Contemporaneous file notes: why have one and what are the requirements?

Contemporaneous file notes are documentary evidence of direct oral contact pertaining to the facts of a conversation, noted as soon as practicable after a conversation has taken place.  Where there is a conflicting claim regarding an oral instruction or conversation, contemporaneous file notes may provide evidence to the Court beyond that of mere hearsay and may protect the interests of the person who made the note if later relied upon in legal proceedings.

What is a contemporaneous file note?

A contemporaneous file note can be a piece of documentary evidence of direct oral contact pertaining to the facts of a conversation, noted either during, or as soon as practical after, a conversation has taken place.   Where there is a conflicting claim regarding a conversation that is said to have occurred, a contemporaneous file note may provide evidence to the Court beyond that of mere hearsay.  It can act to  protect the interests of the person who made the note if it is later attempted to be relied upon in legal proceedings.

Why have contemporaneous file notes – what is the benefit of creating one?

Contemporaneous file notes are beneficial to the author as, if called upon in future litigation, they may be admitted as evidence to substantiate a claim of an oral conversation.  Under sections 55 and 56 of the Commonwealth Evidence Act 1995 (Cth) (Act), relevant evidence, such as a contemporaneous file note, is admissible if it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding if accepted.

In Queensland, section 92 of the Evidence Act 1977 (Qld), states where a fact is in issue and there is direct oral evidence of the fact that would be admissible, a statement in a document, such as a contemporaneous file note, that purports to establish or verify the fact in issue can be admitted as evidence.

What are the admissibility requirements of contemporaneous file notes?

For a file note to be admissible in Federal Court proceedings, either the maker of the statement needs to have had personal, first-hand knowledge of the matter in which the statement addresses, or the statement must have been recorded in the course of an “undertaking” from information supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matter.

In Lindsay-Owen v Lake [2000] NSWSC 1046, Justice Hodgson held that if the evidence is given orally, rather than on an affidavit, the witness can refer to contemporaneous file notes taken during preparation for giving evidence.

 In King v Bryant (No 2) [1956] St R Qd 570 the Court held, that when a witness purports to have refreshed their memory outside Court from a document, such as a contemporaneous note, and swears that the oral evidence is their own independent recollection, the evidence is admissible regardless of whether the document is produced or not as the memory exists independently from the document.

What should a good contemporaneous file note contain?

Effective file noting would see the author record during, or as soon as practicable after the conversation, the things that were discussed, any advice given or received and the time and duration of the conversation as well as the time of recording the note.

To ensure proper record keeping and to support the validity of the contemporaneous note, the writer should include the following:

• the date that the note was made and was recorded;
• the time that the entry was made should be recorded using 24-hour time;
• the writer should record their name and signature directly underneath the note;
• write in a manner that is clear and legible and avoid using abbreviations.

Links and further references

Legislation

Evidence Act 1995 (Cth)

Evidence Act 1977 (Qld)

Cases

Lindsay-Owen v Lake [2000] NSWSC 1046

King v Bryant (No 2) [1956] St R Qd 570

Further information about record keeping

If you need advice on record keeping in litigious matters, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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