Affidavits*

Justice John Bryson†

I tune my lyre to no noble theme, but to very ordinary requirements of the
Rules of Court. I will take you to practical concerns for the good lawyer. I will
not deal with any important principles or with anything the mastery of which
is very flattering to the self. Some characteristics of the good lawyer are
involved. The good lawyer will be altogether in command of the English
language and the art of communication. Communication, persuasion and
ready use of written and spoken language are at the heart of our profession,
which is concerned to avoid and if need be adjust with skill the conflicts which
arise from the social nature of humanity. You cannot be a lawyer on your own,
and you must bring a ready grasp of language to bear on the process of
communication if you are to achieve any result. Written communications
which you produce should be fully and readily comprehensible, and should
not present their recipients with difficulties or inefficiencies of understanding.
A document produced by a lawyer ought to evince a full participation in the
culture of literacy. It is not usually the place for slang, colourful idiom or
technical language which is not in general use, although these may be
required, and may have to be explained if used.
The good lawyer is economical with time, busy and assiduous, and governs
behaviour with appropriate regard to the needs of others also to be busy and
efficient with their time. Preparing affidavits offers opportunities to use and
demonstrate your facility in communication and your efficiency, or
alternatively an opportunity to demonstrate in a clear way and in a
humiliatingly public way that you lack those qualities. The advocate in the
court room and the office lawyer preparing the advocacy material are both
engaged in the art of persuasion, and as part of that art in communicating the
witness’ evidence to the judge in a manner which is clear, authentic to the
witness and readily absorbed by the judge, so as to attain the efficiency of
adducing the evidence in chief quickly. The art of persuasion requires that art
should conceal art; the information communicated should seem to be all that
is involved; the process of communicating it should not claim attention. If
your documents are inartistic the judge will be distracted from the process you
wish to engage the judge in, that is, absorbing the relevant evidence, and the
judge’s mind will be led to pathways where you do not wish it to go, and to
doubts, hesitations and impediments to comprehension produced by the
crudity of the attempt to give information.
Although this is not my main theme, I will say that you should approach the
preparation of an affidavit imbued with literary culture, with legal culture, and
with a love of language. If you do not do a lot of general reading, and if you
do not have a feeling for language well used, and for a well-printed
well-bound book, your failings may come through in a document which you

* This paper was presented at a seminar conducted by the College of Law in Sydney on
4 February 1999.
† Justice of the Supreme Court of New South Wales.

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 Affidavits 167

produce. If you read nothing but newspapers and race-books this will show up.
If all your reading is hurried and careless you will not notice misprints and
basic errors of grammar. If you have not troubled to find out what are basic
errors of grammar and spelling, or have not troubled to learn how to compose
a clear sentence, the documents you draft will be hard to follow. They will
present the careful reader with incidental disruptions and uncertainties.
You are not however left to your own resources and literary culture unaided.
You should absorb the legal culture around you, and be free of stilted and
archaic expressions, and use language and style which have ready currency.
You should recognise what is excessively formal, and what has become
out-of-date legalese. You have access to many examples of other people’s
work and the affidavits they prepare. It would be a great advantage to you to
read many, reflect on how comprehensible they are, and on what it is that any
difficulties of comprehension arise from, and try to place yourself in the
position of the reader who has not seen the document before, and who is
proceeding, in some haste, to collect information from it. With illustrations
from other people’s mistakes, or it may be their successes, you will assist
yourself to a style which is clear and complete and can be convincing.
Experience in conducting litigation should show you how much of a subject
needs to be stated, and in how much detail, where it would be incomplete to
break off and where it would be excessive to go on. It is very poor advocacy
to give part of a narration and engage the reader’s attention with something
that seems to be developing into a useful piece of evidence, and then to break
off without completing it.
In this line of study it would be as well to observe other people conducting
hearings in which they have to read out affidavits, and get a sense of the
process of communication which takes place, the troubles that can arise if
things are not well expressed, and how things go wrong. A pupil barrister
should have opportunities over many months to see other people conducting
cases with briefs which the pupil has already read, so that the material is quite
familiar. Most people will find it difficult to create an opportunity like this, but
observation of other people conducting hearings well and badly is always a
useful form of self-instruction.
I want to spend my time today however on less lofty themes.
If you want success as an advocate a very good start is to look and sound
like an advocate, prepared and in charge of the material. This extends to the
appearance of your written material, which should be and also should look
like documents which are important enough to have a claim to attention. I will
direct myself to the Rules of the Supreme Court dealing with affidavits, as that
court is my own concern, but you must study the rules of the particular court
or tribunal where you have business. Do not worry about whether they have
been right in their choices: you must conform with whatever they have
chosen. There are many minor variations in the rules as you go from court to
court, and these seem irrelevant or ridiculous until you get them wrong. So
check what you are about. The most minor detail and the least apparent
infelicity can turn out to be wrong somewhere, and it is better not to be wrong.
(Some references to Federal Court Rules are in italics, and they may not be
identical with the Supreme Court Rules on the same subject.)
The Supreme Court Rules say a great deal of the obvious on the subject of
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affidavits. I will repeat much of the obvious. Much of it can be made to seem
trivial, but it is not; it is important because it is the rule. If you affect a fine
disregard of rules on small matters you may seem a very hollow advocate.
At the very beginning, an affidavit is on paper. The rules have something to
tell you about the paper (Pt 65 r 2): of durable quality, capable of receiving ink
writing, and measuring about 297 mm long and 210 mm wide (FCO 41 r 2).
(The rules do not say that the paper is to be white, but it always is. Do not
branch out.) Simple as this requirement is, from time to time it is neglected.
People produce affidavits on flimsy paper, or on photographic paper from a
facsimile machine; not durable because the imprint fades, and not capable of
receiving ink writing because it spreads. There are some more elementary and
obvious things in Pt 65 r 2. Although there are choices, for convenience the
writing should be on one face of the paper only: r 2(3)(a). There should be a
margin at least 25 mm on the left: r 2(3)(c). The annexures should have
margins. All the pages should be consecutively numbered: r 2(3)(d). The
document should be securely fastened: r 2(3)(b).
More obvious requirements would be hard to imagine, yet they are
disregarded every day, so it seems to me from my experience in court. Anyone
who has ever read a book or studied anything should need no persuasion of the
need to number the pages of an affidavit, and to carry the numbering system
through all the annexures in one consecutive series. Yet every day affidavits
appear in which this has not been done. Elementary acquaintance with the
process of reading an affidavit in court, where several parties take part, several
advocates have to follow the document, and the judge has to be referred to
parts of it, shows how essential numbering is. I find myself being told that a
letter is Annexure Q, that it is about 12 pages from the back of the affidavit,
and sometimes it emerges that the copy of the affidavit given to the judge has
page numbers on it, but that no-one else in court has a copy with page
numbers; or they have different numbers, and the numbering has no real
utility. Another recurring failure is that an annexure itself has numbered pages
within it, a contract with say 10 numbered pages, and an advocate causes
exasperation by slipping from one series to the other. The advocate causes
infuriation by referring to both.
Part 65 rule 2(5) requires “The writing shall be clear, sharp, legible and
permanent”. By r 2(6) a carbon copy shall not be filed, and r 2(7) forbids
blotting, erasure and material disfigurement.
Obvious though these requirements may seem, they are often disregarded.
The fast-fading fax copy is not permanent. A fax impression is not clear and
sharp nor is a xeroxed affidavit. Faxed copies become festooned with
inscriptions of their transmission, and the presence of one or several of these,
top and bottom, some upside down, injures the impression the document
produces. The inscriptions are not part of the affidavit, and they should not
appear on its face. Give the court the best print, not a fax print, and not a fuzzy
xerox. An annexure (typically it is an annexure) which is a product of several
successive photocopyings of copies may not be legible. If this has happened
the remedy is not to apologise, nor is it to offer an extra piece of paper with
a transcription, to complicate the file when it is lost; the remedy is to produce
a legible annexure in the first place, perhaps by re-typing, perhaps by
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bothering to find and copy the original. It is no great sacrifice to make this
effort.
There is also a provision about the minimum space of 3mm between the
lines of writing: r 2(3).
Then there is an exception to r 2 where the nature of a document renders
compliance impracticable: r 2(1).
The crown of my complaints on Pt 65 r 2 is the requirement that the
document shall be securely fastened. What could be more obvious than that if
an affidavit is to appear convincing it should appear to be in the form which
it took when it was sworn. An affidavit held together by a bulldog clip or a
slide fastener, or by the fingers, will immediately raise doubts as to its
integrity. How can the reader be sure that this is the bundle of papers, and in
this order, that the witness gave his oath to? Anyone with any acquaintance
with literacy, or facility in the use of written material, or experience in
handling paper must know that an important record which is to remain in the
court file for an indefinite number of years cannot be clipped together with a
bulldog clip, but for those who cannot perceive this the rules of court prescribe
that it must be securely fastened.
By now I have made quite a burden of complaints but I have not gone
further than one of the rules of court. There are many more. I make these
observations with a strong sense of entitlement to be presented with
documents which do comply with these careful but simple requirements, and
can readily be employed in the trial, and in the incidental processes of
maintaining permanent records.
Part 65 has more to tell and should be read. At the moment I note r 4
(FCO 41 r 4) (dates sums and other numbers shall be expressed in figures and
not in words) and r 1 which states a lot of grossly obvious matters which must
be set out on the first page of any document (FCO 41 r 1, r 3). This must be
taken with Form 1 (FCO F1 and F2) which illustrates the identifying
information in the left hand margin of the first page of each document. For a
court and its registry where cases are commenced in thousands and documents
are filed in hundreds of thousands, ready identification of a document is
essential. Form 1 shows that for an affidavit the name of the deponent and the
date of swearing appear in the left hand margin. Many people find this
difficult, as the same information can be read on the right-hand side of the
page. That does not mean that it is unimportant to put the accurate information
in the left-hand margin where people will look for it when they use the file.
It is frequent to omit the name of the deponent, and even more frequent to
omit the date of swearing it. There are variations on the last failing, and these
include to omit it in the body of the affidavit as well, and to give different dates
at different places. Another variation is to leave the date unstated in the
affidavit but to show it in an annexure note. Form 49 is a general form of
affidavit and shows that the date is to appear at the beginning, that is on the
first page (FCO F 20). Form 49 also includes some forms of jurats: the date
does not appear there. Other courts have other practices with the date at the
end, but we wish you to follow our practice.
In Form 1 the names of each and every party both to the claim and to all
cross-claims appear in the left-hand margin. This can lead to ridiculous results
where there are many parties, and also where there are many cross-claims. I
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have seen affidavits in which the left-hand margin of the first page filled two
pages; every name was set out and then they were all set out again in different
arrangements again and again to refer to several cross-claims. For an affidavit
this should be avoided by following Pt 65 r 1(4), which for many documents
including affidavits authorises an abbreviated title (FCO 41 r 1(4)). For
example, if there are 35 plaintiffs they can be referred to as “JOHN LEE and
others” and there is no need to set out the names of each and every one of them
in each and every affidavit. Similarly with defendants, and the fact that there
are many cross-claims need not be recited all over again in every affidavit.
Part 38 deals with other requirements for affidavits. These include division
into paragraphs for distinct portions of the subject: see r 2(2) (FCO 14 r 2(2)).
A paragraph which extends over many pages, or is divided into a great number
of sub-paragraphs, does not comply, and it is of no use for finding passages in
the affidavit. An affidavit should be signed on each page, by the deponent and
the person before whom it is sworn: r 2(5) (FCO 14 r 2(6)). There is a detailed
prescription for attesting alterations and interlineations in r 2(3) (FCO 14 r 3).
In a word-processing age it is better not to have any.
Part 38 rule 4 deals with annexures and exhibits (FCO 14 r 4). The
governing consideration is that the affidavit must be of manageable size, not
over 50 pages (r 4(2)) so that unduly bulky documents do not find their way
into a court file (not in FCR). An annexure to an affidavit stays with the
affidavit permanently. We have a reasonably complete archive from 1823 to
the present. If you ever wish to have your document back again it must be an
exhibit. This is true of most original documents, including conveyances and
letters, birth certificates or whatever else they are. Broadly speaking, originals
are exhibits and annexures are copies (FCO 14 r 4(1)). The law of evidence
limits the circumstances in which copies are admissible. Those circumstances
must be in your mind as you prepare an affidavit, and I am speaking at too
elementary a level to attend to them now.
Overall your affidavit including annexures must be of no more than 50
pages: Pt 38 r 4(2). A disadvantage of numerous annexures is that two persons
must sign each page. The annexures must be included in the numbering
sequence. Annexures must also be identified by a certificate on the annexure
(and not on a separate page: see r 4(3)). A sheet containing nothing but a
certificate about some document other than the sheet is of no value, generates
costs and is forbidden: r 4(3). It is the practice to distinguish annexures by
letters, but I see no reason for having more than one means of identification,
and no reason for not identifying them by their page numbers (FCO 14
r 2(2B)). An exhibit however must be identified by an attached certificate:
r 4(4) (FCO 14 r 4(2)). An exhibit does not form part of the affidavit and must
not be filed, although it must be produced for inspection or a copy made
available to the opponent: r 4(5) and (6). The solicitor not the court staff is
responsible for the production of the exhibit at the hearing and for its
safekeeping unless and until it is admitted in evidence.
Affidavits of service can be a grievous cause of useless bulk in files, as
copies of the documents served are annexed to them, and if there are several
almost all the rest of the file may appear three or four times over in annexures
with more bulk than the papers which claim attention and at great expense of
paper and money. It is not necessary, but wrong to annex a copy of each
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affidavit served, with all its annexures, at a cost of so much a page, to each
affidavit of service; a description of the affidavit is enough: see Pt 38 r 7A.
An affidavit must be made in the first person (r 2(1)) and it follows that it
is in direct speech; oratio recta and not as in other times and in other States
in oratio obliqua (FCO 14 r 2(1)). The true substance of what is going on is
that the witness is giving evidence to the court: the lawyer is not doing so, and
the lawyer is not reporting the witness’s evidence. The use of hearsay is
regulated by evidence law, restated at least in part by Pt 36 r 4 and Pt 3.2 of
the Evidence Act 1995. It would seem that both these provisions remain in
force and that either can be relied on to admit hearsay material: I have made
rulings on this basis. Hearsay and affidavit evidence are different subjects:
there is no special exception for hearsay if you prove it by affidavit.
There are provisions in r 2 about jurats, illiterate and blind persons and
incidental matters. Care is needed with jurats for foreign-language speakers
(FCO 14 r 2(3) to (5)).
When you have prepared your affidavit you are not to keep it to yourself.
You should file it and serve copies, and do these things in a timely way: rr 6,
7 (FCO 14 rr 6, 7). An affidavit is filed in the registry so that it will be
available for the judge to read. Surprisingly often I am told that copies were
served, but the affidavit was not filed. Then I am told it has been lost. The copy
is served on the opponent so that the opponent may know in advance what
evidence is to be given, whether it is to be objected to, cross-examined on or
met by other evidence. By filing and serving timeously you minimise possible
troubles for yourself which might arise from your opponent’s right to do these
things. Filing means filing in the registry. Filing documents in court is not
what the judge and the advocate are in court to do: it takes time which should
be used for activities of more value. The judge will find using time in this way
very distasteful, whether or not any remark is made. Affidavits should be filed
not less than two days before the hearing day, or if that is not practicable they
may be filed in court: see Pt 38 r 6 (FCO 14 r 6). An added inconvenience of
filing documents in court is the departure from the regular course in which the
filing is duly recorded in the court’s computer system. It is best to avoid
creating these problems. When grudgingly given leave to file an affidavit in
court hand up the affidavit itself, not a copy, and not three copies. It is a very
sour moment when you give the judge something superfluous, which the judge
will have to assess, recognise as superfluous and hand back, while time passes.
Refer to an affidavit by its own date, not by its filing date: the judge does not
want to know the filing date, and does not want to know both dates.
Of course copies must be served. There may be a number of parties with
more or less interest in the evidence. Do not leave out some relatively less
important opponents and concentrate only on the main source of difficulties.
It is prudent, when you have the time, to check with your opponents several
weeks before the hearing, see whether you are all working with the same list
of affidavits and confirm which of them will be read. It is also wise to check
who is required for cross-examination. A party is not obliged to produce a
witness for cross-examination unless reasonable notice is given, and it is
prudent that these notices should be confirmed in writing: r 9 (FCO 14 r 9).
If anything is persistent in the observations I have made it is the steady note
of complaint. I suggest that you notice the sense of grievance which this
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subject can create, and do your best not to incur the disadvantages of it. Make
a small inner resolution that the next time someone appears in court with an
affidavit on a torn and irregular piece of fax paper, lacking a date,
unnumbered, not filed in the registry and not acceptable to the clerks there,
and its date identifiable only by a fax inscription upside down at the top of the
first page, that person is not yourself. Avoid follies. Find a middle way
between loftily ignoring the rules of court and the form and appearance of
things, and appearing to be obsessed with them. The flow of events should be
that everything is in good order so good order does not have to be mentioned.
Perhaps I am telling you to be obsessed with the rules of court but not to let
it show, and that is the note on which I end.