Case Review: Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd
By Sam Blackman
Published: 18 October 2012
Updated:
Basic Facts
Kane’s Hire (Kane’s) ordered a small two-seater aircraft from Anderson Aviation but was ultimately unhappy with the product. The claim was grounded in two causes of action: breach of contract and misleading and deceptive conduct under Australian Consumer Law. Kane’s alleged that the aircraft was heavier than Andersons Aviation had represented. This mattered as it was too heavy for a “light sport aircraft” airworthiness certificate resulting in an “experimental” classification (see Civil Aviation Safety Regulations (Cth). Kane’s argued that an “experimental” aircraft was less valuable than a “light sport aircraft.”
Legal Issues
Broadly, this decision impacts how lawyers prepare evidence of conversations in witness statements/affidavits. In NSW, it is a common practice to use direct speech even where a witness can only recall the gist of a conversation, provided that it is prefaced with the phrase “in words to the following effect.”
Reasoning
Jackson J reasoned, as outlined below, that the “usual practice” in NSW was misguided and proposed six principles about how to prepare this type of evidence.
At [119], the Judge identified that the usual practice in NSW, where the applicant’s solicitor was based, was to use direct speech for all conversation and notes that this practice had a long history in the state. The Judge contrasted this practice at [122] to the use of indirect/reported speech which was used in the respondent’s evidence and noted that it was (perhaps) due to the respondent’s solicitor being based in Victoria.
At [120], the Judge was critical of this practice in circumstances where the witness could only remember the gist or substance of the conversation rather than the actual words used as it provided an appearance of a vivid memory that bore no reliance to the actual memory of the witness in the case.
At [123], the Judge noted relevant authority that it was not a rule of the law of evidence in Australia that all conversations must be given in direct speech.
At [124]-[128], the Judge reasoned that the NSW approach was wrong, and should not continue. In particular at [127], with a biting critique of the practice:
“The practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the phrase “in words to the following effect”) from the witness’s actual memory merely of the substance or gist of what was said is logically, ethically and grammatically wrong.”
At [129], the Judge conveniently distilled six (6) principles on how to prepare evidence of speed:
Applying that reasoning, the following general principles apply to the form of evidence of conversations:
(1) The form of the evidence should correspond to the nature of the actual memory the witness has of the conversation… There is no reason in the abstract to think that evidence in direct speech is more reliable or credible than evidence in indirect speech, or vice versa.
(2) If the witness remembers only the gist or substance of what was said, and not the precise words, then the evidence should be given in indirect speech (also known as reported speech), in terms which reflect the witness’s actual memory…:
(3) If the witness claims to remember particular words or phrases being used, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations, even if the evidence is otherwise given in indirect speech…
(4) If the witness genuinely claims to recall the actual words used in a conversation, then the evidence should be given in direct speech; that is, quoting the words as actually spoken… Apart from rare cases of photographic memory, this may well be the case where the witness has made a detailed contemporaneous note of the conversation, and has refreshed his or her memory from the note (in which case this should be expressly stated along with the tender of the note).
(5) Evidence given in direct speech should not be prefaced by the phrase that the conversation occurred “in words to the following effect”. That expression blurs the important distinction between verbatim memory and gist memory, and leaves the Court unable to ascertain which kind of recollection is being claimed by the witness. …
(6) Evidence of a witness who claims to remember the exact words of a conversation, but who is found after cross-examination to have exaggerated the nature and quality of his or her memory, may well suffer an adverse effect on his or her credibility (the weight of which will depend on all the circumstances). However, the inability to cross-examine in that manner a witness who gives evidence in indirect speech is not unfairly prejudicial within the meaning of s 135 of the Evidence Act 1995 (Cth)…
Note: internal citations redacted
Significance
(Editorial)
In NSW, the direct speech emperor has been shown to be shirtless. The dissection by Jackson J of the usual practice in NSW is brutal, insightful, and should be remembered. The flaws in the approach, as reasoned at [124]-[128], are hard to ignore.
This case has already been picked up by the NSW Court of Appeal in Gan v Xie [2023] NSWCA 163 at [118]-[123] by White AJA (Simpson AJA and Basten AJA agreeing). In that matter, the appeal was allowed in part as the primary Judge had erred in the treatment of indirect speech evidence.
This decision has also been applied at the tribunal level in The Owners – Strata Plan No 4393 v Roberts [2023] NSWCATCD 57 at [37] despite being a jurisdiction where the rules of evidence do not sticky apply.
Changes in legal practice are often slow due to the inertia of the history. This decision will likely be cited with some frequency in the coming years as the practice in NSW evolves and matters come to hearing with affidavits drafted before this decision or Gan. Watch this space.
For a more detailed dive into this case, see the article: “We shouldn’t do this anymore” or words to that effect”
Key Paragraphs
Form of evidence of conversations [118]-[130]
See Gan v Xie [2023] NSWCA 163 at [119) where [121]-[129] cited
Disclaimer
The contents of this article is of a general nature only and is not a substitute for legal advice from a qualified legal practitioner. Check the date of publication and any update as the contents may have been superseded by changes in law.