QLD What to Include in an Affidavit?

[MartyK]

I think the most important thing for the OP to know at this stage, given she has already filed her affidavit, is that future offers have the effect of withdrawing earlier ones. This includes those made from the other side. As such some of the earlier offers will now be irrelevant.

@Lennon - you are correct in saying "without prejudice" offers are inadmissible, however, open offers are admissible. See Family Law Rules 2004 - Rule 10.02. Rob is also correct in saying that an SRL may be unaware of all of the rules of evidence etc and while it does not mean all inadmissible evidence will become admissible, the Courts will usually give some leniency to the documents of an SRL.

I have seen some Judges, at times, reminding lawyers that the other party is an SRL when they (the lawyer) has tried to argue that the SRL's affidavit should be struck out very early on in the piece.

 

[Lennon]

I think the most important thing for the OP to know at this stage, given she has already filed her affidavit, is that future offers have the effect of withdrawing earlier ones. This includes those made from the other side. As such some of the earlier offers will now be irrelevant.

@Lennon - you are correct in saying "without prejudice" offers are inadmissible, however, open offers are admissible. See Family Law Rules 2004 - Rule 10.02. Rob is also correct in saying that an SRL may be unaware of all of the rules of evidence etc and while it does not mean all inadmissible evidence will become admissible, the Courts will usually give some leniency to the documents of an SRL.

I have seen some Judges, at times, reminding lawyers that the other party is an SRL when they (the lawyer) has tried to argue that the SRL's affidavit should be struck out very early on in the piece.

The OP is in the Federal Circuit Court so I don't think that Rule 10.02 of the Family Law Rules applies (happy to be corrected). In any event, the effect of Rule 10.02 is that all offers are treated as "without prejudice" (whether those words are on them or not) unless they are expressly stated to be "open". This is consistent with the exception in s 131(2)(d) of the Evidence Act.

I am aware that Judges are required to give SRL leniency in relation to their documents, but that doesn't mean that the advice offered to SRL here should be inaccurate. The OP was specifically asked about the admissibility of offers of settlement, I was trying to clarify the law about that for the benefit of the OP and other SRL's who may stumble across this thread and be led to believe that there is no restriction on attaching offers to affidavits. There clearly are restrictions on disclosing offers of settlement, for good reason.

 

[MartyK]

As you have pointed out the Federal Circuit Court Rules are made under the Federal Circuit Court of Australia Act 1999. The Family Law Rules are made under the Family Law Act 1975 and Rule 10.02 is consistent with the Evidence Act.

I expect you are aware also, some of the Family Law Rules also apply to matters heard in the Federal Circuit Court. One of the reasons for this being that the Family Law Rules become relevant when matters are transferred between the Courts and also on appeal. I believe that rule 10.02 is one such rule.

Whether an offer is made without prejudice or not, in the absence of it being specifically referenced as such can be subjective, particularly if we are talking about written offers between parties themselves. I dare say that unless one party has a lawyer, most litigants wouldn't even know what without prejudice even means. At least at the beginning of proceedings.

I am aware that Judges are required to give SRL leniency in relation to their documents, but that doesn't mean that the advice offered to SRL here should be inaccurate. The OP was specifically asked about the admissibility of offers of settlement, I was trying to clarify the law about that for the benefit of the OP and other SRL's who may stumble across this thread and be led to believe that there is no restriction on attaching offers to affidavits. There clearly are restrictions on disclosing offers of settlement, for good reason.

I agree with you that the OP should have received accurate information or that perhaps something like "as far as I am aware..." should have preceded an uncertain response.

Keep in mind, however, that this a public forum and that many members are trying to be helpful. For the most part mistakes are innocent.

I think it is helpful to the OP and others that you have provided the section of the Evidence Act relevant to her question.

 

[Lennon]

Thanks MartyK - it wasn't my intention to criticise previous posters, but to clarify the position for the OP and others who may read this thread. I am in WA so the particular interaction between the Family Law Rules and the FCC Rules isn't something I am particularly familiar with.