The answer is “yes”.
In Australia, when a party to civil litigation fails to call a witness, or lead evidence that is conveniently available to it and this failure is unexplained, a submission may be made by the opposing party that the rule in “Jones v Dunkel” ought to be applied resulting in an adverse inference being drawn by the Court or Tribunal.
The inference – adverse to the party’s case who failed to call the witness or lead the evidence – is ordinarily that the uncalled witness or evidence would not have helped the party’s case.
Importantly, it is not an inference that the uncalled witness or evidence would have been positively unfavourable to the party’s case, or positively favourable to the opposing party’s case.
The application of the principles in Jones v Dunkel may also result in the Tribunal or Court more readily accepting the opposing party’s evidence on the disputed fact.
Although the Fair Work Commission is not bound by judicial rules of evidence, it can inform itself as it considers appropriate and has applied the rule in Jones v Dunkel as a matter of fairness.
But care must be taken with the application of the rule, as was found by the Full Bench of the Fair Work Commission in Sharkey v Life Without Barriers [2019] FWCFB 7644:
“[109] It is well established that before the rule in Jones v Dunkel can properly be invoked, there must be evidence that calls for an answer [90] or enough evidence to warrant a reasonable or just conclusion in the absence of an explanation or contradiction. We have previously found that the Deputy President’s assessment of the strength of LWB’s case based on its materials filed on 17 December 2018 was erroneous. It is also the case, as we have previously noted, that there were two possible explanations for Ms Sharkey not contacting LWB from 5 September 2018 to 8 October 2018 which were equally probable. In our view, the explanation favoured by the Deputy President was based on inferences in circumstances where equally probable inferences were available and this was not a case where an adverse inference on the basis of the rule in Jones v Dunkel should have been drawn. The Deputy President also observed at paragraph [71] that what passed between Ms Sharkey and her solicitor was unable to be confirmed on the evidence. In circumstances where the facts did not point more conclusively to one of the available inferences, the rule in Jones v Dunkel could not be used to support either inference. Accordingly, appeal ground C9 also succeeds”.
