Goldsworthy v The Corporation of the City of Burnside

This matter came before the High Court of Australia concerning an application for special leave to appeal. The applicant, Trevor John Goldsworthy, sought to appeal a decision against The Corporation of the City of Burnside. The core of the dispute involved an incident where the applicant was injured while engaged in a work practice. The applicant contended that he was using an unmodified and unstable machine, that he and others habitually engaged in an unsafe work practice, and that he had not been instructed to avoid this practice.

The legal issues before the Court revolved around the application of the rule in *Jones v Dunkel*. Specifically, the Court was required to consider whether the failure of the respondent to call a key witness, Mr John Brown (the applicant's supervisor), despite repeated assurances that he would be called and his central role in the events, should lead to adverse inferences being drawn against the respondent. The Court also had to consider whether the absence of Mr Brown's evidence could allow the Court to more readily accept the applicant's evidence on critical points.

The applicant argued that Mr Brown's evidence was crucial as he was in a supervisory capacity, was privy to the work practices, and was allegedly involved in discussions regarding machine modification. The applicant contended that the respondent's failure to call Mr Brown, after indicating he would be a witness and relying on his information during cross-examination, meant that inferences should have been drawn that his evidence would not have supported the defence case. Furthermore, the applicant submitted that the Full Court's finding that a modified machine was being used, which negated a key aspect of the applicant's complaint about lack of balance, was made without the benefit of Mr Brown's direct evidence on that point.

The Court was therefore tasked with determining whether the rule in *Jones v Dunkel* should have been applied to permit inferences to be drawn from the respondent's failure to call Mr Brown, and whether this failure impacted the findings of fact made by the lower courts.