Constitutional Law (Cth)—Freedom of inter-State trade commerce and intercourse—Public motor vehicle—Operating or intending to operate—Licence—Wool produced on station immediately south of border between New South Wales and Queensland—Wool carried on journey to Sydney (N.S.W.)—Route from woolshed necessarily via Hungerford (Q.)—Journey competitive with railway for distance exceeding fifty miles—Offence—State Transport (Co-ordination) Act 1931-1956 (N.S.W.), ss. 3 (1), (3), 12, 28—The Constitution (63 &64 Vict. c. 12), s. 92—Judiciary Act 1903-1955, s.40.
Decisions
March 12, 1959. The following written judgments were delivered:- DIXON C. J. Before a Court of Petty Sessions in Sydney the defendant Golden, who said that his business was that of inter-State transportation, was convicted of an offence under s. 28 (1) of the State Transport (Co-ordination) Act 1931-1956. Apparently he was an owner-driver and upon the journey in respect of which he was convicted he drove the lorry himself. It may be that his vehicle was not entirely dedicated to carrying from one State to another; at all events for some reason he had obtained a licence under the provisions contained in ss. 14-17 of the Act. At the time of the offence charged, namely 13th February 1957 these provisions had ceased to apply "to or in respect of any person operating or intending to operate a public motor vehicle in the course and for the purpose of interstate trade, and to or in respect of a public motor vehicle so operated". For such a motor vehicle the provisions were thrown into a new form to be found in the third schedule: see s. 3 (3). The operation of the amendments, which were introduced by Act No. 48 of 1954 of New South Wales, is described in Hughes &Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) 93 CLR 127 . It is enough to refer to the passage without repeating more of it than a concluding sentence. It is this: "The general notion of the new text, as it is to be read in relation to persons and vehicles operating in the course of and for the purposes of inter-State trade is to soften down the provisions governing the grant of a licence and the fixation of the pecuniary impositions in the hope that the whole may be regarded judicially as conceding enough to inter-State carriers of goods by road to warrant the Court's pronouncing that form of inter-State commerce now to be absolutely free within the meaning of s. 92." (1955) 93 CLR, at pp 152, 153 This hope was not realized; the Court decided that the amendments did not reduce the provisions to consistency with the freedom of inter-State trade commerce and intercourse. But the failure of the amendments constitutionally cannot change the intention of the legislature and it appears to me that it is sufficiently plain that the intention was to present…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jones v Dunkel [1959] HCA 9
Case
[1959] HCA 9
Decision Date
CaseChat Overview and Summary
The case of *Jones v Dunkel* concerned a dispute between a plaintiff, Jones, and a defendant, Dunkel. The specific nature of the dispute and the court in which it was heard are not detailed in the provided text, beyond the identification of the judges who heard the matter: Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies, and Windeyer JJ.
The central legal issues before the court revolved around the application of the rule in *Jones v Dunkel* itself, which dictates how a court should approach a case where a party has failed to call a witness or produce evidence that would have been relevant to a material issue. Specifically, the court was required to determine the inferences that could properly be drawn from such a failure, and the extent to which the burden of proof could shift or be considered discharged in the absence of that evidence.
The court's reasoning affirmed the principle that if a party has available to them evidence that would elucidate a matter in dispute, and they fail to adduce that evidence, then the court is entitled to draw an inference that the evidence, if produced, would have been unfavourable to that party. This principle is not a rule of law that automatically resolves the issue against the party who fails to call the evidence, but rather a rule of inference that may be applied by the tribunal of fact. The court emphasised that the ultimate burden of proof on the material issue remains with the party who bears it, but the failure to produce relevant evidence can strengthen the case of the opposing party.