Where a party bears the onus of proof and fails to call a family member whose evidence could corroborate their case, the conditions for a Jones v Dunkel inference are established notwithstanding that the party's case is that the family member misled them; the fact that the witness is the party's child and stands higher in their confidence than in the opposing party's is a strong indicator that the party would be expected to call the witness. A trial judge's reliance on evidence the parties agreed was inadmissible constitutes a denial of procedural fairness warranting a new trial where the evidence materially affected the outcome. Where such an error occurs, practitioners should consider seeking reopening before the trial judge rather than proceeding to appeal.
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