Rossi v Westbrook & Anor [2013] QCA 102

Further to my earlier posting I refer you Fryberg J (with whom Fraser and Gotterson JJA concurred) in relation to the rule in Jones v Dunkel:

[25] Mrs Rossi did not call her husband to give evidence regarding care provided to her and her employment history and needs. The omission was unexplained. As McMurdo J observed, “After Mr Westlake, it would be Mr Rossi who was the person likely to provide at least much of the care which is said to have been required.”[4] His Honour described the omission to call Mr Rossi as remarkable. One would expect that he would have been able to give evidence of what he did for her and her need for help, as well as evidence relevant to her capacity for work. His Honour wrote:

“[31] Mr Rossi has lived and worked with the plaintiff for at least seven years. According to her evidence, he has had to restructure businesses by engaging other people to do the work which she was unable to do. On her evidence, the decision to go into this signwriting business was made because of her impaired capacity to work. He was a party to that decision. And plainly, he would be able to give relevant evidence as to her need for domestic assistance. There is no explanation for the absence of this evidence. For example, there is no suggestion of some recent discord between them.”

[26] Mrs Rossi submitted that his Honour was prepared to draw an adverse inference against her case by reason of the failure to call her husband. With the utmost respect, that submission misstates his Honour’s reasons. What his Honour held was:

“[34] In my view, the defendants’ submission based on Jones v Dunkel must be accepted. I infer that Mr Rossi’s evidence would not have assisted her case. Of course, it is not to be inferred that his evidence would have been adverse to it. …

[35] The failure to call Mr Rossi is not, of itself, determinative of the plaintiff’s case. It does not mean that her evidence should be rejected. But the fact that his evidence would not have assisted her case is relevant to that question.”

The submission must therefore fail.

[27] Mrs Rossi submitted that the challenge made to her evidence and her credibility did not go so far as to permit any detrimental inference to be drawn from her unexplained failure to call her husband. It was submitted that her evidence was unequivocal and sufficient to satisfy the onus of proof.

[28] The issues in respect of which McMurdo J applied Jones v Dunkel were whether Mr Rossi had had to restructure businesses by engaging other people to do work which Mrs Rossi was unable to do; whether the decision to go into the signwriting business was made because of her impaired capacity to work; and the extent of her need for domestic assistance. On the first of those her evidence necessarily included an element of hearsay. On the second, her evidence was that her tasks in the business were work she could do from home on a computer, but again, anything she said (and it was very little) of Mr Rossi’s position (his Honour found that he was a party to the decision) was hearsay. The third and ultimate question of the level of her need for care and assistance was a matter of inference from the evidence which she gave. These were not issues on which there was direct evidence which logically was incapable of being weakened by a failure to call a witness. The evidence in relation to them was neither unequivocal nor compelling.

[29] At a broader level of generality, McMurdo J wrote:

“[33] In this case, the plaintiff must prove her alleged incapacities to work and to care for herself. These issues are at the heart of her case and she must explain why she is unable to do these things, although she has a full range of movement and, more generally, no objective signs to support her evidence of her symptoms.”

His Honour was correct.

[30] In Minister for Immigration and Multicultural Affairs v Jia Legeng[5], Callinan J wrote:

“317. [T]he statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer [(1774) [1774] EngR 2; 1 Cowp 63 at p 65; [1774] EngR 2; 98 ER 969 at p 970] and cited recently by this Court in Vetter v Lake Macquarie City Council [(2001) 202 CLR 439], that evidence has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it.

That was confirmed by the majority judgment in Australian Securities and Investments Commission v Hellicar[6]. After referring to Lord Mansfield’s dictum in Blatch v Archer, the majority wrote:

“167. This Court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used.”

[31] The majority also wrote:

“165. Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles … .” (Emphasis added)

[32] The High Court held that the New South Wales Court of Appeal had wrongly applied Blatch v Archer in the circumstances of the case. The issue was whether a draft ASX announcement had been tabled and approved at a directors’ meeting. ASIC had tendered admissible evidence that, if accepted, showed that the draft announcement had been tabled and approved. The Court of Appeal had held that ASIC’s failure to call a witness diminished the cogency of that evidence. The majority held:

“170. The fact that ASIC did not call Mr Robb did not affect (in the sense of diminish) the cogency of the proof which ASIC advanced. Yet that is the conclusion the Court of Appeal reached: that the cogency of ASIC’s proof was diminished because Mr Robb was not called to say no more than ‘I do not recall’.” (Emphasis in original)

As already observed, the quality of Mrs Rossi’s evidence was quite different. In relation to the issues in question, it involved matters of hearsay and inference.

[33] Some idea of the sorts of cases which, conformably with Hellicar, may attract the general principle in Blatch v Archer can be gained from the cases which the High Court distinguished:

“169. … This was not a case where ASIC’s case depended on inference, let alone on ‘uncertain inferences’[7], or where there was a question about whether ‘limited material is an appropriate basis on which to reach a reasonable decision’[8]. It was not a case where ‘the missing witness would be expected to be called by one party rather than the other’ or where it was known that ‘his evidence would elucidate a particular matter’[9].” (Emphasis in original)

[34] In my judgment this was a case where, in accordance with accepted principles, Mrs Rossi’s failure to call Mr Rossi could “properly [have been] taken into account in determining whether [Mrs Rossi had] proved [her] case to the requisite standard”. It was a case where there was a genuine question about whether her testimony standing alone was an appropriate basis on which to reach a reasonable decision and it was a case where she would be the party expected to call him.

[35] There are in my judgment at least three results which flow from the application of the general principle in Blatch v Archer. First, as is said in Cross On Evidence, the rule:

“permits an inference that the untendered evidence would not have helped the party who failed to tender it. It entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken.”[10]

McMurdo J quoted that passage and seems to have used the evidence in that way. It is uncontroversial.

[36] Second, inferences available on the evidence which has been given against the party not tendering the other evidence, or which favours that party’s opponent, may more confidently be drawn. Again I apprehend that proposition to be uncontroversial.

[37] Third, it seems to follow from Hellicar that inferences proposed by the party not tendering the other evidence may more readily be rejected.

[38] It is unnecessary to discuss these matters further. Mrs Rossi has not demonstrated any error in the trial judge’s approach.

Brisbane Barrister – David Cormack

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