v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied." (emphasis added).
82 In short, the Coshott parties bore the onus of proving the trust over Robert's interest but failed to call or give evidence explaining the documents and transactions on which they rely. Yet Robert, in particular, was in the best position to explain them. This cannot be ignored when weighing the limited evidence they relied upon to support their case with all the other evidence which tended to undermine it.
124 In Heydon JD, Cross on Evidence (13th ed, LexisNexis Australia, 2021), the learned author states (at [1215]):
Lord Mansfield CJ's maxim is wider than the rule in Jones v Dunkel because the rule is available against a party not bearing the onus of proof. But the maxim is also available against a party bearing that onus — in permitting a conclusion that uncalled evidence would not have helped the case of a party not calling it, or permitting inferences against the party to be more strongly drawn, or assisting in deciding whether the party bearing the onus has discharged it.
125 The applicant seemed to rely on eight matters in the course of his closing submissions in support of a submission that the material is so limited that there is no appropriate basis on which to reach a reasonable decision. As I will explain, I reject each of these matters, either on the ground that the matter does not indicate that the material is limited, or because the respondents did not have it within their power to adduce the material or the material is not so limited that it is insufficient to make a reasonable decision.
126 I make two matters clear. First, the conclusion I have just expressed does not mean a particular matter is not relevant in assessing the findings to be made. I deal with that when I address the particular allegations later in these reasons. Secondly, I am not at this point dealing with the particular Jones v Dunkel submissions made by one or other of the parties. They are dealt with in the particular context in which they were made.
1. The transcripts of the evidence given to the IGADF Inquiry
127 The applicant submits that the Court is being asked to make assessments of the honesty and reliability of a number of witnesses without access to their previous version of events or information as to how their evidence may have been shaped by their contact with the IGADF Inquiry. He submits that the parties have not been permitted to look at the material because of the operation of the IGADF Regulation. This means that the parties and the Court do not know what previous versions of the events they gave, what they were shown, what was suggested to
