Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/207

 is generally accepted by the tribunal of fact. But there is a decided air of artificiality running through all the affidavit evidence to the extent it presents a picture of any real deliberation or any indecision as to whether the Project team would ever proceed with airing Ms Higgins' allegations.

763 This is an unusual case where there is a very comprehensive contemporaneous documentary record, including text and other messages and lengthy audio records. We know what people were saying (and can infer what people were thinking) by reference to real time records. I do not propose to accept representations, made at a high level of generality, about what was in a person's mind or what they said when the relevant state of mind or action is contradicted by facts otherwise established by the contemporaneous material, or particular circumstances in that reliable material point to its rejection: Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 (at 370–371 per Gibbs J, with whom Stephen J agreed, and Murphy J generally agreed); Ashby v Slipper (at 347 [77] per Mansfield and Gilmour JJ).

764 Although I do refer below to some aspects of the affidavit material, irrespective as to challenge by cross-examination, for affidavit evidence to be accepted, it must be persuasive in the sense that it does not jar with candid contemporaneous representations. In making this comment I am not saying anything different to what I said in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 377 ALR 234 (at 269 [110]–[113]), where I also repeated the comment made by Lord Woolf MR contained in the Access to Justice Report, Final Report (London, HMSO), 1996 (at [55]) that:

Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.

765 Or the reality known by any experienced litigator reflected in observations of Nettle and Gordon JJ (citing my observations in Lloyd v Belconnen with apparent approval) in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785 (at 810 [112]):

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey …

766 There was no denial of procedural fairness in this case: everyone knew what was in issue, and everyone had a chance to address those issues. Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369