Affidavit

An affidavit is a written statement of evidence that the maker (the deponent) swears or affirms is true. Order 37 of the Rules of the Supreme Court 1971 (WA) sets its form: it must be entitled in the proceeding and bear its number (r 1), be in the first person, state the deponent's place of residence and occupation, say whether the deponent is or is employed by a party, be divided into consecutively numbered paragraphs and give dates, sums and numbers in figures (r 2). Order 37 operates in addition to the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (r 16), and section 9 of that Act governs how the affidavit is sworn or affirmed and who may witness it. There is no numbered Schedule 2 form; the Court publishes this Word template on its General Division civil forms page.

When you need it

• You need to put evidence before the Court in support of, or in opposition to, a summons, motion or case management request.
• You are relying on evidence in an originating summons, where evidence is by affidavit unless the Court orders otherwise (O 58 r 21).
• You need to prove a step, for example service of a writ before entering default judgment (O 13 r 1(3)).
• Evidence may be given by affidavit on any originating summons, originating motion or application by motion or summons, subject to cross-examination if ordered (O 36 r 2(3)).

1. 1

   Complete the heading

   Enter the proceeding number and the parties exactly as in the proceeding. The template still shows 'CIV of 2010', so change the number and year. The description must include the deponent's name and refer to the application it relates to (CPD 1.2.1).

2. 2

   Fill in the document details

   Every affidavit must carry a note of the deponent's name, the dates of swearing and filing and on whose behalf it is filed (O 37 r 13(2)). Add who prepared it and the contact and reference details.

3. 3

   Add an index if there are attachments

   If the affidavit has attachments, bind an index with it listing each attachment, its page numbers and a short description (r 2(7)). Number every page, including attachments, consecutively in the top right corner (r 2(6)).

4. 4

   Write the opening and the evidence

   Give the deponent's full name, residential address and occupation, and say whether the deponent is or works for a party. Set out the evidence in numbered paragraphs, confined to facts the deponent knows personally. Statements of information or belief are allowed only in limited cases, such as interlocutory proceedings, and the sources must be given (r 6).

5. 5

   Attach or exhibit documents

   Documents used with the affidavit are attached and referred to as attached (r 2(8)). A bound register, account book or unusually sized document is referred to as an exhibit instead, identified by a certificate of the witness bearing the short title and number (r 9(1) and (2)).

6. 6

   Swear or affirm before an authorised witness

   The deponent signs the jurat, every other page and any alteration, then swears or affirms orally before the witness. The witness signs under the jurat and on each page, initials alterations and writes their name and qualification (Act s 9(3) and (5)). In WA the witness can be a Justice of the Peace, an experienced legal practitioner, a public notary, or a registrar or clerk of a court (Act s 9(6) and s 6(2)).

• File through eLodgment on the eCourts Portal (ECMS), which is mandatory in the civil jurisdiction unless an exception applies (O 67A r 3).
• An affidavit must be signed and presented in PDF format; it is not filed as a Word document (O 67A r 4(4) and (5); CPD 1.2.1).
• Each electronic file must be under 200 megabytes (O 37 r 2(11)). A paper volume must not be more than 40 mm thick unless the Court allows (r 2(10)). Exhibits cannot be filed electronically (r 9(3)).
• File the affidavit before it is used (r 13(1)). Where a time is set for filing affidavits, one filed late can be used only with leave (r 14).
• Serve a copy on the other parties. An affidavit opposing a summons must be filed and served at least 2 days before the return day unless the Court orders otherwise (O 59 r 5(3)).

• A lawyer who helped prepare the affidavit, or who is involved in the proceedings, cannot witness it (Act s 9(7)). The template's witness block lists only a Justice of the Peace or a legal practitioner, but the other authorised witnesses in s 9(6) can also be used.
• Do not use a rubber stamp for any signature (CPD 1.2.4 referring to s 15 of the Act).
• Leave out hearsay, argument and copied extracts that are not needed: the party filing an affidavit that unnecessarily includes them pays the costs of it (r 6(3)).