Affidavit Verifying Disclosure of Documents (Form 35)

Part 7 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) deals with disclosure. When a registrar or the Court orders a party to disclose documents relevant to the case (Act s 16(1)(n)), the party must lodge and serve an affidavit containing a list of the documents by the date ordered (r 30(2)). The affidavit must state that, to the best of the deponent's knowledge and belief, every document required to be disclosed has been disclosed or is the subject of an objection (r 31(1)). Any objection, and its grounds, must be raised in the affidavit (r 31(2)), and the affidavit must be made by the deponent personally (r 31(3)). Form 35 is the approved affidavit and Form 36 is the list it verifies.

When you need it

• A registrar or magistrate has ordered you to disclose documents, often at a pre-trial conference.
• You later find further documents covered by the order, and must lodge and serve a further affidavit and list as soon as practicable (r 30(3)).
• This is not the informal list each party exchanges at least 14 days before a pre-trial conference (r 30A).

1. 1

   Complete the heading

   Enter the registry, case number and the parties as named in the claim.

2. 2

   Identify the deponent

   Give the deponent's full name, address and occupation, and select whether they swear or affirm.

3. 3

   Paragraphs 1 and 2: verify the list

   Insert the marking on the Form 36 list shown to the deponent. The deponent confirms that the statements in paragraphs 2, 3 and 4 of the list are true, and paragraph 5 is true to the best of their knowledge, information and belief.

4. 4

   Paragraphs 3 and 4: obligations and completeness

   Select claimant or defendant. The deponent confirms the obligations of disclosure have been explained or are understood, and that they know of no directly relevant document not already disclosed.

5. 5

   Swear or affirm before an authorised witness

   Complete the jurat with the place and date, and sign before a registrar, Justice of the Peace or other authorised witness under s 9 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). The deponent signs each page; the witness signs, writes their name and qualification and signs each page (s 9(3) and (5)).

6. 6

   Lodging details

   Tick who is lodging and complete the address for service and contact details, as the form requires.

• Lodge and serve the affidavit and list by the date in the disclosure order (r 30(2)), through eLodgment on the eCourts Portal (r 98C).
• An affidavit must be signed and lodged in PDF format (r 98E(4) and (5)), and the signed copy kept (r 98E(6)).
• Serve a sealed copy on each other party (r 100).
• A party who serves a written request to inspect must be given access to the documents within 14 days, and copies at a reasonable cost if asked (r 33).

• Privilege or inadmissibility are the only grounds of objection (r 32), and they must be stated in the affidavit (r 31(2)).
• A lawyer involved in the proceedings cannot witness the affidavit (Oaths, Affidavits and Statutory Declarations Act 2005 s 9(7)).
• The Court may refuse to admit a document a party deliberately did not disclose and may order costs against that party (Act s 16(1)(q) and (s)).