Affidavit in support of application

Section 110 of the Magistrates' Court Act 1989 lets a person against whom a final order was made in a civil proceeding they did not appear in apply to have the order set aside and the proceeding re-heard. Rule 46.08(2) of the Magistrates' Court General Civil Procedure Rules 2020 requires the application and any affidavit in support the applicant intends to rely on to be served on the other parties. The court publishes this form as the affidavit in support of an application for re-hearing, and says it must address why you did not file a defence, when you became aware of the proceeding and what you did next, and, if the other party does not consent, why you have an arguable defence. The affidavit must follow Order 43: first person, numbered paragraphs, and facts within your own knowledge (rr 43.01, 43.03).

When you need it

• A final order was made against you in a civil case when you were not in court, and you are filing an application for re-hearing (Form 46B).
• You need to explain to the court why you did not attend or did not file a notice of defence.
• You want to show the court you have an arguable defence to the claim.

1. 1

   Fill in the heading

   Use the case number, venue and party names from the complaint, the date, who it is filed on behalf of and any solicitor's details, and state the nature of the complaint briefly.

2. 2

   Identify yourself

   Give your full name, address and occupation (r 43.01(2)), and choose whether you will swear or affirm.

3. 3

   Set out your evidence in numbered paragraphs

   Cover the points the court asks for: why you did not file a defence or attend, when you found out about the proceeding and what steps you took, and, if the plaintiff does not consent, the facts that show you have an arguable defence, such as why the money is not owed. Keep each paragraph to one topic (r 43.01(4)).

4. 4

   Attach documents as a bundle exhibit

   Documents you refer to must be annexed as a bundle exhibit with a certificate in Form 43A, and the pages of the affidavit and exhibit numbered in sequence (rr 43.03(3), 43.06).

5. 5

   Swear or affirm it

   Sign in front of an authorised affidavit taker, such as a registrar of the Magistrates' Court (Oaths and Affirmations Act 2018 s 19(1)). The witness completes the jurat with their name, capacity and address. Any alterations should be initialled by the witness (r 43.05).

• File the original and two copies with the application for re-hearing (Form 46B) at the Magistrates' Court where the complaint was made. The court's guide says this can be done in person or by post, and a filing fee is payable with the application - check the current fee schedule.
• Serve a copy of the application and this affidavit on the other party or parties at their address for service in the complaint or notice of defence at least 14 days before the hearing date, unless the court orders otherwise (r 46.08(2)).
• The person who serves them completes an affidavit of service (Form 6A).
• An affidavit that has not been filed generally cannot be used (r 43.09).

• Be specific about dates: when you were served or first learned of the claim, and what you did next.
• Stick to facts you know yourself. Making a false affidavit can be prosecuted as perjury, as the form warns.
• The court's form finder now links a file named for re-hearing; the wording is the same as this form.