Practice and Procedure Part 10: Preparation of Witness Statements in Civil Proceedings in the Local Court of NSW

Recent amendments to the Practice Note Civ 1 (Practice Note), commencing on 3 June 2024, deal with the preparation of witness statements used in civil proceedings in the Local Court of NSW. These are reflected in the addition of new sections 25.9, 25.10 and 25.11 of the Practice Note. 

The additions codify good witness statement preparation technique, for example the Practice Note now explicitly stipulates that leading questions are to be avoided where practicable in the preparation of witness statements, particularly on important or contentious issues.

Practitioners should be aware that, where a party is legally represented, a witness statement:

1. should be prepared in the witness’ own words;
   
   
2. is only to include matters of fact of which the witness has personal knowledge and otherwise should disclose how the knowledge was acquired;
   
   
3. is only to include facts that are in dispute and need to be proved at trial relevant to the issues in dispute;
   
   
4. is to include a certification that the statement sets out the witness’ personal knowledge and recollection, that they have not been encouraged to provide information by anyone that is not within their knowledge and that they understand that their statement is to be used as evidence in court proceedings;
   
   
5. is to include a certification by their legal representative that the statement has been prepared in accordance with the Practice Note and that the requirements of the Practice Note have been explained to the witness prior to them making and signing their statement; and
   
   
6. is to, where recounting conversations, record those conversations in a form that corresponds with the nature of the witness’s actual memory of the conversation (i.e. verbatim memory vs ‘gist’ memory of conversations).

Now you may be asking, why is important? Non-compliance with the above may result in the court either refusing to allow reliance on the witness’ statement or giving limited weight to the witness’ evidence, which in turn could have a significant impact on the outcome of litigation. 

In my next article I will deal with the topic of conversation evidence following the comments of the NSW Court of Appeal in Gan v Xie [2023] NSWCA 163. 

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Author: Vikram Misra

Vikram Misra

Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. Vikram is also a contributing author to the Domestic Arbitration, International Arbitration, Security of Payment (NSW) and Security of Payment (SA) sections of the looseleaf Commercial Arbitration Law and Practice Service for Thomson Reuters. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn