Walters and Walters

In *Walters and Walters*, Justice Mullane of the Supreme Court of New South Wales was required to consider directions for the further hearing of a Section 79A Application. The specific nature of the dispute between the parties, beyond the application itself, is not detailed in the provided text.

The central legal issue revolved around the application of the rule in *Jones v Dunkel*, specifically concerning the inferences a court may draw from a party's failure to call a witness. The court needed to determine what constitutes a satisfactory explanation for such a failure, thereby preventing the adverse inference from arising.

Justice Mullane, referencing *Cross on Evidence* and *Cadwallader v Bajco Pty Ltd*, outlined that the rule in *Jones v Dunkel* does not apply if there is a valid explanation for the failure to call evidence. Such explanations can include the witness's absence with a reasonable justification for not compelling attendance, illness, unavailability, loss of memory, or refusal to waive privilege. Furthermore, the rule may not apply if the witness is the opposing party's child, is hostile, or if calling them would cause jeopardy or grave prejudice. The explanation must be established by evidence, not presumed. The court noted that the civil penalty nature of proceedings, potential for subsequent penalties, or a contemporaneous Royal Commission were not satisfactory explanations. A belief that the opposing party's evidence is insufficient is also not a valid excuse. The significance of the inference is also dependent on the closeness of the absent witness's relationship with the party who failed to call them, with a cessation of that relationship and commencement of a new one with the opponent potentially negating the inference. The onus of establishing unavailability rests on the party against whom the inference might otherwise operate.