Notice of objection to tender of hearsay evidence if maker of representation available (Form 63)

Where a party gives notice that it will rely on section 64(2) of the Evidence Act 1995 (Cth), it is saying that the maker of a statement is available but should not have to be called because that would cause undue expense or undue delay or would not be reasonably practicable. Section 68 lets another party object to the tender of that evidence, or a specified part of it, not later than 21 days after the notice was given, by giving each other party a written notice setting out the grounds. Rule 30.30 of the Federal Court Rules 2011 requires that notice to be in accordance with Form 63. The Court may decide the objection at or before the hearing (s 68(3)), and if the objection is unreasonable it may order the objector to pay the costs of the objection and of calling the witness on a solicitor and client basis (s 68(4)).

When you need it

• You have been given a Form 62 notice that relies on section 64(2) in a civil Federal Court proceeding.
• You want the maker of the statement called so they can be cross-examined, rather than having their statement tendered.
• You are within 21 days after the notice was given (s 68(1)).

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

   Identify the notice you object to

   Insert the full name of each other party, your own name, the name of the party who gave the Form 62 notice and the date of that notice.

3. 3

   Ground of objection

   State the ground on which you object and the part or parts of the evidence it relates to (s 68(2)). For example, explain why calling the witness would not cause undue expense or delay, or why it is practicable.

4. 4

   Date and sign

   Sign as the party or the party's lawyer.

• Give the notice in writing to each other party not later than 21 days after the Form 62 notice was given (s 68(1), (2)).
• Rule 30.30 prescribes the form; it does not say the notice must be filed. Follow any directions the Court has made about evidence notices.
• Either party can ask the Court to decide the objection before the hearing (s 68(3)).

• Object only where there is a real reason to have the witness called. An unreasonable objection can carry a solicitor and client costs order (s 68(4)).
• Be specific about which parts of the evidence you object to. You can object to a specified part only (s 68(1)).
• Section 68 and Form 63 only apply where the notice says the maker will not be called because of undue expense, undue delay or impracticability (s 64(2) grounds). They do not apply to a notice relying on section 63.