Articles > Small Business

What is an Affidavit?

December 3, 2020   Philip EvangelouRaymond Chbib

An affidavit is simply a written statement where the contents are sworn or affirmed to be true. Affidavits are a form of evidence. The benefit of presenting evidence in this way is that each party in a court case is aware of what the other’s witnesses will say at trial. Allowing the parties to make an adequate assessment of their prospects of success. 

The person making the affidavit is referred to as the deponent. Firstly, a deponent could be any party to the trial such as a: witness; expert; plaintiff; or defendant.

Secondly, filing an affidavit does not mean you do not have to appear at court. It does not operate as a get-out-of-court card for a called upon witness to a case. Additionally, a deponent will likely still have to give the evidence, contained in their affidavit, at the trial. Appearing in court will give the other party an opportunity to cross-examine you on their witness statement. Moreover, it allows the deponent to further verify the contents of the affidavit increasing the reliability of the evidence. 

Relevant Evidence for an Affidavit 

A deponent should include only relevant evidence in their affidavit. Facts relevant to the case at hand. Additionally, hypothetical, derogatory or scandalous statements should not be included.

A court may reject an affidavit containing too much irrelevant, unscaly or offensive information. Alternatively, a court can strike out parts of an affidavit.

Direct Knowledge  

The strict rules of evidence apply to affidavits. Consequently, an affidavit containing a statement of facts not based on direct knowledge will likely be inadmissible. This is in compliance with the general rule of evidence that a witness can only give evidence for matters that are within their first-hand knowledge. 

First hand knowledge meaning that the statement of fact being asserted by the deponent has either been; seen, heard, smelled, felt or tasted. Additionally, a person can provide evidence on the actions that they have taken or on what they were thinking and intending at that time. 

Depending on circumstances, a deponent giving evidence on what another person has told them about the incident may be permitted. This is ‘hearsay evidence’. This use of evidence is generally inadmissible unless one of the limited expectations to ‘hearsay’ are available. 

Annexures and Exhibits 

Often, it can be helpful to attach a document to the affidavit if it supports a fact you are trying to prove. These attachments are referred to as annexures or exhibits. You must attach them to the affidavit where the affidavit makes reference to other documents. 

There is a further requirement that the witness must attest to the fact that the documents are the same as what you referenced within the affidavit. You should engage with a lawyer to ascertain whether to attach any documents. 

Signing & Affirming an Affidavit 

An affidavit lacking signature and affirmation is inadmissible in a legal proceeding. A witness must watch the signing as well as provide their signature. It is vital that the witness is an “authorised person” meaning a justice of peace, court registrars, a solicitor or barrister.

The authorised person will ask you to swear (religious oath) or affirm (non-religious oath) that the contents of your affidavit is true before you sign each page of your affidavit. After witnessing your signature, they will then sign each page. Also, deponents and authorised witnesses must sign the included annexures and exhibits.

Swearing and affirming the contents to be true is a crucial part of an affidavit supporting the reliability.

To Summarise… 

An affidavit is a written record of someone’s evidence. It’s contents should be relevant to the proceedings and based on direct knowledge. Most importantly, the deponent and authorised witness must properly sign and affirm the contents of the affidavit. And when the court orders to do so, an affidavit should be filed at the court registry either online or in person. 

If you need any assistance with your affidavit, our commercial lawyers are here to help. Just contact us at 1300 997 337.

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.

About Raymond Chbib

raymond chbibRaymond is a legal intern at OpenLegal, working with our legal content team. He is currently a penultimate student at the University of Technology Sydney, studying a Juris Doctor degree with an undergraduate Bachelor of Global Studies. He is particularly interested in Intellectual Property law and the increasing internationalisation of that area of business.