Affidavit Verifying List of Documents (Form 18)

Discovery in the Supreme Court is governed by Order 26 of the Rules of the Supreme Court 1971 (WA). A party can be required to give discovery by written notice (r 1(1)) or by court order (r 7). The list of documents must be in Form 17 (r 4(1)), and the statements in it must be verified by an affidavit of a person listed in r 4(4), unless the party requiring discovery consented in its notice to the list being certified instead (r 1(3)). An affidavit verifying a list of documents must be in Form 18 (r 4(3)). It confirms which documents the party has, which it objects to producing and why, which it once had, and that reasonable enquiries have been made.

When you need it

• You have been served with a notice requiring discovery under O 26 r 1, or ordered to give discovery under r 7, and are filing your Form 17 list.
• You are giving further discovery under the continuing obligation, which is done by filing and serving a supplementary list with a verifying affidavit (r 2(6)).
• You have edited a discoverable document to hide irrelevant or objected-to information; Form 18 must then be modified to comply with r 1B(2).

1. 1

   Complete the heading and document details

   Enter the proceeding number, parties, date of document, who it is filed on behalf of, the filing date and who prepared it. The index lists the affidavit and the list of documents as Annexure or Attachment A.

2. 2

   Identify the right deponent

   The affidavit is made by the party, by an officer of the State where the State or a State officer is the party, or by a member or officer of a corporation or other body (r 4(4)). Where an order is made against such a party, the order must name the person who is to comply.

3. 3

   Paragraphs 1 to 5: tie the affidavit to the list

   Insert the name of the party giving discovery in each blank. Paragraph 1 identifies the Form 17 list produced to the deponent and marked Attachment A. Paragraphs 2 to 5 confirm Part 1A (documents held), Part 1B (documents objected to, with grounds), Part 2A (documents no longer held) and Part 2B (what happened to them).

4. 4

   State privilege claims properly

   Any claim that a document is privileged from production must be made in the list with a sufficient statement of the grounds (r 4(2)). Paragraph 3 of the affidavit confirms the objection.

5. 5

   Paragraphs 6 and 7: enquiries and completeness

   The deponent swears that all reasonable enquiries have been made, including of employees and agents, and that to the best of their knowledge no other relevant document is or has been held by the party, its lawyer or anyone on its behalf.

6. 6

   Swear or affirm and address it

   Sign before an authorised witness under s 9 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). The template names only a Justice of the Peace, but an experienced legal practitioner who is not involved, a public notary or a court registrar can also witness. Complete the 'To' section with the other parties' names and addresses for service.

• The list of documents must be filed within 10 days after service of the requisition, or within the time set by the order (O 26 r 4(1)). File the verifying affidavit with it.
• File through eLodgment on the eCourts Portal (O 67A r 3). As an affidavit, Form 18 must be signed and filed in PDF format (O 67A r 4(5)).
• The Court's forms page lists one copy for filing. Serve copies on the other parties.
• Supplementary discovery is given promptly after a party becomes aware of a discoverable document, and in any event at least 21 days before trial (r 2(4) and (5)).

• Paragraph 7 is sworn on behalf of the whole party, including its lawyers and agents. Make the enquiries before signing.
• If documents have been edited to hide information, list them in Part 1B, identify them as containing hidden information, say why and state any grounds of objection (r 1B(2)).
• The Court's Word template is an older layout with blanks where Schedule 2 says '[party giving discovery]'. The wording of the seven paragraphs matches the current Schedule 2 form.