Affidavit Evidence

Justice Alan Robertson 26 February 2014

College of Law 2014 Judges' Series

The bulk of the evidence given in the Federal Court is given on paper. Affidavit evidence is therefore an important topic.

In the course of this paper I will indicate what an affidavit is; I will then refer to the main purpose of affidavit evidence and when you might use an affidavit; then I will briefly refer to the formal requirements in the Federal Court Rules 2011 (Cth). After that I will mention some aspects of how to draft affidavits; and I will refer to some pitfalls for practitioners. I will also speak briefly on professional responsibilities, interlocutory applications and, lastly, suppression orders for affidavit material. At the end I will suggest some useful further reading. I have annexed Division 29.1 of the Federal Court Rules—Affidavits.

I begin with two underlying themes.

The first is that complying with the rules, both procedural rules and the rules of evidence, is a good start. There will of course be judicial discretions involved but those discretions are more likely to be exercised in favour of your client if you have complied with the procedural rules and the rules of evidence.

A second important theme is to let a deponent speak for himself or herself. Too many times a deponent is asked in cross examination what they meant by particular words and the implicit or explicit answer is “I don’t know, my lawyer drafted it”. This does not instil confidence in the reliability of the evidence of that witness. Even worse is where the affidavit, for example, has frequent reference to the XYZ trust and the deponent has either never heard of it or does not know it by that description or title.

There is sound advice in what JP Bryson QC wrote in (1985) 1 Australian Bar Review 250:

A witness must really participate in the preparation of his or her affidavit.

Except for formal affidavits, it is not possible to draft an affidavit properly without seeing the witness. When you see him, do not do all the talking — get him to talk. If this takes time, you must use time. The document you produce must be something which the witness will regard as his own document. …

It is important to draw from the witness, and to get down in his affidavit, his relevant evidence, complete, as understood by him, and unembellished by anyone else's interpretation. He will only forget the embellishment and disavow it later.

The court will soon compare or contrast the comprehension and powers of expression shown in cross-examination with the language of the affidavit.

This is by no means to say that a lawyer has an unimportant role in relation to relevance, marshalling facts and applying the rules of evidence.

You may remember Kinda Kapers Charlestown Pty Ltd v Newcastle Neptunes Underwater Club Inc and Ors [2007] NSWSC 329 where White J directed that the defendants’ solicitor not seek to recover from the defendant the costs of the preparation of an affidavit, saying:

[78] I make the last directions because Mr Athol Davies’ affidavit was prepared without any regard to the rules of evidence. After the rulings on objections to it, nothing of substance remained. It is not enough to say that a client or a witness wishes to express himself or herself in his own terms. The party's legal representatives have a responsibility to ensure that affidavits are prepared with regard to the rules of evidence. Upon being read, the affidavit will form the witness’s evidence in chief.

The High Court had this to say in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 – the immediate context was contract but there is a wider lesson to be learnt:

[35] A striking feature of the evidence at trial, and of the reasoning of the learned primary judge, is the attention that was given to largely irrelevant information about the subjective understanding of the individual participants in the dealings between the parties. Written statements of witnesses, no doubt prepared by lawyers, were received as evidence in chief. Those statements contained a deal of inadmissible material that was received without objection. The uncritical reception of inadmissible evidence, often in written form and prepared in advance of the hearing is to be strongly discouraged. It tends to distract attention from the real issues, give rise to pointless cross-examination and cause problems on appeal where it may be difficult to know the extent to which the inadmissible material influenced the judgment at first instance.

What an affidavit is

There is no definition in the Federal Court of Australia Act 1976 (Cth) — think of it as evidence on paper sworn outside the Court — a written sworn statement of evidence.

Note that evidence is led by affidavit not by merely filing the affidavit but by reading it to the Court. An affidavit which has been placed on the file does not become part of the proceedings until it is read to the Court (see Manson v Ponninghaus [1911] VLR 239).

The reading may be actual reading or, more often, the affidavit is identified and explicitly taken as read, with counsel drawing to the Court’s attention the parts of particular significance. This is an important opportunity to shape or give definition to the case and to emphasise the essential facts to which the law is to be applied.

This distinction between filing an affidavit and reading it to the Court is also relevant to requests for access, by third parties, to documents on a particular file. The general approach is to permit access to an affidavit which has been read or taken as read in Court but otherwise to refuse third party access: see also rule 2.32 of the Federal Court Rules. Note also that if there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider. I will return at the end of this paper to the fundamental importance of open justice.

The main purpose of affidavit evidence

Efficiency, convenience and economy are the three touchstones. No talk by a Federal Court judge is complete without reference to s 37M of the Federal Court of Australia Act so here it is. The section provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible.

As Alan Sullivan QC observed in his very useful paper “Preparing Affidavits & Evidentiary Statements”, New South Wales Bar Association Bar Practice Course, May 2011, one argument for affidavit evidence is that it saves valuable court time and thus saves costs and reduces inconvenience. It also has a procedural fairness aspect to it in that the other side gets early notice of the detail of the case, and this may promote settlement: affidavit evidence should avoid trial by ambush, or its cousin being taken by surprise, and a consequent request for an adjournment.

Some of the disadvantages were referred to by Callinan J in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, especially at [175]:

[174] The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.

[175] This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case. The justifications for the provision of written statements in advance of trial have been thought to be the avoidance of surprise and the shortening of hearing time. These advantages will often be more illusory than real. The provision of written statements by one side will afford to the other an opportunity to rehearse in some detail his or her response. It is also impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material. It is also open to question whether written statements in advance do truly save time and expense, even of the trial itself. Instead of hearing and analysing the evidence in chief as it is given, the trial judge has to read it in advance, and then has the task of listening to the cross-examination on it, and later, of attempting to integrate the written statements, any additional evidence given orally in chief, and the evidence given in cross-examination.

Justice Callinan was perhaps making an ironic understatement in saying it was impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, I think any contrary suggestion would have an element of the fairytale about it. But there is an incontrovertible truth in the observation that viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material.

Bear in mind that if an order has been made that the trial will be conducted by affidavit then, except with the leave of the court a witness will not be permitted to give additional oral evidence. Such leave will seldom be given in circumstances where the additional oral evidence is of any substance. Were it otherwise, the purpose of ordering affidavits may, self-evidently, be defeated.

Remember that what you are doing as a lawyer is assisting in the preparation of an affidavit of a witness being the written evidence that reflects the honestly held recollection of the individual, assisted by sensibly ordered and presented documentary and other background material, per Allsop J in Byrnes v Jokona Pty Ltd [2002] FCA 41 at [14].

When you use affidavits

Here are some examples only of when affidavits must or may be used.

Rule 7.01 — Orders before start of proceeding
Rule 7.24 — Preliminary discovery
Rule 8.05 — Application to be accompanied by statement of claim or affidavit

An affidavit mentioned in paragraph (1) (b) must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial.

Rule 9.35 — Application for order relating to the procedure to be followed in a representative proceeding
Rules 10.43 and 10.44 — Service outside Australia
Rule 10.76 — Affidavit as to service
Rule 13.01 — Setting aside service of an originating application
Rule 14.01 — Order for inspection etc of property
Rule 19.01 — Application for an order for security for costs
Rule 20.22 — Discovery
Rules 21.03 and 21.04 — Affidavit verifying written answers to interrogatories
Rule 26.01 — Summary judgment
Part 35 applications for leave to appeal and for the Court to receive further evidence on appeal
Various rules relating to applications for extension of time

Formal requirements in the Federal Court of Australia Act and in the Federal Court Rules

Section 45 of theFederal Court of Australia Act deals with the making of affidavits and I do not propose to spend time on that provision. However s 47 needs some mention.

47 Oral, video link, telephone and affidavit evidence

Civil proceedings other than trials of causes

(1) In a civil proceeding, not being the trial of a cause, testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge.

Note: For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

Civil trials of causes

(2) At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his or her solicitor to such a document.

(3) The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.

(4) Notwithstanding any order under subsection (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in subsection (2)) proposed to be used in the cause be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross‑examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.

(5) If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.

(6) Subject to this section and section 47A and without prejudice to any other law that would, if this subsection had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.

Note: For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

(7) Subsections (1) to (6) do not apply in relation to criminal proceedings.

…

The point which it is convenient to discuss by reference to s 47 is the preference(s) of judges of the Federal Court in relation to affidavit evidence or oral evidence in chief. I have already touched on this.

It is best to raise this question with the docket judge at an early stage of the proceedings. Indeed Rule 5.04(3) Item 20 of the Federal Court Rules deals with this issue: at a directions hearing the parties will be expected to address the Court as to whether any or all evidence-in-chief at trial is to be given orally (perhaps with outlines of evidence, at least on non-critical issues), or by affidavit evidence or both.

The dominant practice in the Federal Court in New South Wales is that critical evidence or least critical evidence which is contentious should be given viva voce but that surprise to the other side should be avoided. Therefore a common direction is that such evidence not be given by affidavit but be given orally but with an outline of the evidence expected to be given or a proof of evidence expected to be given to be served on the other side. Often such a direction is combined with a further direction to the effect that, without leave of the Court, there is to be no cross-examination on that outline or proof of evidence.

One purpose is so that each witness can give their critical or contentious evidence orally so that they can get comfortable with the process before being cross-examined. Otherwise the first that a judge sees of a witness giving oral evidence is in cross-examination which is often not calculated to bring out the full story from the witness’s perspective. The more important purpose I think is so that the judge can watch and hear the witness giving his or her evidence orally and by that means be in a position better to assess the cogency of that evidence. The practice makes decision-making by the judge easier.

Unless this issue is raised early, as a practitioner you might find yourself in the unfortunate position of expecting to be able to read all your evidence in chief but being required at the last minute to have that evidence given orally. This can be disruptive.

It may be said against this practice that the giving of evidence in chief takes more court time but the purposes I have outlined are generally considered to outweigh the time consideration.

Drafting an affidavit

There is a relevant distinction between lay and expert affidavits. There is also a relevant distinction between formal lay affidavits and lay affidavits which seek to put forward a party’s substantive case or part of it.

There are two aspects which I wish to refer to.

The first is the question of how an affidavit should be drafted in the sense of who should draft it.

In my opinion it is essential that an expert be left to draft his or her own affidavit or report annexed to an affidavit from scratch once subject-matters have been identified in broad terms. The role of the legal practitioner, in my view, should be strictly limited to questions of clarity or relevance or admissibility. Of course no suggestion should be made to an expert whether by way of leading question or otherwise as to the substantive content of the affidavit or report.

With a lay affidavit which seeks to put a party’s substantive case I think similar considerations apply. As I have already said, it is most unconvincing where a witness says in answer to questions in cross-examination that certain words or phrases or passages were used because counsel or solicitor suggested those words or phrases. We have all heard “My lawyer put that in”. Then further questions come as to how the affidavit was drafted and who did the first draft. It is preferable to let each witness prepare what will become the first draft of the affidavit at least once the topics with which it should deal have been identified. Even if some parts of the final version of the affidavit could not be said to flow directly from the pen of the witness nevertheless it will be the witness’s document. Again I do not mean to suggest that counsel or solicitor should not be involved in clarifying the draft where necessary or identifying gaps or identifying irrelevance.

Also to be avoided in relation to contentious matters are affidavits from more than one person in a particular interest where the affidavit uses identical language. The obvious inference is that one person, generally a legal practitioner, has had too great a hand in the preparation of the two or more affidavits: see Macquarie Developments Pty Ltd and Anor v Forrester and Anor [2005] NSWSC 674 per Palmer J:

[90] Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason.

[91] Where the identity of evidence is due to collusion, the devaluation of the evidence is justified but where, as in the present case, the identity of evidence is due entirely to a mistake on the part of a legal adviser, a witness’ credit and a party’s case may be unjustly damaged.

[92] I accept the evidence of the Defendants’ solicitor as to how the identity of the affidavit evidence of Gregory and Bradley Forrester occurred, and that the mistake was an honest one on his part. The explanation entirely removes any suspicion that there has been collusion on the part of Gregory and Bradley Forrester in the preparation of their affidavit evidence.

A practitioner will of course be involved in ensuring that an affidavit complies with the rules of evidence.

The second aspect is the structure of an affidavit. The idea is to make it easy to understand and, in that sense, persuasive. Most often a chronological approach will be preferable. Sometimes dealing with the issues by subject-matter is to be preferred. In my opinion it all depends on the nature of the case. It will often lead to incoherence if the structure of an affidavit, say an affidavit in reply, is by reference to enumerated paragraphs of an affidavit sworn on behalf of the other side. It is important to maintain a narrative of events as the dominant structure. Where necessary, references can be included to particular paragraphs of the affidavit which is being answered.

I should also mention the question of direct speech. Interstate practitioners I think regard the New South Wales practice as strange, the New South Wales practice being, to the extent possible, that direct speech should be used. I think you will find quite a few judges who would tend to reject evidence given in indirect speech in an affidavit, in part because indirect speech is a very close relation to statements of conclusion rather than primary facts. It may be that the judge will reject the material and grant leave to adduce oral evidence on that subject matter but I do not think every judge will grant that indulgence and in any event it is a second-best option. This is because you are unlikely to be allowed to ask leading questions but, more importantly, the witness may have great difficulty understanding the context and thus fail to give the evidence that he or she could have given if the affidavit had not taken that form in the first place.

I think the position was accurately stated by Barrett J in LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31 at [8]–[9].

[8] There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form. The statements in the two Queensland cases to which Mr Campbell took me share a common thread of the witness's inability to remember the precise words used. In each of the passages I have quoted there is a statement that the witness was unable to remember the precise words. Obviously if a witness can remember them, evidence should be given of the ipsissima verba.

[9] The possibility that s 135 may be invoked where evidence of a conversation is given in indirect speech is, of course, real. However, the question under that section will be not merely be [sic] whether there is prejudice, but whether that prejudice is unfair prejudice operating against the opposing party because of a curtailment of the ability to cross-examine. I accept that not all the cross-examination opportunities available in a case of direct speech report will arise in case of an indirect speech report [sic], but the ability to engage in meaningful cross-examination will exist nevertheless. There is also the point that the probative value of the evidence may be diminished by its form.

[10] In the end, 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. Part 36, r 2 of the Supreme Court Rules 1970 reflects a general expectation that evidence will be given viva voce, an expectation very much modified in this Division and modified in a particular way in the Commercial List (Pt 36, r 4A and Practice Note No 100 (2001) 52 NSWLR 150). However, the primary means based on oral testimony may usefully be resorted to where there are reservations about evidence in affidavit or statement form and where the opportunity can be taken to test the witness on whether or not a conversation can be related in direct speech, even if in part only. As R v Wright shows, it may be useful to have some part of the actual words used, even if the witness cannot remember them all and must resort to descriptive recollection as to the balance.

The Honourable JD Heydon QC says this in Cross on Evidence (looseleaf edition) at [17145]:

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". Commonwealth of Australia v Riley (1984) 5 FCR 8 at 34; 57 ALR 249 at 272 (Fed C of A FC Smithers, Sheppard, Wilcox JJ). This is particularly so where the conversations took place a long time ago. Similarly, there is no provision in the Evidence Act[s] 1995 (Cth … which makes inadmissible evidence of a conversation given in indirect speech, though the possibility of discretionary rejection under s 135 is available.

(Footnotes omitted)

The sentences I have underlined were quoted with approval by Besanko J in Hamilton-Smith v George [2006] FCA 1551 at [81].

The safer course is to use direct speech where the witness can do so; indirect speech tends to slide into an impression or a summary. The witness is after all trying to give the best evidence in the sense of the most persuasive evidence and the legal representative is assisting in that task.

The affidavit should also say when the conversation took place, where it took place and who was there. It should say what each of those present said or whether they said nothing. If the witness has an exact recollection then that should be set out but if the witness is speaking to the best of their recollection then the witness should say so. See the article by Bryson (1995) 1 Australian Bar Review 250 at 252. I set out ss 75 and 172 of the Evidence Act later in this paper.

Sometimes an affidavit is prepared by one witness saying no more than that they have read another witness’s evidence and it is true or they agree with it. This is at best wholly unpersuasive and it is not a practice which should be followed. Even if it is relevant, it is likely to be excluded under s 135 of the Evidence Act.

In Singh v Singh [2007] NSWSC 1357 Barrett J rejected certain such paragraphs as hearsay.

Three of the plaintiffs, each referred to an affidavit of another plaintiff, Shaun Jit Singh, and each of the three deponents said that he or she has read the affidavit of Shaun Jit Singh sworn on 18 February 2007 and then goes on to say “I agree with the contents of his affidavit”. This is the paragraph to which objection was taken and which was rejected. A particular vice was that in Shaun Jit Singh’s affidavit he made statements to the following effect in paras 3 to 10: that he did not know and could not accept certain things, that he did not admit certain other things, denied other matters and did not recollect others.

Barrett J said that each of the immediate deponents was saying that the immediate deponent did not know the thing that Shaun Jit Singh identified as not known by Shaun Jit Singh, that the immediate deponent noted the things that Shaun Jit Singh identified as noted by Shaun Jit Singh, that the immediate deponent recollected the thing that Shaun Jit Singh identified as recollected by Shaun Jit Singh and that the immediate deponent denied the thing that Shaun Jit Singh identifies as denied by Shaun Jit Singh.

[12] The passage objected to (being, in each case, simply that the deponent agrees with the contents of Shaun Jit Singh's affidavit), raises the problem — and it is a fundamental problem — that the witness is not unambiguously giving evidence of what he or she saw or heard. It is that fact that gives rise to the hearsay difficulty.

[13] A witness’s evidence, given on affidavit, must record facts to which the witness directly testifies. The unease that arises when two witnesses adopt exactly the same form of words to describe some past event is palpable enough. The unease becomes intolerable when the witness makes no attempt to give his or her own account and merely adopts another person’s account. The intolerable unease finds release in the application of the hearsay rule.

Turning to what is to be annexed and what is to be exhibited, what is to be served and what is to be filed, the rules provide:

Rule 29.02

(4) A document that accompanies an affidavit must be annexed to the affidavit unless the document is:

(a) an original; or

(b) of such dimensions that it cannot be annexed.

(5) If paragraph (4)(a) or (b) applies, the document must be exhibited.

Rule 29 is reproduced at the end of this paper.

The guiding principle here is, at least in relation to paper, the volume or bulk of the material. If the volume is small and there are only a few documents it can be annexed. Numerous documents or bulky documents are better exhibited. Originals are not generally used unless there is a particular reason why an original needs to be placed in evidence, such as a case involving an alleged forgery. A practice to be encouraged is that where large documents are involved the party should annex an extract of the relevant portion rather than the whole document (together with an identifying front page). Then the whole of the large document can be exhibited.

Another point is that exhibits are not generally filed with the affidavit. If you need the judge to read the exhibit or exhibits before the hearing then they should be filed. Or it may be that the docket judge prefers to have the exhibits before the hearing in any event. A quick communication with the judge’s associate can save later aggravation or difficulty or disparate expectations on the part of counsel and the judge.

It should go without saying that affidavit evidence has to comply with the rules of evidence. It is helpful I think, when considering an affidavit from this perspective, to imagine the witness giving the evidence in the witness box orally and to ask oneself would this evidence in the draft affidavit be admissible in those circumstances or would it be objected to and rejected.

Remember ss 135 and 136 of the Evidence Act 1995 (Cth):

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

When you call a witness to be cross-examined on his or her sworn affidavit, it is unnecessary and inappropriate to ask the deponent whether the contents of the affidavit are true or correct. The answer “yes” cannot add to the effect of the already sworn affidavit and is therefore irrelevant: AWA Ltd v Radio 3XY Pty Ltd (21 June 1991, unreported) McLelland J:

Counsel for the party on whose behalf the affidavit has been read, asked the witness whether he affirmed the accuracy of the affidavit. That question was objected to and I rejected it on the basis that a witness cannot ordinarily give oral evidence by reference to the contents of a document, be it an affidavit or otherwise, except in accordance with statutory provisions which permit that to be done, which have no application in the present circumstances.

It should be noted generally that although in about 80% of the cases that come before the Court on affidavit evidence witnesses are asked whether they adhere to their affidavits, or whether the contents are true and correct, or something similar, that is a practice which should not be continued. Such a question adds nothing to the weight of the evidence, wastes time, and for the reasons I have given is inadmissible.

Order

To the extent that the editorial comment in par 38.9.1 of Ritchie’s Supreme Court Procedure suggests that a question to the effect of whether the witness has recently re-read his affidavits and affirms their accuracy, is either desirable or permissible, then I respectfully disagree.

Remember that cross-examination of a deponent at a final hearing is not limited to matters contained in the affidavit: Muir v Harper (1900) 25 VLR 535; Keogh v Dalgety & Co Ltd (1917) 17 SR (NSW) 573. Questions may be put in cross-examination on any matter which is in issue. Cross-examination should of course be confined to relevant questions but questioning to test the credibility of the deponent may be put.

Cross-examination of a deponent at an interlocutory hearing is more strictly controlled and, where permitted, tends to be limited to the issues of the application: Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 66 per Levine J.

Pitfalls for practitioners

One topic I wish to mention here is objections to affidavit evidence.

One standard rule of practice is that objection should not be taken to non-contentious material. Often when objection is taken to material the judge will ask whether or not it is contentious and will become impatient if the answer is “no, it is not contentious”. If it is not contentious then you should not object to the material.

Also be aware of the practice of many of the judges to require the exchange of objections, in writing, before a trial and indeed a further requirement that counsel confer with a view to resolving the objections.

The idea here is to avoid substantial amounts of scarce and expensive court time being consumed in the procedural foothills of objections and substantial arguments about admissibility. Of course some matters cannot be resolved and have to be ruled on but to the extent possible practitioners should try to identify the point of principle involved. Once the point of principle is ruled on then the person appearing should be quick to identify those other objections which stand or fall with the ruling already given.

I have referred earlier to judicial discretions. If there has been a successful objection on the basis of the form of the material then a judge will sometimes exclude it but grant leave to the party tendering it to adduce oral evidence in proper form if so desired.

A discretion to permit other defects in an affidavit to be remedied is less frequently exercised.

It follows that if there is an exchange of objections before the trial and you think an objection is or may well be correct then the earlier you seek to remedy that defect, perhaps by another affidavit in admissible form, then the stronger the position your client will be in if objection is taken to that remedial material. After all, one of the points of objections being served before the trial is to allow defects to be remedied unless of course there is some incurable prejudice to the other side.

Other matters to remember from Division 29 of the Federal Court Rules are:

to the extent practicable, each paragraph must deal with a separate subject;
do not forget page numbering, it saves time and the fraying of patience;
copies of any documents exhibited or annexed to an affidavit must be served with the affidavit;
a party must apply for the leave of the Court to use an affidavit that has not been filed, or that has been filed but is irregular in form;
a party intending to use an affidavit must serve it on each other interested party at least 3 days before the occasion for using it arises; and
if you wish to cross-examine a deponent do not forget to give the required notice. If a person required to attend under subrule 29.09(1) fails to do so, the person’s affidavit may not be used although the Court may dispense with compliance with the Rules—see rule 1.34.

Do not fit within any of Sedley J’s “Laws of Documents”, where, you will recall, the second law is that documents shall in no circumstances be paginated continuously, his sixth law is that at least 10% of the documents shall appear more than once in the bundle, his ninth law is that only one side of any double-sided document shall be reproduced and part of his eleventh law is that a bundle of documents shall be held together, in the absolute discretion of the solicitor assembling them, by a ring of or arch-binder so damaged that the two arcs do not meet.

Lastly remember that rule 20.31 of the Federal Court Rules provides that any document mentioned in an affidavit filed by a party must be produced for inspection by the other side on notice being given in the prescribed form.

Professional responsibilities

A practitioner must not permit the swearing of an affidavit which he or she is aware is false. You should also not permit an affidavit to be sworn if you have reason to believe that the deponent does not understand its contents or the nature of an oath or affirmation: Bourke v Davis (1889) 44 Ch D 110 at 126. The Court said:

In this case certain witnesses contradicted the statements made by them in affidavits sworn in this cause in such a startling manner that I required an explanation of the mode in which those affidavits were sworn. The commissioner before whom they were sworn attended in Court, and in answer to questions from me he informed me that he went with a solicitor in the cause to the houses of the several witnesses; that the affidavits were not read over in his presence, and that he took no means to ascertain whether the witnesses knew to what they were swearing. I was told by counsel that this mode of performing the duty of a commissioner to administer oaths was not uncommon. I must express my strong disapproval of such a practice. The commissioner's duty before he administers the oath is to satisfy himself that the witness does thoroughly understand what he is going to swear to; and he should not be satisfied on this point by any one but the witness himself.

There is not a rule that requires the person before whom an affidavit is sworn to be impartial and independent of the deponent. Nor is there anything in those provisions which would impose a duty upon a person taking an oath independently to verify the truth or otherwise of that which is deposed to: See D’Arrigo v Carter (2003) 44 ACSR 162; (2003) 21 ACLC 270; [2003] FCA 5 per Selway J at [9].

Remember the relevant professional rules in particular:

New South Wales Barristers Rules (January 2014):

25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.

26. A barrister must not deceive or knowingly or recklessly mislead the Court.

New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules):

24 Integrity of evidence – influencing evidence

24.1 A solicitor must not:

24.1.1 advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

24.1.2 coach a witness by advising what answers the witness should give to questions which might be asked.

24.2 A solicitor will not have breached Rules 24.1 by:

24.2.1 expressing a general admonition to tell the truth;

24.2.2 questioning and testing in conference the version of evidence to be given by a prospective witness; or

24.2.3 drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

25 Integrity of evidence – two witnesses together

25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time:

25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and

25.1.2 where such conferral could affect evidence to be given by any of those witnesses,

unless the solicitor believes on reasonable grounds that special circumstances require such a conference.

25.2 A solicitor will not have breached Rule 25.1 by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

See also Myers v Elman [1940] AC 282 at 293-294:

Suppose that in such a case the client swears an affidavit of documents which discloses nothing relating to the frauds alleged in the statement of claim and suppose that the solicitor has previously given his client full and proper advice in the matter but has no good reason to suppose that the affidavit is untrue, it may be asked what else ought the most punctilious solicitor to do? My answer is nothing at that time. But suppose that, before the action comes on for trial, facts come to the knowledge of the solicitor which show clearly that the original affidavit by his client as defendant was untrue and that important documents were omitted from it, what then is the duty of the solicitor? I cannot doubt that his duty to the plaintiff, and to the Court, is to inform his client that he, the solicitor, must inform the plaintiff's solicitor of the omitted documents, and if this course is not assented to he must cease to act for the client. He cannot honestly contemplate the plaintiff failing in the action owing to his client's false affidavit. That would, in effect, be to connive in a fraud and to defeat the ends of justice. A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor upon the record. The duty of the client is equally plain. I wish to say with emphasis that I reject the notion that it is justifiable in such a case to keep silence and to wait and wait till the plaintiff succeeds, if he can, in obtaining an order for a further and better affidavit. To do so is, in the language of Singleton J., to obstruct the interests of justice, to occasion unnecessary costs, and - even if disclosure is ultimately obtained - to delay the hearing of the action in a case where an early hearing may be of great importance.

See also In re Thom (1918) 18 SR (NSW) 70; (1918) 35 WN (NSW) 9 on creating a misleading impression. That case concerned an affidavit which included the statement “I deny that I have lived an unchaste life” which the trial judge read as a denial of adultery. The solicitor gave evidence and accepted that the witness told him of her relations with a Mr Rix but the witness said that she did not consider that in living with him she was leading an unchaste life. The result was that her opinion was put in the affidavit as a statement of fact. Thus the witness did not deny the specific allegation of adultery but deposed “I do not admit …”. The Chief Justice, for the Court, said at 73-75:

The practice of stating in an affidavit that the deponent does not admit a charge which that deponent knows to be a true charge is a very reprehensible one. … [U]nfortunately the reasons given on the application to the Judge for the preparation of the affidavit in its present objectionable form indicated that there was a conscious withholding of information which tribunal in such a case would be desirous of knowing in order to do justice to all parties. For these reasons it seems to me that the preparation of an affidavit in this form, and the explanation why it was done, are open to grave censure. It is of the greatest importance that any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile one’s mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of facts which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of fact which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.

In ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J said at 197:

It cannot be emphasised too greatly that one's obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth. It is completely unacceptable for a solicitor to prepare an affidavit in which a witness gives a half truth and it is completely unacceptable for a witness, especially an employee of an officer of the court, to only give the court a half truth. In the instant case the position was that the liquidator's officers were suspicious that the steam cleaner might belong to the company. There was no evidence in the company's records one way or the other to prove or disprove this. There was no reason why the liquidator's assistant could not have told me this. It seemed to me that it was the background of general conflict between the liquidator's officers and the former directors which led to me being told a half truth so that the Court would think that the directors were much greater villains than they perhaps are.

Interlocutory applications

Affidavits are essential to the efficient conduct of most interlocutory applications.

Rule 17.01

(1) A party who wants to apply for an order in a proceeding that has already started must file an interlocutory application, in accordance with Form 35, that must:

(a) state, briefly but specifically, each order that is sought; and

(b) if appropriate, be accompanied by an affidavit.

Note however that by rule 17.02 an interlocutory application need not be accompanied by an affidavit if a party (the first party) wants to rely on correspondence or other documents, the authenticity of which is not in dispute. However (a) the first party must provide a list of the correspondence or other documents to each other party; and (b) each other party must notify the first party of any further documents that should be added to the list; and the first party must file the documents mentioned in paragraphs (a) and (b); if the documents mentioned in paragraphs (a) and (b) number more than 6 documents, the documents must be indexed and paginated.

Hearsay is permissible, s 75 of the Evidence Act:

75 Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

Section 172 is also relevant:

172 Evidence based on knowledge, belief or information

(1) Despite Chapter 3, the evidence may include evidence based on the knowledge and belief of the person who gives it, or on information that that person has.

(2) An affidavit or statement that includes evidence based on knowledge, information or belief must set out the source of the knowledge or information or the basis of the belief.

Suppression orders

Frequently, perhaps too frequently, it happens in commercial cases and intellectual property cases that a party seeks to have suppressed from publication part of that material.

It is too common an assumption that a mere request will be granted. Evidence is necessary. Indeed cogent evidence is necessary.

This flows from the terms of the Federal Court of Australia Act and from what the High Court said in Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21.

By s 37AA of the Federal Court of Australia Act:

…

non‑publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

…

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

Part VAA relevantly provides as follows (underlining added):

37AE Safeguarding public interest in open justice:

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

37AG Grounds for making an order

(1) The Court may make a suppression order or non‑publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice;

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c) the order is necessary to protect the safety of any person;

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2) A suppression order or non‑publication order must specify the ground or grounds on which the order is made.

37AJ Duration of orders

(1) A suppression order or non‑publication order operates for the period decided by the Court and specified in the order.

(2) In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

In Hogan the relevant paragraphs are [29]-[33], which concerned the now repealed s 50 of the Federal Court of Australia Act. What the High Court said included the following:

As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.

It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.

(Footnotes omitted)

When assisting in the preparation of an affidavit attention should be paid to whether or not the material may warrant an application for a suppression order. If it does then two steps should be taken. The first is a mechanical exercise of making sure that, through inadvertence, the sensitive material is not disclosed to others. An easy example would be to put the material in a separate and suitably marked envelope which could be filed. The second and more important step is to make sure that the Court has affidavit evidence of a cogent character on which it can act when an application for a suppression order is made.

Annexure

Division 29.1—Affidavits

29.01 When affidavit may be sworn or affirmed

An affidavit may be sworn or affirmed before or after the proceeding starts.

29.02 Form of affidavit

(1) An affidavit must comply with Form 59 and be made in the first person.

(2) The first visible page (being the first page, the cover page or the front cover page) must state:

(a) the deponent’s description; and

(b) the date on which the affidavit was sworn.

Note: Description is defined in the Dictionary.

(3) An affidavit must be divided into numbered paragraphs and, to the extent practicable, each paragraph must deal with a separate subject.

(4) A document that accompanies an affidavit must be annexed to the affidavit unless the document is:

(a) an original; or

(b) of such dimensions that it cannot be annexed.

(5) If paragraph (4)(a) or (b) applies, the document must be exhibited.

(6) Each page, including any annexure, must be clearly and consecutively numbered starting with page ‘1’.

(7) Each page of the affidavit (but not any annexure) must be signed by the deponent (other than a deponent who is unable to sign the affidavit because of a physical disability) and by the person before whom it is sworn.

(8) Each annexure and exhibit must be identified on its first page by a certificate entitled in the same manner as the affidavit and by the deponent’s initials followed by a number (starting with ‘1’ for the first annexure or exhibit).

(9) The annexures and exhibits must be numbered sequentially.

(10) No subsequent annexure or exhibit in any later affidavit sworn by the same deponent may duplicate the number of a previous annexure or exhibit.

(11) Each exhibit to an affidavit must be signed on the first page of the exhibit by the person before whom the affidavit is sworn.

29.03 Content of affidavits

(1) An affidavit must not:

(a) contain any scandalous material; or

(b) contain any frivolous or vexatious material; or

(c) be evasive or ambiguous; or

(d) otherwise be an abuse of the process of the Court.

(2) If an affidavit contains any of the material mentioned in subrule (1), a party may apply to the Court for an order that the affidavit, or a part of the affidavit, be removed from the Court file.

…

29.05 Service of exhibits and annexures

Copies of any documents exhibited or annexed to an affidavit must be served with the affidavit.

29.06 Irregularity in form

An affidavit may be accepted for filing despite an irregularity in form.

29.07 Use of affidavit not filed or in irregular form

A party must apply for the leave of the Court to use an affidavit that has not been filed, or that has been filed but is irregular in form.

29.08 Serving of affidavits

A party intending to use an affidavit must serve it on each other interested party at least 3 days before the occasion for using it arises.

29.09 Cross‑examination of deponent

(1) A party may give notice requiring a person making an affidavit to attend for cross‑examination.

(2) The notice under subrule (1) must be given to the party filing the affidavit or proposing to use it.

(3) If a person required to attend under subrule (1) fails to do so, the person’s affidavit may not be used.

Note: The Court may dispense with compliance with the Rules—see rule 1.34.

(4) If a person making an affidavit is cross‑examined, the party using the affidavit may re‑examine the person.

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