Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt

[2022] NSWCA 151

The mode of reasoning suggested by Jones v Dunkel is directed to fact finding. Even where the preconditions to drawing the inference are satisfied, a trier of fact is not obliged as a matter of law to draw such an inference. It follows that a failure to draw such an inference is not erroneous in law and does not raise any question or point of law.

Manly Council v Byrne and Anor [2004] NSWCA 123 applied;

Jones v Dunkel (1959) 101 CLR 298; [1989] HCA 8; ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 considered.

Ling  v Pang [2023] NSWCA 112

The appellants sought to rely on the recent decision in Owners – Strata Plan 87265 v Saaib [2022] NSWCA 63. In that case Basten JA, with the agreement of Gleeson JA (Macfarlan JA dissenting), held that an inference could be drawn that a person’s evidence would not have assisted a party in circumstances where the two people had had a close working relationship but then fell out, with the party ending up alleging to the police that the missing witness had engaged in fraud. His Honour said (at [88], citations omitted):

There was no evidence as to why Mr Saaib’s lawyer had reported Mr Zaatini to the police for fraud, nor as to whether the police had taken steps to investigate or prosecute him. As this Court said in RHG Mortgage Ltd v Rosario Ianni, a suggestion that the witness might be reluctant to give evidence because it may constitute an admission of wrongful conduct on his part, would invite an application for a certificate under s 128 of the Evidence Act. The fact of the report to the police was consistent with Mr Saaib taking a particular view of Mr Zaatini’s conduct, at least after he had obtained legal advice; it does not follow that the person would lie on oath.

That decision illustrates, first, that merely because the people involved have fallen out does not of itself mean that one would not be expected to call the other; secondly, the fact that the expected evidence may involve wrongful conduct does not of itself preclude an inference being drawn in light of the potential protections offered by s 128. But the evaluation of whether it is natural to expect the person to have been called by the party is fact specific. It was important in that case, for example, that there was no evidence of what the report of alleged fraud involved and, thus, whether it related to the matters in question. Here, the facts that the missing witness was himself a party, who was accused of fraud in these proceedings by the appellants, are distinguishing features.