Update: NSW Court of Appeal endorses Justice Jackman’s criticism of the use of direct speech in affidavit evidence

Following our recent blog on Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, the New South Wales Court of Appeal recently considered Justice Jackman’s criticism of the use of direct speech in affidavit evidence in Gan v Xie [2023] NSWCA 163

Justice White stated in his judgement, with Justice Simpson and Justice Basten agreeing, that the primary judge in the proceedings erred in rejecting evidence from two witnesses on the basis that the witnesses had no ‘separate and specific recollection of particular words … in any specific conversation’.

As a result, the primary judge had found the evidence to be unreliable and to have no probative value. Justice White disagreed and stated, ‘the fact that precise words used, and the specific occasion on which words were used, are not recalled, does not mean that a person’s memory of the substance or “gist” of what was said must be rejected’.

The Court of Appeal pointed to Justice Jackman’s observation at paragraph 125 of Kane’s Hire, agreeing with his statement that ‘whether the evidence of spoken words is sufficiently precise to enable the court to be reasonably satisfied that the words spoken were in fact misleading is plainly a question of degree, not a demand for unattainable perfection’.

As a result, the Court of Appeal commented that the primary judge did not engage with the question of whether the witnesses in the matter ‘should be accepted as having accurately recounted the gist, rather than the actual words’.
The above endorsement of Justice Jackman’s criticism of using direct speech in affidavit evidence by the New South Wales Court of Appeal is one that will impact legal practitioners and the way in which they draft their evidence going forward.

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