Last year, Justice Jackman of the Federal Court of Australia delivered a judgment where his Honour warned legal practitioners about the use of the phrase “in words to the following effect” in affidavits, where it was followed by detail of a conversation using direct speech. Jackman J has recently restated the importance of his earlier observations in Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766 (“Chu”).
Our previous Insight on this topic discussed Jackman J’s cautions and the six guiding principles developed to guide practitioners in preparing evidence and proofing witnesses deposing to conversations. This Insight is available here and discusses Kane’s Hire1.
Your first and only warning — Kane’s Hire
In Kane’s Hire, Jackson J described the “longstanding practice” of using quotations in affidavits when deposing to speech where the witness could only remember the gist of what was said, and prefacing the speech with the phrase “in words to the following effect”, as being “logically, ethically and grammatically wrong”. The reasons for Jackson J arriving at his view were accepted by the New South Wales Court of Appeal in Gan v Xie2.
Take care when preparing affidavits or risk adverse findings of credit — Chu
Unlike Kane’s Hire, where Jackman J did not consider appropriate notice had been given to the profession so as to allow him to draw conclusions, whether favourable or adverse, in Chu he took a different approach to evidence falling afoul of his warning.
In Chu, affidavit evidence of Ms Chu conveyed an impression that she had a verbatim memory of conversations which occurred ten years prior. Under cross examination, Ms Chu conceded she could not really remember what occurred at certain meetings. Jackman J accepted Ms Chu had a recollection of the gist of what was said.
Having regard to Kane’s Hire and Gan v Xie, Jackman J concluded that those decisions gave sufficient warning to the profession regarding proper affidavit drafting practice and that the form in which Ms Chu’s affidavit was drafted and approved by her was a matter which was “adverse to her credibility”.
Legal practitioners ought to be aware that implying in an affidavit that a witness has a verbatim memory of a conversation where they do not, exposes the witness to adverse findings of credibility.
New requirements in the Local Court of New South Wales
In the Local Court of New South Wales, recent changes to the civil procedure Practice Note 1 introduced a requirement that where a witness statement is relied on, it is to, where recounting conversations, “record those conversations in a form that corresponds with the nature of the witness’s actual memory of the conversation”. It remains to be seen if higher courts in NSW and other jurisdictions will introduce similar obligations.3
We recommend practitioners familiarise themselves with the guidance given by Jackman J in Kane’s Hire which was distilled in our previous insight (available here) and they correct any affidavit material prepared under the erroneous drafting practice which may yet come before the Court.
For further information please contact Digby Luckhurst-Smith or Matthew Del Corso of our Dispute Resolution & Litigation team.
[1] Kane’s Hire Pty Ltd v Anderson Aviation Pty Ltd [2023] FCA 381.
[2] Gan v Xie [2023] NSWCA 163.
[3] See 25.10(f), which had effect from 3 June 2024. Available here.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.