Hastwell v Legal Services Commissioner

The plaintiff tenders pages 13 to 18 of his affidavit filed in support of a motion that was withdrawn. The affidavit was sworn on 12 March 2019 and those pages incorporate certain specified annexed documents in the affidavit.

Ground 6 of the application for judicial review, as expressed in the second further amended summons, asserts that there was a denial of procedural fairness and natural justice because of an apprehension of association bias.

Mr Hastwell, who appears for himself, has been concerned that there may have been an association between the Legal Services Commissioner, the solicitor the subject of his complaint, a Mr Lorraine, and an expert witness whose work has been impugned, Dr Parmegiani, because Mr Hastwell has received hearsay information that they may be Freemasons. There is, I must say, no evidence before me capable of in any way substantiating his “concern”.

The content of pages 13 to 18 of the affidavit is correspondence between Mr Hastwell and the office of the Commissioner for Legal Services between 18 February 2019 and 1 March 2019 ventilating and re-ventilating his concern about bias. The decisions the subject of the application for judicial review were made on 15 March 2018 and 31 May 2018 respectively.

Ms Withana of counsel who appears for the Commissioner objects on the ground of relevance, and argues that this material is not sufficiently contemporaneous with the decision-making process that is impugned to make it probative.

Mr Hastwell says that he wishes to rely upon the failure of the Commissioner to disclose whether or not he has the association asserted as a fact from which I can infer, if I am so persuaded in due course, that the Comissioner has that association. Mr Hastwell has referred to the well-known decision of the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298.

Without going into the technicalities of the permissible inferential reasoning process that authority speaks to, I think it is generally understood that the failure of a party to call relevant evidence which one expects would be within that party's power entitles a Court to more readily draw an available inference favourable to the opposing party on the basis of other evidence led properly in the proceedings.

I do not understand Jones v Dunkel to entitle a Court to draw an inference from the complete absence of evidence on a point; such an “inference” is not available on the evidence. And it seems to me that there is a complete absence of evidence of any association of any type between the defendant and the other persons I have mentioned.

I understand Mr Hastwell has developed an anxiety about bias but, in my judgment, the material tendered is not relevant because: (a) it is not sufficiently contemporaneous; and (b) in any event, of itself it could not lay a foundation for me drawing the Jones v Dunkel inference to which he refers. I reject the tender of that material.