In Kitchen v Quinlivan [2025] QSC 176 (23 July 2025), Treston J provided a useful reminder of the admissibility of evidence sought to be adduced as to a person’s “usual practice”. The Court confirmed that evidence of “usual practice” is admissible, from which a court can, but not must, draw in inference as to whether such acts were performed by the person on the particular occasion in issue, because the evidence demonstrates that the person has done so with sufficient regularity, and/or in similar circumstances, so as to make it appear probable in the minds of a reasonable person that given the same or similar circumstances, the like acts were performed again. What is not admissible is for a witness to say that they “would have” done a particular thing because that is in accordance with their usual practice. Her Honour wrote:
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The plaintiffs’ objections to the defendant’s evidence – “usual practice”
[3] I will return to the individual objections shortly, but I say something about the broad nature of the objections at the outset.
[4] The first objection is in relation to the evidence of several of the witnesses whose evidence is said to go towards establishing those witnesses “usual practice” of either themselves or the organisation for whom they worked, the Professional Services Review agency (“PSR agency”). The plaintiffs submit that evidence of usual practice is largely unobjectionable but several of the witnesses go further to depose that whilst not having any recollection of having undertaken a specific step on a particular day they “would have” done that step having regard to that usual practice.
[5] The plaintiffs refer me to Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314, where Parker J said the following at [118] to [119]:
“Strictly speaking, it is not admissible for a witness who cannot remember doing something on a particular day to give evidence directly that, in accordance with his usual practice, he would have done it. What is admissible is evidence of the practice (which can be given by the witness or anyone else having sufficient knowledge of that practice), from which the Court can be invited to infer that the witness did actually so act on the day in question: see Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721, per Asprey JA, with whom Mason JA agreed; R v Gordon (No 4) [2016] NSWSC 312 at [14]-[15], [20].
The key point is that the drawing of the inference is ultimately for the court. Whether the court draws the inference depends upon how compelling the evidence makes it. Where the business practice in question involves a step which is a mechanical one and does not involve any discretion, it may readily be possible to draw the inference. But where the usual practice described in the evidence is neither regular nor uniform, the court can have less confidence that the step in question was actually taken on the occasion in question. In such a case, the evidence of usual practice may in truth be no more than the witness’ reconstruction, or hope, about how he or she would have behaved in the circumstances of the case.”
[6] Further, the plaintiffs rely upon R v Gordon (No 4) [2016] NSWSC 312, where Campbell J considered the statement of Asprey JA (with whom Mason JA agreed) in Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721, and stated at [15]:
“…Evidence of a witness that “I believe I did this because I always do it”, is of its nature inscrutable and, therefore, difficult to test. In my view the proper approach is that of Asprey JA, agreed to by Mason JA, which essentially treats evidence of practice as a species of circumstantial evidence. Evidence of practice lays a foundation for an inference that the practice was followed on a particular day. That is the proper basis of its admissibility.”
[7] And further at [17]:
“I would not however permit her to give evidence that because this was her usual practice she believed she did it on the day or she must have done it on the day or some other formulation which is really a conclusionary statement rather than evidence of what she saw, heard or otherwise perceived.”
[8] That seems to me to be a well-accepted proposition that statements are admissible to the extent that they go to setting out what the witness’ usual practice would be. From this, the court can, but not must, draw an inference about whether such acts were performed by that person on the occasion and in the circumstances, because the evidence demonstrates that the person has done so with sufficient regularity, and or in similar circumstances, so as to make it appear probable in the minds of a reasonable person that given the same or similar circumstances, the like acts were performed again.
[9] But that is an inference for the court to draw. It is not admissible for the witness to say that they “would have” done a particular thing because that is in accordance with their usual practice. In short, they can give evidence to their usual practice, but not that they would have done a particular thing on a particular day.
[10] The defendant relied upon the decision of Phelan v Melbourne Health [2019] VSCA 205 particularly at [79] to [82], to support the proposition that it is well-established that evidence as to usual practice is admissible and, on occasions, can be decisive.
[11] I accept entirely that evidence as to usual practice is admissible, but the evidence which is being relied upon here is not limited to evidence of usual practice, but effectively asks the court to receive evidence as to the inference that should be drawn from that usual practice, and that can be seen by an identification of the paragraphs which are objected to below.
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(emphasis added)
The link to the full decision is here.
