Suttram Pty Limited v Michelin Australia Pty Limited

Suttram Pty Limited initiated proceedings against Michelin Australia Pty Limited in the Federal Court of Australia, seeking damages for a motor vehicle accident that occurred due to alleged tyre failure. A critical issue in the case was whether certain correspondence between the plaintiff's expert and the defendant's legal team could be tendered to the court. The plaintiff intended to use this correspondence to draw an adverse inference under the decision in Jones v Dunkel, without actually calling the expert witness to testify. Michelin opposed the tender, arguing that the correspondence was irrelevant and that a Jones v Dunkel inference could not be drawn in the absence of the expert's testimony.

The court was tasked with determining whether the correspondence was admissible and whether the plaintiff could rely on the Jones v Dunkel inference without calling the expert witness to testify. The court considered whether the correspondence was relevant to the issues in the case and whether it could properly be used to draw an inference under the principles established in Jones v Dunkel. The court needed to assess whether the plaintiff's decision not to call the expert witness could still allow for an adverse inference to be drawn against the defendant.

The court held that the correspondence was not relevant to the issues in dispute and therefore could not be tendered. The court further found that a Jones v Dunkel inference could not be drawn when the plaintiff chose not to call the expert witness. The court rejected the tender of the correspondence, concluding that the principles of Jones v Dunkel do not permit an adverse inference to be drawn in the absence of the expert's testimony. The court thus dismissed the plaintiff's attempt to utilise the correspondence to support its case.