Australia

The truth, the whole truth and nothing but the truth in Australian affidavits

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The promise to tell “the truth, the whole truth and nothing but the truth” is familiar to most people who have seen a court proceeding either on television or in real life. The phrase is used as part of the oath administered to witnesses who are giving oral evidence in court in Australia.

The wording requires the witness not just to tell the truth, but also that it be the “whole truth.” This is slightly different from the wording often used when a witness swears or affirms an affidavit in Australia, which sometimes does not include a reference to the whole truth. There is therefore a question about whether the person swearing an affidavit needs to tell the whole truth in their affidavit, or just give the relevant information that favours their case.

The courts have been clear that people swearing affidavits should be careful to tell the whole truth in their affidavits, and to avoid creating a misleading situation by omitting relevant information which shows the true story.

The leading case about this in Australia is Re Thom [1918] NSWStRp 4; (1918) 18 SR (NSW) 70. In that decision the High Court condemned the practice of telling half truths by the “conscious withholding of information which[…] would be desirous of knowing in order to do justice to all parties.” Griffith CJ, with whom Gordon and Ferguson JJ agreed stated:

It is of the greatest importance that any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile ones mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of facts which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of fact which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.

More recently, in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J said it was “completely unacceptable” for a witness “to only give the court a half truth.” Young J stated:

It cannot be emphasised too greatly that one’s obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth.

The decision of Young J in ERS Engines has been subsequently cited several times with approval by the New South Wales Supreme Court. In Maio v Sacco [2009] NSWSC 413 White J cited ERS Engines and said:

It bears repetition that in swearing or affirming an affidavit a witness says that the affidavit contains not only the truth, but the whole truth and nothing but the truth.

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

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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.

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.