We draw your attention to the recent judgement in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, where Jackman J of the Federal Court of Australia scrutinised giving affidavit evidence in direct speech.
Jackman J in obiter, criticises the usual practice in New South Wales as conversations expressed in direct speech can be rejected if not relayed as such. Jackman J highlights that it is common for an individual not to recall an entire conversation in exact terms but rather, recall the gist, limited to particular words and/ or phrases. Coupling direct quotes with the expression “in words to the effect of” does not diminish the undesirable consequences of using direct speech in affidavits. Jackman J states it is practically impossible to decipher what terms are from the deponent’s immediate memory and what terms are a product of reconstruction when direct speech is used.
Further, His Honour notes that a witness’s primary duty is honesty, and their recollections should not be subject to their solicitor’s written reconstruction. Paragraph 127 of the judgement notes:
” The practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the phrase “in words to the following effect”) from the witness’s actual memory merely of the substance or gist of what was said is logically, ethically and grammatically wrong. It is logically wrong because it reverses the logical process of deriving the meaning or substance of what was said from the actual words which were spoken; one cannot derive (as distinct from guess at) the actual words spoken simply from their gist. It is ethically wrong because the evidence given as a result of that process conceals the true nature and quality of the witness’s memory, and conveys a false impression of that memory. It is grammatically wrong because the use of quotation marks indicates as a matter of conventional usage that the relevant expression is a quotation of the exact words which were spoken. It could not be said that this practice is allied to an iron sense of principle.”
As such, His Honour favours the approach of affidavit evidence which includes memories of the substance or the gist of a conversation.
We now wait to see whether the Courts in NSW will adopt this approach. If adopted, it will significantly alter the practice of giving affidavit evidence. For further information on this evolving area of law, contact the author of this article, Anthea Tronson.
