Affidavits are used in Courts and Tribunals including arbitrations, to provide the evidence-in-chief of witnesses. There are evidentiary, formal and procedural rules which apply to affidavits. Non-compliance can result in the evidence being excluded, the case being lost, or proceedings adjourned with adverse costs orders against the party, or against the lawyer who prepared the affidavit. Most young lawyers serve an informal apprenticeship drafting affidavits under the supervision of more experienced colleagues, learning from their experience and saving their own references and precedents. Some, less fortunate are 'thrown in at the deep end' without guidance or supervision. In addition, case management has created new pressures for compliance with short timetables for filing and serving affidavits, so there is no luxury of time available in preparing affidavits which involves taking relevant instructions, putting it into an admissible form without mistakes and so it can survive objections.
This is the first work on Affidavits published in Australia and sets out to provide a reference for evidentiary, formal and procedural rules together with precedents.
CONTENTS
Statutes
Table of Cases
Bibliography
Chapter 1: Introduction
History of affidavits
Current sources of the law of affidavits
Chapter 2: What is an affidavit?
Definition
Distinguished from statutory declaration
Distinguished from witness statement, witness summary, statement of truth
Chapter 3: Professional obligations
Professional obligations
Ethics
Skill
Chapter 4: Preparation
Using the pleadings
Summons and pleadings
Summons
Statement of claim
Plaintiff’s affidavits
Defendant’s affidavits
Chapter 5: The objectives - admissible, relevant and probative
Is the evidence admissible?
Rules of evidence
Court Rules
Make the evidence relevant
Rational probative value
Achieving the objectives
A systematic approach
Risk management
Review
Things to look for
Irregularities
Form, style and drafting errors
Chapter 6: Use of an affidavit
Affidavit used as written evidence in chief
Purpose of an affidavit
Procedures for affidavits
When can an affidavit be made?
When is an affidavit used?
Affidavits replace oral evidence
Oral evidence on key matters - an important exception
Reading an affidavit before the hearing
Witness appearing by video link or telephone
Who can make an affidavit?
Who cannot be compelled to make an affidavit
Affidavits made by 2 or more deponents
Is every witness to make an affidavit?
Where is an affidavit used?
Court proceedings
Arbitration
Domestic commercial arbitration
International arbitration
What type of proceedings?
Ex parte and interlocutory proceedings
Notice of Motion
Hearsay evidence admissible
Final hearing
How is an affidavit used?
Construing affidavits
Stale affidavit
Chapter 7: Form
Court form
Form number
Specifications
Binding
Font size
Layout
Number of pages limited
Page numbers
Paper quality etc
Formal parts
Heading and title
Multiplicity of proceedings
Date made
Names of parties
Deponent, full name
Multiple plaintiffs
Multiple defendants
Multiple deponents
Address of deponent
Occupation
Capacity or interest of the deponent
Chapter 8: The Deponent and incapacity
Incapacity
Legal incapacity or disability
Intellectual incapacity - illiteracy
Inability to read, speak or understand the language
Translator
Interpreter
Inability to read the language
Illiterate in English
Physical incapacity
Deponent blind
Deponent incapable of signing
Certificate of compliance
Certificate where deponent suffers incapacity
Chapter 9: Affirmations and oaths
Oath no longer required
Witness
Administering the affirmation or oath
Who may administer affirmation or oath
In Australia
Outside Australia
When a solicitor may not administer an oath or affirmation
Adjuration or jurat
Jurat Date
Signatures, formal requirements
Chapter 10: Style
Table of contents or index
The affidavit
The attachments
Headings
Dates, numbers and sums
Money
Paragraph numbers
Paragraph contents
Chapter 11: Content
Generally
Commonsense
Standard of proof
Introductory matters
Authority of the deponent
Conversations, referred to
Documents, referred to
Definitions
Admissibility
The relevant law
Court Rules
Corporations Rules
Rules of evidence
W words
Perception
Matters which should not appear in an affidavit
Advice, reference to
Loss of privilege
Matters which cannot appear in an affidavit
Exceptions
Language of the witness
Not the language or version of the solicitor
Conversations
First person
Direct speech
Narrative form
Contemporaneous statements
What the witness heard in a conversation
Prior consistent statement
Prior inconsistent statement
Specific issues
Alteration and erasure
Amplification
And/or, and or
Director’s authority to make for a corporation
Hearsay
Interlocutory hearing - information and belief
Final hearing
Additional or supplemental evidence
Privilege
Self-incrimination privilege
Chapter 12: Opinion
Common law
Lay opinion
Experts
Evidence Act jurisdictions
Lay opinion
Expert opinion
No inference of expertise
Formal requirements for expert evidence
Proof of foreign law
Proof of history
Settling an expert report
The Whitehouse Line
The Federal Line
Chapter 13: Attachments: annexures and exhibits
Annexure and exhibit distinguished
Modern use of annexures and exhibits
Identifying annexures and exhibits
Documents referred to in the affidavit
Document referred to in an attachment
Discovery may apply
Access to document identified in annexure but not in an exhibit
Index of attachments
Avoid duplication
Maximum no of pages
Identification and marking – consecutive
Identification statement on first page
Single attachment for a bundle of documents
Copy or original
Is an attachment filed?
Is an attachment served with the affidavit?
Documents fastened or bound
Certificate
Font size - attachments
Separate certificate for each exhibit
Certificate as title page
Certificate signed by witness
Summary of Conventions
Chapter 14: Filing
Time for filing
Filing late
Copies
Date and time of filing endorsed
eFiling
Facsimile filing
Working copy for the Court
Chapter 15: Service
Manner of service
Copies
Service under rules
Chapter 16: Objections
Identifying objections to an affidavit
Does the law of evidence apply?
Common objections
Fact is not relevant
Excluding irrelevancy
Common law
Evidence Act 1995 jurisdictions
Hearsay
Opinion
Intention
Settlement negotiations
Scandalous, oppressive, frivolous and vexatious, abuse of process etc
What is scandalous?
Less common
Argumentative
Admissibility
Affidavit not relevant - fraud
Provisional relevance
Inferences as to relevance
Hearsay
What is hearsay?
Common law hearsay
Evidence Act 1995 hearsay
What is not hearsay
Hearsay evidence excluded
Evidence Act 1995 exceptions to the hearsay rule
Other objections
Formal notice of objections
Court management of objections
Evidence Act 1995
Chapter 17: Documentary evidence
Authenticity
Discovery
Contemporaneous records
Documents created taking instructions, to revive memory etc
Computer records
Electronic records etc
Official records
Documents more than 20 years old
Summarising contents
Charts, summaries and other explanatory material
Chapter 18: Attendance of deponent
Notice to attend
Attendance
Costs of attendance
Deponent not required to attend
Incapacity and absent witness
Non-attendance in Federal Court and Federal Magistrates Court, affidavit read but of no weight
No power to order arrest for non-attendance
Affidavit not read at hearing – leave refused at appeal
Chapter 19: Use at the hearing
Notice to be given before reading
Use of another party’s affidavit
Chapter 20: Irregularities and defects
Irregularities
Defects, examples
Defect, no jurat
Multiple defects
Chapter 21: Discretion
Discretionary rules
Evidence Act 1995 jurisdictions
Chapter 22: Cross examination
Interlocutory application
Final hearing
Issues for cross-examination
Extent of cross-examination permitted
Credit - Evidence Act 1995 jurisdictions
Class of matters made inadmissible by credibility rule
Failure to cross-examine on a fact or proposition
Chapter 23: False statements and contempt
Chapter 24: Adverse consequences
Excluding , striking out and little weight
Costs orders
When affidavit served out of time
Costs order against practitioner
