APPLICANT SEEKS FAVORABLE JUDGMENT FOR RESPONDENT’S FAILURE TO PRESENT WITNESSES
Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409 (1 October 2020)
In this case, the ACCC is alleging unconscionable conduct and unfair contract terms with alleged contraventions of statutory provisions of the Australian Consumer Laws (ACL) stemming from Google ads and the representations made where the applicant further alleges that the respondent's failure to call the representatives of the company as its witness results to a judgment favorable to the applicant.
Facts:
- The ACCC (applicant) raises five separate causes of action against Employsure (respondent), all of which relate to the manner in which Employsure has promoted its products and services to the public and, in particular to people who search online for employment related advice.
- The ACCC led evidence from several witnesses, including representatives of the three small businesses who had dealings with Employsure, which dealings underpinned the ACCC’s claims of unconscionability and unfair contract terms.
- Although Employsure filed affidavits from six witnesses, including several of its employees whose conduct lies at the heart of the ACCC’s claims, Employsure ultimately called only two witnesses. The first was Employsure’s chief executive officer, Mr Edmund Mallett. The other was Employsure’s finance director, Mr Steven Nicholson, who affirmed two affidavits.
- The ACCC contended that the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298 is triggered by Employsure’s failure to call the employees. The ACCC contended that the Court should draw an inference from the fact that Employsure did not call its employees who dealt with the three small businesses that they would not have given evidence that would have assisted Employsure’s case
- The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue.
- The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party
Issue: Is the Jones v Dunkel principle applicable to the case at bar for failure of Employsure to present its representatives who engaged with those small businesses which will result to a judgment favorable to ACCC (applicant)?
Law:
- S140 Of Evidence Act of 1995- Standard of Proof in Civil Proceedings
- In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been provec in the balance of probabilities
Analysis:
No. ACCC’s claims of unconscionable conduct relate to s 21 of the ACL, which is a civil penalty provision. Accordingly, s 140 of the Evidence Act 1995 applies, with the consequence that the ACCC’s onus of proof must reflect the seriousness of the allegations made against Employsure.
Despite the searching cross-examinations of Mr Mallett and Mr Nicholson, both impressed the Court with their veracity and sound professional judgement. In contrast, the limitations of some of the evidence given by witnesses called by the ACCC in their capacity as representatives of the relevant small businesses was tellingly exposed in cross-examination. Without doubting the essential honesty of any of those witnesses, it was frequently apparent that each of them had only a patchy recollection of their dealings with Employsure. Putting to one side the audio recordings of relevant telephone conversations with Employsure’s representatives, these witnesses’ recollections of face-to-face meetings with Employsure which were not recorded were not always reliable. These witnesses did not live up to the ACCC’s pre-hearing expectations.
Conclusion: The court rejects ACCC’s reliance in the principle set in Jones v Dunkel in relation to Employsure’s failure to call representatives of the company who engaged with those small businesses. The application is dismissed.
