Notice of intention to adduce evidence of previous representation (Form 62)

The hearsay rule in the Evidence Act 1995 (Cth) usually excludes evidence of an out-of-court statement (a "previous representation") used to prove the fact asserted. In civil proceedings, sections 63(2) and 64(2) create exceptions where the maker of the representation is not available, or is available but calling them would cause undue expense or delay or would not be reasonably practicable. Those exceptions only apply if the party has given reasonable written notice to each other party (s 67(1)), and the notice must state the provisions relied on and, for section 64(2), the grounds (s 67(3)). Rule 30.29 of the Federal Court Rules 2011 requires the notice to be in accordance with Form 62 and allows an affidavit setting out the evidence to be attached.

When you need it

• You want to lead hearsay evidence in a Federal Court civil case because the person who made the statement has died, cannot be found or is otherwise not available (s 63).
• The maker is available, but calling them would cause undue expense or undue delay, or is not reasonably practicable (s 64(2)).
• You want to give notice early enough to be "reasonable notice" under section 67(1). If you missed it, the Court can still direct that the exception applies (s 67(4)), but that needs an application.

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 provision relied on

   Address it to each other party by full name, insert your own name, and keep either subsection 63(2) or subsection 64(2), deleting the other.

3. 3

   Evidence of representations

   State the substance of the representation you will adduce and any other relevant representations by the same person, and, so far as known, the date, time, place and circumstances, who made it and to whom, and (in a civil case) their addresses (Evidence Regulations 2018 s 6(2)). You can do this by referring to paragraphs of an attached affidavit. If the representation is in writing, attach a copy of the document or relevant part (s 6(5)).

4. 4

   Person not available (section 63)

   If you rely on section 63(2), state the facts on which you say the maker is not available to testify (Evidence Regulations 2018 s 6(3)). Otherwise delete this section.

5. 5

   Undue expense, delay or impracticability (section 64)

   If you rely on section 64(2), tick the ground or grounds and state the facts you will rely on to establish them (s 6(4)). Otherwise delete this section.

6. 6

   Date and sign

   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 in good time. The exceptions do not apply unless reasonable notice has been given (s 67(1)).
• If the notice relies on section 64(2), other parties have 21 days after it is given to object using Form 63 (s 68(1)).

• The form's prompts refer to the old Evidence Regulations. The content requirements are now in the Evidence Regulations 2018 (Cth) s 6, which contains the same requirements.
• Be specific about why the maker is unavailable or why calling them is impracticable. Thin particulars invite an objection.
• Attaching an affidavit that sets out the representations (r 30.29(b)) is often the cleanest way to give the substance of the evidence.