Drafting Affidavits and Statements

Drafting Documents for use in Court:

Affidavits & Witness Statements

by Paul Venus, Partner Holding Redlich Lawyers

B.com, LLB, LLM, Accredited Litigation Specialist - Queensland Law Society

Solicitor of the High Court of Australia and the Supreme Courts of New South Wales, Queensland, South Australia and the Northern Territory of Australia.

.

Smashwords Edition

Copyright Paul Venus 2012

The moral right of the author has been asserted.

All rights reserved.

Without limiting the rights under copyright law reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system or transmitted, in any form by any means electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of the copyright owner. Requests should be emailed to paul.venus@holdingredlich.com

Ebook Formatting by www.ebooklaunch.com

Table of Contents

DETAILED TABLE OF CONTENTS

1 INTRODUCTION

2 WHEN IS AN AFFIDAVIT OR STATEMENT REQUIRED?

3 PREPARATION FOR TAKING A WITNESS STATEMENT OR AFFIDAVIT

4 INTERVIEWING THE WITNESS

5 SUBSTANCE OF THE AFFIDAVIT

6 EVIDENTIARY ISSUES

7 PRIVILEGE AND AFFIDAVITS AND STATEMENTS

8 EXPERT REPORTS

9 DRAFTING

10 FORM AND PRESENTATION

11 TAKING AN AFFIDAVIT

12 PROCEDURAL ISSUES

13 USE OF AN AFFIDAVIT

14 ENDNOTES

DETAILED TABLE OF CONTENTS

1 INTRODUCTION

1.1 What this work is about

1.2 Affidavits and statements

1.3 Trial by affidavit or statement

1.4 What the court rules require

1.5 Is oral evidence better that affidavit or statement evidence?

1.6 Why take affidavit or statement evidence?

1.7 When not to take an affidavit or statement

1.8 Whose job is it to prepare a statement or affidavit?

2 WHEN IS AN AFFIDAVIT OR STATEMENT REQUIRED?

2.1 Introduction

2.2 Relationship between the UCPR and existing rules

2.3 Affidavits as pleadings

2.4 Interlocutory applications

2.5 Evidence

2.6 Formal affidavits

2.7 Affidavits in support of applications to strike out pleadings

2.8 Affidavits in support of summary disposal of proceedings

2.9 Affidavits in support of interlocutory relief

2.10 Affidavits in support of judgment and enforcement of judgment

2.11 Other matters

3 PREPARATION FOR TAKING A WITNESS STATEMENT OR AFFIDAVIT

3.1 Summary

3.2 Introduction

3.3 Brainstorming

3.4 Cast of Characters

3.5 An evidentiary note: Competence of witnesses

3.6 Preparation for the meeting with the witness

3.7 Organising documentation

3.8 Chronologies

3.9 Timelines

3.10 Obtaining agreement of the witness

3.11 Payments to witnesses

3.12 Plan the interview

3.13 Preparing a draft statement before the interview

4 INTERVIEWING THE WITNESS

4.1 Summary

4.2 Introduction

4.3 Logistical issues

4.4 Recording the witness interview

4.5 Interviewing more than one witness at a time

4.6 Phases of an interview

4.7 Basic information to provide to the witness at the interview

4.8 Focus on the witness

4.9 Know your case

4.10 Get the witness to open up and use follow up questions

4.11 Conversations

4.12 Write it all down regardless of what is said!

4.13 Be vigilant - look out for evasion and listen for ambiguities

4.14 Avoid framing questions in the negative

4.15 Think about trial

4.16 Test the witness

4.17 The problem of memory

4.18 When to interview a witness

4.19 Use of complex questions

4.20 Showing documents to a witness during an interview

4.21 Other sources of information about events and facts

4.22 Your opponent’s witnesses

4.23 Aboriginal witnesses

4.24 Preparing the draft statement or affidavit

4.25 Evaluate the witness

4.26 Witnesses discussing their affidavit or statement after it is made

4.27 Do not coach the witness

5 SUBSTANCE OF THE AFFIDAVIT

5.1 Summary

5.2 Introduction

5.3 Relevance

5.4 Irrelevant material

5.5 Contents of the Affidavit or statement

5.6 Hearsay affidavits

5.7 Use the words of the witness

5.8 Record conversations in direct speech

5.9 Avoid being responsive to pleadings or other witness statements

5.10 Check the witness statement or affidavit for inaccuracies

5.11 Make sure the witness can swear to the facts

5.12 Scandalous, irrelevant or otherwise oppressive material

5.13 Ethical duties concerning affidavits

6 EVIDENTIARY ISSUES

6.1 Summary

6.2 Introduction

6.3 Try to avoid Hearsay

6.4 Exceptions to the Rule Against Hearsay

6.5 Best evidence rule

6.6 Speculation and opinion

6.7 Submissions

7 PRIVILEGE AND AFFIDAVITS AND STATEMENTS

7.1 Summary

7.2 Introduction

7.3 Importance of the laws concerning privilege

7.4 Professional Legal Privilege - the Evidence Act 1995

7.5 Dominant purpose test

7.6 Loss of legal professional privilege

7.7 Consent and related matters

7.8 Joint clients

7.9 Misconduct and other matters

7.10 Dealing with ‘without prejudice’ communications in statements and affidavits

8 EXPERT REPORTS

8.1 Summary

8.2 Introduction

8.3 The Evidence Act 1995

8.4 Who should be engaged as an ‘expert’

8.5 Relationship of the expert to the party

8.6 Using overseas experts

8.7 Guidelines for expert witnesses

8.8 Briefing materials for the expert

8.9 Language of the expert report and testimony

9 DRAFTING

9.1 Summary

9.2 Introduction

9.3 Identifying purpose

9.4 Remember who the audience is going to be

9.5 Arranging and ordering information

9.6 Structure

9.7 Using Introductions and Summaries

9.8 Sentence length

9.9 Use Informative Headings

9.10 Use normal punctuation

9.11 Pictures, Tables, graphs, diagrams and charts

9.12 Style

9.13 Using definitions

9.14 Using technical terms and terms of art

9.15 Drafting in the proper tense

9.16 Layout and design

10 FORM AND PRESENTATION

10.1 Summary

10.2 Introduction

10.3 Name of the deponent

10.4 Address of the deponent

10.5 Dates, sums and other numbers

10.6 Physical condition of the affidavit or statement

10.7 Margins and spacing

10.8 First Page of the document

10.9 Footers

10.10 Use paragraphs

10.11 Annexures and exhibits

10.12 Alterations

10.13 Signing of the affidavit or statement

10.14 Form of affidavit

10.15 Sample of form in the Federal Magistrates Court

10.16 The form of an affidavit in the Federal Court of Australia is as follows:

10.17 For the Supreme Court of New South Wales: Sample of Form in the Supreme Court of New South Wales:

11 TAKING AN AFFIDAVIT

11.1 Summary

11.2 Introduction

11.3 Evidence Act 1995 (Cth)

11.4 Evidence Act 1995 (NSW)

11.5 Oaths Act 1900 (NSW)

11.6 Oaths Act 1867 (QLD)

11.7 Australian Capital Territory

11.8 Northern Territory and South Australia

11.9 Tasmania

11.10 Victoria

11.11 Western Australia

11.12 Forms of oaths

11.13 Forms of affirmations

11.14 Witnesses who may administer oaths

11.15 Some Requirements for witnessing an affidavit

11.16 Alterations to affidavits

11.17 Blind/unable to read /Unable to sign

11.18 Language difficulties

11.19 Penalties for false testimony

12 PROCEDURAL ISSUES

12.1 Summary

12.2 Introduction

12.3 Timing of the delivery of statements or affidavits

12.4 Directions concerning statements and affidavits

12.5 Default in delivery

12.6 Filing

12.7 Service

12.8 Notice

12.9 Inspection of affidavits and statements on the Court file

13 USE OF AN AFFIDAVIT

13.1 Summary

13.2 Introduction

13.3 Use of affidavits and statements to draft pleadings

13.4 Reading affidavits and statements into evidence

13.5 Cross-examination on affidavits and statements

13.6 Failure to cross-examine on evidence in an affidavit

13.7 Use of affidavits in other proceedings

13.8 Conclusion

14 ENDNOTES

.

For Megan

1 INTRODUCTION

I am a trial lawyer. Matilda says that at dinner on a good day I sound like an affidavit.

Mario Cuomo

* * *

1.1 What this work is about

Affidavits and witness statements have become increasingly important aspects of modern civil litigation. Yet it is somewhat surprising that there are relatively few texts devoted in whole or even in part to this topic. Perhaps in part, this is because the topic is an amalgamation of evidentiary and civil procedure issues. Indeed, it has been described as a Cinderella area[1].

Yet the impact of the affidavit or witness statement upon a client’s case can be dramatic. Affidavits or witness statements can constitute the entirety of a client’s evidence at trial. Omit something from this evidence and the client risks losing the case or at the very least damages their credibility.

A lawyer can also over work the affidavit or statement evidence by the use of excessive detail or too much lawyer involvement in the drafting of the document. Again, if this occurs the client’s prospects of success are at risk. The court may take the view that the evidence has been too closely reviewed by the lawyers or even concocted by them. Further, the material, even if entirely the witness’s work, may cost the client so much to prepare that the costs of the litigation become overly burdensome for the rewards.

If these problems are to be avoided, preparation and use of affidavits and statement evidence in civil litigation requires skill, care and strategic thinking.

This work focuses on the basic requirements for the preparation and use of affidavits and statements in civil litigation in New South Wales and Queensland. It considers the general principles and places those principles in a practical context for the litigator in civil courts. In doing so, it aims to equip practitioners with the tools necessary to enable them to assist witnesses in the preparation of persuasive and cost effective written evidence.

It is not proposed to deal with all forms of affidavits or statements in detail in this work. The work does not deal with the specific requirements for affidavits or statements used in criminal matters, family law matters, industrial law matters and bankruptcy proceedings. These areas of law each have their own special rules for how affidavit and statement evidence should be prepared.

1.2 Affidavits and statements

The Oxford Companion to Law defines an affidavit as in English law a written statement in the name of a person, the deponent, who makes it and signs and swears (or affirms) to its truth before a Commissioner for Oaths.[2] The word affidavit comes from the Latin term affidare, which means to pledge one’s faith. A witness statement is merely an unsworn, but signed written statement given by a person.

Indeed, the concept of an affidavit has ancient origins, and there is reference in the trial of Socrates to one of his accusers, Meletus, swearing an affidavit against Socrates in which Meletus set out his accusations.

Osborn’s Concise Law Dictionary notes that Affidavits are of infinite variety[3]. Affidavits and statements are used in all types of litigation, including general commercial suits, family law matters, criminal prosecutions, administrative matters, native title applications, industrial relations matters and insolvency matters. The rules for each of these types of litigation impose different requirements on how affidavits and statements should be prepared and received by the relevant court or tribunal.

1.3 Trial by affidavit or statement

Courts routinely order that all evidence in chief will be by way of statement or affidavit. In those situations, the expectation and practice of the courts has become that leave must be sought by a party if it wishes to lead evidence beyond that contained in its statements or affidavits.

The giving of evidence at trial by affidavit or statement is not a modern invention. Justice Shaw of the Supreme Court of New South Wales described the history of affidavit evidence as follows:

"… in the Court of Chancery it has had a long history. By the beginning of the fifteenth century, witnesses were being called to give evidence on oath and 'consequently in the later days of Chancery procedure evidence came to be made upon affidavit, a practice still common in the Chancery Division of the High Court' (A.K.R. Kiralfy, Potter's Historical Introduction to English Law (4th Ed) Sweet and Maxwell (1962) at 581). Incongruously to the mind of a contemporary lawyer, historically parties were not permitted to give evidence until Lord Denman's Act of 1843 (W.J.V. Windeyer, Lectures on Legal History Law Paper Co (1938) at 147, 186, 242). This antipathy to evidence seems to have arisen from an obsessive concentration in the common law courts with records and documents (T. Plunkett, A Concise History of the Common Law (5th Ed) Butterworths (1956) at 178)."[4]

There are no rules that allow trial by affidavit in the High Court of Australia. However, this is hardly surprising given the appellate nature of the vast majority of cases which that Court hears.

In the Federal Court of Australia 033rl allows the Court to order that evidence by given by way of affidavit.

Pt 36 r 2-4A of the Rules of the Supreme Court of New South Wales deal with affidavit evidence and witness statements. See also Practice Note 100. However, Pt 36 r 4A(2A) does not give the power to the Court to admit into evidence a witness statement that is not admissible under the Evidence Act 1995. See Lane v Jurd (No. 2).

The UCPR permits all Queensland Courts to give directions that trial be by way of affidavit (FN r 367(3). The Supreme and District Courts may also decide a case without a hearing.

1.4 What the court rules require

Despite its long history, the practice of giving evidence by way of affidavit has not always been favoured by the courts. Until the early 1990s, it was not uncommon for all evidence of lay witnesses at trial to be given orally in some jurisdictions. Even as comparatively recently as in 2003, it has been held that in the ordinary course of events, evidence in common law matters should be given in an oral form.[5] Included, the rules of most civil courts in Australia provide that viva voce evidence is the norm[6].

However, a court can order, in appropriate circumstances, that the trial proceed by way of affidavit or statement. It is now common for many courts to make such an order. Indeed, in some courts, and in particular, the Federal Court of Australia, it is now rare that directions will not be made that evidence in chief be by way of statement or affidavit.

Even when it is not the usual practice to present evidence in chief in written form, most courts exercise discretion to admit such evidence when appropriate. An example is the New South Wales case of Donaghy v Wentworth Area Health Service[7]. The case concerned a plaintiff, who was employed by the defendant as a nurse and was, at that time, also pregnant with her first child. She alleged that she slipped and fell on a wet floor and suffered injury, loss and damage as a result of the fall. The medical condition of the plaintiff, subsequent to the accident, allegedly resulted in catastrophic debilitation including the premature birth of her child and a variety of other physiological and psychological injuries. It was alleged that this damage was caused by the negligence of the defendant and a claim was made for damages. Leave was sought by the plaintiff to be allowed to give her evidence in chief by way of affidavit, with, it was conceded, a right of the defendant to cross examine her.

The Court allowed the application to lead evidence by way of affidavit and Justice Shaw held that:

When I come to exercise my discretion, I must be influenced by the physical and psychological debilitation of the plaintiff in this case. She has had relentless medical treatment of both a psychological and physical nature. She has had operations, much treatment by psychologists and psychiatrists, and I saw her in the witness box exhibiting what, prima facie, seem to be real difficulties in dealing with questions and answers under oath. I acknowledge that, in the preparation of her affidavit, the plaintiff has been assisted by her husband and her legal advisers. In my view, such factors go to the weight to be accorded to the evidence rather than constituting a fundamental hurdle to the proposed mode of tendering the material. I am also influenced by the ready acceptance of her counsel that she can be cross examined. Accordingly, it seems to me that counsel for the defendant will be able to test her evidence and will not be, in substance, disadvantaged by the fact that her affidavit is read to the Court, as would be a common phenomenon in the Equity Division of this Court, as distinct from the need to obtain from the plaintiff viva voce evidence.

1.5 Is oral evidence better that affidavit or statement evidence?

The practice of trial by statement or affidavit is not universally embraced. Trial by affidavit has been the subject of criticism. One academic commentator has complained about the practice as follows:

Affidavits as evidence on trial may suit bureaucratic convenience but they are lawyers’ pleadings rather than natural expressions of a witness’s recollections. They can give a mischievous opponent weeks to compose a story in rebuttal and, while they are not officially evidence until they are read and admitted in court, a judge may read prejudicial and objectionable matter in advance[8].

In an article in the Australian Law Journal in 1997, this issue was explored by Mr Christopher Curtis of the New South Wales Bar, who pointed to a number of problems inherent in taking evidence in chief by way of affidavit or statement[9]. Mr Curtis suggests:

1 Affidavits sound like a barrister’s words.

2 Use of an affidavit enables leading of witnesses.

3 The competent lawyer, as wordsmith will have crafted the facts into a highly structured narrative that probably bears little relationship to the pool of chaos in which those facts were spawned[10], thus giving the facts more weight than they deserve.

4 The use of phrases such as to the best of my recollection in written evidence encourages dubious cases, because people rarely qualify