Affidavits

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This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [1.20]-[1.180], [12.50]-[12.200].

Oaths Act 1900 (NSW), s34 and Oaths Regulation 2011 (NSW).

Introduction

[1] An affidavit is written evidence that is given under oath or affirmation before an authorised person. Affidavits are usually sworn to accompany pleadings - they can set out a witness' evidence in full (substantive affidavits) or they can merely state that they verify something written in a pleading (procedural affidavits). This distinction is not always clear.

  • Affidavits are provided for in the Part 35 of the UCPR, Part 5 of the Oaths Act 1900 (NSW) and the Evidence Act 1995 (NSW). This article deals only with the UCPR and Oaths Act.

Requirements

Oaths and Affirmations

[2] Affidavits must be sworn (an oath) or affirmed (affirmation). The person swearing the affidavit is called the deponent. Affidavits are sworn or affirmed before a justice of the peace or an Australian legal practitioner.

  • Oath:
    • Practitioner: Do you swear that the contents of this your affidavit are true and correct to the best of your knowledge and belief.
    • Deponent: I swear that this affidavit is true, so help me God [or the name of the god recognised by the deponent's religion].
  • Affirmation:
    • Practitioner: Do you solemnly and sincerely declare and affirm that the contents of this your affidavit are true and correct to the best of your knowledge and belief:
    • Deponent: I do.

A person can also make a witness statement, which is like an affidavit but not sworn/affirmed, only signed. Accordingly, it cannot be used as evidence until the person swears/affirms its content: UCPR r 31.4.

Other Requirements

A long list of requirements and conditions is given in the UCPR and the Oaths Act. Some of the relevant ones include:

  • Persons who may be deponents are set out in UCPR r 35.3. Importantly, the deponent must be able to attest to the facts from their own knowledge, not from hearsay.
    • If a person does not have mental capacity to make an affidavit, or is a child, their ‘tutor’ can assist them in making an affidavit.
    • If the party is a corporation or the Crown, an affidavit can be sworn by any member or officer of the entity.
  • Each matter in an affidavit should have its own paragraph, which should be numbered: r 35.4.
  • Alterations to affidavits must be initialed. Erasures must be indicated noted in the margins: r 35.5.
  • Annexures (such as email correspondence, bank statements etc) are to be marked as such and signed. Exhibits ('bigger' evidence) should not be filed: r 35.6.
  • Legal practitioner must add his name, address and profession (barrister/solicitor) on the affidavit: r 35.7A.

Form

[3] Justice Emmett outlines the do's and don't of affidavits:

  • As admissible evidence, affidavits should have a narrative format'.
  • Affidavits should stay in topic and be relevant - irrelevant things the deponent says should not be omitted.
  • Affidavits should not contain hearsay - the deponent must make clear in the words of the affidavit that he has firsthand knowledge of something (ie, On 28 June 2013, I saw Jim punch Mark" as opposed to "Jim punched Mark").

More generally, affidavits should:

  • Identify the deponent and their relationship to the dispute.
  • Set our the matters in a logical order. Headings should be used (table of contents for longer affidavits).
  • Use the deponent's own words.
  • Conversations should be state in direct speech ("I said words to the following effect:...").
  • State only facts which the deponent actually knows, not assumptions or opinions (unless the deponent is an expert witness).
  • Avoid making arguments or submissions (that belongs in pleadings).

One of the main issues with affidavits that lawyers often influence affidavits too much which leads to deponents who afterwards don't entirely recognise lines from their own affidavits. The influence of lawyers on an affidavits and how it might influence the judge's opinion regarding the affidavit was discussed in Ying v Song:[4]

  • Facts: the plaintiff's affidavit had a lot of material which was copied and pasted from previous affidavits, some of which were even corrected (and the current reverted to the older statements) and generally looked to be constructed by the lawyer.
  • Held: it is very destructive for the lawyer to write the affidavit in his own words as opposed to the deponent's - it compromises the affidavits. Copying and pasting or using the exact same language of previous affidavits is also not good. In this case, the affidavit is to be treated with 'caution' - it does not seem that all of it is correct or complete, and the general reliability of the plaintiff is thus compromised.

Penalties for False Swearing

Falsely swearing an affidavit constitutes perjury: Oaths Act, s 29.

  • False statements made in documents purporting to be affidavits also attract punishments: Oaths Act, ss 30-s 31.
  • Solicitor Rule 17 provides for the preparation of affidavits:
    • SR 17.1 specifies that solicitors who become aware of a false or misleading affidavit must terminate their retainer if the client does not agree to correct the false or misleading statements.
    • SR 17.2 specifies that solicitors should only draw affidavits alleging criminality, fraud or other serious misconduct if they have reasonable believe that:
      1. There is a proper basis to the allegation;
      2. The allegation is admissible; and
      3. The client wishes to proceed with the allegation after being informed of its seriousness.

In basic terms, a practitioner cannot submit or fail to correct an affidavit which they knows to be false or misleading. They also need to have some grounds for believing in the truth of the affidavit - they should take some steps to check whether the affidavit is founded.

Affidavits which were only signed and not sworn/affirmed:

  • Facts: the affidavit relied on to obtain a search warrant was only signed and not sworn/affirmed. The police officer said that was the practice in the police station and he thought signing constituted 'swearing'.
  • Held: the oath/affirmation process cannot be demeaned - such affidavits cannot be relied upon for warrants, and warrants issued as a result of such affidavits will be revoked and their products inadmissible.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 677.
  2. BKL, p. 678.
  3. Justice Arthur R Emmett, 'Practical Litigation in the Federal Court of Australia: Affidavits' (2000) 20 Australian Bar Review 28.
  4. [2010] NSWSC 1500.
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