Affidavit (Form 59)

Rule 29.02(1) of the Federal Court Rules 2011 says an affidavit must comply with Form 59 and be made in the first person. The rest of rule 29.02 sets the layout: the first page states the deponent's description and the date sworn, paragraphs are numbered, every page is numbered from 1, the deponent and the witness sign each page (but not the annexures), and each annexure and exhibit carries a certificate marked with the deponent's initials and a number. Section 45 of the Federal Court of Australia Act 1976 says who can take an affidavit, including a justice of the peace, a commissioner for declarations and persons authorised to administer oaths for the Federal Court, High Court or a State or Territory Supreme Court. The deponent can choose to swear (oath) or affirm.

When you need it

• You need to put evidence before the Federal Court, for example in support of an originating or interlocutory application.
• Rules require an affidavit, such as the affidavit explaining delay with an application for an extension of time (r 35.14(3)(c)) or proving service.
• You are a party, an officer authorised to speak for a company that is a party, or a non-party witness.

1. 1

   Heading and deponent details

   Copy the file number, Registry, Division and party names. Fill in the deponent's name, address, occupation and the date sworn or affirmed: the first visible page must state the deponent's description and the date (r 29.02(2)).

2. 2

   Contents table if long

   The form asks for a table of contents if the affidavit, including annexures, is more than 10 pages, listing the affidavit and each annexure with page references.

3. 3

   Opening and capacity

   Choose "say on oath" or "affirm". State who you are: a party, an officer authorised to make the affidavit for a party, or a witness. Say which facts are within your own knowledge and which are based on information and belief, and the source.

4. 4

   Evidence in numbered paragraphs

   Write in the first person, one subject per paragraph where practicable (r 29.02(3)). Do not include scandalous, frivolous, vexatious, evasive or ambiguous material (r 29.03).

5. 5

   Annexures and exhibits

   Annex copies of documents. Exhibit a document only if it is an original or too large to annex (r 29.02(4), (5)). Mark each with a certificate and the deponent's initials plus a number in sequence, such as JWG1, JWG2, and never reuse a number from an earlier affidavit by the same deponent (r 29.02(8) to (10)).

6. 6

   Swear or affirm and sign

   Delete the instructions at the end of the form first. The deponent and witness sign every page of the affidavit (r 29.02(7)), the witness signs the first page of each exhibit (r 29.02(11)), and the jurat records the place, State or Territory and date. Rule 29.04 covers deponents who cannot read, are blind or cannot sign.

• File through eLodgment or at a Registry. An affidavit sent electronically must be sent as an image, meaning a scan of the signed document (r 2.23(2)).
• Serve the affidavit on each other interested party at least 3 days before the occasion for using it (r 29.08), with copies of every annexure and exhibit (r 29.05).
• Another party can give notice requiring the deponent to attend for cross-examination. If the deponent does not attend, the affidavit may not be used (r 29.09).
• Check the Court's fee schedule for any fee on the document or the application it supports.

• Number every page, including annexures, consecutively from page 1 (r 29.02(6)). Unnumbered bundles are a common reason for queries.
• An affidavit can be accepted for filing despite an irregularity in form (r 29.06), but using an unfiled or irregular affidavit needs the Court's leave (r 29.07).
• Keep the original signed affidavit. A document sent electronically must be kept and produced if the Court orders (r 2.23(4)).