The Affidavit Guru

Witness statement template in Word form for free download

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If you’re looking to download a great witness statement template for free, then you’ve come to the right place. There are plenty of free witness statement templates you can download on the internet, but most of them are rubbish! They’re in Times New Roman (yuck!), they’re poorly laid out, the autonumbering doesn’t work properly and so on. Even today, many forms for witness statements have lines drawn on the page as if they expect you’re going to handwrite the contents!

The Affidavit Guru witness statement form that you can download below doesn’t suffer any of these defects. Here’s just some of the kick-arse features you get with our document, all of which are absolutely free:

  • a great, modern, easy-to-read font that’s appropriate for the formality of a witness statement;
  • a properly laid-out document with neat margins and page-numbering;
  • bespoke auto-numbering for paragraphs that actually works and looks good; and
  • full instructions for completing the witness statement document (these are available here and you should read them before starting to write your witness statement).

So, what are you waiting for? Download our mega-awesome free template witness statement in Word form right here and now:

Witness statement template

What is an affidavit in reply?

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An affidavit in reply (sometimes called a “reply affidavit”) is a technical term used by lawyers in the USA, English and Australian legal systems. An affidavit in reply can be defined as an affidavit served in court proceedings in which a deponent responds to another party’s evidence where that party’s evidence was itself in response to evidence served by the party serving the reply affidavit. In the same way, reply submissions or reply briefs allow the party who started a particular process (the “moving party” in the case of applications) to get the last word by replying to any response to their initial document.

This all sounds slightly complicated but can be explained by a couple of examples.

Examples

Example 1: the plaintiff serves its affidavit evidence in the proceedings. The defendant serves its affidavit evidence. The plaintiff may then respond to the defendant’s evidence by serving affidavits in reply.

Example 2: the defendant brings an interlocutory application before the court such as a motion for summary dismissal. The defendant, as the moving party, will serve its affidavits in support of the motion. The plaintiff will then serve its affidavits. The defendant may then reply to the plaintiff’s affidavits by serving affidavits in reply.

As these examples demonstrate, the party with the opportunity to serve affidavits in reply is always the moving party (ie the party who serves their affidavits first in a particular instance), whatever their designation might be as plaintiff, defendant etc.

Content of an affidavit in reply

The purpose of an affidavit in reply is simply to rebut or answer matters raised for the first time in the affidavits to which the replies are made. Therefore a plaintiff cannot “save” matters from its initial affidavits (its “affidavits in chief”) and then put those matters in affidavits in reply. This is known as impermissibly “splitting the case.” Rather, the affidavits in reply should only rebut or answer new matters raised by the defendants which the plaintiffs have not already addressed. In this way each party gets a chance to raise new matters once, and to reply to the other party’s new matters once.

Who can make an affidavit in reply?

There is no restriction on who can make an affidavit in reply. In particular, there is no requirement that the deponent of an affidavit in reply must previously made an affidavit in the proceedings. Sometimes they will have and sometimes they will not have. Both lay and expert witnesses can give evidence in reply.

Does a party have to serve affidavits in reply?

There is no compulsion to serve affidavits in reply, and they should only be prepared if they are necessary to rebut a proposition. Sometimes there will be no entitlement to serve affidavits in reply if there is no rule, procedure, order or convention entitling a party to do so.

Who can witness a Commonwealth statutory declaration? (Australia)

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This page explains who can act as a witness for a statutory declaration which is made under the Statutory Declarations Act 1959 (Cth).

The permitted categories of witnesses for Commonwealth statutory declarations in Australia are set out in regulation 4 and schedule 2 of the Statutory Declarations Regulations 1993 (Cth). Some other jurisdictions (for example Western Australia) also permit people on the Commonwealth list of witnesses to witness stat decs for those jurisdictions.

The permitted categories of witnesses for Commonwealth stat decs are:

Lawyers

A person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner, however they are described (for example they may be described as a solicitor, barrister, lawyer or barrister & solicitor) may witness a Commonwealth statutory declaration.

 Licensed or registered people

People who are currently currently licensed or registered under a law of a State or Territory to practise in one of these occupations may witness a Commonwealth statutory declaration:

  • Chiropractor
  • Dentist
  • Legal practitioner
  • Medical practitioner
  • Nurse
  • Optometrist
  • Patent attorney
  • Pharmacist
  • Physiotherapist
  • Psychologist
  • Trade marks attorney
  • Veterinary surgeon

 Other people

The following other people can also witness Commonwealth statutory declarations:

Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public
Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955)
Bailiff
Bank officer with 5 or more continuous years of service
Building society officer with 5 or more years of continuous service
Chief executive officer of a Commonwealth court
Clerk of a court
Commissioner for Affidavits
Commissioner for Declarations
Credit union officer with 5 or more years of continuous service
Employee of the Australian Trade Commission who is:
(a)  in a country or place outside Australia; and
(b)  authorised under paragraph 3 (d) of the Consular Fees Act 1955; and
(c)  exercising his or her function in that place
Employee of the Commonwealth who is:
(a)  in a country or place outside Australia; and
(b)  authorised under paragraph 3 (c) of the Consular Fees Act 1955; and
(c)  exercising his or her function in that place
Fellow of the National Tax Accountants’ Association
Finance company officer with 5 or more years of continuous service
Holder of a statutory office not specified in another item in this Part
Judge of a court
Justice of the Peace
Magistrate
Marriage celebrant registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961
Master of a court
Member of Chartered Secretaries Australia
Member of Engineers Australia, other than at the grade of student
Member of the Association of Taxation and Management Accountants
Member of the Australian Defence Force who is:
(a)  an officer; or
(b)  a non-commissioned officer within the meaning of the Defence Force Discipline Act 1982 with 5 or more years of continuous service; or
(c)  a warrant officer within the meaning of that Act
Member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or the National Institute of Accountants
Member of:
(a)  the Parliament of the Commonwealth; or
(b)  the Parliament of a State; or
(c)  a Territory legislature; or
(d)  a local government authority of a State or Territory
Minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961
Notary public
Permanent employee of the Australian Postal Corporation with 5 or more years of continuous service who is employed in an office supplying postal services to the public
Permanent employee of:
(a)  the Commonwealth or a Commonwealth authority; or
(b)  a State or Territory or a State or Territory authority; or
(c)  a local government authority;
with 5 or more years of continuous service who is not specified in another item in this Part
Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made
Police officer
Registrar, or Deputy Registrar, of a court
Senior Executive Service employee of:
(a)  the Commonwealth or a Commonwealth authority; or
(b)  a State or Territory or a State or Territory authority
Sheriff
Sheriff’s officer
Teacher employed on a full-time basis at a school or tertiary education institution
Member of the Australasian Institute of Mining and Metallurgy

 

What is a statutory declaration? (Australia)

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This page explains how to use statutory declarations in Australia. It explains what a statutory declaration is, how you can get the correct form and how to make a declaration. Colloquially you may also hear statutory declarations referred to as “stat decs.” This is just an abbreviation – they are the same thing and the terms are used interchangeably on this website.

What is a statutory declaration?

A statutory declaration is a solemn statement in written form that the person making the statement declares to be true (hence the word “declaration”). The “statutory” part means that the declaration is one made under a law passed by a Parliament (ie a statute). Because of the federal nature of Australia’s political system there are different forms of statutory declarations for each state, and a Federal one as well.  It is necessary to use the right form of statutory declaration for the purpose you are trying to achieve.

What is the difference between an affidavit and a statutory declaration?

In answering this question it is simpler to start with the similarities between affidavits and stat decs. Both are ways in which a person gives a written statement in solemn form. In both cases legal penalties can apply if a false declaration or affidavit is made and the penalties can include a fine or imprisonment. Both affidavits and stat decs must also be signed before a witness who fits into the category of person prescribed by the relevant law to be a witness (typically a justice of the peace or solicitor, but some jurisdictions are less restrictive on their categories of witness).

The essential difference between affidavits and statutory declarations is in the way that the document is signed or attested. A person making an affidavit must either swear or affirm it. This means that the person either swears a religious oath or recites a non-religious affirmation to the witness when they are signing their affidavit. With a statutory declaration, no oath or affirmation is necessary. Instead the person making the statutory declaration will usually simply be asked whether they declare what is written to be true. Once again the exact procedure varies between jurisdictions and more information on this can be found below.

How are statutory declarations used?

The reason that statutory were created was so that affidavits would not need to be made where evidence of a matter was required but the matter was not one where there was a court case or some form of judicial inquiry pending.

Statutory declarations have a long history in Australian law. They were introduced into New South Wales by the Act 9 Vict. No. 9, passed in 1845. No other country in the world uses stat decs for as many purposes as Australian jurisdictions do (although stat decs do exist in the legal systems of Canada, England and New Zealand).

Today, there are literally hundreds of uses for statutory declarations in Australia. Some examples are:

  • to request that the name of a spouse or de facto partner be added to yours on the title of a house or property that you own
  • to declare that you do not have a criminal record in your country of origin when registering as an overseas locum health professional in Australia
  • to state that you are the new owner of a pet where you don’t know or can’t get the signature of the previous owner on a transfer form
  • to say that you were not the driver of a vehicle when a toll was incurred

There are many other examples. The High Court of Australia explains more about the history and background of statutory declarations in Australia in Grech v Bird [1936] HCA 59; (1936) 56 CLR 228.

Where can I get a statutory declaration and which form should I use?

In many cases, a statutory declaration form for the purpose you require can be downloaded from the website for the government entity which requires the stat dec. However if this is not the case you will need to find the correct form, since the use of a statutory declaration from the wrong jurisdiction will usually be invalid and may not be accepted as evidence.

To get the right form you need first to ask whether the statutory declaration is required for the purpose of a state or federal (Commonwealth) law and, if a state law, which state. Then you should use the form of stat dec for that state or for the Commonwealth, whichever applies. The Northern Territory also has its own stat decs so the same applies there. The ACT does not have a statutory declaration and instead uses the Commonwealth’s.

The general rule is that you should use a Commonwealth statutory declaration where the declaration is required:

(a)  for the purposes of, or in connection with any matter arising under, a law of the Commonwealth or of a Territory (other than the Northern Territory) unless that law says otherwise; or

(b)   in connection with the administration of any Department of State of the Commonwealth.

In all other cases use the state form (or the Northern Territory form if in the NT).

If the stat dec is not required by a government body or law of a state or the Commonwealth, then you should ask the person to whom you are providing it which form of statutory declaration they require. It will usually either be the form for the state you are in (or to which the matter relates). If the stat dec is required by a government body or someone acting under the authority of a law of some kind then you should ask them which form of stat dec they require if you are unclear.

 

Can you backdate or postdate an affidavit?

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Backdating and postdating affidavits are different concepts but they give rise to the same problem. To backdate an affidavit means to give it a date before it was actually sworn or affirmed. To postdate an affidavit means to give it a date after it was sworn or affirmed.

Either way, it is not permissible to backdate or postdate an affidavit. The date on the affidavit must be the date on which the affidavit is actually sworn or affirmed.

One reason for this is that the date on the affidavit is the date on which the affiant is saying that the matters stated in the affidavit are true. They may not be true before or after that date, but that is not the point.

Secondly, the date helps evidence when, how and before whom the affidavit was sworn or affirmed, just in case these matters were contested. This is why the witness (usually a notary public) must give their details on the affidavit. These matters can be and sometimes are contested.

Most importantly, it is misleading for a document to represent that it was sworn or affirmed on a particular date if, in fact, it was not. This misrepresentation is not cured simply because the person swearing the affidavit would have given the same evidence on two days.

The backdating or postdating makes the affidavit misleading and irregular.

Practical considerations

Sometimes the date on an affidavit will be left blank when the document is printed, for instance because when the affidavit is printed it is not known exactly on what date the affidavit will be sworn or affirmed. In these situations, the person swearing the affidavit or the witness should handwrite the date in before the affidavit is sworn or affirmed.

Also, if the wrong date is typed in then this should be crossed out in handwriting and the correct date written in before the affidavit is sworn or affirmed. The person swearing the affidavit and the witness must both sign beside the alteration when signing the affidavit.

The practise in some jurisdictions is for initials to be placed beside alterations instead of full signatures. Other jurisdictions required the alteration to be “ticked” as well as the placing of the signatures or initials.

Some forms of affidavit may have the date in two or more places. It is necessary that all these dates are correct (and therefore are the same). An affidavit that purports to be sworn or affirmed on two different dates is irregular.

If challenged it may be necessary for the affiant and / or the witness to give evidence of the actual date of swearing or affirming the affidavit to correct the defect. This should be avoided, so check carefully before swearing or affirming!

Consequences of backdating or postdating affidavits

Solicitors have been reprimanded for incorrectly dating affidavits. Two significant disciplinary decisions are:

The Canadian case of Re: Stanley Foo (Discipline Case Digest — 1999: No. 07 April (Foo))

In this case a solicitor drafted and dated an affidavit six weeks later than the date on which it was actually sworn.

The hearing panel held that this constituted professional misconduct and was a breach of the lawyer’s duty to uphold the administration of justice. The solicitor received a fine.

The Australian case of Re a Barrister and Solicitor (1984) 58 ACTR 1

In this case the solicitor changed the date that an affidavit was sworn without having the person who made the affidavit reswear it. This meant the affidavit appeared to have been sworn on a date later than which it was really sworn.

The court found that the solicitor had filed the document with the court knowing it was false in a material particular. The solicitor was reprimanded and received a fine.