Other issues

5.153 In DP 69, an issue was raised regarding the form of evidence presented in affidavits in proceedings in New South Wales. In civil proceedings other than a trial, such as interlocutory applications, evidence is usually given by affidavit, unless the court agrees to accept oral evidence.[194] In some jurisdictions, certain evidence in a trial may be given solely by affidavit on the direction of the court.[195]

5.154 The adducing of evidence by affidavit was not dealt with specifically in the previous Evidence inquiry. It was submitted to this Inquiry, following IP 28, that the uniform Evidence Acts should contain provisions governing the form and content of affidavits on the basis that the Acts are concerned with the presentation of evidence generally.[196] One concern in particular was the requirement in New South Wales under the previous rules of the Supreme Court of New South Wales that affidavits be made in the first person and in direct speech.[197] Since the publication of DP 69, a new Civil Procedure Act 2005 and Uniform Civil Procedure Rules have been introduced in New South Wales with the aim of rationalising and simplifying the state’s civil court rules.[198] The new rules largely follow the previous rules, but do not have an express requirement of direct speech.[199]

5.155 Many of the conventions regarding affidavit evidence differ between courts and may or may not be struck out by the court at its discretion. Practice also differs between states. On that basis, it was asked in DP 69 if the uniform Evidence Acts should contain provisions dealing with the form of affidavit evidence. If so, what considerations should be included in such a section?[200]

5.156 The Commissions did not receive many submissions addressing this issue. Of those that did, the majority is of the view that questions of the form of affidavit evidence are best dealt with by the rules of the relevant court and not in the uniform Evidence Acts.[201] The Australian Securities and Investments Commission supports the inclusion of rules regarding affidavits in the Acts, on the basis that national consistency would reduce confusion and inconvenience for litigators who conduct litigation in a number of different jurisdictions.[202]

5.157 There are a number of matters, which, although in one sense ‘evidentiary’, are omitted from the uniform Evidence Acts because they are largely procedural in nature. The Commissions consider that these matters are best dealt with by the rules of the relevant courts, and on this basis, no change is recommended.

[194] B Cairns, Australian Civil Procedure (5th ed, 2002), 447.

[195] Ibid, 447.

[196] S Finch, Consultation, Sydney, 3 March 2005.

[197]Supreme Court Rules 1970 (NSW), Pt 38, r 2 (repealed).

[198]Civil Procedure Act 2005 (NSW).

[199]Uniform Civil Procedure Rules 2005 (NSW), Pt 35.

[200] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Q 5–1.

[201] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[202] Australian Securities & Investments Commission, Submission E 97, 20 September 2005.