6. Evidence and Affidavits Flashcards
What are the steps to preparing affidavit evidence?(hint there are 4)
- id all relevant facts and ensure that witness can give the evidence;
- of the relevant facts, check which are admissible and relevant as evidence to specific application or hearing for which affidavit is filed;
- after id relevant facts and deciding which are admissible, express that evidence in a clear (i.e. simple) and orderly way;
- finally ensure the form of the affidavit complies with the requirement of the Rules of the crt in which it is to be filed.
Drafting affidavit - what to do?
- Every statement must be relevant to the issues to be determined
- Every statement must be admissible evidence – i.e. can only contain evidence able to be given orally .
- Consider: ‘Can the witness know this?’. If evidence is hearsay, to be in included it needs to be admissible under an exception to the hearsay rule.
- Use direct quotes if possible.
- Use concise language, subheadings, one idea per paragraph.
- Generally, set out information in chronological order, put statements into context and group by topic if appropriate.
- Use the **witness’s own words **and language. Evidence of the witness, not the lawyer.
Drafting affidavit - what not to do?
- Do not use argumentative statements, **submissions **or inadmissible conclusions or opinions.
- Don’t speculate if facts do not draw the conclusion or witness cannot recall events.
- Only exhibit documents which are admissible and only exhibit documents where witness is appropriate person to prove them.
- Confirm witness is authorised to swear on behalf of company, etc
- Avoid big bundles of disparate documents marked as one exhibit.
- Do not put in evidence on issues you cannot win.
- Avoid: tautologies (‘verily believe’, ‘true copy’), overly legalist language
Way evidence given? (hint re OA)
QLD:
Subject to the Rules or a direction by the Crt:
1. Proceedings started by CLAIM: may only be given orally: r390 UCPR
2. Proceeding started by APPLICATION: may only be given by affidavit: r390 UCPR
Note:
* Taking into account purpose of r 5, Crt may in the interests of justice make orders or directions regarding how evidence given: r367(3).
* in deciding what mode of evidence is appropriate crt will consider notions of fairness, time and expense: r367(2) and (4).
- Matters on supervised case list frequently need to consider if witness statements should be exchanged prior to the trial or hearing: see SC PD 11 of 2012.
- Matters on the Commercial LIst, likely to be managed consistent with purpose of the Practice Direction, i.e. to ensure the just, expeditious and efficient resolution of commercial matters at minimum expense: SC PD 1 0f 2023.
FCT:
Subject to the rules (rr29.01-29.23) or directions by the Crt (r1.34).
Formal requirements of affidavits? (crt rules)
QLD: rr431-435, 428 (expert report)
1. Affidavits: form of affidavit, including exhibits and alterations, may be sworn or affirmed: rr431-435.
- Expert report: r428 UCPR
FCT:
1. Form of affidavit: may be sworn or affirmed: rr29.01-29.02 FCR
Contents of affidavits?
QLD: r430
Affidavits must be confined to evidence person making it could give orally (except in IA; summary judgment application r295): r430 UCPR
FCT: r29.03
Same rules of evidence apply to affidavit evidence and oral evidence, but must not: r29.03:
1. contain any scandalous material; or
2. contain frivolous or vexatious material; or
3. be evasive or ambiguous; or
4. otherwise be an abuse of process,
if contains any of above can apply for an order that it be removed from crt file.
Formal requirements of affidavits?
QLD:
* r431-435 UCPR, includes, requirements for swearing or affirming affidavits (r432); and certificate of reading (r433)
FCT:
* r29.01-29.02 FCR, includes: affidavit may be sworn or affirmed before or after proceedings start (r29.01); must: be in first person; divided into no paragraphs, with separate subject; documents annexed unless an original then exhibited; number and sign; identify annexure/exhibits; no duplication of exhibit/annexure no, and must sign first page by W.
* Swearing/affirming by person with disability: r29.04
Irregularity in affidavit?
QLD:
1. Affidavit may be accepted for filing and relied upon with leave of the crt, despite irregularity: **r436 UCPR (also see rr371, 372 UCPR), once leave granted taken as regular affidavit.
2. May rely on affidavit not filed/served with crt’s leave: r437-438 UCPR
3. If contains scandalous or oppressive materials, crt may order affidavit be removed from crt file, destroyed, or relevant parts struck out: r440
4. Crt cannot receive and party cannot file, an affidavit taken by a party personally: r441 UCPR
FCT:
1. May be accepted for filing despite irregularity as to form: r29.06 FCR
- BUT party must apply for leave to rely on affidavit not filed or filed but in irregular form: r29.07 FCR
- Party may apply for order that all or part of affidavit be removed from Court file if it contains scandalous, frivolous or vexatious material; is evasive/ambiguous; or is an abuse of process: rr29.05, 29.08 FCR
Service and XX under UCPR?
QLD: r439
1. crt may order deponent to be examined and XX before the crt: r439 UCPR
2. If affidavit served more than 1 business day before hearing, party wishing to XX deponent **must serve notice: r439 UCPR. If served less than 1 business day before the hearing, deponent must attend **hearing: r439 UCPR
3. If deponent **does not attend **crt when required, affidavit cannot be relied upon: r439 UCPR
4. Crt may dispense with XX and allow affidavit to be used: r439(5) UCPR
FCT: r29.05. 29.08, 29.09
1. Affidavit, including exhibits and annexures, must be served at least 3 days before hearing: rr29.05, 29.08 FCR
2. Party may give notice requiring a deponent to attend for XX: r29.09 FCR, if person is XX, pty using affidavit may re-x.
3. If deponent fails to attend, their affidavit may not be used: r29.09 FCR
4. The Court may dispense with compliance with these rules under r 1.34.
Duty of expert (QLD)?
r429F
- Overriding duty is to assist the court: r429F UCPR
- Expert is not an advocate for a party to the proceedings and **must not accept instructions to adopt or reject a particular opinion **and must comply with the code of conduct: r429F(2)(3) UCPR
- If prior to the end of proceedings, opinion materially changes, expert must give written notice of change of opinion and reason for change: r429K.
How expert evidence can be given (QLD)?
r429G
- Evidence in chief must be by way of written expert report: r429G UCPR
- Can only tender report as evidence if it has been disclosed under r 429I or with leave: r429G UCPR
- Any party can tender the report as evidence, but only if they produce the expert for XX: r429G
- Disclosure must be made: unless the court otherwise orders, disclose ASAP, or if P, within 90 days after close of pleadings; if D within 120 days after close of pleadings; if other party, within 90 days after close of pleading for that party: r429I UCPR
Directions re experts, QLD?
The crt may, at any time, give the directions it considers appropriate **about the use **of expert evidence in a proceeding: r427 UCPR
Can direct experts to meet and confer (including to give report of meeting): r428 UCPR
Requirements of expert report QLD
rr 429H UCPR:
- Must be addressed to the Crt and signed by the expert: r429H UCPR
- Must set out the expert’s qualifications; all material facts (written or oral) upon which the report is based; reasons for each opinion expressed; references to any **literature or other material **relied upon; details of any inspections, examinations or experiments performed; if there is a range of opinions on matters dealt with in the report, a summary of the range of opinion and why the expert has adopted a particular opinion; any qualifications; a summary of the expert’s conclusions; and a statement about whether access to readily ascertainable additional facts would assist in reaching a more reliable conclusion: r429H(2) UCPR
- Must confirm various matters in the report, including read and agrees to be bound by code of conduct; factual matters stated in report are, as far as expert knows, true; made all appropriate inquiries and report contains all significant matters; and
- expert understands duty to the crt and has complied with that duty r429H (4) UCPR
Joint experts appointed by the parties
rr429L-Q
Parties can agree to appoint a joint expert, if they comply with requirements under the rules, including costs, provision of SOAFI and disclosure, unless crt otherwise orders - will then be the only expert they can call and they can XX: **rr429L-Q **
- Parties may agree to appoint a joint expert, r429L UCPR, appointment may be made if they agree matters in r429M UCPR
- If parties jointly appointing expert must give expert **SOAF **on which to base the report: r429N UCPR
- Report by joint report is taken as disclosed if a copy is given to each appointing party and within 14 days a copy provided to other parties: r429O UCPR
- Unless crt otherwise orders, the expert is the only expert who, in relation to the parties to the agreement, may give evidence in the proceeding on the issue: r429P UCPR.
- Parties my cross examine expert: r429Q UCPR
Joint experts appointed by Crt
rr429R-V:
Court can, on application or own initiative at any time appoint an expert to prepare a report, which must be disclosed by the Registrar. The court can make, and the expert can seek, any orders/directions necessary: rr429R-V UCPR.
- The crt may, at any time, whether on its own initiative or on the application of a party to a proceeding, appoint an expert to prepare a report on an issue arising in the proceeding. But only if the expert has been made aware of the content of Ch 11, Pt 5 and consents to the appointment: r429R UCPR
- Unless otherwise ordered, the crt appointed expert must prepare a report on the issue and give the report to the registrar, registrar must file the report and within 7 days provide a copy to the parties: r429S UCPR, at which point the report is taken to be disclosed: r429T UCPR
- Crt may make any order or direction it considers appropriate re crt-appointed expert, including re liability for fees: r429U UCPR.
- Expert may apply for directions: r429V UCPR, and crt give the directions the crt considers appropriate to facilitate the preparation of the report, including about inspection, examination or experiment for the report.
