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19 January 2025

The Impact of Wild v Meduri NSWCA 230 on Affidavit Practices in NSW

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O'Brien Criminal & Civil Solicitors

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O’Brien Criminal and Civil Solicitors defend people against criminal charges anywhere in Australia, as well as litigating defamation cases, and suing police and other authorities for unlawful conduct. We are a strong advocate for social justice issues and pride ourselves on our pro-bono practice. We are a growing and dynamic law firm that occasionally has vacancies for people seeking legal careers or administrative opportunities.
Restoring the permissibility of using indirect speech and phrases such as "words to the effect,"
Australia Litigation, Mediation & Arbitration

The recent decision in Wild v Meduri [2024] NSWCA 230 has marked a pivotal shift in affidavit practices within New South Wales courts, particularly regarding how conversations are presented as evidence. By restoring the permissibility of using indirect speech and phrases such as "words to the effect," the ruling has provided legal practitioners with greater flexibility in drafting affidavits. This article examines the key aspects of this case, its contrast with federal standards, and the implications for legal practitioners.

Key Findings of Wild v Meduri

The ruling in Wild v Meduri overturned earlier practices influenced by Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd and subsequent cases such as Gan v Xie. Prior to this decision, NSW affidavit practices had closely aligned with stricter federal standards, limiting the use of indirect speech.

  1. Restoration of Indirect Speech in Affidavits
    NSW lawyers can now use phrases like "words to the effect" when drafting affidavits. This acknowledges the reality that witnesses often cannot recall exact words, yet their testimony about the general content of conversations remains critical to the court.
  2. Practical Implications for Witness Recollections
    By allowing indirect speech, the ruling eases the evidentiary burden on witnesses and provides lawyers with a more practical approach to drafting affidavits, especially in cases where precise recollection is challenging.
  3. Departure from Earlier Standards
    The decision reflects a departure from the federal approach and earlier NSW case law, emphasizing the importance of flexibility in presenting evidence without compromising its reliability.

Comparison with Federal Standards

Despite this shift in NSW, federal courts continue to adhere to stricter requirements for affidavit evidence. This divergence highlights the need for legal practitioners to be mindful of jurisdiction-specific practices.

  1. Precision in Federal Affidavits
    Federal court rules generally discourage the use of vague or indirect speech. Witnesses are expected to use direct speech only when confident in their exact recollection, which can create challenges when memory is imprecise.
  2. Structural Requirements
    Federal affidavits are typically concise and focused, with strict limitations on length and annexures. This stands in contrast to the more narrative-friendly approach permitted in NSW.
  3. Avoidance of Ambiguity
    The federal preference for precision aims to reduce the potential for ambiguity, ensuring affidavits provide clear, unequivocal evidence.

Implications for Legal Practitioners on

Wild v Meduri

The differing standards between NSW and federal courts present practical challenges for lawyers working across jurisdictions. Legal practitioners must adapt their drafting practices to comply with these varying requirements.

  1. Jurisdictional Awareness
    Lawyers must be acutely aware of the jurisdiction in which their affidavit will be used. In NSW, the new leeway for indirect speech allows a more narrative style, while federal affidavits demand greater specificity and conciseness.
  2. Balancing Flexibility with Accuracy
    While Wild v Meduri provides more flexibility in NSW, practitioners must still ensure that affidavits remain accurate and truthful. Fabricating or embellishing evidence, even when using indirect speech, risks severe consequences.
  3. Strategic Drafting for Multijurisdictional Cases
    For cases involving both NSW and federal jurisdictions, lawyers may need to draft multiple versions of affidavits or carefully tailor their approach to meet the distinct evidentiary standards.

Broader Implications for the Legal Profession

The Wild v Meduri decision underscores the dynamic nature of evidentiary standards and the evolving role of legal practitioners in adapting to these changes. Beyond practical adjustments, the ruling raises questions about the balance between flexibility and reliability in presenting evidence.

The divergence between NSW and federal standards also reflects broader challenges in achieving consistency across Australian jurisdictions. As legal practitioners navigate these differences, the need for ongoing professional development and awareness of court-specific rules is clear.

Wild v Meduri

The case of Wild v Meduri [2024] NSWCA 230 represents a significant evolution in NSW affidavit practices, restoring the use of indirect speech and phrases like "words to the effect." This decision aligns affidavit drafting with the realities of witness recollection, offering a more practical approach for practitioners in NSW. However, the contrast with federal standards underscores the importance of jurisdictional awareness and strategic drafting for lawyers practicing across multiple courts.

As Australian courts continue to refine evidentiary standards, legal practitioners must remain vigilant, adapting their approaches to balance flexibility, precision, and the overarching goal of justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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