What is the Jones v Dunkel rule – and why is it relevant to my family provision claim or defence?

Hello, I’m Adrian Corbould, Accredited Specialist in Wills & Estates at Turnbull Hill Lawyers, with our Battle of Wills series, where we talk about wills and estates.

The Jones v Dunkel rule – If you know something about your case but don’t volunteer it, your silence may infer that the information will not help your case.

And ‘your’ includes witnesses who may have been able to give such evidence.

A Jones v Dunkel inference is a legal principle or ‘inference’ that may be applied when a party fails to provide evidence or explain a fact or situation within their or another witness’s knowledge or control.

So named from the High Court case, Jones v Dunkel (1959), about a fatal head-on trucking accident on a sloped bend on the Hume Highway.

The surviving wife (Jones) of the killed driver sued the employer (Dunkel) of the other driver, who lived, claiming his negligent driving caused her husband’s death.

The defendant-employer did not call the driver to give evidence about the accident, despite providing a statement to police after the accident.

Following appeals to the High Court, the Court ruled that as the one person who could have shed light on the facts, the surviving driver, was not called to give evidence by the defendant-company, an inference may be made that his evidence, had it been led, would not have been helpful to the defendant’s case.

Such evidence could have included what side of the road he, or the killed driver, was driving on, the road conditions, the weather, the lighting, and countless other relevant factors.

So, the Court ruled that by the driver not being called to give evidence by the company, it may be inferred that the evidence he may have led would not have been favourable to the company’s case.

So, how is this relevant to contested estate cases?

Let’s say in a family provision claim, a claimant was dependent on a deceased grandparent as a baby.

As the plaintiff was a baby at the time, they would have no recollection of that dependency. They therefore could not give any evidence from their memory, other than what others had told them later.

However, the claimant’s mother or father may be able to give evidence to support that fact, but the plaintiff may not provide evidence from their mother or father.

The defendant, in disputing the dependency period, may ask the Court to apply the Jones v Dunkel inference, to infer that if the plaintiff’s mother or father had provided such evidence, it would have been against the claimant’s interests.

It’s important to note that the Jones v Dunkel inference is not a rule of law but rather a common judicial practice, and has several features to its application, basically:

  1. The absent evidence would have been expected to be called by the party against whom the rule is to be relied on;
  2. The absent evidence would have been relevant to determining facts in issue; and
  3. No explanation is given for the absence of the evidence (eg. illness, of the witness may be ‘hostile’).

In summary – Jones v Dunkel inference – where a party’s silence or failure to provide evidence can be inferred as being detrimental to their case.

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