When Silence Speaks: The Jones v Dunkel Principle and the Hidden Cost of Uncertainty
Home › Case Studies › Case Law Library › Commercial & Business Cases › Civil Procedure & Evidence › Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)
How missing evidence triggers longer disputes - and why clients often end up paying for both paths
Jones v Dunkel [1959] HCA 8 remains a cornerstone Australian authority on how courts treat the absence of a witness who could explain critical events. The case involved a fatal truck collision on the Hume Highway. There was no direct evidence of how the impact occurred, only circumstantial detail about the position of the vehicles, road conditions and damage patterns.
The driver of one truck, Hegedus, survived but did not give evidence at trial. The High Court considered whether his absence should influence the drawing of inferences.
The Court reaffirmed that an unexplained failure to call a witness can strengthen an inference available on the evidence, but cannot fill gaps or replace proof. As Windeyer J later summarised, the principle is grounded in common sense: a party who does not call an available witness risks an inference that the evidence would not have assisted them. But as Dixon CJ warned at 305:
The facts proved must form a reasonable basis for a definite conclusion … the accident is simply left unexplained.
The majority held there was insufficient evidence of negligence, and that speculation could not replace proof. However, other judges emphasised that if circumstantial evidence permits an inference, the absence of a key witness may make that inference more confidently drawn - illustrating the now-familiar Jones v Dunkel rule.
Why It Still Matters -
modern relevance and systemic risk
The principle is often cited as an evidentiary tool, but its real-world impact is broader. Jones v Dunkel shows what happens when facts are incomplete: disputes slow down, inference becomes central, and uncertainty multiplies.
For contemporary clients, this type of uncertainty frequently occurs in:
business disputes involving missing documents
employment matters where key decision-makers do not testify
personal injury cases where the only eyewitness is unavailable
commercial litigation dependent on circumstantial inferences
When evidence is incomplete, lawyers must simultaneously prepare two tracks:
negotiate based on the available facts, and
prepare for trial based on what might emerge.
Traditional models charge for both tracks at once. The more uncertain the evidence, the more duplicated the work. The legal system requires careful inference. Billing structures often require clients to fund everything, even work that becomes unnecessary.
This is the quieter lesson of Jones v Dunkel: when key witnesses are absent, the cost risk falls on the party least prepared for escalation.
How to Avoid the Same Trap -
cost alignment as a structural safeguard
The risk exposed by Jones v Dunkel is not simply evidentiary. It is structural. Missing evidence and unclear facts lead to:
extended correspondence
multiple inferential theories
contingency preparation
dual-track work across negotiation and litigation
Under traditional billing, that uncertainty becomes billable duplication. Even where only one path will ultimately be taken, clients often fund both, simply because the lawyer bridging strategy and litigation must manage every possible scenario.
Clean Law’s structure is designed specifically to prevent this duplication. One-path funding means settlement and courtroom work are separated. The settlement lawyer focuses only on resolution strategy and early clarity. The courtroom lawyer handles only litigation. The client chooses the path to fund, not both.
Two lawyers often cost less than one - because you fund one path, not both.
Escrow oversight ensures that the moment a matter becomes more complex, the very point where Jones v Dunkel-type uncertainty usually drives up cost, additional work cannot begin without conscious client approval. This is not a prediction about outcomes; it is a structural safeguard against unnecessary dual-track spending.
When key facts are missing, the law demands careful reasoning. Clean Law’s model ensures that the cost of that caution does not double.
Reflection
Jones v Dunkel is often remembered as an evidentiary rule about silence. Its deeper value lies in showing how quickly uncertainty expands a client’s risk. Missing evidence is unavoidable in many disputes, but duplicated costs are not. Structure can separate the two.
For readers wanting to understand how one-path funding avoids paying for both settlement work and trial preparation during periods of factual uncertainty, the following explainer outlines the structure in clear, practical terms.
Learn how incentive alignment works
See Hidden Traps in the Tradition Model
If your matter involves contested facts or missing evidence, early independent advice can help map a safe, single-path strategy without unnecessary cost exposure.
Arrange a confidential discussion with a Clean Law solicitor
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
