Notice of intention to adduce tendency evidence (Form 64)

Section 97 of the Evidence Act 1995 (Cth), the tendency rule, says evidence of a person's character, reputation, conduct or tendency is not admissible to prove that the person has or had a tendency to act in a particular way or have a particular state of mind, 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 30.31 of the Federal Court Rules 2011 requires the notice to be in accordance with Form 64. The Court can dispense with the notice requirement on application (s 100), and notice is not needed for evidence led to explain or contradict another party's tendency evidence (s 97(2)).

When you need it

• You want to prove that a person (a party or someone else) has a tendency to act in a particular way or to have a particular state of mind, using evidence of their character, reputation, conduct or tendency.
• You are in a Federal Court proceeding where tendency reasoning is part of your case, for example a pattern of conduct.
• Not needed where you are only answering tendency evidence led by another party (s 97(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 said to have the tendency.

3. 3

   Evidence required

   State the substance of the evidence you will adduce and, if it includes evidence of conduct, so far as known, the date, time, place and circumstances of the conduct, the names of people who saw, heard or otherwise perceived it and, in a civil case, their addresses (Evidence Regulations 2018 s 7(2)).

4. 4

   Character, reputation, conduct or tendency

   Specify the character, reputation, conduct or tendency the evidence is about, and then the tendency you are trying to prove. Frame the tendency precisely.

5. 5

   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 early enough to be reasonable notice under section 97(1)(a).
• If notice was not given, apply to the Court under section 100 for a direction that the tendency rule does not apply to the particular evidence. The application can be made before or after the time for notice (s 100(3)).

• The form's prompts refer to the old Evidence Regulations. The content requirements are now in the Evidence Regulations 2018 (Cth) s 7(2), which contains the same requirements.
• Notice alone does not make the evidence admissible. The Court must also be satisfied it has significant probative value (s 97(1)(b)).
• A vaguely framed tendency is harder to justify. State the specific tendency and link each item of evidence to it.