.jpg?width=960&height=393&name=tingey-injury-law-firm-DZpc4UY8ZtY-unsplash%20(1).jpg)
When drafting evidence of conversations in affidavits, practitioners should be aware of the difference between ‘gist’ memory and verbatim memory.
‘Gist’ memory is where the witness does not recall the exact words used, but rather the overall substance/effect of what was said. This can be contrasted with verbatim memory, which is where the witness recalls the exact words used.
Practitioners should not fall into the trap of drafting evidence of conversations in direct speech where the witness only recalls the gist of what was said, nor should practitioners preface direct speech with the phrase “in words to the following effect”.
These two longstanding practices have been disapproved by both the Federal Court of Australia and the New South Wales Court of Appeal: see Kane’s Hire Pty Ltd v Anderson Aviation Pty Ltd [2023] FCA 381 (Jackman J), handed down on 27 April 2023 and Gan v Xie [2023] NSWCA 163, handed down on 17 July 2023 (White JA, Simpson and Basten AJJA agreeing).
As it has been some time since the above judgments were handed down, drafting conversations in the wrong manner can now result in adverse findings to a witness’ credit. In Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766, Jackman J held:
[11] In Kane’s Hire, I did not take into account the form in which evidence of conversations had been given in affidavits when assessing the credibility of witnesses, as I took the view that adequate notice had to be given to the profession of the unacceptability of the then practice before taking it into account on the question of credibility. Now that about a year has gone by since those reasons were published and approved by the New South Wales Court of Appeal (and more than three months had gone by since the Court of Appeal’s decision by the time the plaintiffs’ affidavits were filed and served), I regard 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. Accordingly, I regard the form in which Ms Chu’s affidavit was drafted and approved by her as a matter which is adverse to her credibility.
Practitioners should also be reminded of the recent amendments to Practice Note Civ 1 in the Local Court of NSW which now stipulates that a witness statement 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. 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.
Disclaimer: The statements, analyses, opinions and conclusions in Legalwise Insights are those of the respective authors and not of Legalwise Seminars Pty Ltd which acts only in the capacity as editorial co- ordinator of the content in Legalwise Insights. No part of any article can be regarded as legal or financial advice. Although all care has been taken in the preparation of all articles, readers must not alter their position or refrain from doing so in reliance on any information contained therein. Neither the respective authors nor Legalwise Seminars Pty Ltd accept or undertake any duty of care relating to any part of Legalwise Insights
Liability limited by a scheme approved under the Professional Standards Legislation
Author: Vikram Misra
.png?width=233&height=233&name=Untitled%20design%20(9).png)
