is urged that it is not applicable to this case because the daughter was produced as a witness, and that no presumption arises from the plaintiff’s failure to interrogate her, that her testimony would have been unfavourable to him. I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or non-existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favourable to the party’s case is stronger than the one which arises from the failure to produce such a person as a witness.”
 (1991) 22 NSWLR 389, at pages 418-419
- Although the particular issue Handley JA addressed in this passage was the significance to be attached to not asking in chief a question of a person who has been called to give evidence, what his Honour said applies equally if not with more force to where a person is not called as a witness at all. That is clear from the passage of the judgment of Follett J that Handley JA quoted.
- The inference, therefore, that is available to be drawn from Ms Pritchard’s inadequately explained absence is that her testimony would not have been favourable to Lagardère’s. Whether I should draw that inference, however, is complicated by two matters. One is that Ms Pritchard made two affidavits that Lagardère has filed. Mr Marshall, however, did not attempt to adduce the contents of the affidavits to show that Ms Pritchard had sworn to matters that supported Lagardère’s case. I cannot therefore make any assumption that the affidavits do support Lagardère’s case as presented at the hearing before me. The second difficulty is that Mr Marshall submitted Ms Pritchard’s state of mind was not relevant because it is only Ms Colliver’s state of mind that is relevant. For reasons I have already given, however, I do not accept that submission. In those circumstances, I draw the inference that Lagardère did not call Ms Pritchard because her evidence would not have been favourable to Lagardère.
- The second of the two further matters that gives me added confidence in my finding that Lagardère has not discharged its onus arises from Ms Colliver not deposing in her affidavit, and not being specifically asked in chief before me, what her reason or reasons were for deciding to terminate Ms Pacheco-Hernandez’s employment, and in particular, whether her reasons did not include the complaints Ms Pacheco-Hernandez made in her emails. The inference that is available to be drawn is that Ms Colliver did not give evidence about those matters in her affidavit, and she was not specifically asked questions to that effect when giving evidence in chief, because her evidence would not have been favourable to Lagardère. In my opinion, that inference should be drawn and I do draw that inference.
Conclusion on s.340 of the FW Act
- I am therefore satisfied that Ms Pacheco-Hernandez has established that Lagardère contravened s.340 of the FW Actby dismissing her from her employment because she exercised her workplace right to make a complaint in relation to her employment.”
PACHECO-HERNANDEZ v DUTY FREE STORES GOLD COAST PTY LTD  FCCA 3734 deliveredm17 December 2018 per Manousaridis J