We recently sat down with Will LeMass, Barrister, Northbank Chambers to discuss the subject of rules, ahead of his co-presentation with Melanie Hindman QC, Northbank Chambers at the upcoming Evidentiary Toolkit seminar. Their presentation will focus on ‘The Rules In Jones v Dunkel and Browne v Dunn in Civil Trials’.
What are the rules in Jones v Dunkel and Browne v Dunn?
- The rules in Browne v Dunn and Jones v Dunkel concern witness evidence at trial;
- The rule in Jones v Dunkel is that an unexplained failure to call a material witness raises an inference that the witness would not have assisted the party concerned;
- The rule in Browne v Dunn is that a cross-examiner must put to a witness the nature of the case upon which it is proposed to rely in contradiction of the witness’s evidence.
What are some of the ways they are applied to civil trials?
- The rules apply in all Court proceedings in Queensland;
- Jones v Dunkel is engaged where, for example, a key employee of a party closely involved the events relevant to the litigation is not called to give evidence at trial and there is no explanation for the failure to do so. The Court may infer that the employee’s evidence would not have assisted the employer’s case;
- Browne v Dunn is engaged where a submission is made that a witness has not told the truth but without the basis for that submission being put to the relevant witness to allow them a chance to explain themselves. The Court may refuse to allow the submission to be made or may require the witness to be recalled.
How can a lawyer avoid the adverse consequences of the rules?
- There is no substitute for preparation;
- The best way to avoid operation of the rules against a party is to ensure that all relevant witnesses are called (unless a witness’s evidence is so disadvantageous that it is not possible to do so) and to ensure that all opposing witnesses are cross-examined in a fulsome and comprehensive way;
The greater challenge of the rules is to identify when they have been breached by an opponent so as to use them to the advantage of your client.
Will LeMass was called to the bar in 2017 and has a broadly based commercial practice. He has acted as counsel at trials and at appellate level in proceedings in Queensland and interstate. Before coming to the Bar, Will worked as a solicitor at Clayton Utz between 2010 and 2017 (Senior Associate from 2015), principally in commercial litigation. In 2009, Will was the Associate to His Honour Judge Martin S.C.. In 2008, he graduated from the University of Queensland with a Bachelor of Laws (Hons). Contact Will at wlemass@qldbar.asn.au .
