Can a lawyer who has prepared an affidavit also witness it in Australia?

This post explains whether a lawyer who has prepared an affidavit for a person to swear or affirm can also be the witness for that affidavit in Australia. This issue sometimes arises in litigation when legal practitioners want to know whether it is legal or ethical for them to witness an affidavit to be sworn or affirmed by their own client, or whether an independent witness is required instead.

The answer is that in all Australian jurisdictions except Western Australia, a lawyer who has prepared an affidavit may also witness it. There is no rule or practice that requires a witness to be independent of the person making the affidavit.

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The matter was considered in the Federal Court by Selway J in D’Arrigo v Carter, in the matter of Gartner Wines Pty Ltd & the Corporations Act 2001 [2003] FCA 5 (it has not been re-considered in Australia since).

Selway J explained that there was common law authority that “it has been the rule since the time of Lord Hardwicke that the Court does not accept an affidavit sworn before the solicitor in the cause,” quoting from the reasons of Kay J in Bourke v Davis (1889) 44 Ch D 110 at 126. However his Honour then stated that this duty “has been set aside by rule or legislation in most jurisdictions.”

Selway J concluded:

I note that there is nothing in the [Corporations] Act or in s 45 of the Federal Court Act 1976 (Cth) [which explains who may witness an affidavit] or in s 186 of the Evidence Act 1995 (Cth) or otherwise which would require the person before whom an affidavit is sworn to be impartial and independent of the deponent. Nor is there anything in those provisions which would impose a duty upon a person taking an oath independently to verify the truth or otherwise of that which is deposed to. Nor, in my view, is there any obvious reason why such requirements would be implied.

The conclusions of Selway J are probably applicable to all other Australian jurisdictions except Western Australia, as those jurisdictions also do not distinguish in their legislation between independent and non-independent solicitors for the purpose of witnessing affidavits. In those jurisdictions solicitors regularly witness affidavits for their own clients.

The position in Western Australia is different. In Western Australia, s 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) explicitly bars the practice, stating:

An experienced legal practitioner who has participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used, is not an authorised witness for the affidavit.