5 Against that general law background, Mr Campbell went to the Evidence Act 1995. He referred to the central provisions in ss.55 and 56 to the effect that evidence which could rationally affect the probability of a fact in issue is admissible, subject only to the exclusionary rules in subsequent parts of the Act including, ultimately, the rule in s.135 under which the court has a limited discretion to exclude evidence. Unless some provision of the Act makes a particular statement inadmissible, he said, it is admissible subject only to the possible operation of the s.135 discretion.
6 Mr Weber, who, with Mr Sullivan QC, appears for the plaintiffs, submitted that s.29 of the Act has a bearing on this matter. He pointed to s.29(2) which says that a witness may give evidence in narrative form only if a special direction to that effect is made by the court, thus confirming that evidence should not normally be in narrative form. He took me to the decision of the present Chief Judge in Equity in Ramirez v Sandor's Trustee (NSWSC, unreported, 22 April 1997). But in that case his Honour held that s.29(2) only applies where the evidence in question is to be given orally. With respect, I agree with Young J that s.29(2) has no bearing upon a case where the relevant evidence is in an affidavit. I have no doubt that the position is the same where, as here, the evidence is to be given by statement which the witness affirms in a compendious way at the start of his testimony.
7 The meaning of "narrative form" is discussed at paragraph 29.3 of the fourth edition of Mr Odgers' book "Uniform Evidence Law" by reference to an extract from the relevant report of the Australian Law Reform Commission. It is also referred to at paragraph 3245.2 of Ritchie's "Supreme Court Procedure NSW". Both sources show reasonably clearly, I think, that "narrative form" is used in contradistinction to the familiar process by which a witness giving oral evidence is asked questions and the witness's evidence takes the form of the answers given to those questions. "Narrative form" refers to the situation where a witness stands in the witness box and speaks without being questioned. Section 29(2) does not apply to and is of no assistance in the present case.
8 There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form. The statements in the two Queensland cases to which Mr Campbell took me share a common thread of the witness's inability to remember the precise words used. In each of the passages I have quoted there is a statement that the witness was unable to remember the precise words. Obviously if a witness can remember them, evidence should be given of the ipsissima verba.
9 The possibility that s.135 may be invoked where evidence of a conversation is given in indirect speech is, of course, real. However, the question under that section will be not merely be whether there is prejudice, but whether that prejudice is unfair prejudice operating against the opposing party because of a curtailment of the ability to cross-examine. I accept that not all the cross-examination opportunities available in a case of direct speech report will arise in case of an indirect speech report, but the ability to engage in meaningful cross-examination will exist nevertheless. There is also the point that the probative value of the evidence may be diminished by its form.
10 In the end, I think all this comes down not to a question of the admissibility of evidence but to the way in which evidence might most appropriately be tendered or adduced. Part 36 r 2 of the Supreme Court Rules reflects a general expectation that evidence will be given viva voce, an expectation very much modified in this Division and modified in a particular way in the Commercial List (Part 36 r 4A and Practice Note 100). However, the primary means based on oral testimony may usefully be resorted to where there are reservations about evidence in affidavit or statement form and where the opportunity can be taken test the witness on whether or not a conversation can be related in direct speech, even if in part only. As Wright shows, it may be useful to have some part of the actual words used, even if the witness cannot remember them all and must resort to descriptive recollection as to the balance.
11 Mr Wise will give oral evidence. Indeed, he must do so if his witness statement is to be put in evidence: Part 36 r 4A(2). The desirable course, therefore, is that the present controversy be resolved by giving leave to the defendants to adduce oral evidence from Mr Wise on the matter covered by the passage in the statement to which objection has been taken. I do not say that that should invariably be done where an affidavit or witness statement reports a conversation in indirect speech; but it is the desirable course here where the conversation concerned plays an important role in the case and the objection has been conscientiously taken.
12 Subject to anything further that counsel may have to say, I propose to give leave to the defendant accordingly, and to decline to allow paragraph 33 of Mr Wise's statement to be read.