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Guide to Preparing and Formatting an Affidavit

Preparing an affidavit

The specific legal requirements which need to be followed when preparing affidavits for use in the Supreme Court of Victoria are set out in Order 43 of Chapter 1 Supreme Court (General Civil Procedure) Rules 2005.

The contents of the affidavit should be true according to personal direct and factual knowledge. As affidavits are a form of evidence, there are criminal consequences for making false statements to the court and the court's willingness to believe in the case may be affected if an untrue statement is made, either knowing that it is untrue, or without properly checking to make sure it is true.

Try not to refer to information received from others in an affidavit. Where something is not based on personal direct knowledge, this should be stated in the affidavit as, for example: "I have been informed by (insert particular person's name) that…and I believe that to be true". If relying on evidence of another person (witness) it is appropriate that they prepare their own affidavit based on their own knowledge and that this affidavit is filed on your behalf. It is important to remember however that an affidavit from a witness should only be filed if the affidavit will be relevant to a particular issue or issues raised by your own affidavit.

Before preparing an affidavit, think about what needs to be said. When preparing an affidavit you should:

• start by planning it under a number of headings, as this will make the completed document easy to follow
• make sure that each paragraph should set out a specific fact relating to the issue concerned and each paragraph should follow on logically from the previous one
• keep the affidavit as brief as possible, but do not leave out anything which may be important to the particular issue concerned
• write in the first person - that is, it must talk about 'I' (or 'we' if there is more than one person involved as Plaintiff or Defendant) and not about 'he/she' or 'you/they'

An affidavit should not:

• set out an opinion (save for those of an expert such as a licensed valuer or medical practitioner or scientist) - if, exceptionally, a personal opinion is expressed, the reasons (grounds) for holding that opinion should be set out in the affidavit
• contain a comment for example "the judge did not give me a chance to say all I wanted to say"
• contain conclusions based on observations for example "because he/she shouted at me he/she is a violent person"
• contain information that is not relevant to the particular issues in dispute.

If it is necessary to correct an affidavit in any way, by the addition of new or different factual material, it is necessary to prepare, file and serve another affidavit. The new affidavit should clearly indicate whether it adds to, or replaces, the previous affidavit.

Formatting

Affidavits start with the person's name, address and occupation, for example "I, Joan Smith, of 4 Canny Street, Kingston, Public Servant, make oath and say as follows:"

The rest of the affidavit sets out the relevant facts in numbered paragraphs, with the first paragraph starting with, for example "1. I am the Plaintiff (or Defendant or Applicant or Respondent) in this proceeding and I make this affidavit from my own knowledge unless otherwise stated."