8.175 In interlocutory proceedings, parties often rely on affidavits, rather than on witness testimony. Where affidavits contain hearsay, the hearsay evidence will be admissible when tendered as evidence of the fact intended to be asserted by the person who made the representation out of court. Ordinarily, such evidence would be excluded by the general hearsay rule in s 59. However, s 75 of the uniform Evidence Acts provides that the hearsay rule does not apply in interlocutory proceedings ‘if the party who adduces it also adduces evidence of its source’. The rules of court in most federal, state and territory jurisdictions include a similar provision.
8.176 It has been suggested that, by the terms of s 75, the person swearing or affirming the affidavit or making a written statement should be required to swear or affirm to a belief in the information and the reasons for that belief. The same amendment is also suggested for s 172.
Comparison with s 172
8.177 Section 172 requires a similar procedure. In relation to evidence governed by Part 4.6 Div 2, in which s 172 is found, evidence may include evidence based on the knowledge and belief of the person who gives it, or on information that the person has. If a person gives such evidence by affidavit (as permitted by s 170(2)), the deponent will thereby swear or affirm to a belief in the information. Thus, the person will not be required to swear or affirm to a belief in the information other than in the limited circumstance where s 172 applies, and where the evidence is given by affidavit.
8.178 In DP 69, the Commissions noted their intention not to propose any amendment to s 75 of the Acts. It was noted that in the typical affidavit in interlocutory proceedings the deponent declares: ‘I am informed by … and verily believe …’. These are matters going to information and belief. The uniform Evidence Acts do not impose this requirement but, at the same time, do not prevent rules of court imposing such requirements, and the existence of these requirements reflects the fact that the subject under discussion is dealt with outside the uniform Evidence Acts, and appropriately so. The Acts simply prescribe the circumstances in which the hearsay rule does not apply. They do not purport to spell out complete requirements as to the form and content of affidavits.
8.179 Bearing in mind the Commissions’ policy that the uniform Evidence Acts should remain Acts of general application focusing primarily on evidentiary rules rather than matters of procedure, the Commissions are of the view that the appropriate vehicle for any alteration of the requirements of affidavits would be the relevant rules of court. The Commissions affirm that no amendment of s 75 or the related ancillary provisions of the Acts is necessary.
J Heydon, Cross on Evidence (7th ed, 2004), .
A Hogan, Submission E 1, 16 August 2004.
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), [7.255].