1. Introduction: The Inherent Challenges
Evidence of spoken words, particularly conversations or oral agreements alleged to have occurred years prior and not contemporaneously recorded, presents significant challenges for courts. The resolution of such disputes often depends entirely on the parties' credit and accuracy of recollection (Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 at [3]). As the Court of Appeal noted in Turner v Richards [2025] NSWCA 83 at [16], the judicial task involves a "conventional process of fact finding about a disputed conversation about which there was no contemporaneous record." This article outlines the principles guiding the assessment and weighing of such evidence, drawing upon key judicial pronouncements.
2. The Fallibility of Human Memory
A foundational principle is the recognition of the fallibility of human memory. This fallibility "increases with the passage of time, particularly where disputes or litigation intervene" (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [11], citing Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41] per Rares J; and Varma v Varma [2010] NSWSC 786 at [424]-[425] per Ward J. These authorities were also cited with approval in Turner v Richards [2025] NSWCA 83 at [58]).
Lord Pearce observed in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431 (a passage quoted in Turner v Richards [2025] NSWCA 83 at [65]):
"‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred."
This inherent frailty of memory necessitates a cautious approach, especially when significant time has elapsed and the witness has an interest in the outcome of the litigation. In Turner v Richards [2025] NSWCA 83 at [67], the court noted that the appellant's evidence was "given more than five years after the date of the alleged conversation in a context of ongoing hostility and litigation between the parties."
3. The Primacy of Contemporaneous Documents and Objective Facts
Given the unreliability of human recollection, contemporaneous documents and objective facts assume paramount importance. Objective evidence, "where available, is likely to be the most reliable basis for determining matters of credit that arise as to the affidavit evidence" (Turner v Richards [2025] NSWCA 83 at [59], citing Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1 at 57 and Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10]). Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431 (cited in Turner v Richards [2025] NSWCA 83 at [65]) emphasized that "contemporary documents are always of the utmost importance."
This principle was echoed by Legatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (quoted with approval in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [27]-[29], and cited in Turner v Richards [2025] NSWCA 83 at [60]):
“…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts."
Similarly, Atkin LJ's observation in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 Ll L Rep 140 at 152 (cited in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10]) remains highly relevant: "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour".
In Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674, Palmer J grappled with two contemporaneous but conflicting documents, Annexure "A" and Annexure "B". While His Honour found the documents themselves, taken in isolation, to be "equivocal" and "plausible if either version is accepted" (Macquarie Developments at [51]), his ultimate preference for the version supported by Annexure "A" was heavily influenced by his assessment of the credibility of the witnesses who testified as to their creation and content (Macquarie Developments at [78]-[83]). The existence (or absence) of contemporaneous notes can be critical, but their interpretation will still be subject to the overall assessment of evidence.
4. Credibility, Reliability, and Demeanour
A distinction must be drawn between the credibility of a witness (their honesty and truthfulness) and the reliability of their recollection. As Lord Pearce noted in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431, a witness may genuinely believe their account but still be mistaken. The court in Turner v Richards [2025] NSWCA 83 at [14] highlighted that the primary judge was "not persuaded that a conversation occurred in the terms asserted by KT" but "made no finding adverse to Ms Richards’ credit" or "KT’s credit." This underscores that a lack of persuasion does not equate to a positive finding of dishonesty.
The trial judge's assessment of reliability, having seen and heard witnesses (especially under cross-examination), carries significant weight (Turner v Richards [2025] NSWCA 83 at [64], [66], citing Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]). However, demeanour alone is often an insufficient guide. Legatt J in Gestmin (cited in Turner v Richards [2025] NSWCA 83 at [60]) stated that the value of oral testimony "lies largely... in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events."
5. Onus and Standard of Proof
The party alleging the spoken words or oral agreement bears the onus of proving their occurrence and terms on the balance of probabilities (Turner v Richards [2025] NSWCA 83 at [73]). Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] (cited in Turner v Richards [2025] NSWCA 83 at [59]) stated:
"Where a party seeks to rely upon spoken words as a foundation for a cause of action... the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence."
This "reasonable satisfaction" is not established independently of the nature and consequences of the facts to be proved. "The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court" (John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94], citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). This principle was also affirmed in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [12].
6. Identical or "Copied" Affidavit Evidence
Courts exercise extreme caution when faced with affidavits from different witnesses that contain identical or substantially similar wording regarding critical conversations. Palmer J in Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 at [90] (a passage quoted in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [18]) observed:
"Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason."
Such identical accounts "substantially devalue both witnesses' affidavit evidence where no explanation has been given of what occurred" (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [16], discussing Macquarie Developments at [61]-[65]). It is considered "unlikely that two deponents would have a precisely identical recollection, uninfluenced by the recollections of others, of shared experiences" (Ward J in Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 at [186], cited in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [18]). While a satisfactory explanation (such as solicitor error, as accepted in Macquarie Developments at [84]-[93] for the defendants' sons' affidavits) might mitigate the adverse inference, the absence of such an explanation for identical crucial testimony is highly problematic. Furthermore, if it is apparent that one witness had access to another's statement or transcript of evidence before giving their own, this can further undermine the independence and reliability of their account (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [19], referencing Kenneth's access to Helen's cross-examination transcript).
7. Specificity of Recollection and Inherent Probabilities
An asserted recollection that is "remarkably specific for a conversation which occurred five years ago and not recorded anywhere until the affidavit... was sworn" should be approached with significant caution (Turner v Richards [2025] NSWCA 83 at [78], from the Court of Appeal's rehearing analysis). This is particularly the case if the conversation is recalled "in the following terms," suggesting verbatim accuracy years later, as was the situation with KT's affidavit in Turner v Richards [2025] NSWSC 83 (see [12] regarding KT's affidavit, and [81] on the rehearing analysis).
The inherent probabilities of the alleged conversation are also critical. Courts will scrutinise whether the alleged statements align with the known facts, the parties' motivations, and ordinary human experience. For instance, in Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 at [67]-[69], the plaintiffs' delay in seeking repayment of a substantial deposit was considered inconsistent with their claim that the deposit was refundable. In Turner v Richards [2025] NSWCA 83 at [79] (rehearing analysis), an alleged conversation in January/February referring to "the new financial year" months later was deemed questionable. Furthermore, "the absence of any reference [to a significant alleged oral agreement] is a factor tending against acceptance" if such an agreement, had it been made, would logically have been mentioned in subsequent heated correspondence between the protagonists (Turner v Richards [2025] NSWCA 83 at [80]).
8. Failure to Call Material Witnesses
Where a party would be expected to call a witness who could provide material evidence on the disputed conversation, and fails to do so without satisfactory explanation, the court may draw an inference that the uncalled evidence would not have assisted that party's case (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [29], citing, inter alia, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]-[64]; and Australian Securities & Investments Commission v Adler [2002] NSWSC 171; (2002) 168 FLR 253 at [448]). The court may also more confidently draw inferences unfavourable to the party failing to call the witness if that witness could have cast light on the inferences to be drawn (Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [29], citing Jones v Dunkel).
9. Conclusion
Assessing evidence of spoken words is a multifaceted exercise. It requires the court to consider the inherent fallibility of memory, the influence of litigation, the credibility and reliability of witnesses as tested by cross-examination and objective facts, the presence or absence of contemporaneous records, the inherent probabilities of the competing accounts, and the explanations (or lack thereof) for any anomalies in the evidence, such as identical affidavit testimony. The court must ultimately reach a state of "actual persuasion" based on the balance of probabilities, always bearing in mind the principles articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 when serious allegations are involved. A holistic view of all evidence, rather than isolated components, is essential. As stated in Tjiong v Chang [2025] NSWCA 25 at [41] (cited in Turner v Richards [2025] NSWCA 83 at [61]), in a case where there is disputed oral evidence, all the evidence must be considered together.