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Preparing an affidavit (part 1)

If you are acting in a case in which there are no pleadings, the affidavit material is the only opportunity to present your client’s version of the facts to the court.

In an application for interlocutory relief, or a trial at which evidence is to be given by affidavit, the affidavits, rather than the pleadings, will receive significant focus. Again, the affidavit material is to be prepared with the understanding that this is a real opportunity to provide clarity to the court about the key features of your client’s case.

With that in mind, it is important to minimise the distractions to the court caused by, for example, the inclusion of inadmissible evidence (especially irrelevant evidence); lengthy, dense, rambling paragraphs in no particular order of importance; or the expression of opinions about the law, the other side’s case or the defects in the personality of a witness on the other side.

When drafting an affidavit, you need to consider the following:

1. The purpose of the affidavit

The starting point before drafting any affidavit is to ask the question – why is this affidavit required? If you cannot provide a sensible answer, the affidavit is likely to be unnecessary.

A sensible answer is found by considering the nature of the hearing at which the affidavit will be relied on. If it is to be used at a trial, then the witness is most likely giving evidence of facts which are needed to be proved by your client to establish their case (if a positive case is alleged by them) or to rebut facts alleged by the other side.

Before preparing the affidavit, you need to identify the facts in issue in the case (being the facts which are in dispute). This will in turn assist you to gather the evidence needed to prove or disprove the existence of the facts in issue.

If you are preparing an affidavit of a factual witness for a trial, subject to limited exceptions, the witness will only be giving evidence relating to a fact in issue. Any other evidence is irrelevant and likely to be inadmissible.

Another type of affidavit you might prepare for a trial is the affidavit of an expert witness. It is usual for an expert to be required to provide their evidence in the form of a report. This means that the affidavit prepared by you would be a formal affidavit which attaches the report prepared by the expert. If however an affidavit of an expert needs to be prepared (because, for example, there was no time to prepare a formal report), it is always preferable for the expert to either draft the content of the affidavit or to dictate the content of the affidavit for transcription. An obvious means of attack on an expert witness relates to whether he, or someone partisan to a party (such as you), prepared their evidence.

If the affidavit is to be used for an interlocutory hearing then, again, the witness is likely to be a witness of fact. Before starting to draft, you need to consider the facts which your side needs to establish by way of evidence in order to achieve the desired result at the hearing. Work out these facts before you start drafting. This will ensure that the evidence is as tight and brief as possible, and is relevant.

2. The time available to prepare the affidavit

There is a difference between preparing an affidavit for an urgent application for an interlocutory injunctionas opposed to an affidavit of the primary witness in a six-week trial. If you have little time, focus on the main facts you need to establish. Do not try to prepare an affidavit which contains excessive detail about less important issues and which fails to address the critical facts.

If the matter is very urgent, it may be that you will be better served by calling witnesses to give oral evidence rather than attempting to prepare affidavits on the run. These may later be revealed to be not quite correct, which can cause lasting damage to your client’s case and the credibility of witnesses called by your side.

3. The availability of the proposed deponent

Once you have identified the facts needed to be established by your client, this tends to help you identify the witnesses who will prove those facts. As a practical matter, do not start drafting the affidavit until you have ensured that the proposed witness is happy to assist; is available to discuss the content of the proposed affidavit (including by telephone); is available and able to swear or affirm the affidavit within the required time; and can, if needed, be available for crossexamination on that affidavit.

4. Proposed exhibits

The identification of facts needed to be established will help to identify documentary evidence which can be adduced to establish the facts. As a practical matter, obtaining the physical documents and copying them in preparation for the finalisation of the affidavit should begin as soon as you decide that certain documents will be required.

5. The forum in which the affidavit will be relied on

The court, tribunal or other body hearing the matter will have its own procedural rules supplemented by any applicable rules of evidence and procedure (whether founded in legislation or the common law). These rules will dictate what can be induced in the affidavit as well as the form in which the evidence is presented.

6. The ability to have the affidavit prepared, sworn and ready in time

You will usually have limited time to interview a witness, draft their affidavit, show the affidavit to the witness for their feedback and then amend in accordance with their feedback, locate and identify exhibits to the affidavit, ensure the affidavit contains admissible evidence only and is in the correct form, have the witness swear or affirm the affidavit, prepare multiple copies and then file and serve it. The identity of the deponent, the content of the affidavit, its level of detail and the number of exhibits will all be affected directly by how much time you have before the affidavit must be filed and served.

In practical terms, if you aim too high in terms of the affidavit evidence which you seek to adduce for your client and you are unrealistic about the time it will take you to carry out the tasks referred to above, then you may miss a deadline or face appearing without an affidavit on a critical issue.

7. Potential cross-examination on the affidavit

When identifying a potential deponent, always give consideration to their likely ability to be able to withstand cross-examination on the affidavit. Are they connected with one of the parties and, if so, is there another witness who could be used who is independent? Does the proposed deponent have an independent recollection of the events in question to the level of detail
contained in the draft affidavit? Or are they hesitant, self-contradictory or desirous of knowing what you ‘want them to say’?

When drafting an affidavit, you need to avoid the following:

1. Irrelevant evidence

Do not include anything in the affidavit which does not tend to prove or disprove a fact in issue, or at least is not part of the necessary background needed to prove or disprove a fact in issue. Unless you can justify the inclusion of each sentence in an affidavit by reference to the facts in dispute, or the facts which need to be shown as a matter of law depending on the case you are in, do not include the evidence.

2. Evidence which tends to demonstrate partiality

A deponent who is critical of the other side, especially through the use of personal remarks or commentary on their legal position, is unlikely to be regarded as a cogent witness.

3. Legal submissions

Some deponents, especially solicitors, seek to make legal submissions in an affidavit. This is unhelpful, usually inadmissible and may cause harm to your client’s case if you brief a barrister to appear and they wish to take a different approach.

4. Inadmissible opinion

There are only very limited circumstances in which a lay witness can express an opinion about something. Before drafting such evidence, check that the opinion is admissible.

If you are proposing to rely on an affidavit from an expert witness, then, depending on the time allowed, attempt to adhere to the rules relating to the admission of expert evidence in the court in which you are appearing. At the very least, establish the qualifications of the expert, whether in the affidavit itself or by exhibiting a curriculum vitae.

5. Poor presentation

The affidavit should comply with all formal matters relating to form. Further, there should be only one idea per paragraph. Ideally, there should only be one sentence per paragraph.

You should present the evidence in a logical manner, which is usually chronological, and use sub-headings. The starting paragraphs should establish who the deponent is and their qualifications and position, if relevant. There may be a section establishing the basis on which the deponent is able to swear to the matters contained in the affidavit. The balance of the affidavit will set out the facts which are the subject of the deponent’s evidence.

6. Lack of precision

The reader of the affidavit should never have to ask – how does this person know this? The basis on which the deponent can swear to something should be apparent. The reader of the affidavit should also never have to ask ‘which time period is he referring to?’, or ‘which contract does he mean?’ or what does she mean when she is referring to the information set out above?’.

Do not use a defined term in an affidavit, such as ‘Head Lease’, without having included a definition of the term in the affidavit.

7. Overstating the evidence

Do not write the script of evidence for the witness (being the evidence you hope they will give) and then seek to have them adopt it. The words you use and the version of events you describe should come from the witness. If you overstate the evidence in an affidavit, this will inevitably be exposed when
the witness is cross-examined.

Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee.

This story was originally published in Proctor April 2020.

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