Don’t bring your affidavits to Justice Lee … Federal Court judge delivers a bollicking … In remembrance of Lord Buckmaster … Witnesses statements by affidavit … Herbert Smith Freehills in the frame … Inauthentic accounts of evidence … Leaky wells … Legal drafting supplants “real words” … Janek Drevikovsky reports 

Ruling on an industrial stoush between Qantas and the Transport Union, Justice Lee took aim at the parties’ lawyers for running the case solely on “elaborate … costly” and inauthentic affidavits, rather than in-person evidence.

HH directed special displeasure at Qantas’ advisors, former judge Neil Young QC and commercial shop Herbert Smith Freehills, who had expressed their “strong preference” for affidavits. 

That preference was despite a Federal Court practice note, which requires evidence to “ordinarily” be in oral format. 

It was also despite Justice Lee’s abhorrence for affidavits, which he raised in an early case management hearing: 

“I’m always conscious of what Lord Buckmaster said – and this is no [reflection on] any party, but it’s a famous quote that used to be repeated constantly by the Honourable T.E.F. Hughes AO QC, and that is that the truth comes out of affidavits like water from a leaky well.”

Witness statements were no longer authentic accounts of lay evidence, Justice Lee said, and were now just another, highly technical branch of legal drafting. Yet, Qantas, with the union’s approval, persisted in giving evidence-in-chief solely by affidavit. 

Justice Lee was unimpressed.

One of Qantas’ witnesses, general counsel Andrew Finch, swore an affidavit that omitted certain crucial events and misrepresented others.

The inaccuracies were understandable, Qantas argued – its lawyers, HSF, had drafted the affidavit to avoid any “extraneous material” and, at the time of drafting, they couldn’t have known what would be relevant and would be irrelevant. 

Justice Lee made short shrift of this submission: 

“I reject the suggestion that the drafting was the result of seeking to confine the ambit of the evidence in chief … Rather, the affidavit was drafted to detail a narrative subjectively thought by the draftsman to be defensible as being literally correct.

“The nature of the evidence adduced in chief has caused me disquiet.” 

Another of Qantas’ witnesses, head of planning Paul Nicholas, admitted in cross exam that he had no hand in writing his own statement, which was drafted for him after a “series of discussions and [a] page turn of documents”. 

Although Justice Lee rated Mr Nicholas as honest, the approach to drafting his affidavit explained why there were errors in his evidence: 

“[I]t is perhaps unsurprising Mr Nicholas might have had some difficulty in remembering his contemporaneous thoughts with any precision and separating them from reconstructions inadvertently moulded by discussions and a documentary review conducted for the purpose of him giving evidence.”

Last came the affidavit of Andrew David, a Qantas executive. His Honour pointed out that Mr David’s “authentic” voice, which the court heard during cross exam, was worlds away from the language used in the affidavit, which the judge quoted for illustration: 

“Having been shown paragraph 40 of the Amended Statement of Claim which has been filed in this proceeding, I reject and deny that any part of my reasons for deciding to outsource the Ground Services, included any of the reasons alleged in that paragraph.”

Versus Mr David’s real voice: 

“Well – okay. I thought I had explained. My understanding was that gave me, then, the authority to make that decision confident, then I could execute on contracts … My assumption was that this allowed me – was a convenient way to do it.”

Justice Lee deplored the affidavit’s inauthenticity. 

“It is a suboptimal approach to the taking of a genuine account of a lay witness as to the facts-in-issue to show them a complex legal document and then recount their reaction as though they were pleading to it.”

He championed the old practice of the NSW Equity Division, where until recently, all witnesses read their affidavits aloud. 

“[I]t reminded those settling affidavits that the written account was supposed to be in the real words of the witness, not an example of legal drafting; it also meant that they were succinct and to the point.” 

Justice Lee ruled for the union in the main event, finding Qantas had improper motives for outsourcing 2000 ground crew jobs last year. 

Transport Workers’ Union of Australia v Qantas Airways Limited