Affidavits and “words to the following effect”

Two recent cases have provided vastly different views on how conversations should be dealt with in affidavits.

If you have ever been a witness in a court case, you might be familiar with the phrase “words to the following effect”.  In New South Wales, this is the common way that a witness will recount a conversation (the witness will do this in a formal court document known as an affidavit).

In many cases, a witness can’t recall a given conversation word-for-word, and instead can only recall the ‘gist’ of the conversation.

In those circumstances, most affidavits have traditionally avoided setting it out in indirect speech (eg “He then told me he wanted to give me the house”) and instead used direct speech prefaced by the phrase “words to the following effect” or similar (eg “He then said to me words to the effect of ‘I want you to have this house’).

In a Federal Court decision last year, Jackman J described this practice as “logically, ethically and grammatically wrong” (Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381). His Honour’s view was that the words used should reflect the witness’s actual memory, and that the use of the phrase “words to the following effect” followed by words that the witness could not specifically recollect fell short of that.

This has prompted much debate amongst the NSW legal profession, because using direct speech prefaced by the phrase “words to the following effect” is how most NSW solicitors have prepared affidavits for many decades. It seemed that the drafting of affidavits involving conversations  would need to be significantly reconsidered for all future matters.

However, in a recent decision of the NSW Court of Appeal handed down on 26 September 2024, Wild v Meduri [2024] NSWCA 230, further light has been shed on the issue. The decision has some differing views from the three appeal Judges, but in summary:

• Bell CJ (i.e., the incumbent Chief Justice of New South Wales) appeared to be in favour of the ‘status quo’ position of affidavits using direct speech prefaced by ‘words to the following effect’

• White J disagreed with the status quo and agreed with the attempts by Jackman J to do away with it

• Kirk JA was of the view you can either cover the gist of a conversation in indirect speech, or put it in direct speech prefaced by ‘words the following effect’, whichever you prefer

This debate is important and interesting one (at least for lawyers). It highlights the importance of ensuring evidence is prepared properly and in a manner that will find most favour with the judge who will ultimately determine the case.

Careful and proper wording of evidence can be the difference between winning and losing in court.  If you are involved in a dispute that may lead to litigation, please contact Ben Hemsworth on (02) 9923 2321 or email us at enquiries@somervillelegal.com.au.