Notice of intention to adduce coincidence evidence (Form 65)

Section 98 of the Evidence Act 1995 (Cth), the coincidence rule, says evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind, on the basis that similarities make it improbable the events happened coincidentally, unless the party gave reasonable written notice to each other party and the Court thinks the evidence will have significant probative value. Notices must be given in accordance with the regulations or rules of court (s 99). Rule 30.32 of the Federal Court Rules 2011 requires the notice to be in accordance with Form 65. The Court can dispense with the notice requirement on application (s 100(2)).

When you need it

• You want to argue that, because of similarities between 2 or more events or their circumstances, it is improbable they happened by coincidence, and so a person did a particular act or had a particular state of mind.
• Your case relies on a pattern of similar incidents, transactions or communications.
• Not needed where you are only explaining or contradicting another party's coincidence evidence (s 98(2)(b)).

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names exactly as they appear on the originating application or notice of appeal (rr 2.13, 2.14). If there are two or more applicants or respondents, add "and another" or "and others" after the first name, as the form prompts.

2. 2

   Parties and the person concerned

   Address it to each other party, insert your name and the full name of the person alleged to have done the act or had the state of mind.

3. 3

   Evidence required

   State the substance of the evidence of the 2 or more events and, so far as known, the date, time, place and circumstances of each event, the names of people who saw, heard or otherwise perceived each one and, in a civil case, their addresses (Evidence Regulations 2018 s 7(3)).

4. 4

   Evidence to establish improbability

   Specify the substance of any further evidence you will rely on to show it is improbable the events occurred coincidentally.

5. 5

   Act or state of mind

   Specify the particular act or state of mind you seek to prove, then date and sign as the party or the party's lawyer.

• Give the notice to each other party in writing. Rules 30.29 to 30.32 prescribe the form of these notices rather than requiring them to be filed, so follow any directions the Court has made about exchanging or filing evidence notices.
• Give it early enough to be reasonable notice under section 98(1)(a).
• If notice was not given, you can apply for a direction under section 100(2) that the coincidence rule does not apply to particular evidence.

• The form's prompts refer to the old Evidence Regulations. The content requirements are now in the Evidence Regulations 2018 (Cth) s 7(3), which contains the same requirements.
• Explain the similarities you rely on. The probative value of coincidence evidence turns on them.
• If you are also relying on the same events as tendency evidence, give a Form 64 notice as well.