25 handy hints on affidavits in Victoria

I presented a seminar with Glenn McGowan SC on affidavits and written evidence recently. I wrote a long paper, mainly about the state courts, but incorporating some aspects of Federal Court procedure, which I will send to anyone who asks for a copy, and which will probably end up on the blog replete with useful hyperlinks one day. Meanwhile, here are some handy hints on affidavits which are not always properly understood:

  • a deponent who makes an affidavit in a work capacity can state their business address instead of their residential address, but the condition of doing so is that they state the name of their firm or employer, if any, and the position they hold: Supreme Court Rule 43.01(3);
  • in the Supreme Court, you can call for an electronic copy of an affidavit to be emailed to you if served with a hard copy, by invoking Practice Note No. 1 of 2002, (2002) VR 107;
  • you can call for any document referred to in an affidavit by a notice to produce under Supreme Court Rule 29.10(2), and the rule is interpreted to mean that you can call for production of any document referred to in an exhibit to an affidavit: Williams [I 29.01.345] citing Re Hinchcliffe [1895] 1 Ch 117;
  • generally, only facts within the personal knowledge of the deponent may be included in an affidavit: Supreme Court Rule 43.03;
  • in interlocutory applications, though, hearsay (coded in the rules as ‘information and belief’) may be used, but only if the deponent says where he sourced the information (e.g. ‘Peter Porter of Manfredini & Co told me he saw …’) , and swears to a positive belief in the truth of the information (e.g. ‘I have known him as a trustworthy and honest man for 4 months and I believe him’);
  • not all pre-trial applications are interlocutory, for example summary judgment applications are not and in a plaintiff’s application for summary judgment, hearsay is not admissible except with leave of the court which ought to be granted only sparingly, but the defendant can rely on hearsay in an affidavit in response;
  • but there is a different relaxation of the rule against hearsay in affidavits in the case of affidavits in support of a plaintiff’s application for summary judgment: Supreme Court Rule 22.03(2) says an affidavit may set forth a statement in a document if the document would be admissible at trial under the Evidence Act, 1958 (Vic.) (the most relevant provisions being the bankers books and business records provisions, computer statements provisions, and the provisions about copy documents);
  • affidavits should never commence ‘I make this affidavit from my own knowledge, information and belief except where otherwise stated’ because knowledge and information and belief is the whole class of information which may be deposed to and there could be no occasion to ‘otherwise state’;
  • what is own knowledge and what is information and belief should be able to be readily discerned from the affidavit;
  • wherever possible, affidavits should commence ‘I make this affidavit from my own knowledge’ — affidavits don’t get any better than that;
  • but if appropriate (for example a solicitor’s affidavit containing only her client’s instructions) an affidavit should commence ‘I make this affidavit from information and belief’, in which case at least the affidavit is not being dressed up to appear any better than it is;
  • there is no need to ‘crave leave’ to refer to an earlier affidavit, or someone else’s affidavit;
  • it is undesirable for one deponent to refer to another’s affidavit and effectively incorporate it by reference; much better to reiterate the whole story in the second witness’s own words;
  • a few inconsistencies between affidavits enhance their credibility rather than detract from it — you can get all your ducks in an implausibly neat line, in other words: see Timms v Commonwealth Bank of Australia [2001] NSWSC 560 at [69]ff by way of example;
  • if you are a lawyer and you are personally a party to proceedings, an employee or a partner in your practice may witness your affidavit these days, except in the Magistrates’ Court: Magistrates’ Court Rule 18.10, which also prohibits an in-house counsel witnessing an affidavit in that Court sworn by an officer or employee of his or her employer company if the company is a party to the proceedings;
  • the witness signs every page in the Magistrates’, County, Supreme, and Federal Courts; only in the Federal Court must the deponent sign every page as well;
  • strictly speaking, the exhibits should be stapled to the exhibit sheets at the time of swearing, and should not be unstapled for the purposes of copying;
  • the Evidence Act, 1958 (Vic.) says at s. 100(4) that ‘the witness shall without question administer the oath’ unless the deponent ‘voluntarily object to take the oath’ so, strictly, it is not proper to enquire of the deponent whether he or she wishes to swear or affirm, but if the deponent does object to swearing on a holy book, you can administer the affirmation (‘I, Stephen Alexander Warne, do solemnly, sincerely and truly declare and affirm that this is my name and handwriting and that the contents of this my affidavit are true and correct in every particular [and these are the exhibits referred to therein]’;
  • there is another little known circumstance in which it is permissible for the deponent to affirm: when, in the circumstances, it would not be ‘reasonably practicable without inconvenience or delay to administer the oath’: s. 102, Evidence Act, 1958 (Vic.);
  • a good place to write out the words of the oath and affirmation is on the side of your solicitor’s stamp, otherwise, they may be found in the Law Institute Diary;
  • there is no general rule which requires the service of exhibits with affidavits (though some specific rules require it), a proposition which should be relied on only if you forget to serve an exhibit, or the other side claims that one exhibit was missing from the material served;
  • exhibits may be and should ordinarily be filed along with the affidavit in the Magistrates’ Court, Federal Court (despite what its website says), but in the Supreme Court and County Court, exhibits will not generally be accepted for filing along with the affidavit, which means that someone has to remember to bring the original exhibits on the day of the hearing to be filed by being handed up to the decision maker;
  • there are exceptions to this general principle in the Supreme Court in relation to proceedings in the Commercial List, hearings before a judge in the Corporations List, and hearings before the Listing Master, Master Kings;
  • if you want the Supreme Court decision maker to read exhibits to affidavits before a hearing, the thing to do is to deliver them directly to the judge’s associate or master’s secretary;
  • those who witness execution of documents will often owe a duty of care to ensure that the person in whose name the document is drafted is in fact the person who purported to sign the document (see Graham v Hall [2006] NSWCA 208 noted earlier on this blog) and so if you do not know the person whose signature you are asked to witness, you should satisfy yourself of identity by requiring production of the kinds of documents necessary to open a bank account before witnessing.
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