Is your affidavit logically, grammatically and ethically wrong? Part 3: Recent decisions challenge Kane’s Hire
As the standards surrounding affidavit evidence continue to evolve, legal practitioners are re-evaluating best practices for recording witness recollections, particularly in circumstances where only the gist of a conversation is remembered.
Background
In our previous bulletin, we discussed the Federal Court decision of Kane’s Hire, which has sparked a debate between practitioners as to the best practice for recording evidence of conversations in affidavits. In Kane’s Hire, Jackman J criticised the practice in NSW of recording witness evidence of conversations in direct speech, in circumstances where the witness was only able to recall the gist of what was said.
In our subsequent bulletin, we discussed the case of Gan v Xie, which reaffirmed Kane’s Hire in the New South Wales Courts. Recently, in Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766, Jackman J made adverse findings against a witness’s credibility on the basis that adequate notice had been given to the profession of the unacceptability of this practice.
Interestingly, however, in recent months, new decisions have emerged which consider the impact of Kane’s Hire in a new light. We examine these decisions below.
Recent Cases
Self Care Corp Pty Ltd v Green Forest International Pty Ltd (No 16) [2024] FedCFamC2G 738
Recently, in the Federal Circuit and Family Court of Australia, Baird J commented that whilst Kane’s Hire and Gan v Xie had been critical of the practice of putting evidence of gist recollection of conversations into direct speech, Her Honour did not consider there to be a difference between the use of “phrases, quotation marks and similar conventions” and setting out the gist of a conversation.
Her Honour noted that whilst the applicant witness in the present case gave evidence of conversations in direct speech, prefaced by the words “words to the following effect” and “to the best of my recollection”, she also recalled those conversations with “the benefit of her review of her contemporaneous notes, or other contemporaneous documents to which she refers.” [299]
Her Honour concluded that regardless of the form of the witness’s evidence, she would weigh “all conversations of which the respective witness gives evidence in their context, in the light of the contemporaneous and near contemporaneous documentary material, and the totality of the evidence.” [291]
Chen v Chu [2024] NSWSC 1139
In the Equity Division of the Supreme Court of NSW, Hammerschlag CJ in Eq stated that he saw “nothing ethically problematic” about the long-standing practice of recounting conversations in direct speech, prefaced with the words, “to the following effect”. His Honour also noted that the practice of setting out a conversation in indirect speech did not make that evidence “impermissible, inadmissible or inutile. Whether it is will depend on the circumstances and the precise form in which the evidence was given. It is not infrequently the case that indirect speech is of no value in the fact-finding process because it is expressed in vague and conclusionary terms.” [269]
His Honour found that where a party seeks to rely upon evidence of a conversation, that “conversation must be proved to the reasonable satisfaction of the Court,” meaning that a Court must feel an “actual persuasion” that the conversation occurred. Such reasonable satisfaction could be achieved by corroborating conversations with reliable contemporaneous records. In the absence of such records, His Honour confirmed that a Court must consider:
· the seriousness of the allegation made;
· the inherent unlikelihood of an occurrence of a given description; and
· the gravity of the consequences flowing from a particular finding.
“[I]nexact proofs, indefinite testimony, or indirect inferences” would not satisfy the Court that the conversation occurred.
Wild v Meduri [2024] NSWCA 230
Is this practice logically, grammatically and ethically wrong?
More recently, contrary to Kane’s Hire, the NSW Court of Appeal (White and Kirk JJA and Bell CJ) has found that gist recollection could be set out “in direct speech but prefaced by ‘words to the effect’ or some like expression”, that doing so did not mean that the witness was “purporting to provide a verbatim recollection of a conversation” and that a witness “should not be penalised or criticised for giving evidence in such a form.” Bell CJ, affirming the reasons of Hammerschlag CJ in Chen v Chu, found that it was “unorthodox and undesirable” for a single judge to unilaterally end such a longstanding legal practice and that a witness “should not be penalised or criticised for giving evidence in such a form.” Kirk JA also disagreed with Jackman J’s finding in Kane’s Hire that such a practice was contrary to law.In fact, Bell CJ went further to describe the practice as being a “useful discipline” to press a witness to provide “as precise a recollection as he or she is able.”
Whilst White JA disagreed with Bell CJ’s criticisms of Kane’s Hire and Chu v Lin, His Honour agreed with the orders proposed by the Chief Justice and acknowledged that “[e]ven if a witness uses indirect speech, or can only express his or her understanding of the outcome of a conversation, that evidence, if the witness is otherwise credible, may be compelling.” [332]
Kirk JA acknowledged that whilst it would be unethical for a legal practitioner to “settle, file, read or tender evidence which they knew to be false or misleading”, the practice of recording a conversation in direct speech, prefaced by the phrase “words to the effect of” was not intended to falsely convey a “verbatim recollection” of a conversation. How should evidence of conversations be given? Kirk JA found that insofar as a witness is able to recall the actual words that were spoken, those words should be set out in direct speech and that if a witness can only recall the substance of what was said, “[s]uch evidence can be in the form of direct speech – after explaining that it is recording only the substance, effect or gist of what was said – or in indirect speech.” [356] His Honour also noted that evidence of conversations should be given in a way that:
1. captures the best recollection of the witness with a level of detail appropriate and relevant for the issue in the case;
2. in a way that is not misleading with respect to the level of detail the witness remembers; and
3. which meaningfully captures what the witness remembers in a way that the witness has expressed and can explain.
Further, His Honour observed that in circumstances where the form of a statement is significant, such as in an estoppel or misleading conduct claim, it may actually be preferable to record the gist recollection in direct speech, provided the speech is prefaced with an explanation that the words are to the effect or gist of what was said.
On 1 November 2024, Jackman J published the above decision in which he considered the reasoning in Wild v Meduri. His Honour agreed with White JA’s reasons, but made the following commentary in response to Bell CJ’s component of the judgment:
· in response to Bell CJ claiming that it was unorthodox and undesirable for a single judge of any court to unilaterally end a longstanding practice in New South Wales, Jackman J stated that, to the extent that this statement related to Courts outside of New South Wales, Bell CJ was “asserting a supervisory power that his Honour does not have” [31]
· in response to Bell CJ asserting that such “unilateral change sows confusion” and generates “inconsistency and uncertainty amongst the profession”, his Honour stated that the decision of Gan v Xie unanimously approved Kane’s Hire, and that “the first occasion of confusion, inconsistency and uncertainty was the decision of Hammerschlag CJ in Eq in Chen v Chu” [32]
· in response to Bell CJ positing that any case for the reform of such a longstanding practice would be best worked out in and after consultation, his Honour stated that this was “contrary to the common law method and the individualised nature of judicial decision-making in common law jurisdictions” [33]
His Honour identified that in Kane’s Hire, an issue had arisen where the parties’ legal teams, who were from New South Wales and Victoria respectively, approached the preparation of their evidence of conversation in “markedly different ways”. His Honour concluded that “[i]t is desirable that, at least in hearings conducted by the Federal Court, New South Wales practice be brought into line with the rest of the country” [31].
Implications
Whilst we anticipate further commentary from Australian Courts on this issue, these recent cases remind us that care needs to be taken when preparing affidavit evidence so as to avoid objections and potential adverse credit findings.
As the Court concluded in Wild v Meduri, the aim should be to capture the best recollection of the witness with a level of detail appropriate and relevant for the issue in the case, doing so in a way that is not misleading, and meaningfully captures the conversation that the witness remembers in a way that the witness can explain. Phrases such as “to the effect” or “gist of” are permissible in New South Wales Courts. For matters facing the Federal Court, lawyers should consider whether to amend the form of their evidence to align with the principles set out in Kane’s Hire (see our first article for more information).
Regardless of whether a witness’s evidence is given in direct or indirect speech, it should not be expressed in “vague and conclusionary terms”. It should be cogent and credible, relevant and truthful, and supported by reliable contemporaneous documents wherever possible. If you have any questions about this article or need any assistance with a dispute, please contact the authors or any of our Commercial Dispute Resolution team.
Authors: Irene Higgins, Jennifer Shaw & Kamran Khalid