New Broken Hill Consolidated Ltd v Michael Gillespie

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.