Drafting Witness Affidavits as to Contested Conversation Content

The recent NSW Court of Appeal decision of Wild v Meduri [2024] NSWCA 230 considers, amongst other issues, the practice of using the phrase “words to the effect” in affidavits. Despite the three judges expressing certain differing views, the underlying theme is consistent – the phrase cannot be used to impermissibly mould the evidence in an effort to assist the party’s case or successfully respond to that of the opponent.    

Wild primarily involved the testamentary capacity of the deceased, and the consideration of evidence, both expert and non-expert, as to the same.

Instructively, at [340], Kirk JA referred to the Qld decision in R v Noble [2002] 1 Qd R 432, and the noteworthy statement made by a witness in that case:

“Can I say something? I’m finding this all very confusing, you know. I am a boilermaker. I’m not an English student. I should be able to say what I want to say and then people can decide afterwards.”

A helpful article on drafting affidavit by J P Bryson QC (as Bryson JA then was) is also provided in ‘Words from the Past’ in this Hearsay Issue 98.

Bell CJ wrote:

240. The Respondents cited in support of their submission in respect of Mr Puleo’s evidence the decision of White JA in Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 458 (Gan v Xie) at [119]. In that paragraph, his Honour expressed his agreement, by way of obiter, with certain observations in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] (Kane). Within those paragraphs in Kane, amongst other matters, was a critique of what has been the “usual practice in New South Wales” in the preparation of affidavit evidence, namely the use of direct speech when recounting past conversations of which a witness recalls only the “gist”. The criticism extended to a suggestion that the presentation of evidence in this form was ethically problematic.

241. I disagree with this criticism in circumstances where accounts of conversations in direct speech are prefaced, as they invariably are in my experience, with a phrase such as “words to the following effect”. This was the relevant form of expression considered and accepted in Gan at [98]: see[343] below. So prefaced, I do not consider that “the evidence given as a result of that process conceals the true nature and quality of the witness’s memory, or conveys a false impression of that memory”: cf. Kane at [127]. Evidence in this form will represent the witness’s best effort to capture the gist of a conversation which can then be tested in cross examination if it is controversial or otherwise material. The prefatory phrase also makes it perfectly plain to the tribunal of fact that the witness is not purporting to recall the exact words used. As Kirk JA’s separate reasons on this topic highlight, there will invariably be a spectrum of recollection and one point on the spectrum is where the witness recalls the gist of a conversation but is unable to recall the actual words used. In Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 at [11], Bromwich J saw “nothing wrong” with evidence being adduced in this way, and noted that it “has been long accepted that the substance or effect of the actual words spoken will suffice, without necessarily occasioning any unfair prejudice.”

242. More recently, in Chu v Lin, Gold Stone Capital Pty Ltd [2024] FCA 766 at [11] and further to his judgment in Kane, Jackman J expressed the view that he regarded it as “adverse to a witness’s credibility for the witness to convey the false impression in an affidavit of a verbatim recollection of a conversation by using direct speech, when all the witness remembers is the gist of something which was said.” In a sense, that is obviously correct if a false impression is created. To repeat the essential point, however, when evidence is given in direct speech but prefaced by the expression “words to the effect”, that witness is not providing a “verbatim recollection” of a conversation and should not be penalised or criticised for giving evidence in such a form. It is to be emphasised, as Hammerschlag CJ in Eq has recently done, that one is talking of “a practice, not an irrefragable rule of law”: Chen v Chu [2024] NSWSC 1139 (Chen) at [269]. His Honour noted that the practice:

“does not entail a conclusion that indirect speech is impermissible, inadmissible or inutile. Whether it is will depend on the circumstances and the precise form in which the evidence is 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.”

247. In a previous judgment, Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 (Lantrak), Jackman J said of his decision in Kane that:

“My remarks were primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred ‘in words to the following effect’.” (Emphasis added.)

248. It is, in my view and with respect to his Honour, both unorthodox and undesirable for a single judge of any court unilaterally to arrogate to him or herself the “ending [of a] longstanding practice in New South Wales” (or any other jurisdiction). Matters of practice are relied upon by practitioners in the discharge of their daily work, and unilateral change sows confusion and is apt to generate inconsistency and uncertainty amongst the profession. A case for reform of a practice, if subject to persuasive and cogent criticism, is best worked out in and after consultation.

249. I note that, in Lantrak, neither Lee nor Button JJ endorsed Jackman J’s remarks. Lee J, however, at [25], referred to the joint judgment of Nettle and Gordon JJ in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785 at [112] where their Honours said:

“The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the primary judge’s assessment of it, that is of paramount importance.”

250. None of these observations are to be gainsaid, and judges in New South Wales are astute to the shortcomings of witness memory and do not accept evidence at face value: see, for example, White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817 at [210]; Salmon v Albarran [2023] NSWSC 1238; (2023) 414 ALR 36 at [43]-[44]. That evidence, when contentious, will invariably be tested by cross examination and, when so tested, if there be any ambiguity, cross examination will be apt to clarify if the witness is purporting to give evidence as to the precise words uttered or merely the gist of what he or she recalls was said. There are of course any number of circumstances where precision as to what may have been said is necessary to found a cause of action: BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421 at [51]. Promissory estoppel is one such example: Legione v Hateley (1983) 152 CLR 406 at 435-436; [1983] HCA 11; Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [35]. Other examples where a precise form of words is required are slander and oral contracts.

251. The decision of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 318-319lends invaluable guidance to judges in New South Wales (and beyond) when assessing such evidence and remains one of the most cited decisions in the day to day work of the courts.

252. The “long-standing practice in New South Wales” criticised in Kane, has, as its underlying purpose, an attempt to come as close to capturing the essence of a past conversation as possible without, when the customary preface is used, purporting to supply exactitude. That is well understood and, generally speaking, the impugned practice has been and is a useful discipline for a witness to be pressed to provide as precise a recollection as he or she is able, especially in cases where “inexact proofs, indefinite testimony, or indirect references” will not suffice: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. As Barrett J once observed, “there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form”: LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688 at [8]. It goes without saying that to endorse this practice is not to endorse a solicitor putting words or the gist of a conversation into a witness’s mouth.

253. The opposite of the traditional practice in New South Wales is the presentation of evidence in a loose, invariably rolled up and conclusory form which often meets with a successful objection to its admissibility, a point made by Robertson J writing extra-judicially: “Affidavit Evidence” [2014] Federal Judicial Scholarship 3. When such an objection is taken and upheld, leave may be sought to adduce oral evidence in direct speech, even if qualified by phrases such as “doing the best you can” and “words to the effect”. This is, no doubt, an imperfect method but is more desirable than leaving the recollection vague and conclusory. There is no meaningful difference, between a witness being asked in the witness box to give his or her “best recollection” and that “best recollection” being set out in direct speech in an affidavit or witness statement, qualified by “words to the following effect” where the witness cannot recall the actual words used.

254. Many a witness has suffered by reason of the absence of any genuine recall even of the gist of a conversation, exposed under cross examination. Experienced judges are alive to imperfection of memory and artificially precise recollections. With the guidance of Watson v Foxman, they remain the arbiters of what may or may not have been said. But such forensic realities are not a reason to depart from the established practice in New South Wales which Hammerschlag CJ in Eq has recently described as “salutary” and as conducing “to a disciplined approach in the recounting by a witness of what was said”: Chen at [264]-[265]. More generally, I agree with Kirk JA’s summary of the position at [356] below.

White JA wrote: 

279. I agree with the orders proposed by the Chief Justice. Subject to the observations below I agree with his Honour’s reasons.

280. The qualification to my agreement with the reasons of the Chief Justice relates to [244]-[255] of those reasons. The Chief Justice is there critical of observations of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] insofar as Jackman J was critical of what has been the “usual practice in New South Wales” in the preparation of affidavit evidence of using direct speech to recount past conversations of which a witness recalls only the “gist” ([244]-[245]). The Chief Justice is also critical of observations of Jackman J in Chu v Lin, Goldstone Capital Pty Ltd [2024] FCA 766 at [11] in which Jackman J considered that adherence to the practice can adversely affect a witness’ credibility ([246]).

281. The Chief Justice is also critical of the statement made by Jackman J in Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 where Jackman J said ([at 277]) that his remarks in Kane’s Hire were primarily directed to changing the longstanding practice in New South Wales as to how evidence of conversations should be given.

282. I do not agree with these criticisms.

283. It is of first importance to recognise that a witness’ affidavit, or witness statement which is to be adopted in the witness box, will constitute the witness’ evidence in chief. It therefore should be given in the witness’ own words. The role of the lawyer is principally to provide a logical or coherent structure to the evidence, to exclude what is irrelevant, and, if necessary, to put the statement in a form required by the court to be admissible.

284. Where the witness is giving evidence of a conversation, it is axiomatic that the witness should give his or her best account of the conversation according to the best of his or her recollection. If he or she professes to recall the words used, or some of the words used, he or she should say so. For the reasons below, if the witness does not have such a recollection the witness can and should give evidence, in his or her own words, of what memory, perception or understanding he or she has as to the effect of what was said.

285. In their valuable article “Conversational evidence: A stake in the heart of ‘direct speech’ & the psychology of conversational memory” (2023, Summer) Bar News, Journal of the NSW Bar Association 50, Stowe, Vial, Paterson, and Temler rightly observed that “gist” evidence (that is the recollection of the “gist” of a conversation) can have different degrees of particularity. To quote from their article:

“‘Gist’ evidence might be presented in the following forms:

• ‘My best recollection is that I offered to sell the car for $10,000. John agreed if I included the trailer. I said that was okay but I needed John to pay by Monday. John agreed with that.’; or
• ‘My strong impression was that we agreed that I would sell the car and trailer, although I can’t recall the exact conversation or the basis for my impression’.”

288. For the reasons below, evidence in either form is admissible subject to discretionary exclusion under s 135 of the Evidence Act 1995 (NSW). Such gist evidence should be presented in the witness’ words just as if the witness were giving evidence orally. It is the witness’ words that matter, not those of a lawyer acting in conformity with current practice.

289. This is now explicitly stated in a Practice Note applicable to “Business and Property Courts” in the United Kingdom. The Business and Property Courts include the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, and other circuit courts exercising a like jurisdiction (Civil Procedure Rules Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts [1] ).

290. Practice Direction 57AC deals specifically with trial witness statements in the Business and Property Courts.

291. Clause 4.1 requires the witness to affirm that:

“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

… This witness statement sets out only my personal knowledge and recollection, in my own words.

… I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.”

292. The statement is to be prepared in accordance with the Statement of Best Practice contained in the Appendix.

293. Clause 2.4 of the Statement of Best Practice states:

“It is improper to put pressure of any kind on a witness to give anything other than their own account, to their best of their ability and recollection, of the matters about which the witness is asked to give evidence.”

294. Everyone would acknowledge that it would be improper for a lawyer to coach a witness by saying “if you are asked this question … you should say …”. There is no difference in kind between such conduct and a lawyer’s converting the witness’ own words into a different form, unless that is necessary to put the evidence in a form required by the court. Unless the evidence is inadmissible the court should not make any such requirement. The difficulty with the practice commonly adopted in this State is that it can give a false impression of the witness’ actual recollection.

295. Take the case foreshadowed by Stowe, Vial, Paterson, and Temler referred to at [287] above. The witness’ instruction to her lawyer was that she offered to sell the car to John for $10,000 and that John agreed if she included the trailer. She told her solicitor that she told John that that was okay but she needed John to pay by Monday and that John agreed with that.

296. If the plaintiff gave oral evidence that is what she would say and how she would say it. In accordance with the New South Wales practice her affidavit would read something like:

“We had a conversation with words to the following effect:I said: ‘I’m prepared to sell the car to you to for $10,000.’He said: ‘That’s okay but only if you include the trailer.’I said: ‘Alright. But you will need to pay me by Monday.’He said: ‘I agree.’”

297. Notwithstanding the use of the words “to the following effect” this description of the conversation has greater verisimilitude than the same version in indirect speech.

298. If the witness’ instruction to the solicitor were that her strong impression was that they agreed that she would sell the car and trailer but she couldn’t recall the exact conversation or the basis for her impression, under the current practice the solicitor would not be acting improperly if he or she prepared an affidavit which read something like:

“We had a conversation to the following effect:I said: ‘I am prepared to sell the car to you.’He said: ‘That’s okay but only if you include the trailer.’I said: ‘Alright, I agree.’”

299. Again, putting the evidence into direct speech, although qualified by the expression “words to the following effect” gives the witness’ version greater verisimilitude.

300. The use of the words “to the effect of” or “to the following effect” weaken, but do not remove that effect.

301. The practice was described by Mr J P Bryson QC (as Bryson JA then was) in his paper “How to Draft an Affidavit” (1985) 1 Australian Bar Review 250. He expressed the then requirements of the Court (at 252):

“… Almost everybody finds it very difficult to do what the courts require, and relate the terms of a statement or conversation rather than its effect produced on their own minds. Counsel must get the witness to face up to what took place, and say what took place; and then get that down, with expression, in words.

The witness’s story must be told with circumstances so as to give the reader an impression that there has been a complete narration of the relevant facts. If the evidence is of a conversation, it must say when it took place, where it took place, and who was there. It must say what each of those present said, or whether they said nothing. It must say what they said, and not give the results in indirect speech. If the witness has an exact recollection he should set it out, but if he is speaking to the best of his recollection without a precise memory of the words used, he should say so. If he says he sent a letter, he should say how.”

302. To avoid giving the results of what was recalled in indirect speech and to comply with the Court’s requirement, practitioners adopted the formula of using the expression “words to the effect of” or “to the following effect”.

303. Because objections to affidavits were dealt with peremptorily, there seems to be no available judgment which gave reasons for this requirement.

304. In R v Noble [2002] 1 Qd R 432; [2000] QCA 523, Pincus JA, with whom McMurdo P and Mackenzie J agreed, said (at [20]):

“There is, in my respectful opinion, no rule that a witness who does not claim to remember the words spoken in a conversation must attempt to give it in direct speech, manufacturing a conversation from a recollection of its effect. Of course, the ideal is that the exact words be given, but it is so unlikely that Barry could have remembered anything other than the substance of the conversations that the judge plainly erred in attempting to have him give evidence using direct speech. The erroneous idea that people can accurately recall conversations in direct speech, long after their occurrence, appears to have been encouraged by practices observed by some magistrates and police, in days gone by. That it is erroneous can be easily demonstrated, if one tries to perform this feat oneself.”

305. In Commonwealth of Australia v Riley (1984) 5 FCR 8, the Full Court of the Federal Court was concerned with an extradition proceeding in which the relevant treaty stated that extradition should only be granted only if “the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found … to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory … ”. The Full Court held that the evidence on which the magistrate could act was confined to evidence in criminal proceedings, but the test was one of substance, not form (at 33). The Court rejected a submission that evidence of conversations given in indirect speech and statements of conclusions of the witness were inadmissible and hence the magistrate was required to have no regard to such evidence (at 34). The Court said (at 34):

“The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed.”

306. In R v Wright (1985) 19 A Crim R 17, the Queensland Court of Appeal said (at 18-19) that a witness could give the effect or purport or substance of what was said in the conversation even if unable to recall the precise words used. The Court said that for the purposes of that case it could be assumed that evidence that the witness had received an “impression of the matter in the course of a conversation” would not be admissible if that was all that the witness said.

307. The basis for the rejection of affidavits or witness statements that set out the witness’ perception of the effect of a conversation without describing the words used was not articulated. But it must have been the opinion rule.

308. The generally accepted understanding of an “opinion” for the purposes of the opinion rule is that it is “an inference from observed and communicable data”. This was the definition adopted by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. His Honour adopted the definition from the Australian Law Reform Commission’s Interim Report on Evidence (ALRC 26, 1985). The Commission in turn referred to Wigmore on Evidence (3 ed, 1978) para 1917 and Wills on the Law of Evidence (3 ed, 1938) p 150. Lindgren J’s definition has been frequently cited with approval.

309. If a witness has or professes a recollection of the actual words used in a conversation and gives evidence that those were the words used, the witness is giving evidence of fact and not of opinion. There is no doubt that such evidence is admissible. If a witness has or professes to have such a recollection that is the form in which his or her evidence should be given.

310. If a witness does not have such a recollection, then whether the witness’ recollection of the conversation is expressed in indirect speech, or as a recollection of the effect of the discussion, the evidence is opinion evidence. Even at common law, it was not on that account inadmissible.

311. I repeat my reference to the relevant passages in Wigmore from Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379:

“12   Para 1917 of Wigmore summed up the rule relating to opinion evidence as follows:

‘The sum of the history is, then, that the original and orthodox objection to “mere opinion” was that it was the guess of a person who had no personal knowledge, and the “mere opinion” of an expert was admitted as a necessary exception; that the later and changed theory is that wherever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous; and that thus an expert’s opinion is received because and whenever his skill is greater than the jury’s, while a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the inference. The old objection is a matter of testimonial qualifications requiring personal observation; the modern one rests on considerations of policy as to the superfluity of the testimony. In the old sense, ‘opinion’ – more correctly, “mere opinion” – is a guess, a belief without good grounds; in the modern sense, ‘opinion’ is an inference from observed and communicable data.’ (my emphasis)

13   According to Wigmore, the opinion rule was simply a rule for the exclusion of superfluous evidence. The opinion rule did not exclude lay testimony wherever it was based on inferences from observed and communicable data. To the contrary, if the lay opinion was based on personal knowledge of the witness, the opinion would be received if ‘his facts cannot be so told as to make the jury as able as he to draw the inference’.

14   At para 2097 Wigmore discussed the application of the opinion rule to evidence as to the effect of conversations. He described the ‘universally accepted’ general rule as being that:

‘the substance or effect of the actual words spoken will suffice, the witness stating this substance as best he can from the impression left upon his memory. He may give his “understanding” or “impression” as to the net meaning of the words heard. This rule was applicable to oral utterances in general including conversations whether as forming contracts or merely as admissions. If the witness could relate from memory the precise words used, the opinion rule would operate to prohibit him from condensing them into a summary statement of their substance or effect, because by that rule the data observed by the witness must be laid in detail before the jury, if they can be without his inferences based upon them.

… if they cannot be laid before the jury, then the witness’ inferences, or net impressions, are by that very rule allowable. Consequently, if his memory of the precise words fails him, his impression of their net meaning is not forbidden by the opinion rule. That rule does not require the impossible, it merely forbids the superfluous.’ (emphasis in original)

15   The first sentence was quoted with apparent approval by McMurdo P and Pincus JA in R v Noble (2000) 117 A Crim R 541 at 542, 544.

16   Wigmore cited and quoted from judgments of Richardson CJ in Eaton v Rice, 8N.H. 378, 380 (1836) and Cooley J in Bathrick v Detroit Post and Telegraph Co., 50 Mich 629, 637; 16 NW 172, 175 (1883). In Eaton v Rice Richardson CJ was quoted as saying:

‘The recollection of a witness as to what an agreement between the parties was, according to his understanding of what was said by them at the time, may be very satisfactory evidence, although he may not be able to recollect distinctly one word that was said … . The credit that may be due to a witness in these cases may depend much on his being able to detail enough of the conversation to show that his understanding of the matter was probably right.’

17    Cooley J was quoted as saying in Bathrick v Detroit Post & Telegraph Co that:

‘It is not surprising that a man should remember the substance or the result of a conversation, and yet not be able to recall the words made use of; and it sometimes casts suspicion on the veracity of a witness that he assumes to remember the very words of a conversation, when there was nothing in the case that was likely to impress upon his mind anything beyond the general result.’”

312. In Hamilton-Smith v George (2006) 247 FCR 238;[2006] FCA 1551, Besanko J (at [81]) cited with approval J D Heydon, Cross on Evidence (7th ed, 2004) p 476:

“The limits of one restriction on the form of testimony should be noted. Witnesses are commonly interrupted as they endeavour to recount conversations in indirect speech, and urged to give the actual words used. This is a counsel of virtue, but it is questionable whether it is a rule of law. A witness may give the witness’s best recollection of the substance, effect or purport of what was said, even though the exact words cannot be recollected, and the witness may also recount the impression made on the witness by whatever words were used. If so, it is hard to see why witnesses must be compelled into uttering untruths on oath by giving a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech, so long as mere conclusions are avoided. ‘The rule that evidence of conversations shall be given in direct speech is, in Australia a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed’. This is particularly so where the conversations took place a long time ago. Similarly, there is no provision in the Cth and NSW: Evidence Acts 1995 or the Tas: Evidence Act 2001 which makes inadmissible evidence of a conversation given in indirect speech, though the possibility of discretionary rejection under s 135 is available.”

313. It may be noted that Heydon said that “… the witness may also recount the impression made on the witness by whatever words were used.”

314. In Connex Group Australia Pty Ltd v Butt, the evidence in question was not given testimonially but the opinion rule in s 76 of the Evidence Act applied to it just as it does to evidence given in court. In that case, the solicitor’s file note included the following:

“The gist of the conversation was that the parties would await the outcome of the meeting with the DOT. While my handwritten notes were not able to capture every word of the conversation, Ken Butt clearly left the impression he would sort the matter out and that it was not a big deal. Conversely, Kevin Warrell made it clear that CGEA wanted to proceed subject to the DOT issue being sorted out. Ken Butt did not say anything that suggested that he would not deal with CGEA or that the matter would not settle. While Ken Butt did not say much, I was left with the impression that at the least everyone would await the outcome of the meeting on the following Friday with completion to be postponed until at least that time or shortly thereafter.”

315. I concluded that the statement was admissible under the exception to the admission of opinion evidence in s 78 of the Evidence Act. I concluded (at [27]):

“The file note of Mr Postema was said not to capture every word of the conversation. Therefore, Mr Postema’s opinions about the effect of the conversation were not superfluous. It was necessary to receive the opinions to obtain an adequate account or understanding of what he perceived of the conversation. His perception in December 1999 has probative value. His opinions were based on what he personally heard. In my view if the person giving the opinion had the opportunity to form a correct understanding of the effect or outcome of the discussion so that there is a rational basis for his or her understanding to satisfy the test of relevancy under s 55, and provided the witness has exhausted his or her recollection of what was said so that s 78 (b) is satisfied, (see also LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31 at 33), s 78 operates so that the witness’s opinion about the effect or outcome of the conversation is not excluded by s 76.”

316. In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, French CJ, Heydon and Bell JJ said (at 369; fn (40)) that when limited to conversations my finding that a witness’ understanding of the effect of the conversation fell within s 78 “did not seem wrong”.

317. Notwithstanding the view of the Queensland Court of Appeal in R v Wright (at 19)that evidence that a witness had received “an ‘impression’ of the matter in the course of a conversation” might not be admissible if that was all that the witness said and a statement to like effect by Besanko J in Hamilton-Smith v George (at [79]) that a witness’ recounting of conclusions drawn by the witness as to the effect of a conservation is not admissible at common law, I doubt that that was so. Both Wigmore and Heydon allow for the admissibility of a witness’ impression of the effect of the conversation if the witness was in a position to form an opinion on that matter and had exhausted his or her recollection and the witness would be in a better position than the trier of fact to form an opinion on the effect of the conversation. In any event, the matter is dealt with by ss 76 and 78 of the Evidence Act, assuming that the evidence is relevant (that is that it has some rational probative force (s 55)) and is not excluded under s 135.

318. In my view, if the opinion rule does not apply to the witness’ understanding of the effect of a conversation, the witness’ opinion, whether expressed as a recounting of the conversation in indirect speech or as to the effect of the outcome of the conversation, is admissible.

319. Because the witness is giving evidence in chief, if what he or she says is admissible it should be given in his or her own words.

320. A witness, particularly a lawyer, might well use the formula that “words to the following effect” were said. If they are the witness’ own words there is no difficulty. But it would be a rare witness (unless a lawyer) who would do so.

321. In Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [119], I endorsed the observations of Jackman J in Kane’s Hire at [121]-[129]. Simpson AJA and Basten AJA agreed with my reasons.

322. In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688, Barrett J dealt with an objection raised by the plaintiffs to a passage of a witness statement which said that the witness could not remember the specific terms of a conversation but “… in substance I told him that I stated that the consortium was prepared to negotiate along the following lines. There then follow pars (a), (b) and (c) which set out those ‘following lines’.”

323. Barrett J held that the question was not one of admissibility (at [10]), but of the way in which evidence might most appropriately be tendered or adduced. His Honour said that the desirable course was to give leave to the defendants to adduce oral evidence on the matter covered by the passage in the statement to which objection had been taken (at [11]).

324. It is apparent from Barrett J’s final judgment that when the evidence in question was given orally, apparently without objection, it was given in the same conclusory form and was responded to in the same manner (LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited [2001] NSWSC 886 at [57]-[58]).

325. This was my experience as a trial judge. If objection were taken to a witness’ evidence of a conversation on the ground that it was conclusory, rather than fighting the objection, counsel would often seek leave to adduce oral evidence on the topic. That leave was invariably given. When the witness was asked in chief what he or she recalled about the conversation, the witness would always recount his or her version of the conversation (without objection) in the same conclusory form.

326. Under the current practice the risk a lawyer drafting the affidavit runs is that if the witness is not required for cross-examination the witness might not be present to be called to give oral evidence and the evidence might be rejected.

327. The fundamental point is that admissible evidence should be given in the witness’ own words. If the evidence is given in direct speech, albeit prefaced with the use of the phrase “words to the effect of” or similar, then even if the evidence is treated as the witness’ recollection of the gist of what was said that can obscure the particularity of the witness’ memory. I do not agree with the criticism of Jackman J’s observations in Kane’s Hire that the use of the expression “words to the following effect” “conceals the true nature and quality of the witness’s memory, and conveys a false impression of that memory”. In my view the practice carries that very risk.

328. For the same reasons I do not join in the criticism of Jackman J’s statement in Lantrak Holdings Pty Ltd v Yammine that his observations in Kane’s Hire were “… primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred ‘in words to the following effect’.” I see nothing wrong in a single judge attempting to correct a misguided practice where there is no appellate authority supporting the practice. Nor do I accept that there should be any continued confusion after this Court’s decision in Gan v Xie.

329. This is not to say that evidence of a conversation is inadmissible or should be rejected because the evidence is in direct speech prefaced by “words to the effect of”. In Gan v Xie the primary judge’s error was in thinking that a witness should be able to recall the actual words said, rather than the gist of the conversation, to be able to establish a misrepresentation.

330. That finding did not address the desirability of the still current New South Wales practice. But I, with the concurrence of Simpson AJA and Basten AJA, endorsed Jackman J’s reasons in Kane’s Hire.

331. This Court’s endorsement in Gan v Xie of Jackman J’s reasons in Kane’s Hire may have been obiter. Our reasons on this issue in this appeal are also obiter.

332. These reasons do not seek to qualify the oft-cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319. As Jackman J said and this Court held in Gan v Xie, McLelland CJ in Eq’s observations are not a requirement for perfection. It is not only in a case where a witness whose evidence is believed professes a recollection of actual words used that a court can accept that a particular representation was conveyed. Even 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.

Kirk JA wrote: 

333. I agree with the orders proposed by the Chief Justice for the reasons comprehensively given by his Honour together with the following reasons with respect to the issue of the form of evidence of conversations.

334. It has long been common practice in litigation in this State for evidence as to past statements or conversations to be put into direct speech, typically prefaced by a qualification along the lines that “words to the following effect” were said. Objections are sometimes upheld if the practice is not followed. The practice has sometimes been applied with excessive zeal. It is not an invariable legal requirement. The Full Court of the Federal Court said forty years ago that “[t]he rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law”: Commonwealth v Riley (1984) 5 FCR 8 at 34. Yet it has sometimes been applied as though it were a rule of evidence.

335. An objection to evidence on the basis of the practice is commonly said to be one of “form” and/or “conclusion”. The legal foundation of such objections is somewhat obscure, especially since the enactment of the Evidence Act 1995 (NSW) (the Act). On one view it is a matter of common law: note Stephen Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters) at [EA.26.270] (Odgers). That possibility raises the issue of the extent to which such common law rules have continued operation given the introduction of the Evidence Act, on which differing views have been expressed: contrast Odgers at [EA.Intro.120] with J D Heydon, Cross on Evidence (13th ed, 2021, Lexis Nexis) at [1720]-[1750]. Section 56(1) of the Act provides that “[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding” (and see also the introductory note at the beginning of Ch 3 of the Act).

336. In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688, at [9], Barrett J noted that one possible basis is s 135 of the Act, although that would require the objector to establish that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time. His Honour noted an alternative way of looking at the matter at [10]: “I think all this comes down not to a question of the admissibility of evidence but to the way in which evidence might most appropriately be tendered or adduced”. In that case his Honour excluded the relevant evidence in an affidavit, giving leave for the evidence to be adduced orally. He did not elucidate the legal basis upon which the Court might control how the evidence was tendered or adduced, although he did refer to court rules addressing the giving of oral evidence (at [10]-[11]); cf now Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3(k) and 31.1; Civil Procedure Act 2005 (NSW), ss 61-62. Whether such rules, or other legal powers relating to a judge controlling what occurs in court, extend to rejecting evidence only because not given in direct speech could be open to argument. His Honour had earlier ruled out s 29(2) of the Act, relating to giving evidence in narrative form, as a possible basis for objections to evidence in the form of an affidavit (at [6]-[7]).

337. A further possible way of looking at the issue was outlined by White J in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, namely that the “real objection” was that evidence of the gist of a conversation “contained conclusions as to the effect of the conversation which were inadmissible under s 76 of [the Act] as opinion evidence” (at [3]). This understanding reflects the fact that an opinion is “an inference from observed and communicable data”: Connexat [10], quoting Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. It was held in Connex that such evidence can be admissible as lay opinion evidence pursuant to s 78 of the Act. At the least, the “conclusion” objection echoes concerns about opinions insofar as the complaint is that a conclusion is stated without articulation of the matters which led to that conclusion being reached: note Connex at [5]-[18]. Where the basis of the conclusion is not disclosed, it can be argued that the evidence is unfairly prejudicial to the other side and of little assistance to the trier of fact. That evidence of a conversation in indirect speech may be treated as admissible pursuant to s 78 has since been accepted: Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [120], and authority there cited.

338. It is not necessary here to seek to locate the legal basis of the direct speech practice. Whatever its basis, it has regularly been reiterated since Riley that the practice is not a generic rule of law: eg R v Wright (1985) 19 A Crim R 17 at 19; R v Noble [2002] 1 Qd R 432; [2000] QCA 523 at [18]-[20]; LMI at [8]; Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551 at [82]-[83]; Hampson v Hampson [2010] NSWCA 359 at [40]; Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 at [11]; Chen v Chu[2024] NSWSC 1139 at [269].

339. In R v Noble a criminal accused complained that a miscarriage of justice had occurred because the trial judge hampered a witness giving evidence by regularly intervening to insist that the content of conversations be put in direct speech. The Queensland Court of Appeal, applying common law, held that the judge had erred in this regard, although the appeal was dismissed on the basis of the proviso. Pincus JA said as follows:

[20]   There is … no rule that a witness who does not claim to remember the words spoken in a conversation must attempt to give it in direct speech, manufacturing a conversation from a recollection of its effect. Of course, the ideal is that the exact words be given, but it is so unlikely that [the witness] could have remembered anything other than the substance of the conversations that the judge plainly erred in attempting to have him give evidence using direct speech. The erroneous idea that people can accurately recall conversations in direct speech, long after their occurrence, appears to have been encouraged by practices observed by some magistrates and police, in days gone by. That it is erroneous can be easily demonstrated, if one tries to perform this feat oneself.

340. The approach of the trial judge in that case is an illustration of the excessive zeal with which the practice of requiring direct speech has sometimes been applied. It is important to recall that any legal rules or practices applicable here apply, within this State, not only in the Equity Division of the Supreme Court hearing civil matters but, for example, in criminal trials in the Local and District Courts around the State. The ability of a witness in a prosecution in the Local Court to give evidence in direct speech, after little if any time spent in preparation with a legal practitioner, is not likely to be the same as a business executive appearing in a commercial dispute who has spent significant time preparing with solicitors and counsel. The plea of the witness in R v Noble is noteworthy (as quoted at [17]):

Can I say something? I’m finding this all very confusing, you know. I am a boilermaker. I’m not an English student. I should be able to say what I want to say and then people can decide afterwards.

341. There is a spectrum here. At one end of the spectrum a witness will (claim to) have a memory of some or all of the actual words spoken by a person or in an exchange. Along the spectrum a witness may not remember the words spoken but can recall the substance, gist or effect of those words, including perhaps the order in which points were made by either side in an exchange. Or they may only have a memory of the topics discussed and of the effect of some portion of the points made. Towards the other end of the spectrum the witness may only have a recollection of what they understood to be the outcome of the interaction.

342. Insofar as the witness can recall the actual words spoken then they should state those words in direct speech, that being the best form of the evidence: see eg LMI at [8]; Hamilton-Smith at [83]. It is proper and useful for a witness to delineate what words they have an actual memory of being said from those matters of which they can only recall the substance: R v Wright at 19; LMI at [10]; Hamilton-Smith at [83]; Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [129(3)].

343. Insofar as the witness can only recall the substance of what was said then they can recount that recollection without being required to state it in direct speech. The witness can also give such evidence in direct speech, prefaced by words indicating that “words to the following effect” were said.

344. It has recently been suggested that putting such evidence in direct speech is (i) contrary to law, (ii) potentially unethical for legal practitioners involved, and (iii) such as to raise doubts about the credibility of the witness: Kane’s Hire at [123], [126]-[127], [129(2), (5) and (6)]; Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [277]; Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766 at [11].

345. As to the first of those propositions, it was said in Kane’s Hire at [123] that “[e]vidence should be given in direct speech only if the witness can remember the actual words used: Noble at [20]; LMI Australasia at [8]; Hamilton-Smith at [83]”. The proposition is not supported by the authority cited and should not be accepted. That authority indicates that such evidence need not be given in direct speech. It does not say that it is impermissible or improper for a witness to put something into direct speech where they make clear they are only testifying as to the effect of what is said. So much is unsurprising given that the practice of doing so has been described as “ubiquitous”: Country Care at [6]; see also Chen v Chu at [262].

346. In Gan this Court recently upheld an appeal on the basis that the primary judge had erred in excluding evidence from two witnesses of the substance of what had been said in conversations which had been expressed in direct speech. White JA, speaking for the Court, said the following (see also at [118]):

[98]   Ms Di Si and Ms Wills did not purport to recollect the precise words that were said by Ms Xie. They used the widely adopted method of putting the gist or substance of what they professed to remember as conversations in direct speech, qualified by the statement that words were said “to the effect” of the words purportedly quoted. Once it is recognised that they did not profess to recall the precise words used, and professed fluency in English, there was no proper reason to reject the deponents’ first affidavits.

347. The first proposition is also contrary to one recent decision of the Federal Court and in tension with another. In Country Care Bromwich J rejected an objection to “references in numerous witness statements to conversations that are reproduced in those statements prefaced with ‘words to the following effect’ or ‘words to the effect’” (quotation from [2]). In Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3) [2021] FCA 1147; (2021) 157 ACSR 77 at [46]-[71] O’Bryan J rejected an objection to evidence of an understanding of a conversation where that evidence was “supplementary” to evidence stating in direct speech words to the effect of what had been spoken (see at [68]).

348. As for the second proposition, about ethics, it would of course be unethical for a legal practitioner to settle, file, read or tender evidence which they knew to be false or misleading. But if a witness records words in direct speech prefaced by the phrase “word to the effect of” then the witness is overtly disclaiming having an exact recollection of the words said. The witness is not then falsely conveying a verbatim recollection of a conversation by using direct speech. No doubt issues of degree may arise where an affidavit does express or imply a greater specificity of recollection than the witness actually holds.

349. Much the same may be said with respect to the credibility of a witness. It is self-evidently true to say the following (Kane’s Hire at [129(6)]):

Evidence of a witness who claims to remember the exact words of a conversation, but who is found after cross-examination to have exaggerated the nature and quality of his or her memory, may well suffer an adverse effect on his or her credibility (the weight of which will depend on all the circumstances).

350. A similar point had been made in 1883 by Cooley J in Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883), which was quoted approvingly by White J in Connex at [17]:

It is not surprising that a man should remember the substance or the result of a conversation, and yet not be able to recall the words made use of; and it sometimes casts suspicion on the veracity of a witness that he assumes to remember the very words of a conversation, when there was nothing in the case that was likely to impress upon his mind anything beyond the general result.

351. These points apply if the witness claimed to have an exact recollection of words used. If the witness has disavowed making any such claim then there is no adverse effect on their credit merely because they have expressed their best recollection in the form of direct rather than indirect speech. Again, whether or not a witness has overstated their degree of recollection and how that might affect their credit will depend upon all the circumstances.

352. Thus for a witness to express in the form of direct speech a memory which they acknowledge to be only as to the gist of what was said is not contrary to law (just as it is not required by law), nor inherently unethical, nor such as to necessarily cast doubt on the witness’s veracity. A witness has some flexibility as to how they express a recollection of the gist of a statement or conversation. There is no invariable requirement that it be put in either direct or indirect speech. That being said, there may be factors militating in favour of one or the other.

353. Evidence should be given in a way that is relevant and truthful and that explains the bases of any conclusions. It should meaningfully reflect what the witness actually recalls, has expressed and can explain and defend under further questioning. There can be an increasing degree of artifice in putting lengthier statements or conversations into direct speech. To require a witness to put in direct speech even a moderately lengthy conversation, the effect of which is supposedly recalled from some time ago, would be liable subsequently to lead the witness into confusion and not greatly assist the trier of fact.

354. On the other hand, there are circumstances in which it is preferable to put a gist memory into direct speech. In some instances the form of a particular statement will matter, for example with respect to a representation said to found a claim in estoppel or for misleading conduct, or where a claim is made based upon a term of an oral contract. Such a point was made by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319:

In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition.

355. In cases where the form of a statement does matter then even if they cannot recall the precise words used it will generally be desirable for the witness to state their best recollection of the substance of the words used in direct speech.

356. In sum, insofar as a witness recalls actual words used then the witness should state those words in direct speech. Insofar as the witness recalls only the substance of what was said then they can give evidence accordingly. Such 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. 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 with respect to the level of detail that the witness remembers, and which meaningfully captures what the witness remembers in a way that the witness has expressed and can explain. In instances where particular spoken words are the foundation of a legal claim it is desirable that the witness’s recollection of the substance of those words be put into direct speech, in terms indicating that the witness is testifying to the substance or gist of what was said.

357. In this matter, Mr Puleo gave evidence of his usual practice in obtaining instructions for wills, indicating that he could not recall the exact words he had used some 10 years earlier. As the respondents submitted, the mere fact that he could not recall the words used could not sensibly mean the evidence was not admissible or that an adverse credit finding should be made.

A link to the case is here.