Order 43 - Affidavits Flashcards
43.01 Form of affidavit (first person, POR, occupation, party, numbered paras, signed at end, witness signs each page, name and address, capacity in which aff. made
(1) First person (2) Unless Crt orders, affidavit shall state (a) place of residence of dep and occupation/description (b) that dep is a party to proc if so (3) If affidavit made in prof/bus capacity, affidavit may, instead of stating deponent’s residence, state (a) address of Dep’s place of business (b) position Dep holds (c) name of firm / employer, if any. (4) consecutive numbered paragraphs, (5) each aff signed by deponent and jurat completed by person before whom sworn (6) each page signed by person before whom sworn.
(7) Person before whom affidavit sworn shall legibly write, type or stamp, below signature in jurat, their (a) name/address + (b) statement of capacity in which they can take affidavit.
43.02 Affidavit by illiterate or blind person
(1) Person shall certify that (a) read in their presence, (b) deponent seemed to understand it perfectly (c) Dep made signature/mark in presence of relevant person. (2) Where an affidavit is made by an illiterate or blind deponent and there’s no (1) certificate, it may not be used in evidence unless Court is satisfied that affidavit was read to deponent and deponent seemed perfectly to understand
43.03 Content of affidavit (able to stage of own knowledge - SHOP)
(1) Except where otherwise provided by/under these Rules, affidavit shall be confined to facts which deponent is able to state of the deponent’s own knowledge (things they SHOP).
(2) On interlocutory application affidavit may contain statement of fact based on information and belief if the grounds (for information and belief) are set out
43.04 Affidavit by two or more deponents
Where Aff. is made by 2+ deponents, the names of the persons making the affidavit shall be inserted in the jurat, except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it shall be sufficient to state that it was sworn by “each of the abovenamed” deponents.
43.05 Alterations (witness must initial alterations)
(1) Person before whom affidavit sworn Must Initial alterations (otherwise can file but can’t use w/o leave of ct) (2) shall apply to account verified by affidavit as if account was part of affidavit
43.06 Annexures and exhibits (form 43A -exhibits with exhibit certificate)
(1) Documents referred in affidavit shall not be annexed but may be referred to as exhibits
(2) Identified by separate certificate (a) bearing same heading as affidavit (b) signed by person before whom affidavit is sworn
(3) Cert shall (a) be in Form 43A; (b) contain in bottom RH corner of page in bold type and in font size not less than 20 points the distinguishing mark of the exhibit and a brief and specific description of the exhibit
43.07 Time for swearing (can be used even if sworn before commencement)
Unless Court otherwise orders, affidavit may be used in proceeding notwithstanding that it was sworn before commencement of the proceeding.
43.08 Irregularity
Notwithstanding any irregularity of form an affidavit may, with the leave of the Court, be used in evidence.
43.09 Filing (must be filed/served before can be used unless have leave)
(except with leave of the Court), can’t use unless (1)(a) filed or (b) filed and served in compliance with order of the Court (2) can be filed with proth. or proper officer
(3) if filed electronicially, image must contain relevant particulars required by Rule 43.01(5) or, if applicable, Rule 43.02(1). (signature and jurat)
