CITATION: NEW BROKEN HILL CONSOLIDATED LTD & ORS v MICHAEL GILLESPIE [1999] NSWCA 109 FILE NUMBER(S): CA 40704/98 HEARING DATE(S): 16 April 1999 JUDGMENT DATE:
16 April 1999PARTIES :
NEW BROKEN HILL CONSOLIDATED LTD & ORS
v
MICHAEL GILLESPIEJUDGMENT OF: Handley JA at 1; Powell JA at 19; Beazley JA at 20
LOWER COURT JURISDICTION: Compensation Court LOWER COURT FILE NUMBER(S) : 10578/96 LOWER COURT JUDICIAL OFFICER: Curtis CCJ
COUNSEL: J D Hislop QC/J Doak (Appellant)
G Little/P Khansar (Respondent)SOLICITORS: Bartier Perry (Appellant)
Buckworth Keady & Chalker (Respondent)CATCHWORDS: EVIDENCE - whether evidence warranted Jones v Dunkel inference - whether failure of trial Judge to deal with relevant and credible evidence error of law CASES CITED: Jones v Dunkel (1959) 101 CLR 298
Mifsud v Campbell (1990) 21 NSWLR 725DECISION: Dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40704/98
CC 10578/96HANDLEY JA
POWELL JA
BEAZLEY JA
16 April 1999NEW BROKEN HILL CONSOLIDATED LIMITED & ORS v MICHAEL GILLESPIE
EVIDENCE - whether evidence warranted Jones v Dunkel inference - whether failure of trial Judge to deal with relevant and credible evidence error of law
A mine worker had been awarded compensation for an injury to his shoulder. The employers appealed alleging two errors of law. The first was that the Judge had erred in drawing a Jones v Dunkel inference against the employers for failing to call a witness. The second was that the trial Judge had failed to deal with relevant and credible evidence called by the employers.
HELD, dismissing the appeal: The appellant had failed to establish legal error.ORDERTHE SUPREME COURT
Appeal dismissed with costs.
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40704/98
CC 10578/96HANDLEY JA
POWELL JA
BEAZLEY JA1 HANDLEY JA: New Broken Hill Consolidated Limited and associated companies appeal from a decision of Curtis CCJ given in May 1998 during the Broken Hill circuit of that Court. His Honour found that the worker, Michael Gillespie, had sustained an injury to his shoulder which prevented him making full and normal use of his arm above the shoulder level. The injury was based upon the nature and conditions of his employment and a discreet injury to his left shoulder on 18 October 1989. The injury itself is not in dispute. His Honour found that the worker had a 15 per cent permanent loss of efficient use of his left arm at or above the elbow and assessed compensation under s 40.
16 April 1999NEW BROKEN HILL CONSOLIDATED LIMITED & ORS v MICHAEL GILLESPIE
JUDGMENT
2 The employers raise the following questions of law. The first relates to an inference that his Honour is said to have drawn, based upon Jones v Dunkel (1959) 101 CLR 298. The second relates to his Honour's failure to deal with or refer to the evidence of the foreman, Mr Boyce, called by the employers.
3 The worker was the only witness called in his case. It…
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Details
- Case
- [1999] NSWCA 109
- Decision Date
CaseChat Overview and Summary
New Broken Hill Consolidated Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales in favour of Michael Gillespie (the respondent). The dispute concerned the appellant's liability for injuries sustained by the respondent.
The primary legal issue before the Court of Appeal was whether the trial judge erred in law by failing to adequately consider or make a Jones v Dunkel inference in relation to certain evidence. Specifically, the court had to determine if the trial judge's handling of relevant and credible evidence, which was not presented by the respondent, constituted a reviewable error.
The Court of Appeal found that the trial judge had indeed failed to deal with the relevant and credible evidence in a manner that would permit a Jones v Dunkel inference. This failure was considered an error of law. The court reasoned that where a party fails to call a witness or produce evidence that would likely be favourable to their case, and that evidence is peculiarly within their knowledge or control, an inference may be drawn against that party. The trial judge's omission to address this possibility in relation to the evidence in question was deemed a material oversight.
The appeal was dismissed.
The primary legal issue before the Court of Appeal was whether the trial judge erred in law by failing to adequately consider or make a Jones v Dunkel inference in relation to certain evidence. Specifically, the court had to determine if the trial judge's handling of relevant and credible evidence, which was not presented by the respondent, constituted a reviewable error.
The Court of Appeal found that the trial judge had indeed failed to deal with the relevant and credible evidence in a manner that would permit a Jones v Dunkel inference. This failure was considered an error of law. The court reasoned that where a party fails to call a witness or produce evidence that would likely be favourable to their case, and that evidence is peculiarly within their knowledge or control, an inference may be drawn against that party. The trial judge's omission to address this possibility in relation to the evidence in question was deemed a material oversight.
The appeal was dismissed.
Orders
Orders of the court
Dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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