Hastwell v Legal Services Commissioner
[2019] NSWSC 1224
•22 March 2019
Supreme Court
New South Wales
Medium Neutral Citation: Hastwell v Legal Services Commissioner [2019] NSWSC 1224 Hearing dates: 22 March 2019 Date of orders: 22 March 2019 Decision date: 22 March 2019 Jurisdiction: Common Law Before: Campbell J Decision: Material tendered is rejected
Catchwords: CIVIL LAW – inference from failure to call evidence –requirement that material be sufficiently contemporaneous – absence of evidence of any association – tender rejected Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Category: Procedural and other rulings Parties: Haydyn Garry Hastwell (self-represented plaintiff)
Legal Services Commission (defendant)Representation: Counsel:
Solicitors: Office of the Legal Services Commissioner (Defendant)
Haydyn Garry Hastwell (self-represented plaintiff)
Ms R Wathana (defendant)
File Number(s): 2018/197067
Judgment
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The plaintiff tenders pages 13 to 18 of his affidavit filed in support of a motion that was withdrawn. The affidavit was sworn on 12 March 2019 and those pages incorporate certain specified annexed documents in the affidavit.
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Ground 6 of the application for judicial review, as expressed in the second further amended summons, asserts that there was a denial of procedural fairness and natural justice because of an apprehension of association bias.
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Mr Hastwell, who appears for himself, has been concerned that there may have been an association between the Legal Services Commissioner, the solicitor the subject of his complaint, a Mr Lorraine, and an expert witness whose work has been impugned, Dr Parmegiani, because Mr Hastwell has received hearsay information that they may be Freemasons. There is, I must say, no evidence before me capable of in any way substantiating his “concern”.
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The content of pages 13 to 18 of the affidavit is correspondence between Mr Hastwell and the office of the Commissioner for Legal Services between 18 February 2019 and 1 March 2019 ventilating and re-ventilating his concern about bias. The decisions the subject of the application for judicial review were made on 15 March 2018 and 31 May 2018 respectively.
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Ms Withana of counsel who appears for the Commissioner objects on the ground of relevance, and argues that this material is not sufficiently contemporaneous with the decision-making process that is impugned to make it probative.
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Mr Hastwell says that he wishes to rely upon the failure of the Commissioner to disclose whether or not he has the association asserted as a fact from which I can infer, if I am so persuaded in due course, that the Comissioner has that association. Mr Hastwell has referred to the well-known decision of the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298.
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Without going into the technicalities of the permissible inferential reasoning process that authority speaks to, I think it is generally understood that the failure of a party to call relevant evidence which one expects would be within that party's power entitles a Court to more readily draw an available inference favourable to the opposing party on the basis of other evidence led properly in the proceedings.
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I do not understand Jones v Dunkel to entitle a Court to draw an inference from the complete absence of evidence on a point; such an “inference” is not available on the evidence. And it seems to me that there is a complete absence of evidence of any association of any type between the defendant and the other persons I have mentioned.
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I understand Mr Hastwell has developed an anxiety about bias but, in my judgment, the material tendered is not relevant because: (a) it is not sufficiently contemporaneous; and (b) in any event, of itself it could not lay a foundation for me drawing the Jones v Dunkel inference to which he refers. I reject the tender of that material.
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Decision last updated: 16 September 2019
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