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This kit is current at June 2012


Affidavit Cover

Preparing Affidavits for the Magistrates Court

Contents of this Self-help Kit

What is an affidavit?
Who is the deponent?
Why is an affidavit necessary?
What forms are available from the Magistrates Court?
How should I set out my affidavit?
What should I include in my affidavit?
What should not be included in my affidavit?
What are the rules about signing my affidavit?
Sample affidavit
How do I attach letters and documents to my affidavit?
Sample Certificate of Exhibit
Sample invoice
Where do I file (lodge) my affidavit?
Witnesses
Will the court accept an affidavit if it is not in the correct form?
What is service?
The time frame for service
How do I serve the other party?
Will I be cross-examined in court?
What if I have special needs?
Where can I find a translator?
Where can I find the law about affidavits in the Magistrates Court?
Check List
Examples of objectionable material

What is an Affidavit?

An affidavit is a written statement, which sets out the facts of your case—your story—in numbered paragraphs. These facts need to be facts that are within your own knowledge. The affidavit must be signed by you (the deponent) before a qualified witness (usually a justice of the peace, solicitor or barrister).

The Magistrates Court will only accept affidavits that are written following the rules of the court, and this kit has been prepared to help make sure your affidavit follows those rules.

All the facts that you provide to the court and that are accepted by the court are known as your evidence. For further information, please refer to the section What should I include in my affidavit? below.

Your evidence could also be given in your own words in court from the witness box (verbal evidence).

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Who is the Deponent?

The person who signs the affidavit is called the deponent. A deponent deposes (states) that the written information in the affidavit is true.
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Why is an Affidavit Necessary?

Writing an affidavit will save time for the court and for you. It is often easier for you to set out your thoughts clearly in writing before you go to court. Telling your story in court may be stressful for you, and you might accidentally forget some important details of the case.

The court hopes that you will settle your dispute before going to court. You may be more willing to come to an agreement with the other party once you know the basis of their case. You will find this out from the affidavit/s, which normally will be exchanged before the court hearing.
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What Forms are Available from the Magistrates Court?

The Magistrates Court makes some forms available to members of the public. An affidavit form (called a Form 46) can be obtained from the Magistrates Court or downloaded from the Queensland courts website and filled out on your computer.

All documents prepared for the Magistrates Court, including affidavits, must have a heading on top of the front page, which has to include the name of the court (e.g. the Magistrates Court of Queensland), the court registry handling the file, the names of the parties and the court file number.

This is necessary so that documents relating to your case can be easily identified in court.

The Brisbane Magistrates Court is located at 363 George Street, Brisbane and its phone number is (07) 3247 5598. Details of other courts can be found on the Queensland courts website.
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How Should I Set Out my Affidavit?

All Magistrates Court affidavits should be typed on A4 paper and be set out in consecutively numbered paragraphs (see Sample affidavits).

Your affidavit must be written in first person, i.e. you need to tell what you did, saw, said or heard for example by writing ‘I said’, ‘I went’ or ‘I saw’.

Start by stating your name, your residential address or place of employment, and any description of yourself or your role that relates to the dispute.

Then describe the first thing that happened and set out your story from beginning to end. Each numbered paragraph should contain a separate event or idea. Keep each paragraph as short as possible so your affidavit will be easy to read and understand. Each page must be numbered.
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What Should I Include in my Affidavit?

The following details need to be included in your affidavit:

  • your story, told truthfully and accurately
  • all relevant facts in short numbered paragraphs (usually one event per paragraph)
  • copies of all relevant documents (see How do I attach letters or documents to my affidavit?)
  • your response to any matters raised in any affidavit provided to you by the other party. If you disagree with anything said in the other party’s affidavit, you should refer to it and explain why you disagree.
    For example ‘I refer to paragraph 6 of the affidavit of John Smith, sworn on 2 January 2012. The Ford Laser swerved into oncoming traffic. I observed another car…’.

See Sample affidavits for more details.
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What Should not be Included in my Affidavit?

You should never be deliberately untruthful. Lying can seriously damage your case. There are severe penalties under the Criminal Code Act 1899 (Qld) in Queensland for lying to or deliberately misleading the court.

The court will not always accept everything you say or have written. There are strict rules of evidence, which prevent the court from taking into account inappropriate statements. A statement will not be accepted into evidence by the court if it is unnecessary, irrelevant, scandalous, argumentative, or it sets out opinions by people who are not qualified to give them.

See Examples of objectionable material for a more detailed explanation of these terms and some examples of what you should avoid saying in your affidavit.

The court will normally reject statements if they are hearsay. ‘Hearsay’ is basically information that you have heard from someone else. For example, your neighbour might tell you that she saw someone enter your home while you were at work. You could not put that information in your affidavit because it is hearsay.

First person statements are not hearsay—for example, it would not be hearsay if your neighbour swears an affidavit about what she has actually seen.

There are some important exceptions to the rules against hearsay.

The laws about evidence are complex and you should get legal advice if you are in any doubt about what you think you need to include in your affidavit.

If inappropriate material is included in your affidavit, the court may order that it be struck out or removed. This creates a risk that you will have to pay part of the costs of the other party when the magistrate makes their final decision. The court may say that it was your fault that time was wasted and order you to pay costs to the other party for this.

Do not exaggerate! Think carefully when answering questions about ‘how often’ or ‘how many’, and when using words such as ‘never’ or ‘always’. Avoid using terms such as ‘usually’, ‘often’, ‘sometimes’, ‘many’ and ‘few’, as they can mean different things to different people. It is much better to use specific phrases such as ‘more than four times but less than ten’ or ‘at least twice a week’.
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What are the Rules About Signing my Affidavit?

Your affidavit must be signed at the end of the document by you (as the deponent) and a qualified witness. If there is more than one page, both of you must sign at the bottom of each page. Lawyers, a justice of the peace and a notary public can witness affidavits.

Any changes to a typed affidavit must be done neatly. Rule a single line through whatever you want to delete with a biro and write the changes. Do not use liquid paper on your affidavit; the court will not accept it.

You and your witness must initial each change, and changes should only be made before the affidavit has been signed. If you need to change the affidavit after it has been signed, you should prepare a new copy and have it witnessed again. If it looks like the affidavit has been changed after it has been signed, the magistrate or judge may question the changes.
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Sample Affidavit

Sample completed affidavit
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How do I Attach Letters or Documents to my Affidavit?

Copies of any documents and letters referred to in your affidavit should be attached at the end of the affidavit. These documents may be important to help you to prove your case.

To attach documents, you must say what each document is and how it is relevant in the text of your affidavit. Each document attached must be introduced and described in the text of the affidavit as ‘the exhibit marked “A” (or “B” or “C”) is a copy of (describe the document)’. For example:

I have paid to Instant Car Repairers the amount of $7300. The attached exhibit marked ‘A’ is a copy of the account I received from them on 12 March 2012.

You must write the letter ‘A’ (or ‘B’ or ‘C’ etc.) in the centre of the top of the letter or document that you are exhibiting. A Certificate of Exhibit must be attached to the letter or document.

The Certificate of Exhibit verifies that the exhibit attached to your affidavit is the correct one. It must be signed by both you and a witness. Sometimes your affidavit may have a lot of exhibits, so the Certificate of Exhibit ensures that they are all attached in the correct order. See below for a sample of a Certificate of Exhibit.

Usually, if you are attaching documents to your affidavit, your actual affidavit will appear first, followed by the Certificate of Exhibit and the exhibited documents, each one being identified as exhibits ‘A’, ‘B’, ‘C’ and so on. A single exhibit sometimes will be made up of several pages forming the one document.
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Sample Certificate of Exhibit

Sample Completed Certificate of Evidence

Sample Invoice

Completed sample invoice
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Where do I File (Lodge) my Affidavit?

Once you have signed your affidavit before a witness, you must make two photocopies and take them to the counter of the Magistrates Court for filing. The clerk will stamp each copy with the stamp of the court.

The original affidavit will be placed on the court file. The two copies are returned to you. One copy is for you and one is for you to give to the other party in the case. You must arrange to serve the other party with their copy.
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Witnesses

If you have a witness to support your story, you normally should arrange for your witness to prepare a supporting affidavit setting out any relevant facts. This must then be filed with the court.

Any witnesses who have completed affidavits will usually be called upon to make themselves available for cross-examination by the other side during the actual hearing. You should warn your witnesses about this.

You will normally know by the day before a hearing if the other side wants to cross-examine one of your witnesses, because you will be given a notice of this. Think about whether you also need to give a similar notice. If a witness is required to attend at court and fails to show up, the court may decide to ignore the affidavit or give it only limited weight. This could affect your chances of winning.

In any case, the court can order a witness to appear so that they can then be examined or cross-examined.

If a potential witness is refusing to cooperate, but they are needed to give evidence (either in person or by producing documents to the court), that witness will need to be subpoenaed to ensure that they comply. This involves a special procedure. Get legal advice about this if it becomes an issue.

A subpoenaed witness must be given sufficient notice to make sure that they can arrange to be at court with any relevant documents. They must also be given a reasonable amount of conduct money to cover their costs of appearing. More details about this are contained in the court rules, called the Uniform Civil Procedure Rules 1999 (Qld) (the UCP Rules) or can be obtained from your legal advisor.
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Will the Court Accept an Affidavit if it is not in the Correct Form?

The court probably will not accept an affidavit if it is not in the proper form; however, you could still try asking the court or the magistrate to accept what you have prepared, even if it is not correct.

The court will sometimes agree to accept an affidavit that is irregular in its form.
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What is Service?

The court has created special rules about the service of documents to ensure that each party named in a court action is aware of the case being brought against them by the other side. You must therefore serve a copy of your affidavit (and any other affidavits prepared by your witnesses) on the other party before the court hearing.

Serving documents basically means that you are personally giving a document to someone or arranging to get a copy to them in accordance with the court rules. Take note that there are special rules for the service of children, prisoners and people with impaired capacity.
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The Time Frame for Service

  • Affidavits in support of court applications must be filed and served at least three business days before a hearing.
  • An affidavit in support of an application for summary judgment must be filed and served at least eight business days before the hearing.
  • For most other matters, an affidavit should be filed and served at least two business days before a court hearing.

In certain urgent situations, an affidavit may even be led and served at the start of a hearing, but there will need to be exceptional reasons for the court to allow this to happen.

If this does happen you should ask for an adjournment so you have some time to read the material.
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How do I Serve the Other Party?

In the Magistrates Court, the rules for service have been simplified. Basically, unless the court orders otherwise or personal service is specifically required under other rules, you can post a copy of the led affidavit to the other party’s current home or business address (or last known address) in a properly addressed, stamped envelope. However, if the other party has a lawyer acting for them in the court case, you must serve the person by sending/delivering the documents to the law firm.

If you decide to serve by post, it is best to use certified post. Ask for a receipt to be provided for the certified post once it is collected. This is useful evidence of what you have done.

Alternatively, you can also still serve documents in person—either yourself, or by having another adult serve the document/s. If the person you are trying to serve is not at home, you may serve the documents by leaving them with another adult who appears to live at the relevant address.

If no-one is there, you can leave the document in a prominent position where it is likely to come to the other person’s attention at that address. In some circumstances, you can even serve documents by facsimile or email. This is explained in r 112 of the UCP Rules.

If you cannot find out where the other party lives or works, you can also hire a process server to try to locate them for you. There is no guarantee that they will be able to find an address for you. Process servers charge fees, so make sure you ask in advance what the fee will be.

The rules for serving documents for legal matters dealt with outside the Magistrates Court are not necessarily the same as those described above, so check with the relevant court if that applies to you.
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Will I be Cross-examined in Court?

Your affidavit contains your story and will be the basis of your case. Both you and the other party are permitted to ask questions about the contents of each other’s affidavit (this is known as cross-examination).

You and other witnesses must be sure that the affidavits are truthful and accurate.
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What if I Have Special Needs?

If you are blind, have difficulty reading or understanding English or have another form of print disability, you cannot sign an affidavit unless it has been read aloud to you. In such circumstances, it is usual that the witness will read it to you. To establish that this has been done, you must sign or make your mark next to the special wording that states that the document was read out to you and that you appeared to have understood it.

There are two options for the wording, according to the deponent’s ability. The relevant clause should be inserted before the space where the deponent signs the affidavit on each page:

[who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit.]

or

[who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit, but was physically incapable of signing it.]

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Where Can I Find a Translator?

If your first language is not English, you may have some difficulty in preparing an affidavit and presenting it to the court. All affidavits must be in English. There are specially qualified translators who can assist you.

For further information about this type of assistance and the costs involved, contact the Translating and Interpreting Service (or telephone 13 14 50). Special witnessing clauses are used in these circumstances.
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Where Can I Find Out About the Law Regarding Affidavits in the Magistrates Court?

The legal requirements for affidavits in the Magistrates Court are found in the UCP Rules.
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Checklist

Before you take your affidavit to the Magistrates Court, check that:

  • your story has been told truthfully and accurately
  • your affidavit looks similar to the example included here
  • you and your witness have signed at the bottom of each page
  • all exhibits (attachments) to your affidavit have been properly marked and signed by a witness as set out in the example here
  • you have made two photocopies to take with you.

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Examples of Objectionable Material

Unnecessary material includes:

  • information that has previously been given by you or the other party to the court in another affidavit or court document
  • detailed information that does not add anything to the substance of your story
  • information that is obvious or is not in dispute.

Irrelevant material includes:

  • information that does not relate to the dispute before the court
  • information that is not current, including minor episodes that happened years ago
  • personal opinions about the other party’s character.

Scandalous and oppressive material includes:

  • information (sometimes untruthful) that is designed only to shock the reader
  • information given to attack someone’s reputation
  • personal opinions disguised as accusations about another person.

Argumentative material includes material:

  • arguing about minor or unimportant details
  • denying a fact simply for the sake of denying it, rather than because a denial is needed.

Opinions by unqualified people include:

  • opinions about a medical condition or state of mind where the person giving the opinion does not have a suitable medical qualification
  • opinions as to the value of property or assets where that person is not a qualified valuer or does not deal in property
  • opinions that require some sort of training or knowledge beyond that of an average person.