Australia

How to complete an affidavit for the Supreme Court of South Australia

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This page explains how to complete an affidavit form for use in the Supreme Court of South Australia, in compliance with the Supreme Court Civil Supplementary Rules 2014 (SA) (SR) and s 162 of the Supreme Court Civil Rules 2006 (SA) (CR).

Before you begin, you may wish to download an affidavit form for the Supreme Court of South Australia.

Affidavit must be made by deponent speaking of their own knowledge

The affidavit must state that the deponent is speaking of their own knowledge (r 162(2) CR; r 49(1) SR). Paragraph 1 of the form available here includes words that comply with these rules.

There are exceptions for interlocutory proceedings, or where the Supreme Court dispenses with the requirements (r 162(2) CR). If it is sought to make a statement of belief in exception to this, the deponent must depose to the source and grounds of each statement of belief. A statement to the effect, “I know the facts deposed herein from my own knowledge except where otherwise appears”, without properly identifying the sources and grounds of information and belief, is unacceptable (r 49(2) SR).

Address of the deponent

The address stated should be the deponent’s home address, but it may may be a business address provided it is a place where the deponent may usually be found during normal working hours (r 49(3) SR).

Text of the affidavit

The affidavit should be in English (r 46(1)(a) SR and figures and amounts of money should be expressed in numerals and not in words (eg “54 days” not “fifty four days) (r 46(1)(h) SR).

Exhibits to affidavits for the South Australian Supreme Court

Detailed rules apply to the use of documents in conjunction with an affidavit, which are known as “exhibits”. These are set out in r 50-51 of SR and 162(5) and (6) of CR.

Printing the affidavit

The original affidavit for swearing and affirming and filing in the court should be printed on a single side of the page (r 46(2) SR). The original must be filed not a copy (r 48(1) SR), although if the original is not available there is a procedure for filing a copy (r 49(2) SR).

Swearing or affirming the affidavit

An affidavit must be made before an authorised person to whom the maker of the affidavit (the deponent) swears or affirms his or her honest belief in the truth of the contents of the affidavit (r 162(3) CR).

When the affidavit is sworn or affirmed, each page must be signed by the deponent and the witness and dated (r 49 (4) SR). Initials are not sufficient. Full signatures must be used.

Alterations after the affidavit is sworn or affirmed

The contents of an affidavit cannot be altered after it has been sworn or affirmed. However a deponent may make a later affidavit drawing attention to the error in the earlier affidavit (r 162(4) CR).

How to fill out a NSW UCPR affidavit form

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This page explains how to complete a UCPR affidavit form for NSW courts. Before you begin, you may want to read about how affidavits are used in the courts of New South Wales as well as downloading the correct form.

Writing a UCPR affidavit

Like most affidavits, writing a UCPR affidavit mostly involves inserting the correct information (such as the deponent’s name, details and their evidence) in the affidavit form.

However the affidavit form also includes optional information and instructions, together with information marked by hashtags, or in square brackets or in a smaller font which must be dealt with in a particular way. This is explained further below.

Hashtags (#)

Optional information in a UCPR form is marked with a hashtag (#). Sometimes this will mean you can delete all the information marked with a hashtag if it is not relevant to your affidavit. Other times you need to choose between two or more options all marked with a hashtag (the context will make this clear).

The final version of the affidavit must always have all the hashtags themselves removed.

Example: the first hashtag field in the affidavit form is “#Division”. Not all courts have Divisions. Where the relevant court does have Divisions you should remove the hashtag from in front of the word Division and fill in the Division field by stipulating the Division (eg Common Law Division). Where the relevant court does not have Divisions then the whole word Division and the hashtag in front of it should be deleted (simply delete the row in the document which will bring the text below up and avoid having blank rows).

Example 2: there is a field “#SWORN #AFFIRMED at” in the jurat of the affidavit (which then contains a space for the location to be inserted). Because the affidavit must be either sworn or affirmed (and cannot be both), one of these options must be deleted and the other should be retained. Again, both hashtags must be deleted so that the text will either read “SWORN at” or “AFFIRMED at”.

Square brackets []

Square brackets are used to indicate where information must be provided in the affidavit. The square brackets themselves and the instructions within them must be replaced with the information sought.

Where the square brackets and instructions are in bold, the information that replaces them should also be in bold. If the instructions in a square bracket are in block capital letters, the information that replaces them should also be in block capitals.

The final version of the affidavit must always have all the square brackets themselves removed.

Example: the title of the affidavit form is “AFFIDAVIT OF [NAME] [DATE]“. When finalised, this should read (for example) “AFFIDAVIT OF JOHN DOE 1 JANUARY 2016.”

Instructional text in square brackets in 9 point font

The affidavit forms contain instructional text in square brackets [ ] which is in 9 point font (a smaller font to the text of the affidavit, which is 11 point font). These instructions and the brackets should be deleted and should not appear in the final version of the affidavit.

Therefore you should delete these pieces of instructional text from the affidavit form:

  • [include only if form to be eFiled] – on page 1 of the affidavit
  • [on separate page] – on page 2 of the affidavit
  • [The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.] – after the witnesses signature

If the affidavit is being sworn within NSW, there are two additional pieces of instructional text saying “[OR, delete whichever option is inapplicable]” within the identification fields which should be deleted. The footnote symbols and footnote text in these fields should also be deleted.

Delete these comments when finalising the affidavit.

UCPR affidavit form for NSW courts

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This page explains the use of the UCPR affidavit form in the courts of New South Wales.

An affidavit form for free download is available on this page. Please read the information on this page before downloading the form.

Full instructions on how to complete this form can be found here.

Which courts can I use the UCPR affidavit form in?

The UCPR affidavit form must be used in the following courts:

  • Supreme Court of NSW – all civil proceedings (see below regarding proceedings in the Corporations List)
  • District Court of NSW – all civil proceedings
  • Land and Environment Court of NSW – all civil proceedings
  • Industrial Relations Commission (including the Industrial Court) – all civil proceedings
  • Dust Diseases Tribunal – all civil proceedings
  • Local Court of NSW – all civil proceedings under Part 3 of the Local Court Act 2007 (NSW) (which sets out the Local Court’s civil jurisdiction) and all civil proceedings under the Property (Relationships) Act 1984 (NSW).

The form is approved by the Uniform Rules Committee under s 17 of the Civil Procedure Act 2005 (NSW). Section 4 and Schedule 1 of the Civil Procedure Act 2005 (NSW) require its use in the courts stated above.

Using the UCPR affidavit form in Corporations List proceedings in the Supreme Court of NSW

The UCPR affidavit form may also be used in matters under the Corporations Act or ASIC Act which are heard in the Corporations List of the Supreme Court of NSW under the Supreme Court (Corporations) Rules 1999 (NSW). This is because r 2.6(a) of those rules allows an affidavit for the Corporations List to be in a form that complies with the rules of the Court (which include the UCPR).

To use the UCPR affidavit form in Corporations List proceedings, you should add these two additional fields immediately below the grey “TITLE OF PROCEEDINGS” box:

IN THE MATTER OF: [insert the full name the of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’]

ABN or ACN or ARBN: [insert ABN or ACN or ARBN of the corporation]

Download a free NSW UCPR affidavit form

Affidavit to be sworn or affirmed within NSW

Affidavit to be sworn or affirmed outside NSW (including overseas)

Why are there different forms depending on where the affidavit is sworn or affirmed?

The forms are identical except that the affidavit to be sworn or affirmed outside NSW does not contain fields to record the identification details of the person making the affidavit. This is because the identification requirements only apply to affidavits for NSW courts which are sworn or affirmed within NSW (s 34(1) Oaths Act 1900 (NSW)). These requirements do not apply when the affidavit is sworn or affirmed outside NSW.

If the affidavit is to be sworn within NSW for use in a NSW court you must use the form which includes the identification requirements and comply with them.

However there is an exception where the affidavit is sworn or affirmed “for the purposes of, or in connection with, any matter arising under, a law of the Commonwealth” (most usually this will be for a proceeding under the Corporations Act or ASIC Act to be heard in the Corporations List). If the affidavit is  made for this purpose, it is not necessary to comply with or include the identification requirements (s 34(4A)(b) Oaths Act 1900 (NSW)).

When were these forms last amended by the Uniform Rules Committee?

These forms are version 3 of the NSW UCPR affidavit form (Form 40). This version became effective on 30 April 2012. Version 3 was approved by the Uniform Rules Committee to incorporate legislative provisions that became effective on 30 April 2012 which required witnesses to affidavits that are sworn or affirmed within NSW to certify as to the identity of the deponent.

How do I fill out a NSW UCPR affidavit form?

For instructions on how to complete this form please see our instructions page.

Using affidavits in New South Wales, Australia

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In NSW, affidavits are widely used in court proceedings as a written substitute for oral evidence.

The form of affidavit which must be used will depend on the court in which the affidavit is to be used. However, for most courts in NSW, the correct form will be the affidavit form under the Uniform Civil Procedure Rules (UCPR).

The evidence given in affidavits in NSW must comply with the Evidence Act 1995 (NSW) in order for it to be admissible in a court. The court will not usually permit parts of the affidavit which do not comply with the Evidence Act to be admitted into evidence.

There are limited exceptions to this rule. One of the more important exceptions is that the laws of evidence do not apply to matters in the Small Claims Division of the Local Court of NSW (s 35(3) of the Local Court Act 2007 (NSW) provides for this).

Affidavits made for use in courts in NSW must be sworn or affirmed before a qualified witness in the manner set out in the Oaths Act 1900 (NSW) or the Evidence Act 1995 (NSW).

The following pages may assist you in completing your NSW UCPR affidavit:

Affidavits, witness statements and statutory declarations in Australia

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In Australia, affidavits, witness statements and statutory declarations are all different ways that a person can provide a formal, written and signed statement of the evidence they wish to give in relation to a particular matter. Penalties may apply in each case if false information is included in one of these documents.

The differences between affidavits, witness statements and statutory declarations in Australia relates to their format and the way they are signed. These matters are explained under separate headings below.

The actual content of each should be written in the same way no matter whether the document is an affidavit, witness statement or statutory declaration.

Affidavits in Australia

Affidavits are used in Australia as as written substitute for a person turning up and giving oral evidence from a witness box in court. The obligation to tell the truth and the whole truth in making an affidavit is the same as when a person is giving evidence in the witness box (ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193).

A person who makes an affidavit may not need to turn up to court to give evidence at all because their affidavit will be “tendered” or “read” by the court instead. This will have the same effect as the person giving that evidence orally. However the person may still be required to attend court for questioning from other parties (known as “cross-examination”).

Just like oral evidence given in court, an affidavit must always be made on oath or affirmation. Oaths and affirmations are alternative ways of “making” an affidavit, and they are of equal effect. An “oath” is a religious promise to tell the truth. An affirmation is a non-religious equivalent.

An affidavit must be signed before a person who is authorised to administer an oath or take an affirmation. Once the oath or affirmation has been completed, both the person making the affidavit and the witness will sign the affidavit. They both usually sign down the bottom of each page except the last page. On the last page they sign in a special signature panel called a “jurat”.

Depending on the jurisdiction there may be additional requirements. For example, in New South Wales there is a requirement that the person making the affidavit provide the witness with appropriate identification in certain circumstances.

Witness statements in Australia

Witness statements are used to give written evidence in some courts in Australia, quite often in criminal matters. A witness statement is signed by the person making the statement. No oath or affirmation is required.

A witness statement may also be signed by some other person who witnesses the maker’s signature. Generally there is no requirement that this person witnessing the signature is qualified in some way, although it will usually be sensible to choose someone who is responsible and who is over 18.

Statutory declarations in Australia

Statutory declarations in Australia are used to give evidence for non-judicial matters. There is a different kind of statutory declaration for each jurisdiction in Australia, with different rules.

It is important to check with the relevant authority that requires the statutory declaration as to which one they will accept. Usually the appropriate statutory declaration will be the one for the jurisdiction for which the relevant matters need to be proved, but this is not always the case. For example, many land transfer matters will require a statutory declaration from the jurisdiction in which the person making the statutory declaration is based, not one from the jurisdiction in which the relevant land is located. So this should always be checked.

All Australian statutory declarations must be signed in front of a witness. Who can witness the declaration depends on the jurisdiction. No oath or affirmation is required. Again, there may be additional requirements such as appropriate identification requirements in New South Wales in certain circumstances.