35.1 Irregularity does not invalidate affidavit
(cf SCR Part 38, rule 5; DCR Part 30, rule 5; LCR Part 25, rule 5)
An affidavit may, with the leave of the court, be used despite any irregularity in form.
35.2 Cross-examination of deponent
(cf SCR Part 38, rule 9; DCR Part 30, rule 9; LCR Part 25, rule 10)
(1) A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made.(2) Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination.(3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.(4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.
35.3 Persons who may make affidavit
(cf SCR Part 24, rule 7; DCR Part 22A, rule 7)
(1) If a party is required by these rules to file an affidavit or to verify any matter by affidavit, such an affidavit may be made by the party or:(a) if the party is a person under legal incapacity, by the party’s tutor, or(b) if the party is a corporation, by a member or officer of the corporation or (if it is in liquidation) by its liquidator, or(c) if the party is a body of persons lawfully suing or being sued:(i) in the name of the body, or(ii) in the name of any member or officer of the body, or(iii) in the name of any other person associated with the body,by a member or officer of the body, or(d) if the party is the Crown or an officer of the Crown suing or being sued in his or her official capacity, by an officer of the Crown, or(e) if the proceedings are being brought in the plaintiff’s name by some other person pursuant to a right of subrogation:(i) by that other person, or(ii) if that other person is a corporation, by a member or officer of the corporation or (if it is in liquidation) by its liquidator.(2) Such an affidavit may also be made, in relation to proceedings in the Local Court:(a) by the party’s solicitor, or by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), in relation only to proceedings on an application for:(i) an instalment order, or(ii) an order for examination, or(iii) a writ of execution, or(iv) a garnishee order, or(v) default judgment (but only in the Small Claims Division), or(b) by a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager within the meaning of the Property, Stock and Business Agents Act 2002 in relation only to:(i) proceedings on an application referred to in paragraph (a), or(ii) the filing of a certificate under section 51 of the Consumer, Trader and Tenancy Tribunal Act 2001.(2A) If more than one person is qualified to make an affidavit on behalf of a party, it is sufficient for such an affidavit to be made (subject to subrules (1) and (2)) by any one or more of them.(3) Subject to any order of the court, the person by whom an affidavit is made must be a person having knowledge of the facts deposed to in the affidavit.(4) If an affidavit is made by a person other than the party required to file or verify the affidavit, the affidavit must set out the facts that qualify the person to make the affidavit.(5) Subject to subrule (1), a requirement of these rules for an affidavit as to any matter may be satisfied by separate affidavits made by separate persons in relation to separate aspects of that matter.
The heading to an affidavit must include the name of the deponent and the date on which the affidavit is made.
35.4 Format of affidavit dealing with more than one matter
(cf SCR Part 38, rule 2; DCR Part 30, rule 2; LCR Part 25, rule 2)
If the body of an affidavit alleges or otherwise deals with more than one matter:(a) it must be divided into paragraphs, and(b) each matter must, so far as convenient, be put in a separate paragraph, and(c) the paragraphs must be numbered consecutively.
(cf SCR Part 38, rule 3; DCR Part 30, rule 3; LCR Part 25, rule 3)
If there is any interlineation, erasure or other alteration in the jurat or body of an affidavit, the affidavit may not be used, except by leave of the court, unless the person before whom the affidavit is sworn initials the alteration and, in the case of an erasure, rewrites in the margin of the affidavit any words or figures written on the erasure and signs or initials them.
(cf SCR Part 38, rule 4; DCR Part 30, rule 4; LCR Part 25, rule 4)
(1) A document to be used in conjunction with an affidavit may be made:(a) an annexure to the affidavit, or(b) an exhibit to the affidavit.(2) An annexure to an affidavit must be identified as such by a certificate endorsed on the annexure (and not on a page separate from the annexure) signed by the person before whom the affidavit is made.(3) The pages of an affidavit, together with any annexures, must be consecutively numbered in a single series of numbers.(4) An exhibit to an affidavit must be identified as such by a certificate attached to the exhibit entitled in the same manner as the affidavit and signed by the person before whom the affidavit is made.(5) An exhibit to an affidavit must not be filed.(6) If any other party so requires, a party who serves an affidavit to which a document is an exhibit:(a) must produce the document for inspection by that other party, or(b) must provide a photocopy of the document to that other party, or(c) must produce the document at some convenient place to enable it to be photocopied by that other party.
35.7 Affidavits by persons who cannot read
An affidavit made by a blind or illiterate person may not be used unless:(a) the affidavit bears a certificate referred to in section 27A of the Oaths Act 1900, or(b) the court is otherwise satisfied:(i) that the affidavit was read to the deponent in the presence of the person before whom it was made, and(ii) that it appeared to that person that the deponent understood the affidavit.
35.7A Name of legal practitioner or commissioner for affidavits on affidavit
(cf SCR Part 38, rule 2 (4A), (4B) and (5))
(1) A legal practitioner who takes and receives an affidavit concerning any matter within the jurisdiction of the court must, by use of a stamp or otherwise, add, legibly below the legal practitioner’s signature, the legal practitioner’s name and address together with the word “barrister” or “solicitor”, as the case requires.(2) A commissioner for affidavits who takes and receives an affidavit concerning any matter within the jurisdiction of the court, must, by use of a stamp or otherwise, add, legibly below the commissioner’s signature, the commissioner’s name and address together with the words “commissioner for affidavits”.(3) In this rule, commissioner for affidavits means a person who is authorised by the Chief Justice of the Supreme Court, under section 27 (2) of the Oaths Act 1900, to take and receive affidavits.
35.7B Each page of affidavit to be signed
Each page of an affidavit must be signed by the deponent and by the person before whom it is sworn.
35.8 Affidavit of service not to annex copies of filed documents
(cf SCR Part 38, rule 7A; DCR Part 30, rule 10; LCR Part 25, rule 11)
(1) An affidavit of service of a document that has been served must clearly identify the document, but must not annex a copy of the document unless the document has not been filed.(2) An affidavit of service must contain:(a) a statement as to when, where, how and by whom service was effected, and(b) a statement, using as nearly as practicable the actual words used by the person to whom the process was delivered, as to what, if anything, that person said, on the occasion of service, concerning the service or the subject matter of the proceedings, and(c) a statement that the deponent is over the age of 16 years, or is of a named class of persons who by virtue of their status, occupation or otherwise must be over that age.
(cf SCR Part 38, rule 6; DCR Part 30, rule 6; LCR Part 25, rule 6)
Except by leave of the court, an affidavit must not be filed unless it is filed:(a) in accordance with these rules, or(b) in accordance with other rules of court applicable to the court in which it is filed, or(c) in accordance with a practice note applicable to the court in which it is filed.