Affidavits - Civil Proceedings

 Although there has been plenty of judicial discussion about whether particular “affidavits” meet criteria to be affidavits, there has been little judicial discussion about their definition. It seems that there is no genuine controversy at law about the definition of an affidavit.

The word “affidavit” has its origins in the mid-1500s and comes from the medieval Latin word “affidare,” literally meaning “he has stated on oath.”

Bacon’s Abridgement[1], at page 124, defines or describes an affidavit as follows: “An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same.”

This definition was adopted in England and Wales in the case of R v Phillips (1908) 9 WLR 634; 14 BCR 194; 14 CCC 239.

This definition has been cited recently in Australia by Justice Reginald Barrett in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 explaining also staturory changes were affidavits were made by affirmation. It has also been cited in Canada by Justice Wachowich of the Alberta Supreme Court in R v Nichols [1975] 5 WWR 600; 1975 CanLII 250 (AB QB), citing R v Phillips (1908), 9 WLR. 634, 14 BCR 194, 14 CCC 239 as its source. 

In the US, in Farm Bureau Mut. Auto Ins. Co. v. Hammer, 83 F.Supp. 383, 386 (W.D. Virginia), Chief Judge Paul gave the definition of an affidavit: “An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath.” This definition was quoted in subsequent cases Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) and Evans v Commonwealth 572 S.E.2d 481 (2002) 39 Va. App. 229.

Furthermore, the word “affidavit” is defined in the second edition of American Jurisprudence[2] (3 Am. Jur. 2d Affidavits § 1) and cited in Ballentine’s Law Dictionary in the following terms: “Any voluntary ex parte statement reduced to writing, and sworn to or affirmed before a person legally authorized to administer an oath or affirmation.” This definition has been cited in State of Wisconsin v Morgan No. 99-0993 and  In re Beecher, 50 F. Supp. 530 – Dist. Court, ED Washington.

Moreover, In Black’s Law Dictionary (3rd edition), an affidavit is defined as follows: “A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.” This definitions was quoted in Amtorg Trading Corporation v United States 71 F. 2d 524, a decision of the Court of Customs and Patent Appeals in the year 1934.

All definitions from England and Wales, the US, Australia and Canada agree that affidavit is an oath or affirmation which is sworn or affirmed before a person who has authority to administer the same.  Therefore, there is no controversy arising from different wordings of definitions.

When Affidavits are Used

Under Rule 31.1. of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) where proceedings have been commenced by a statement of claim then evidence at the hearing is to be in oral form but the Court may order it to be by affidavit or witness statements. Where the proceedings are not commenced by a statement of claim (e.g. as in most Equity cases) or the evidence is not adduced in a trail (interlocutory proceedings) then the evidence is to be introduced by an affidavit unless otherwise ordered[3].

When it is about final hearing, the Federal Court and Supreme Court of all Australian jurisdictions, have the primary rule that evidence of any witness on any issue at a trial of a cause to be give orally in Court.

There are many perceived advantages of written evidence from a procedural fairness and case management perspective.  However, it maybe that oral evidence in chief is better designed to promote the proper administration of justice than written evidence.

In conclusion, when evidence is uncontroversial it is clearly convenient that the evidence be adduced in a written form to save time and avoid misunderstanding and confusion.

Evidence in all interlocutory proceedings must be given by affidavit, unless the court otherwise orders[4].  The court can direct that trial evidence be given by affidavit[5]. In some circumstances, proceedings may be commenced by affidavit[6]  and in other affidavits maybe ordered to stand as pleadings in the proceedings[7]. Affidavits are required by the UCPR in various circumstances including the verification of pleadings[8], discovery[9], and answers to interrogatories[10].

Form and Content of Affidavits

Their content of affidavits is controlled by substantive rules of evidence and their form by rules of court including Practice Notes.

Form of Affidavits

As discussed above, the essential requirement is that the person appreciates the nature and purpose of the document and accepts responsibility for the contents of the document by way of formal oath or affirmation.

There is no statute in NSW which deals exclusively or exhaustively with creation of affidavits. As Barret RJ stated in the above quoted decision Fastlink,   the Oaths Act 1900 (NSW) presupposes certain principles of the unwritten law and builds upon them.

An oath and affirmation are central to an affidavit. An affidavit usually begins: “I [name] of [address], [occupation], being duly sworn make oath and say as follows:” or in the case of affirmation by substituting the words “make oath” with “solemnly, sincerely and truly affirm”[11].  

The jurat at the end contains the deponent’s oath, is administered by the administering official’s instructing the deponent to take the Bible in his or her hand and to say tupically the words: “I swear by Almighty God that this is my name and handwriting and that the contents of this my affidavit are true.” The usual form for an affidavit made by affirmation is: “Affirmed at [place] this [day] of [month] in the year [year], Before me [Signature and designation of official before whom affirmation made]” A person who has some different form of religious belief and does not object to taking an oath will be sworn in some manner binding on his or her conscience. If the witness is illiterate or does not speak English, then s27A Oaths Act 1900 (NSW) must be observed.  

One of the forms for documents to be used about civil proceedings prescribed pursuant to s 17(1) of the Civil Procedure Act 2005 (NSW) is Form 40, “Affidavit”. The technical rules in NSW are as follows. There is no express requirement in the UCPR to provide a residential address: Short v Burn [2012] NSWSC 695. Dates, sums and other numbers in figures not words although months can be in words[12];  If the body of an affidavit alleges or otherwise deals with more than one matter: (a) it must be divided into paragraphs, and (b) each matter must, so far as convenient, be put in a separate paragraph, and (c) the paragraphs must be numbered consecutively[13]. A legal practitioner or commissioner for affidavits who takes and received an affidavit legibly place their name, status and address[14].  Each page of an affidavit must be signed by the deponent and by the person before whom it is sworn.

Importantly, strict adherence to the prescribed form is not essential. An affidavit may, with the leave of the court, be used despite any irregularity in form[15]. Whether leave will be granted is on discretion of the Court. In some case leave was granted[16] and in come not[17]. In the cited cases the questions was appeared whether the events surrounding the signing of the relevant document might be separately and subsequently proved. While in Ex parte Hall, the court did inquire into the circumstances in the other two cases, the document alone was considered, with the possibility of extrinsic evidence impliedly rejected. Parke B in Bill v Bament [1841] EngR 645; (1841) 8 M&W 317; 151 ER 1060 stated: “If the subsequent signature of the judge could have the effect of making it good by relation, all errors might be corrected afterwards and we should not know where to stop.”

However, it seems that criteria for granting leave relaxed over time. Cotton LJ said, in Eddowes v Argentine Loan and Mercantile Agency Co (1890) 68 WR 629 “If it is shown to our satisfaction that this affidavit was, in fact, sworn before a person who had authority to administer the oath in the place where the affidavit was sworn, we are authorised, notwithstanding the defect in the form of the jurat, to direct that it be placed, or allowed to remain upon the file.”

It seems that the quality of a document as an affidavit does not depend on its content but on the factual circumstances in which it was subscribed.

Evidence of Conversation and Direct Speech in NSW

In NSW, it is preferred to provide evidence of conversation in direct speech. There is discretion of a judge to admit evidence, and in NSW sometimes evidence of conversations not provided in direct speech would not be admitted.  Barrett J. pointed out in LMI Australasia Pty Lt v Baulderstone Horinbrook Pty Ltd (2010) 53 NSLWR 31 that “there is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech” he said “but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form.”

Filing and Reading Affidavits - Unread Affidavits

An affidavit may generally not be filed in proceedings except by leave of the Court[18], however a rule may require an affidavit to be filed[19]. Affidavits may be filed in accordance with a Practice Note prescribing the procedures of use of affidavits in the Court[20].  An affidavit which has not previously been filed should be filed in Court at the hearing before it is read.

Upon being read, the affidavit will form the witness's evidence in chief. The reading may be actual reading or the affidavit is identified and explicitly taken as read, with a counsel drawing to the Courts attention the parts of significance. An affidavit which has been placed on the file does not become part of the proceeding until it is read to the Court[21].

Where an affidavit is to be read, unless it has already been filed and served the party seeking to rely upon that affidavit must serve the affidavit on the relevant parties within a reasonable time before the hearing, unless the Court otherwise orders[22].   A party to a proceeding where the evidence is to be taken on affidavit is not obliged to read an affidavit which they have filed[23]. Furthermore, there is no entitlement to cross-examine the deponent of an affidavit which has been filed but not read[24].  On the other hand, there is no privilege in relation to affidavits that have been filed and served[25].  Therefore, provided the deponent can be made available for cross-examination if required, a party may read affidavits which have been filed by the opposing party[26]. On the other hand, an affidavit filed by an opposing party cannot simply be tendered as a documentary exhibit[27]. However, if a party (other than a mare witness[28]) has made an admission in an affidavit, the part of that affidavit containing the admission may be tendered without the affidavit being read[29].  In addition, the tenderer cannot prevent reference being made to other parts of the affidavits which may provide a relevant qualification of, or context for, the admission[30].

Annexures and Exhibits

Early English practice was to annex documents to affidavits, to the extent that this was practical. The document would have been annexed to his affidavit, and filed with it. In the early 19th century, the practice changed to merely exhibiting documents.

The present rules are that documents are annexed to an affidavit unless it is impracticable to do so, in which case they are exhibited. A document may be referred to in an affidavit either as an exhibit, thus: 'produced and shown to me at the time of swearing this my affidavit, and marked with the letter A' (or, briefly and usually, 'now produced and shown to me, and marked A.'); or as 'hereunto annexed'. In the former case, the person before whom the affidavit is sworn must inquire whether the deponent has seen the document and is aware of the contents thereof : in the latter, the document should be annexed to the affidavit at the time it is sworn; and the affidavit cannot be filed without it[31].  Exhibits are not filed in the Court: "A document referred to in an affidavit should not…be annexed to the affidavit, but should where necessary be referred to as an exhibit.[32]"

For annexures r 35.6. (2) UCPR forbids using a separate page. The certificate on the first page of the document produced must be placed by an authorised person to take oath or affirmation, in words: “This and the following (number) pages is the annexure marked (letter) to the affidavit of (name of deponent) sworn/affirmed on (date) before me”.

By r UCPR 35.6(4) an exhibit to an affidavit must be identified by certificate: UCPR 35.6(4).

Obviously, when documents are annexed to an affidavit, all parties served and the court are in possession of the documents. An exhibit is still part of an affidavit and that a party entitled to inspect the affidavit has a right to inspection of the exhibits referred to[33].

In a case that annexures to an affidavit is not served on time, the service is invalid[34]. The approach of the Courts to the fulfilment of a requirement for the provision of copies of documents has been extremely strict and it was held that substantial compliance was insufficient[35].

In NSW, the decision Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338; 19 ACLC 393; [2000] WASCA 409 discussed matters of annexures and exhibits in detail.

Content of Affidavit

Content of affidavit is controlled by rules of evidence so that only admissible evidence should be included in the affidavit. Affidavit serves purpose to introduce facts, however, not arguments or conclusions. Some provisions of the Oaths Act 1900 and the Evidence Act 1995 deal with the contents of affidavits when there is no comprehensive statutory prescription for the formal contents of an affidavit[36].

A person who administers an oath, or accepts an affirmation, in relation to an affidavit, ought not permit the swearing of an affidavit they are aware is false. They should not permit an affidavit to be sworn unless they are satisfied the deponent understands the nature of an oath or affirmation, and the contents of the affidavit[37].

Objections should not be taken to non-contentious material as a rule of practice.

Conclusion

Introducing evidence in any civil proceedings is a very important part of litigation. Knowing both technical rules surrounding drafting, taking, filing and serving affidavits as well as rules of evidence dictating their context is essential.

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[1] Matthew Bacon, “A New Abridgement of the Law”, London 1832.

[2] 3 Am. Jur. 2d Affidavits § 1.

[3] R 31.1.UCPR.

[4] r 31.2 UCPR.

[5] r 31.1(3) UCPR; s 29 and 31 of the Evidence Act 1995 (NSW).

[6] r 6.2(1) UCPR; s 25.2(1) and 31.2 of the Evidence Act 1995 (NSW).

[7] r 6.6(3)(a UCPR.

[8] : r 14.22-14.24 UCPR.

[9] r21.4(1)(a) and 21.4(2) UCPR.

[10] r22.3(2)(c) and 22.4(1)(a) UCPR.

[11] s 12 of the Oaths Act 1900 (NSW).

[12]  r4.7.(1 UCPR.  

[13]    SCR Part 38, rule 2; DCR Part 30, rule 2; LCR Part 25, rule 2.

[14]    r35.7A UCPR (cf SCR Part 38, rule 2 (4A), (4B) and (5)).

[15] r 35.1 UCPR (cf SCR Part 38, rule 5; DCR Part 30, rule 5; LCR Part 25, rule 5); s80 Interpretation Act (NSW) 1987;  Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (2008) 26 ACLC 374; 217 FLR 366; [2008] NSWSC 299 at [28].

[16] Ex parte Hall (1839) 8 Law J N S 211 (Queen’s Bench)

[17] Affidavit was irregular and not to be used because of absence of words “Before me”: R v The Inhabitants of Bloxham [1844] EngR 973; (1844) 6 QB 528; 115 ER 197; Graham v Ingleby and Glover [1848] EngR 92; (1848) 1 Ex 651; 154 ER 277.

[18] r35.0 UCPR.

[19]r35.9 (a) and (b) UCPR.

[20] r36.8 (c) UCPR;  Practice Note SC Gen 4 Supreme Courts Affidavits.

[21] Manson v Ponninghaus (1911) ArgusLawRp35; (1911) VLR 239.

[22] r10.2. UPCR.

[23] Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344; (1968) 86 WN (Pt 1) (NSW) 388 ; RCA Corp v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123; [1978] FSR 576

[24] SACMI Co-operativa Meccanici Imola v Riramo (NSWSC, Allen M, 4 June 1980, unreported), Clarke v Law (1855) 2 K & J 28; 69 ER 680;  Re Quartz Hill Co; Ex parte Young (1882) 21 Ch D 642

[25] Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958; Dubbo City Council v Barrett [2003] NSWCA.

[26] Price v Hayman (1838) 4 M & W 8; 150 ER 1321; Re Margetson and Jones [1897] 2 Ch 314 at 319, 320 ; Barristers' Board of Western Australia v Tranter Corp Pty Ltd [1976] WAR 65.

[27] Burns Philp Trustee Co Ltd v Memsie Pastoral Co Pty Ltd (NSWSC, Needham J, 22 March 1984, unreported.

[28] Prangley v Evans (1896) 17 LR (NSW) L 416.

[29] Wimpole v McIlwraith [1923] VLR 553.

[30] Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 520; 64 ALR 407.

[31] Daniells Chancery Forms, 4th edn (1885), at 14 – 15.

[32]Daniells Chancery Forms, 7th edn (1932) at 13.

[33] Re Hinchliffe [1895] 1 Ch 117; Carter v Roberts [1903] 2 Ch 312.

[34] Hassle v Commissioner of Patents (1987) 9 IPR 565.

[35] In Cooke v Vaughan (1838) 4 M&W 69; 150 ER 1346, a writ of capias described the defendant by the addition of "gentleman", but the addition was omitted in the copy served. It was held that this was not "a copy of the writ", in compliance with the statute; Spice v Bacon (1877) 2 Ex D 463.

[36] Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (2008) 26 ACLC 374; 217 FLR 366; [2008.].

[37] Bourke v Davis (1889) 44 Ch D 110 at 126.