When most people think of court, they think of witnesses in the witness box giving evidence straight to the judge. In fact, in civil and commercial matters, the evidence is first given in written form. Generally, you will only need to provide oral evidence if the other side wishes to further examine the evidence you have provided in your affidavit. This article explains why you might need to swear an affidavit in the context of a commercial dispute.

What is an Affidavit?

An affidavit is a legal term for a witness statement that you swear or affirm is the truth. The statement must be set out according to the rules of the court relating to that dispute. Giving evidence in written form before the matter goes to trial allows the:

  • lawyers on both sides to analyse the strength of the evidence which may assist in settlement negotiations; and
  • court to save time by not needing to call all the witnesses in a case if it does proceed to trial.

Why Do I Need to Swear an Affidavit?

If you are providing evidence relating to you or your business’ commercial dispute, you will be required to give evidence in affidavit form first. You may also need business partners or employees or other involved parties to swear an affidavit to support your case.

It is vital that you consider all the evidence that you might need to prove your claim.

For example, if your employee had a telephone conversation with the other company relating to your dispute, that employee should swear an affidavit. This can add to the strength of your claim and help bolster your company’s credibility in the eyes of the court.

What Kind of Information Should an Affidavit Contain?

Firstly, you can only provide evidence of events that you were ‘party to’. This means events that you witnessed personally, such as seeing, hearing or even smelling something. If you are recalling a conversation, you should recall it in as precisely as possible. If you cannot recall the exact words a person used, you can use the phrase ‘words to the effect of…’.

An affidavit should only contain information relevant to your dispute. Your evidence needs to be set out in clear, easy to follow terms. It should include everything you intend to rely on if the matter proceeds to trial. Failing to mention evidence in your final affidavit may mean your claim will fail. On the other hand, if you include irrelevant material in your affidavit, the other side may object. Furthermore, the court will find it hard to follow an affidavit that contains lots of irrelevant material, making it more difficult for you to win your case.

Do I Need a Lawyer?

It would be unwise to file evidence without first getting legal advice. Furthermore, an affidavit must be formatted correctly. For example, if you type a statement in Word, the court will not accept it. Each court has a specific template it follows. Affidavits are governed by strict rules of evidence meaning some types of evidence are not allowed. There are rules against hearsay (events you didn’t directly witness yourself) and evidence that is someone’s opinion. A lawyer can assist you to draft your affidavit to portray your case in the best possible light.

How Do I Refer to Documents?

In a commercial dispute, it is likely that you will need to rely on:

  • invoices;
  • emails; and possibly
  • text message communication.

Your affidavit will be more compelling if your statements can be backed up by this kind of evidence. You will need to attach exhibits or annexures to your affidavit that contain this evidence. These documents will be labelled and placed behind your affidavit.

Each document you refer to will be numbered according to when it is referenced in the affidavit. If you do not correctly identify a document, the court may not accept it.

For example, if Joe Bloggs is swearing an affidavit and he refers to an invoice as his first document, this will be Exhibit JB-1. 

Do I Still Have to Go to Court?

Whether you need to go to court will depend on how contentious your evidence is. If the other side wishes to challenge your written evidence, then you will need to attend court. The lawyers will decide this before trial. However, you should be aware that by agreeing to swear an affidavit to provide evidence, you must make yourself available to give evidence in person if a court requires it.

Finalising the Affidavit: FAQs

Once you are happy with your affidavit and its attachments, you will need to swear or affirm your affidavit. This makes the statement ‘official’ and allows you to file it in court.

1. Who Can Affirm an Affidavit?

In Australia, an affidavit can be affirmed by certain people, including a:

  • lawyer;
  • certified practising accountant;
  • pharmacist; or
  • doctor.

If you do attend, make sure their stamp is clear and legible, so it will still be visible once the document has been scanned. 

2. What If I am Travelling for Work? Can I Swear an Affidavit Overseas?

It is possible to swear an affidavit overseas. You will need to attend your nearest Australian embassy or consulate to do so.

3. What Do I Do With the Original Affidavit?

Whatever you do, don’t throw it in the bin. Your lawyers must keep the original affidavits. If you didn’t swear the affidavit at your lawyer’s office, you should post it to them immediately after it has been sworn.

Key Takeaways

If you or your company is involved in a commercial dispute, you will need to provide written evidence to support your claim in the form of an affidavit. It is important that the affidavit only contains relevant and generally, first-hand, evidence. A lawyer can assist you in preparing your affidavit to present your case in the best possible light.

If you require assistance preparing an affidavit, you can contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

Stacey Stanley
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