An affidavit is a formal written document that gives evidence to the court. Affidavits outline the facts (evidence) that will help the Court decide the particular issues raised by each party.
Affidavits are often required to support an application made to the Supreme Court and can serve to either:
- collect a handful of exhibits together for ease of handling and reference, or
- set out a person's own account of events in numbered paragraphs.
The information provided here is focused on the second type of affidavit.
Preparing an affidavit
The legal requirements that need to be followed when preparing an affidavit for use in the Supreme Court of Victoria are set out in order 43, chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005.
The contents of an affidavit must be true according to personal, direct and factual knowledge. As affidavits are a form of evidence, there are criminal consequences for making false statements.
When writing your affidavit, you should:
- set it out under a number of headings to make the completed document easy to follow
- make sure that each paragraph sets out a specific fact relating to the issue concerned, and that each paragraph follows on logically from the previous one
- keep it as brief as possible, but don't leave out anything which may be important to the particular issues that need to be considered in the case
- write in the first person, using 'I' (or 'we' where appropriate).
An affidavit template is available to help you.
Exhibits to an affidavit
Exhibits to an affidavit are supporting documents or other form of physical evidence, which help the reader understand the claims being made. Examples of exhibits might include bank statements, letters, video, weapon or reports. Exhibits are kept with the affidavit while the matter remains in the courts.
You will need to name each of your exhibits, using your initials and then a sequential number is a good way. For example, if your initials were B and D, you would name your exhibits BD1, BD2, BD3 and so on. To refer to one of your exhibits in your affidavit, you would write: 'I refer to exhibit BD1'. This will help the person reading your affidavit to locate the relevant exhibit. Each exhibit must also have a cover sheet known as a Certificate Identifying Exhibit ' Form 43A, which includes the name of the exhibit
Generally, the Supreme Court Registry will not allow you to file the original copy of an exhibit with your affidavit (there are some exceptions). Instead, you should file a copy that has been certified by an authorised person. You will also need to keep the original with you to any hearings in case the decision-maker asks to see it.
Swearing or affirming an affidavit
Affidavits for use in a Victorian court must be sworn or affirmed before a person authorised to do so. This person may be a solicitor a Justice of the Peace, or someone in one of the occupations listed in section 123C of the Evidence Act 1958.
At the end of the affidavit there must be a short statement (called a 'jurat') that states when and where the affidavit was sworn or affirmed, and by whom. The authorised person witnessing your affidavit must sign the bottom of each page and each cover page (the 'Certificate Identifying Exhibit - Form 43A'). Any minor alterations that have been made to the affidavit, such as a typing error, must also be initialed by the witness.
An affidavit filed in the Supreme Court Registry must be the original. Copies of the affidavit should be made, which can be served on the other parties in the proceeding. If it is necessary to correct an affidavit in any way, for example by adding additional factual material, you will need prepare, file and serve a new affidavit. The new affidavit should clearly state whether it is to be read in addition to, or instead of, the previous affidavit.