What is an affidavit?
A Court affidavit is an intricate, highly regulated and immensely important statutory document. This is because an affidavit is a written statement containing the actual evidence of the person swearing, or affirming, the affidavit, given in the first person (as if the person was giving the evidence orally during a Court hearing). A Court is therefore able to rely upon (and will so rely upon, in the absence of a compelling reason to the contrary) on an affidavit for the truth of its contents in finally determining and dispensing with Court proceedings commenced by an application (most usually, as opposed to proceedings commenced by a Court claim, which are often tried on the basis of oral evidence only).
A Court will not hesitate to punish a party in circumstances where an affidavit is presented for the truth of its contents but is discovered to contain misleading or false statements of fact (or belief, in some cases), or is affected by an irregularity (for failing to, for example, comply with technical form or substance requirements imposed Court rules). Such a discovery, even if caused by an innocent error or oversight, may gravely prejudice the case of the party seeking to rely upon the affidavit. Importantly, a party may also be charged with perjury for falsifying affidavit evidence. In the premises therefore, great caution must be taken when preparing an affidavit to ensure that it serves the purpose of assisting a party’s case as opposed to harming it (especially as you may be examined and cross-examined on your affidavit before a Court, so you want to make sure you can fully stand behind your affidavit).
The article that follows explains some of the technical rules and requirements that you must keep in mind when preparing an affidavit to be used before a State Court in Queensland (such as the Magistrates, District or Supreme Court of Queensland). An affidavit filed before a Federal Court of Australia has similar but different rules and requirements, which the signatory of the affidavit must comply with.
Form of Affidavit
Whether you seek to rely upon an affidavit before the Magistrates, District or Supreme Court of Queensland, or a Federal Court of Australia, an affidavit must in approved form. You may generally access a word copy of the approved affidavit form on the Court’s official website (but you must remember that an affidavit form is virtually blank and requires actual and careful drafting in order to incorporate admissible evidence into the body of the affidavit, as well as exhibit any documents).
An affidavit must be signed by the signatory in the presence of a witness (and importantly, the signatory and the witness must sign each page of the affidavit). The Court may not receive, and a party may not file, an affidavit witnessed by a party personally.
Additionally, and amongst other formal requirements, each page of the affidavit (and each exhibit) must be consecutively numbered and the body of the affidavit must be divided into paragraphs numbered consecutively, with each paragraph being as far as possible confined to a distinct portion of the subject.
A statement (known as the “jurat”) must also be placed at the end of the body of the affidavit stating:
- the full name of the signatory;
- whether the affidavit was sworn or affirmed; and
- the day and the place the signatory made the affidavit.
An affidavit may be used in a Court proceeding only if it has been filed with the Court and served on the other party/ies to the proceeding in accordance with Court rules (especially any strict timelines imposed by the Court rules for doing so).
Contents of Affidavit
In the Magistrates, District or Supreme Court of Queensland, or a Federal Court of Australia, an affidavit must be confined to the evidence the signatory of the affidavit could give if giving evidence orally before the Court.
However, an affidavit for use in an application because of default or otherwise for interlocutory relief, other than final relief, may contain statements based on information and belief if the signatory for the affidavit states the sources of the information and the grounds for the belief.
As mentioned above, an affidavit must otherwise be strictly made in the first person.
Exhibits to Affidavit
Where a document is mentioned in, and annexed to, the affidavit, it is known as an exhibit. A group of different documents, in certain circumstances, may form the 1 exhibit.
An exhibit to an affidavit must have a letter, number or other identifying mark on it and a certificate in the approved form on it or bound with it. The certificate must be signed by the signatory for the affidavit in the same way the signatory signed the affidavit and must be signed by the witness for the affidavit in the same way the witness signed the affidavit.
An exhibit to an affidavit must be filed at the same time as the affidavit.
If an exhibit to the affidavit is comprised of a group of documents or there is more than one documentary exhibit to the affidavit, then the documents are to be presented in a way that will facilitate the Court’s efficient and expeditious reference to them. This requires, as far as practicable, that:
- the documents are to be bound in 1 or more paginated books; and
- a certificate is to be bound:
- if there is 1 book: at the front of the book; or
- if there is more than 1 book: at the front of each book dealing with the exhibits in the book; and
- an index to each book is to be bound immediately after the certificate.
Scandal or Oppression in Affidavit
An affidavit must not:
- contain any scandalous or oppressive material;
- contain any frivolous or vexatious material;
- be evasive or ambiguous; or
- otherwise be an abuse of the process of the Court.
If there is any such a matter in an affidavit, the Court may order that:
- the affidavit be removed from the file; or
- the affidavit be removed from the file and destroyed; or
- any such matter in the affidavit be struck out.
Cross-examination on Affidavit
If an affidavit is to be relied on at a hearing, the Court may order the signatory for the affidavit to be examined and cross-examined before the Court and may order the person to attend the Court for the purpose.
In the Magistrates, District or Supreme Court of Queensland:
- if an affidavit to be relied on at a hearing is served on a party more than 1 business day before the hearing and the party wishes the signatory for the affidavit to attend the Court for cross-examination, the party must serve a notice to that effect on the party on whose behalf the affidavit is filed at least 1 business day before the date the person is required for examination; or
- if an affidavit to be relied on at a hearing is served on a party less than 2 business days before the hearing, the signatory for the affidavit must attend the Court to be available for cross-examination unless the party otherwise agrees (noting that if the signatory for the affidavit does not attend the Court in compliance with this rule, the Court may refuse to receive the affidavit into evidence).
Mandatory Obligation to use Affidavit
There are circumstances where you must only use an affidavit to give evidence before a Court.
For example, but subject to the rules or a direction of the Magistrates, District or Supreme Court of Queensland:
- evidence at the trial of a proceeding started by Court Claim and Statement of Claim may only be given orally; and
- evidence in a proceeding started by a Court Application may only be given by affidavit.
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