When should evidence in complex cases be adduced viva voce?

In Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156, the Full Court of the Federal Court has addressed a number of significant issues for commercial litigants, including: the approach to evidence concerning alleged misleading or deceptive conduct, when proceedings may be permanently stayed as an abuse of process, the correct approach to pleading a case of loss of opportunity and the requirements for demonstrating that procedural fairness was not afforded at trial. 

One matter of note includes the discussion by the Court of the particular sensitivities which can arise at a trial of complex commercial issues when evidence in chief is given viva voce. In a judgment addressing a different aspect of Watson v Foxman principles than that which his Honour had already addressed in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Justice Jackman stated (at [278]):

The present case raises a different aspect of the principle expressed in Watson v Foxman, which was itself a case where evidence in chief of the relevant conversations was given by way of affidavit in direct speech. The primary judge in Lantrak I required that evidence in chief be given orally, although directions were also made that outlines of evidence be served on the other side (but not provided to the Court). The primary judge noted that [the Applicant] had grown up in difficult circumstances and was not well educated. His evidence indicated that he was relatively inarticulate. That placed him at a very considerable disadvantage in giving evidence in chief orally, and the passages of his evidence which I have extracted above illustrate his difficulty in giving precise, responsive and well-structured answers to non-leading questions. The primary judge referred at one point to [the Applicant] saying that he had “a memory meltdown” when he was cross-examined about his failure to give discovery of the 9 October note, but later corrected his answers after having calmed down over lunch: [104]. It may also have been the case that the strain of giving evidence in an unfamiliar and tense setting adversely affected [the Applicant’s] ability to retrieve and express his memory of events when attempting to recount them in his evidence in chief. In my view, this case illustrates that an unintended consequence of requiring evidence in chief to be given orally in complex commercial litigation is to place a less educated and articulate witness at a substantial disadvantage. The problem pertains particularly to oral evidence in chief, given that non-leading questions often require relatively lengthy answers which must be expressed clearly in a well-ordered manner if the case is to be revealed in its best light. Cross-examination is necessarily conducted orally, but the problem is not as acute in that context as questions in cross-examination are typically designed to elicit short answers, such as “yes” or “no”. One cannot say with any confidence whether the substance of [the Applicant’s] evidence would have been better conveyed if his evidence had been given by way of affidavit, but in general that course strikes me as a fairer process, in minimising the disadvantage to a less educated and articulate witness in a contest over credibility. Nor is the problem necessarily confined to those who are less educated and articulate. As anyone will attest who has suffered a mental blank during an exam only to find the memory return vividly shortly afterwards when the pressure has dissipated, a tense environment can prevent the retrieval of a memory which has been fully and genuinely formed and which has actually been well retained. It would also have been of assistance to the appellate Court to read the evidence in chief in the lean and sinewy style of well-drafted affidavits, prepared in the more comfortable setting of a solicitor’s office.

His Honour Lee J provided a different perspective (at [24] – [25]): 

Reasonable minds differ on this point. It is important to ensure an inarticulate, nervous, or poorly educated witness does not encounter barriers in giving evidence in chief. Each case is different, and the lodestar in making the case management decision as to the mode of receiving evidence in chief is what best facilitates the resolution of issues “according to law, and as quickly, inexpensively and efficiently as possible”: see s 37M(1)(b) of the FCA Act. A controversy determined “according to law” is a resolution that is just and, as Gleeson CJ observed in relation to a cognate provision of the then Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word “just”: the Hon Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000).

25    While recognising that a just outcome in different cases and involving different types of witnesses will likely call for differing modes of receipt of evidence in chief, as a general proposition, I adhere to the view I expressed in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 253–254 [24]–[27]):

24    … at the first case management hearing (FCMH), I raised with the parties my preference that evidence in chief in relation to controversial facts be led orally. In doing so, I had in mind both the terms of the Practice Note and the sort of considerations thoughtfully discussed by the Hon Justice A Emmett writing extra-judicially in his article, ‘Practical Litigation in the Federal Court of Australia: Affidavits’ (2000) 20 Australian Bar Review 28, where that very highly experienced judge observed (at 28):

Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence in chief orally rather than being exposed to cross-examination immediately upon entering the witness box.

25    Qantas expressed a “strong preference” for affidavits … and senior counsel of the Union perceived some advantages in written evidence in chief, despite my indication … that:

I’m always conscious of what Lord Buckmaster said – and this is no [reflection on] any party, but it’s a famous quote that used to be repeated constantly by the Honourable T.E.F. Hughes AO QC, and that is that the truth comes out of affidavits like water from a leaky well, whereas people come along and tell their story in the witness box, there might be a better chance of the account being given in a more spontaneous way, and it may save a lot of money and cost and time.

26    This aphorism was one I had mentioned in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 377 ALR 234 (at 269 [110]–[113]), where I also repeated the comment made by Lord Woolf MR contained in the Access to Justice Report, Final Report (HMSO), 1996 (at [55]) that:

Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.

27    In citing my observations in Lloyd v Belconnen with apparent approval in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785, Nettle and Gordon JJ observed (at 810 [112]) (footnotes omitted):

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.

Both sets of reasons suggest that practitioners will need to give careful consideration at an early stage of litigation to the particular circumstances of their client when considering, in a case management context, whether evidence in chief ought to be adduced by way of affidavits or orally.

The full reasons of the Court are available here.

Zoë Hillman appeared as junior counsel for the Lantrak Parties, led by Tony Bannon SC and instructed by Arnold Bloch Leibler.

Click here to view the profile of Zoë Hillman.

© Copyright 2018 Alinea Chambers. Telephone (02) 9165 1400. Level 33, 52 Martin Place, Sydney NSW 2000