Is your affidavit logically, grammatically and ethically wrong? Part 3: Recent decisions challenge Kane's Hire

As the standards surrounding affidavit evidence continue to evolve, legal practitioners are re-evaluating best practices for recording witness recollections, particularly in circumstances where only the gist of a conversation is remembered.

Background

In our previous bulletin, we discussed the Federal Court decision of Kane's Hire, which has sparked a debate between practitioners as to the best practice for recording evidence of conversations in affidavits. In Kane's Hire, Jackman J criticised the practice in NSW of recording witness evidence of conversations in direct speech, in circumstances where the witness was only able to recall the gist of what was said.

In our subsequent bulletin, we discussed the case of Gan v Xie, which reaffirmed Kane's Hire in the New South Wales Courts. Recently, in Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766, Jackman J made adverse findings against a witness's credibility on the