Proctor : April 2019
31 PROCTOR | April 2019 Kylie Downes QC provides 10 essential tips for the preparation, filing and service of affidavits in Queensland’s state courts. Back to basics Thinking in particular about relevance, it is a mistake to include evidence from a witness about aspects of the case which are not relevant to the issues which will be in play at the hearing in which the affidavit will be relied upon. For example, a deponent’s evidence concerning the truth or otherwise of an alleged fact in the statement of claim would not usually be relevant to an application for further and better particulars. 9. Affidavit evidence is not always required. Chapter 11 Part 8 of the UCPR permits a party to both file and rely upon correspondence exchanged in relation to applications which are described in rule 443 UCPR. These types of applications include an application for further and better particulars. In relation to such applications, rule 447(2) UCPR identifies the documents (including correspondence) which must be filed with the application. Rule 448(2) UCPR provides that the court may decide an application based on the correspondence. 10. Cross-examination of deponents. A deponent may be cross-examined in relation to their affidavit. If the affidavit is served more than one business day before the hearing, then the other party, if they wish to cross- examine the deponent, must serve a notice Notes 1 Rule 435(11) UCPR. 2 See rule 439(2) UCPR. Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee. requiring that person for cross-examination at least one business day before the hearing. 2 If the affidavit is served less than two business days before the hearing, then the person who made the affidavit must attend court to be available for cross-examination, subject to any different agreement reached with the other parties.