Articles > Litigation

What is an Affidavit?

June 4, 2021   Kaitlyn OliverPhilip Evangelou

An affidavit is a written account of someone’s evidence or statement of facts where the contents are sworn or affirmed to be true. Affidavits are used in court as evidence. Evidence is presented in this way so that each party can prepare for what each side’s witnesses will say in court. It also ensures each party is aware of the prospects of success for their case. 

Who can make an affidavit? 

The person making an affidavit is known as the ‘deponent’. An affidavit can be made by: 

  • A plaintiff or applicant;
  • A defendant or respondent;
  • A witness;
  • An expert. 

What is the form of an affidavit? 

An affidavit should only contain evidence that relates to the legal matter in court. The same form is generally followed when making affidavits for NSW civil court cases. The affidavit must have ‘court details’ for the legal matter, including the name of the Court, division, list number, registry and case number. The ‘title of proceedings’ section will set out details for the plaintiff and defendant. The ‘filing details’ will depend on which party the affidavit is made on behalf of, usually either the plaintiff or defendant. The next part of your affidavit sets out your evidence. 

What evidence can be included in an affidavit?

A witness can only give evidence for matters which they have direct knowledge of in an affidavit. This means you can give evidence of what you have seen, heard, smelled, felt or tasted. However, you can give evidence on actions that you took or evidence relevant to what you were thinking at that time. 

Affidavits should be written in the first person because they are providing your perspective. You must be specific when making an affidavit which means using dates, times, locations and names where possible. Also, keep in mind that your evidence should be brief and straightforward so that the court can understand what you are saying. If referring to a conversation, it is important to use the exact words used by people in the conversation. However, if you cannot remember the exact words, the statement ‘she said words to the effect of’ may be used prior to relaying the conversation. 

What shouldn’t be included in an affidavit

An affidavit should not contain evidence that is irrelevant, unnecessary or offensive. The court may strike out parts of an affidavit that are not relevant or simply reject an affidavit if it meets the above criteria. An affidavit should not include: 

  • Your personal opinion;
  • Hypothetical statements; 
  • Offensive statements;
  • Generalisations;
  • Legal advice you have received;
  • Your interpretation of the law;
  • Submissions. 

There are also specific rules around giving evidence on what another person has previously told you about an incident, also known as ‘hearsay’ evidence. 

How can an affidavit be affirmed? 

Affidavits must be properly witnessed by someone who is an ‘authorised person’, including a Justice of the Peace, a solicitor or barrister. The authorised person will ask you to swear an oath or affirm that the statements in your affidavit are true, before asking you to sign each page of your affidavit. The religious form of taking an oath involves a person swearing by their god that their affidavit is true. An affirmation is a solemn declaration that your affidavit is true without any reference to a god.  

After witnessing your signing of the affidavit, the authorised person will also sign each page and any annexures or exhibitions. You may correct any errors by crossing out the error and putting your initials next to the change. The witness must also initial any changes.

Annexures and Exhibits 

It can be useful to attach a document to the affidavit if it supports something you are saying in the affidavit. This document is known as an ‘annexure’. Each annexure must be named, i.e. Annexure ‘A’ and Annexure ‘B’. There should be a short description of the document in the main text of your affidavit. For example, you may refer to an email that was received on a certain date to support your evidence. 

If there are a large number of documents to be attached to your affidavit, you can make an ‘exhibit’. Each annexure must have a cover page with a signed statement by the authorised witness that the documents are the same as those referenced within the affidavit. 

Final Steps 

It is still likely you will need to give evidence in court even though you have filed an affidavit. The court requires a witness to verify that they did swear or affirm an affidavit in the case, and that the information remains true and correct at the time of the court proceedings. Also, the other party may want to ask the witness their own questions on evidence contained in the affidavit. These further steps affect the court’s decision to accept evidence. Ensure you file and serve the affidavit by the date ordered by the court. This can be done online or at the court registry. 

Contact us if you’d like advice on any aspect of litigation or commercial law.

About Kaitlyn Oliver

Kaitlyn OliverKaitlyn is a paralegal with OpenLegal while she completes her law degree at UNSW. She has previously worked at Redfern Legal Centre, and the Australian Human Rights Institute.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.