Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 6 June 2020 at 12:36)
Part 31 Division 1
Division 1 Evidence at hearing
31.1   Manner of giving evidence at trial
(cf SCR Part 36, rule 2; DCR Part 28, rule 2; LCR Part 25, rule 9)
(1)  This rule applies to a trial of proceedings commenced by statement of claim, or in which a statement of claim has been filed.
(2)  Subject to subrules (3), (4) and (5) and to the provisions of the Evidence Act 1995, a witness’s evidence at a trial must be given orally before the court.
(3)  The court may order that all or any of a witness’s evidence at a trial must be given by affidavit or, subject to rule 31.4, by witness statement.
(4)  Unless the court orders otherwise, evidence of facts must be given by affidavit if the only matters in question are—
(a)  interest up to judgment in respect of a debt or liquidated claim, or
(b)  the assessment of damages or the value of goods under Part 30, or
(c)  costs.
(5)  Unless the court otherwise orders, at any trial on an assessment of the amount to be recovered by a plaintiff after default judgment has been given, the following evidence may be given by affidavit—
(a)  evidence of the identity of any motor vehicle,
(b)  evidence of the damage sustained by a motor vehicle in a particular collision,
(c)  evidence of the reasonable cost of repairing that damage.
31.2   Evidence of witnesses at other hearings
(cf SCR Part 36, rule 3; DCR Part 28, rule 3)
Subject to rule 31.1, evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise.
31.3   Evidence by telephone, video link or other communication
(cf SCR Part 36, rule 2A; DCR Part 28, rule 2A; LCR Part 23, rule 1C)
(1)  If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.
(2)  This rule does not apply in circumstances in which leave for remote appearances from New Zealand in Australian proceedings within the meaning of the Trans-Tasman Proceedings Act 2010 of the Commonwealth could be granted under that Act.
31.4   Court may direct party to furnish witness statement
(cf SCR Part 36, rule 4A)
(1)  The court may direct any party to serve on each other active party a written statement of the oral evidence that the party intends to adduce in chief on any questions of fact to be decided at any hearing (a witness statement).
(2)  A direction under subrule (1)—
(a)  may make different provision with regard to different questions of fact or different witnesses, and
(b)  may require that notice be given of any objection to any of the evidence in a witness statement and of the grounds of any such objection.
(3)  Each witness statement must be signed by the intended witness unless the signature of the witness cannot be procured or the court orders otherwise.
(4)  If an intended witness to whose evidence a witness statement relates does not give evidence, no party may put the statement in evidence at the hearing except by leave of the court.
(5)  If the party serving the statement calls as a witness at the hearing any person whose witness statement has been served pursuant to a direction under subrule (1)—
(a)  that person’s witness statement is to stand as the whole of his or her evidence in chief, so long as that person testifies to the truth of the statement, and
(b)  except by leave of the court, the party may not adduce from that person any further evidence in chief.
(6)  A party who fails to comply with a direction given under this rule may not adduce evidence to which the direction relates, except by leave of the court.
(7)  This rule does not deprive any party of the right to treat any communication as privileged and does not make admissible any evidence that is otherwise inadmissible.
(8)  An application by a party for an order that the party not be required to comply with a direction under this rule in respect of any proposed witness or witnesses (whether or not such a direction has been given) may be made without serving notice of motion.
31.5   Notice under s 67 or s 99 of the Evidence Act 1995
(cf SCR Part 36, rule 13D; DCR Part 28, rule 9A; LCR Part 23, rule 3A)
Unless the court orders otherwise, notice for the purposes of section 67 or 99 of the Evidence Act 1995 must be given—
(a)  in any case where the court by notice to the parties fixes a date for determining the date for hearing, not later than 21 days before the date fixed by that notice, and
(b)  in any other case where the place of hearing is a place other than Sydney, not later than 21 days before the first call-over held in respect of the sittings at that place, and
(c)  in any other case, not later than 21 days before the date on which the court determines the date for hearing.
31.6   Evidence on commission
(cf SCR Part 36, rule 6; DCR Part 28, rule 7)
(1)  The court may permit a party to any proceedings the subject of an order under rule 24.3 (relating to the taking of evidence otherwise than at trial) to tender in the proceedings the evidence of a person examined under the order.
(2)  The evidence is not admissible in the proceedings if—
(a)  it appears to the satisfaction of the court that the person examined is in New South Wales and is able to attend the hearing, or
(b)  the evidence would not have been admissible had it been given orally at the hearing of the proceedings.
(3)  If it is in the interests of justice to do so, the court may exclude from the proceedings any evidence of the person examined even though the evidence is otherwise admissible.
(4)  Unless the court orders otherwise, evidence in any proceedings that a case falls within—
(a)  subrule (2)(a), or
(b)  section 8(2)(a) or 22(2)(a) of the Evidence on Commission Act 1995, or
(c)  section 9(2)(a) of the Foreign Evidence Act 1994 of the Commonwealth,
may be given by affidavit on information and belief, but the person making the affidavit must give the source of and ground for the information and belief.
(5)  The judicial officer presiding at the trial may make any necessary observations and findings as to demeanour and credibility of the person examined, and act on them for the determination of the issues at the trial, if—
(a)  the examination has been conducted by the same judicial officer, or
(b)  an audio-visual recording under rule 24.13 is tendered in evidence at the trial,
except where the trial is before a jury.
(6)  In this rule, evidence includes—
(a)  any document or thing produced at the examination, and
(b)  any answers made (whether in writing, or orally and reduced to writing) to any written interrogatories presented at the examination, and
(c)  any audio-visual recording made in accordance with rule 24.13.
31.7   Foreign material
(cf SCR Part 36, rule 6B)
(1)  Unless the court orders otherwise, a party who adduces foreign material under section 24 or 32 of the Foreign Evidence Act 1994 of the Commonwealth as evidence—
(a)  must give at least 14 days’ written notice to each other active party of—
(i)  the intention to adduce evidence under that section, and
(ii)  the nature of the foreign material, and
(b)  must adduce all relevant evidence available to that party—
(i)  as to whether the person who gave the testimony that is the subject of the foreign material is in Australia and is able to attend the hearing, and
(ii)  if the foreign material is adduced under section 24 of the Foreign Evidence Act 1994 of the Commonwealth, of the matters to which section 25(2)(a) or (c) of that Act refer, and
(iii)  if the foreign material is adduced under section 32 of the Foreign Evidence Act 1994 of the Commonwealth, of the matters to which section 33(2)(a) or (c) of that Act refer.
(2)  In this rule foreign material has the same meaning as it has in the Foreign Evidence Act 1994 of the Commonwealth.
31.8   Earlier evidence in the same proceedings
(cf SCR Part 36, rule 5; DCR Part 28, rule 6)
(1)  Evidence taken at a trial with respect to a question that is ordered to be tried separately may be used in any subsequent trial in the same proceedings, saving all just exceptions and unless the court orders otherwise.
(2)  Evidence taken at a trial may be used for any subsequent trial for the assessment of damages or of the value of goods in the same proceedings, saving all just exceptions and unless the court orders otherwise.
(3)  Subject to subrules (1) and (2), evidence taken at a hearing may not be used as evidence in any subsequent hearing in the same proceedings except by leave of the court.
31.9   Earlier evidence in other proceedings
(cf SCR Part 36, rule 7; DCR Part 28, rule 10)
(1)  In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise.
(2)  Leave may not be granted under subrule (1) except to allow the evidence taken, or affidavit filed, in the other proceedings to be used in relation to the proof of particular facts.
31.10   Plans, photographs, audio-visual recordings and models
(cf SCR Part 14, rule 2, Part 36, rule 8; DCR Part 28, rule 11; LCR Part 23, rule 4)
(1)  At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.
(2)  A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except—
(a)  in the case of a prescribed item—where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or
(b)  in any other case—by leave of the court.
(3)  This rule does not apply to any proceedings entered, or intended to be entered, in—
(a)  the Commercial List or the Technology and Construction List in the Supreme Court, or
(b)  the Commercial List or the Construction List in the District Court.
(4)  In this rule—
audio-visual recording includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means.
prescribed item means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing.
31.11   Production of court documents
(cf SCR Part 36, rule 10; DCR Part 28, rule 13; LCR Part 23, rule 6)
Unless the court orders otherwise, the registrar must produce to the court any document in the registrar’s custody that, by notice in writing, any party to proceedings requests the registrar to produce to the court for the purposes of the proceedings.
31.12   Proof of court documents
(cf SCR Part 36, rule 9; DCR Part 28, rule 12; LCR Part 23, rule 5)
(1)  A document purporting to be marked with the seal of any court or tribunal is admissible in evidence without further proof.
(2)  For the purposes of subrule (1), it is sufficient that only the first page of a document consisting of multiple pages is marked with the seal.
31.13   Unstamped documents: arrangements under section 304 of the Duties Act 1997
(cf SCR Part 36, rule 10B)
(1)  The “usual undertaking by person liable” if given to the court by a party in relation to an instrument referred to in section 304(2) of the Duties Act 1997 is an undertaking that the party will, within a time specified by the court, transmit the instrument to the Chief Commissioner of State Revenue.
(2)  The “usual undertaking by person not liable” if given to the court by a party in relation to an instrument referred to in section 304(2) of the Duties Act 1997 is an undertaking that the party will, within a time specified by the court, forward to the Chief Commissioner of State Revenue the name and address of the person liable to pay duty on the instrument under that Act together with the instrument.
31.14   Unstamped documents: undertaking in respect of section 29 of the Stamp Duties Act 1920
(cf SCR Part 36, rule 10A; DCR Part 28, rule 13A)
(1)  The “solicitor’s usual undertaking as to stamp duty”, if given to the court by a solicitor in relation to an instrument referred to in section 29 of the Stamp Duties Act 1920, or an unexecuted copy referred to in that section, is an undertaking that the solicitor will cause the instrument or copy to be presented to the Chief Commissioner of State Revenue for assessment in accordance with that Act and cause any duty and fine to which the instrument or copy is liable to be paid.
(2)  The “party’s usual undertaking as to stamp duty”, if given to the court by a party in relation to an instrument referred to in section 29(4) of the Stamp Duties Act 1920, is an undertaking that the party will, within 28 days, inform the Chief Commissioner of State Revenue of the name of the person primarily liable to duty in respect of the instrument and lodge the instrument or a copy of the instrument with the Chief Commissioner.
31.15   Evidence of consent to act as tutor, trustee, receiver or other office
(cf SCR Part 36, rule 11)
(1)  A document—
(a)  purporting to contain a person’s written consent to act as tutor of a person under legal incapacity, to act as trustee, to act as receiver or to act in any other office on appointment by the court, and
(b)  purporting to have been duly executed and authenticated,
is evidence of the consent.
(2)  A document is duly executed and authenticated for the purposes of subrule (1)—
(a)  in the case of a consenting person who is a natural person, if the document is signed by the consenting person and the signature is verified by some other person, or
(b)  in the case of a consenting person that is a corporation, if the seal of the corporation is affixed to the document in accordance with the law regulating the use of the seal.
31.16   Evidence of published research concerning maintenance of children
(cf SCR Part 36, rule 13E)
If the proper needs of a minor are relevant, the court may have regard, to the extent to which it considers appropriate, to any relevant findings of published research in relation to the maintenance of minors.
31.16A   Return of exhibits
(cf SCR Part 75, rule 3I)
Where proceedings have been concluded and—
(a)  4 months have expired since the conclusion, and
(b)  there is no undisposed of appeal, or application for leave to appeal, in respect of the proceedings,
the registrar may, unless the court otherwise orders, return any exhibit in the proceedings still in the custody of the registrar by forwarding it to the party from whom it was received.