Affidavit (Form 40)

An affidavit is a written statement of facts sworn or affirmed to be true. Part 35 of the Uniform Civil Procedure Rules 2005 (NSW) governs its form: the heading must include the deponent's name and the date (r 35.3A), every page must be signed by the deponent and the witness (r 35.7B), alterations must be initialled by the witness (r 35.5), and annexures and exhibits must be certified and paginated (r 35.6). Since 2025, an affidavit must also state that generative artificial intelligence was not used to generate its content (r 35.3B), which Supreme Court Practice Note SC Gen 23 reinforces. Form 40 is the approved general affidavit and already includes that statement. It also contains an optional interpreter's affidavit for a deponent who had the affidavit sight translated.

When you need it

• The court has ordered evidence by affidavit, or a rule or practice note requires an affidavit (the Online Registry advises filing an affidavit only in those cases).
• In support of a notice of motion, summons or interlocutory application.
• Where no specific form exists. For example, the Supreme Court advises adapting Form 40 and heading it Affidavit of Delay when explaining a probate application filed more than 6 months after death.

1. 1

   Heading and title

   Include the deponent's name and the date in the heading (r 35.3A), then the court, registry, case number and parties.

2. 2

   Deponent details and role

   Give the deponent's name, address and occupation, and state their role (for example the plaintiff, or the solicitor for the defendant). The deponent must have knowledge of the facts deposed to (r 35.3(3)).

3. 3

   Generative AI statement

   Keep paragraph 2, which states generative AI was not used to generate the affidavit or any annexure or exhibit prepared for the proceedings (r 35.3B). If leave was granted for an annexure, say so in the space provided.

4. 4

   The evidence

   Set out the facts in numbered paragraphs, in the deponent's own words.

5. 5

   Annexures and exhibits

   An annexure needs a certificate endorsed on it, signed by the witness. Number the affidavit pages and annexures in one consecutive series. An exhibit needs a certificate headed like the affidavit, and exhibits are not filed (r 35.6).

6. 6

   Swear or affirm

   Sign before a justice of the peace, solicitor, barrister, commissioner for affidavits or notary public, who completes the certificate about the deponent's face and identity. A legal practitioner or commissioner must add their name and address below their signature (r 35.7A). Both sign every page (r 35.7B). Complete the interpreter's affidavit only if the affidavit was sight translated.

• File in the registry or through the NSW Online Registry, which lists Affidavit (UCPR 40) as a form that can be filed online. An affidavit must only be filed in accordance with the rules, other applicable court rules or a practice note, unless the court gives leave (r 35.9).
• If you intend to use an affidavit that has not been filed, serve it on each other interested party a reasonable time before you need it, or you will need leave to use it (r 10.2).
• Exhibits are not filed (r 35.6(5)); produce or copy them for another party on request (r 35.6(6)).

• Use the current version 8. Older versions lack the generative AI statement that r 35.3B(2) now requires.
• Do not let generative AI rephrase, strengthen or dilute the deponent's evidence (r 35.3B(1)).
• An affidavit with an irregularity in form can still be used, but only with the court's leave (r 35.1). Getting the form right avoids the argument.