Proctor : April 2019
30 PROCTOR | April 2019 10 things you should know about affidavits Key tips for Queensland’s state courts 1. It is not necessary to serve a sealed copy of an affidavit. Practitioners often delay serving affidavits until they have been filed and bear the court’s stamp. However, after an affidavit is sworn or affirmed, it can (and should) be served on the other parties without waiting for it to first be filed. This is especially so if there are circumstances of urgency or if there is a time limit within which an affidavit must be served. 2. Avoid duplication of exhibits. As a general rule, if a document is exhibited to an affidavit, the same document should not be exhibited to any other affidavit. If a witness wishes to refer to the document, then the witness can refer to the exhibit by reference to the affidavit to which it is exhibited, even if it is an exhibit to an affidavit which is relied upon by another party. Such an approach prevents voluminous affidavits being filed which contain the same documents, which reduces costs. It is also mandatory by reason of rule 435(12) Uniform Civil Procedure Rules 1999 (UCPR). If neither party intends to read and rely upon the affidavit which exhibits the document, it is permissible for a party to read and rely on the exhibit to the affidavit, rather than the entire affidavit. 3. The exhibits must be paginated. It is critical that documentary exhibits be paginated, meaning that the first page of the first exhibited document is page 1 and then the pagination continues through to the last page of the last exhibit. This does not mean starting the pagination again at page 1 for each exhibit. When the case is being presented in court, the court can then be taken to a specific page of the exhibits to an affidavit, and there is no confusion or delay about which page is being discussed. Pagination of exhibits when there is more than one documentary exhibit or the exhibits are a group of documents is mandated by rule 435(11)(a) UCPR. 4. There must be an index to the exhibits. After paginating the documentary exhibits, prepare an index of the exhibits which describes each document and identifies the pages on which that exhibit appears. Depending on the number of exhibits and whether the exhibits are contained in one or more paginated books, the index should appear at the front of each book addressing the exhibits in that book.1 5. The judge may like a working copy of the affidavits. Depending on the number of affidavits and the type of hearing, you should consider preparing a working bundle of your client’s affidavits, with tabs and an index, and contained in a ring binder (or more than one if needed). This will enable the judge to highlight, annotate and tab parts of the affidavits, including exhibits, during the hearing. It also assists with locating the evidence quickly during oral submissions. 6. The affidavit should not contain submissions. A common mistake is for witnesses, especially lay witnesses with an interest in the outcome of the litigation or a solicitor acting for a party, to provide their opinions in their affidavit about why one party is right or wrong or the merits of particular legal arguments. In general terms, a lay witness can give evidence in an affidavit about what they saw or heard or thought at a particular time (if relevant) or physically experienced. In very rare instances, they can express an opinion such as their opinion about the speed at which a car was travelling. What they cannot do is express an opinion about whether a finding of fact should be made based upon other facts or an opinion about someone else’s state of mind or motivation or give reasons why one party should succeed or fail. Such evidence is inadmissible and amounts to submissions. Even if admitted into evidence, the judge will be unlikely to pay any attention to it and will be likely to discount other evidence given by that witness. 7. The affidavit must contain evidence which the witness knows to be true. Because a client is often keen to win the application or trial, they will be prepared to include statements of fact in their evidence which they do not in fact know to be true. Rather, they suspect them to be true or hope they are true or believe they are true. When preparing an affidavit, ensure that it is confined to evidence which the witness knows to be true from their own observations. If the affidavit is to be used at a hearing at which final relief is not being sought, the witness can give evidence on information and belief, but it must then comply with rule 430(2) UCPR. 8. Rules of evidence apply unless the UCPR allows otherwise. Subject to the UCPR, the evidence in an affidavit must be confined to the evidence which the person making it could give if giving evidence orally. It follows that the evidence in an affidavit must be relevant and otherwise admissible, having regard to the exclusionary rules of evidence such as the rule against hearsay.