The Form of Affidavit of Conversations – Some Controversy in New South Wales

Justice Jackman in the Federal Court, responding to criticism by Bell CJ in the New South Wales Court of Appeal (in Wild v Meduri [2024] NSWCA 230):

The form of affidavit evidence of conversations

27. All witnesses in the case who gave evidence of conversations did so in indirect speech, except on the rare occasions where the witness gave evidence of a verbatim recollection of the words actually used. Accordingly, direct speech was used only where it faithfully reflected a verbatim memory, rather than a gist memory of the conversation. This was a commendable and welcome departure from the old practice in New South Wales of witnesses giving evidence of conversations in direct speech despite the reality being that the witness is able only to recall the gist of the conversation.
28. In Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [118]–[129], I deprecated the long-standing practice in New South Wales of witnesses giving evidence of conversations in direct speech (often prefaced by the obfuscatory formula “in words to the following effect”) in circumstances where they could recall only the substance or gist of the conversation. I insisted that evidence in direct speech be given only where the witness claims to have a verbatim memory of the words actually spoken, and otherwise the evidence should be given in indirect speech as to the substance or gist of what was said. I was particularly critical at [127] of the practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the formula “in words to the following effect”) from the witness’s actual memory merely of the substance or gist of what was said, referring to that practice as logically, ethically and grammatically wrong. The New South Wales Court of Appeal unequivocally approved that reasoning in Gan v Xie [2023] NSWCA 163 at [119] (White JA, with whom Simpson and Basten JJA agreed). One might have thought that that was the end of the matter.
29. However, in September 2024, some 17 months after I decided Kane’s Hire and some 14 months after the New South Wales Court of Appeal decided Gan v Xie, Hammerschlag CJ in Eq said in Chen v Chu [2024] NSWSC 1139 at [264]–[265] that the old practice in New South Wales was “salutary” and “conduces to a disciplined approach”. His Honour made no reference to the Court of Appeal’s decision to the contrary in Gan v Xie. That was then followed by the decision of the New South Wales Court of Appeal in Wild v Meduri [2024] NSWCA 230, in which Bell CJ and Kirk JA disagreed with Kane’s Hire and Gan v Xie, with Bell CJ saying that the old practice was “a useful discipline” (at [252]) and endorsing Hammerschlag CJ in Eq’s description of the practice as “salutary” (at [254]). White JA, on the other hand, re-iterated the Court of Appeal’s reasons in Gan v Xie, and emphasised the fundamental importance of evidence being given in the witness’s own words (at [285]–[332]).
30. I regard White JA’s reasons in Wild v Meduri as compelling, and indeed unanswerable, and I gratefully adopt them. I wish only to add some particular remarks concerning the three propositions expressed by Bell CJ at [248] concerning my reasoning on the issue. That paragraph is as follows:

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.

31. In the first sentence of that paragraph, Bell CJ seeks to impose limitations on the powers of single judges “of any court” to end a long-standing practice, including in circumstances (as in Kane’s Hire) where there was no appellate authority supporting the practice. Bell CJ’s statement, read in context, was directed to judges of the Federal Court, but would apply equally to judges of the High Court. I do not express any view as to whether his Honour’s statement is appropriate to be applied to judges of the Supreme Court of New South Wales, that being a matter for the judges of that Court to resolve in light of the intrusion on judicial independence which Bell CJ’s view represents. However, to the extent that Bell CJ’s view is intended to apply to judges of other Courts, with great respect, his Honour is asserting a supervisory power that his Honour does not have. The Federal Court, in particular, has a responsibility with respect to practice in New South Wales where matters are heard in New South Wales, and as a national Court has a particular responsibility to foster consistent national practice (see Central Practice Note: National Court Framework and Case Management, CPN-1, para 2.1; The Hon James Allsop AO, ‘Foreword’ in Natalie Cujes, Litigation in the Federal Court (2015)). Its responsibilities thus differ from those of the Supreme Court of New South Wales. The Chief Justice of a State Supreme Court cannot insist that judges of the Federal Court exercise those responsibilities in a particular way. The point is pertinent to the very problem that arose in Kane’s Hire, in which the opposing legal teams, from New South Wales and Victoria respectively, approached the manner of adducing evidence of disputed conversations in markedly different ways. It 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.
32. In the second sentence of [248], Bell CJ said that unilateral change sows confusion and is apt to generate inconsistency and uncertainty amongst the profession. In the present context, Bell CJ is, with great respect, starting at shadows. Within three months of Kane’s Hire, the New South Wales Court of Appeal unanimously approved those reasons in Gan v Xie. By January 2024, Kane’s Hire was cited with unqualified approval in Australia’s leading treatise on the law of evidence: J.D. Heydon, Cross on Evidence (14th Australian edn, 2024), [17145]. It was also the subject of a favourable article by a team of barristers and psychologists published by the New South Wales Bar Association: Stowe, Vial, Paterson and Temler, “Conversational evidence: A stake in the heart of ‘direct speech’ & the psychology of conversational memory” (2023, Summer) Bar News. The first occasion of confusion, inconsistency and uncertainty was the decision of Hammerschlag CJ in Eq in Chen v Chu, on 6 September 2024, which ignored the Court of Appeal’s decision in Gan v Xie. Then on 26 September 2024 Bell CJ and Kirk JA delivered their reasons in Wild v Meduri. To the extent that there is now uncertainty, that arose only in September 2024. With great respect, Bell CJ appears simultaneously to have created and criticised legal uncertainty. Whatever private reservations Bell CJ and Kirk JA may have had in the 11 months during which their Honours reserved judgment in Wild v Meduri, that did not affect the unanimity with which Kane’s Hire had been received and acted on.
33. In the third sentence of [248], Bell CJ said that reform of a practice is best worked out in and after consultation. With great respect, that strikes me as contrary to the common law method and the individualised nature of judicial decision-making in common law jurisdictions. Be that as it may, for the last 35 years, I have heard practitioners and witnesses alike refer to the old New South Wales practice with unedifying epithets such as artificial, strained, misleading and fanciful. I have certainly never heard anyone express admiration for it until September 2024, in the two decisions to which I have referred.

The case Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd (Trial Judgment) [2024] FCA 1265 is found here.

The article referred to in NSW Bar News is found here.