Abstract
•Wild v Meduri, by majority, restores the use of direct speech and ‘words to the effect of’ for New South Wales courts, overruling the acceptance of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd by Gan v Xie earlier this year.
•NSW lawyers should carefully address the exact degree of a witness’ recollection of conversations and the precise words used when drafting affidavits to ensure they meet the varying drafting expectations of federal and NSW courts, with direct speech to be far more limited in federal than NSW courts.
•The affidavit should identify the degree of recollection the witness has of a particular conversation (and the words used in it) and, if adopting a narrative form, avoid the use of vague and conclusory language.
•The most important lesson for all jurisdictions is that lawyers should never make up anything in a witness affidavit, particularly not direct speech attributed to witnesses.
•NSW lawyers should carefully address the exact degree of a witness’ recollection of conversations and the precise words used when drafting affidavits to ensure they meet the varying drafting expectations of federal and NSW courts, with direct speech to be far more limited in federal than NSW courts.
•The affidavit should identify the degree of recollection the witness has of a particular conversation (and the words used in it) and, if adopting a narrative form, avoid the use of vague and conclusory language.
•The most important lesson for all jurisdictions is that lawyers should never make up anything in a witness affidavit, particularly not direct speech attributed to witnesses.
| Original language | English |
|---|---|
| Specialist publication | LSJ Online |
| Publication status | Published - 13 Dec 2024 |
Keywords
- litigation
- witness evidence
- direct speech
- civil procedure