UCPR Rules 9 (Court Supervision and Evidence)

Question 1

Rule 366

Answer 1

366
Application for directions

(1)This part also applies to the Court of Appeal.
(2)The court may give directions about the conduct of a proceeding at any time.
Note—
See also the Supreme Court of Queensland Act 1991, section 17, the District Court of Queensland Act 1967, section 125 and the Magistrates Act 1991, section 12(2)(b) which provide for practice directions to be made.

(3)A party may apply to the court for directions at any time.
Note—
Chapter 11 (Evidence), part 8 (Exchange of correspondence instead of affidavit evidence) applies to an application under this part. Note, particularly, rule 447 (Application to court).
For other provisions about directions in Magistrates Courts, see chapter 13 (Trials and other hearings), part 9 (Magistrates Courts).

(4)A party may apply for directions either on an application made for the purpose or on application for other relief.

Question 2

Rule 367

Answer 2

367
Directions

(1)The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.

(2)In deciding whether to make an order or direction, the interests of justice are paramount.

(3)Without limiting subrule (1), the court may at any time do any of the following in relation to a trial or hearing of a proceeding—
(a)require copies of pleadings for use by the court before the trial or hearing;
(b)limit the time to be taken by the trial or hearing;
(c)limit the time to be taken by a party in presenting its case;
(d)require evidence to be given by affidavit, orally or in some other form;
(e)limit the number of witnesses (including expert witnesses) a party may call on a particular issue;
(f)limit the time to be taken in examining, cross-examining or re-examining a witness;
(g)require submissions to be made in the way the court directs, for example, in writing, orally, or by a combination of written and oral submission;
(h)limit the time to be taken in making an oral submission;
(i)limit the length of a written submission or affidavit;
(j)require the parties, before the trial or hearing, to provide statements of witnesses the parties intend to call.

(4)In addition to the principle mentioned in subrule (2), in deciding whether to make an order or direction of a type mentioned in subrule (3), the court may have regard to the following matters—
(a)that each party is entitled to a fair trial or hearing;
(b)that the time allowed for taking a step in the proceeding or for the trial or hearing must be reasonable;
(c)the complexity or simplicity of the case;
(d)the importance of the issues and the case as a whole;
(e)the volume and character of the evidence to be led;
(f)the time expected to be taken by the trial or hearing;
(g)the number of witnesses to be called by the parties;
(h)that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses;
(i)the state of the court lists;
(j)another relevant matter.

(5)If the court’s order or direction is inconsistent with another provision of these rules, the court’s order or direction prevails to the extent of the inconsistency.

(6)The court may at any time vary or revoke an order or direction made under this rule.

Question 3

Rule 371

Answer 3

371
Effect of failure to comply with rules

(1)A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.

(2)Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may—
(a)set aside all or part of the proceeding; or
(b)set aside a step taken in the proceeding or order made in the proceeding; or
(c)declare a document or step taken to be ineffectual; or
(d)declare a document or step taken to be effectual; or
(e)make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate); or
(f)make such other order dealing with the proceeding generally as the court considers appropriate.

Question 4

Rule 375

Answer 4

375
Power to amend

(1)At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.

(2)The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.

(3)If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.

(4)This rule is subject to rule 376.

Question 5

Rule 376

Answer 5

376
Amendment after limitation period

(1)This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

(2)The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if—
(a)the court considers it appropriate; and
(b)the court is satisfied that the mistake sought to be corrected—
(i)was a genuine mistake; and
(ii)was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

(3)The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if—
(a)the court considers it appropriate; and
(b)the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.

(4)The court may give leave to make an amendment to include a new cause of action only if—
(a)the court considers it appropriate; and
(b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

Question 6

Rule 377

Answer 6

377
Amendment of originating process

(1)An originating process may not be amended except—
(a)if the amendment is a technical matter—with the leave of the registrar or the court; or
(b)if the originating process has not been served and all sealed copies of the originating process, and other documents filed with the originating process, are returned to the court that issued the originating process—with the leave of the registrar or the court; or
(c)otherwise—with the leave of the court.

(2)Subrule (1) does not apply to a pleading or particular included in an originating process.

Question 7

Rule 378

Answer 7

378
Amendment before request for trial date

Before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave from the court is not required under these rules.

Note—
See rule 470 in relation to the amendment of pleadings after the filing of the request for trial date.

Question 8

Rule 379

Answer 8

379
Disallowance of amendment

(1)If a party makes an amendment without leave before the filing of the request for trial date, another party may, within 8 days after service on the party of the amendment, apply to the court to disallow all or part of the amendment.

(2)On the application, the court may make an order it considers appropriate.

Question 9

Rule 381

Answer 9

381
Failure to amend after order

An order giving a party leave to amend a document ceases to have effect if the party has not amended the document in accordance with the order at the end of the time specified by the order for making the amendment, or, if no time was specified, at the end of 14 days after the day on which the order was made.

Question 10

Rule 389

Answer 10

389
Continuation of proceeding after delay

(1)If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.

(2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

(3)For this rule, an application in which no order has been made is not taken to be a step.

Question 11

Rule 390

Answer 11

390
Way evidence given

Subject to these rules or a direction by the court—
(a)evidence at the trial of a proceeding started by claim may only be given orally; and
(b)evidence in a proceeding started by application may only be given by affidavit.

Note—
See part 8 for exchange of correspondence instead of affidavit evidence for certain applications.

Question 12

Rule 423

Answer 12

423
Purposes of part

The main purposes of this part are to—
(a)provide for the giving of appropriate directions in relation to expert evidence; and
(b)declare the duty of an expert in relation to the court and the parties to a proceeding; and
(c)provide for the giving of expert evidence by reports; and
(d)provide for the appointment of experts jointly by the parties to a proceeding and by the court.

Question 13

Rule 424

Answer 13

424
Application of part

(1)This part does not apply in relation to a witness giving evidence, whether orally or in writing, in a proceeding who is—
(a)a party to the proceeding; or
(b)a person whose conduct is in issue in the proceeding; or
(c)a doctor or another person who has given, or is giving, treatment or advice in relation to an injured person, if the evidence is limited to 1 or more of the following matters in relation to the injured person—
(i)the results of any examination made;
(ii)a description of the treatment or advice;
(iii)the reason the treatment or advice was, or is being, given;
(iv)the results of giving the treatment or advice.

(2)Also, this part does not apply in relation to a proceeding for a minor claim in a Magistrates Court.

Question 14

Rule 425

Answer 14

425
Definitions for part

In this part—
appointing parties see rule 429L.
code of conduct means the code of conduct for experts set out in schedule 1C.
court-appointed expert see rule 429R(1).
expert, in relation to an issue arising in a proceeding, means a person who would, if called as a witness in the proceeding, be qualified to give opinion evidence as an expert witness in relation to the issue.
joint report see rule 428(1)(b).
report, for a proceeding, means a document giving an expert’s opinion on an issue arising in the proceeding.

Question 15

Rule 426

Answer 15

426
Application for directions

(1)This rule applies if a party to a proceeding—
(a)intends to call expert evidence in the proceeding; or
(b)becomes aware that another party to the proceeding intends to call expert evidence in the proceeding.

(2)The party may, at any time, apply to the court for directions about the use of expert evidence in the proceeding.

(3)The application may be made—
(a)on an application for that purpose; or
(b)on an application for other relief.

Question 16

Rule 427

Answer 16

427
Directions generally

(1)The court may, at any time, give the directions it considers appropriate about the use of expert evidence in a proceeding.

(2)Without limiting subrule (1), 1 or more of the following directions may be given under this rule—
(a)a direction that reports be served within a particular period;
(b)a direction that expert evidence on a particular issue may not be adduced, or may be adduced only with the leave of the court;
(c)a direction that expert evidence may be adduced on particular issues only;
(d)a direction limiting the number of experts who may be called to give evidence on a particular issue or for a particular area of expertise;
(e)a direction providing for the appointment and instruction of an expert under division 5, subdivision 1 or 2 in relation to a particular issue;
(f)a direction requiring experts in relation to the same issue to confer before preparing their reports in relation to the issue;

Note—
See also rule 428.

(g)a direction requiring an expert who has prepared more than 1 report for a proceeding to prepare a single report that reflects the expert’s evidence-in-chief in the proceeding;
(h)a direction about how and when expert evidence is to be adduced in the proceeding;
(i)any other direction that may assist an expert in the exercise of the expert’s functions.

(3)This rule does not limit any other power of the court to make orders or give directions.

Question 17

Rule 428

Answer 17

428
Directions about experts’ conferences and joint reports

(1)The court may, at any time, direct that 2 or more experts who are to give evidence in a proceeding—
(a)hold a conference in which they identify, and attempt to resolve, any disagreement between them; and
(b)jointly prepare a report about the conference (a joint report) that states—
(i)the matters, if any, on which the experts agree; and
(ii)the matters, if any, on which the experts disagree and the reasons for any disagreement.

(2)The court may, for the conference, do 1 or more of the following—
(a)set the date and time at which, or the period within which, the conference is to be held;
(b)set the agenda for the conference;
(c)direct the matters the experts are to discuss at the conference;
(d)direct that the conference be held with the assistance of a facilitator;
(e)give directions about the form in which, and the period within which, the joint report is to be prepared by the experts;
(f)give any other direction the court considers appropriate.

(3)This rule does not limit any other power of the court to make orders or give directions.

(4)In this rule—
facilitator, in relation to a conference directed under subrule (1) to be held for a proceeding, means a person who is independent of the parties to the proceeding, whether or not the person is also an expert in relation to an issue being considered at the conference.

Question 18

Rule 429

Answer 18

429
Application of division

This division applies if the court gives a direction under rule 428 requiring 2 or more experts to hold a conference and prepare a joint report.

Question 19

Rule 429A

Answer 19

429A
Experts’ conference and joint report

(1)In holding the conference and preparing the joint report, the experts—
(a)must exercise independent judgement; and
(b)must endeavour to reach an agreement on any matter on which they disagree; and
(c)must not act on any instruction or request to withhold or avoid reaching an agreement.

(2)Unless the court directs otherwise, the experts must—
(a)hold the conference in the absence of the parties or their agents; and
(b)prepare the joint report without reference to, or instructions from, the parties or their agents.

(3)The experts must give the joint report to the parties—
(a)if the court has given a direction about the period within which the report is to be given—as directed by the court; or
(b)otherwise—as soon as practicable after the conference has concluded.

(4)This rule is subject to rule 429B.

Question 20

Rule 429B

Answer 20

429B
Permitted communications between experts and parties

(1)Any of the experts may, in writing—
(a)ask the parties for information that may assist the proper and timely conduct or conclusion of the conference or preparation of the joint report; or
(b)inform the parties of any matter adversely affecting the proper and timely conduct or conclusion of the conference or preparation of the joint report.

(2)A communication mentioned in subrule (1) must—
(a)be made jointly to all of the parties; and
(b)state—
(i)whether or not all of the experts agree on the terms of the communication; and
(ii)if all of the experts do not agree on the terms of the communication—the matters on which the experts disagree.

(3)Any response by a party to a communication mentioned in subrule (1) must—
(a)be in writing; and
(b)be addressed to the experts jointly; and
(c)be in terms agreed to by the parties or directed by the court.

(4)If the conference has not concluded, or the joint report has not been given to the parties as required under this division, a party may, in writing, request the experts to give a written report (a progress report) about the progress of the conference or the joint report.

(5)The experts must, within 2 business days after a request is made under subrule (4), give a progress report to all of the parties.

(6)The progress report must state—
(a)whether or not all of the experts agree on the terms of the report; and
(b)if all of the experts do not agree on the terms of the report—the matters on which the experts disagree.

Question 21

Rule 429C

Answer 21

429C
Restriction on admissibility of particular matters

(1)Evidence of anything done or said at a conference held under the direction is admissible in the proceeding only if all of the parties to the proceeding agree.

(2)However, subrule (1) does not apply in relation to the joint report prepared by the experts about the conference.

Question 22

Rule 429D

Answer 22

429D
Application of division

This division applies if an expert is appointed in relation to a proceeding, whether under division 5 or otherwise.

Question 23

Rule 429E

Answer 23

429E
Duty of parties

(1)As soon as practicable after the expert is appointed, a copy of the code of conduct must be given to the expert by—
(a)if the expert is appointed by 1 or more parties to the proceeding—the parties, or 1 of them as they may agree; or
(b)if the expert is a court-appointed expert—1 or more of the parties to the proceeding, as directed by the court.

(2)A party to the proceeding must not give instructions, or allow instructions to be given, to the expert to adopt or reject a particular opinion.

Question 24

Rule 429F

Answer 24

429F
Duty of expert

(1)The expert has a duty to assist the court.

(2)The expert—
(a)is not an advocate for a party to the proceeding; and
(b)must not accept instructions from any person to adopt or reject a particular opinion.

(3)The expert must comply with the requirements under the code of conduct.

(4)However, subrule (3) does not limit any provision of this part.

(5)The expert’s duties under this rule override any obligation the expert may have to—
(a)any party to the proceeding; or
(b)any person who is liable for the expert’s fees or expenses.

Question 25

Rule 429G

Answer 25

429G
Expert evidence

(1)Subject to subrule (5), the expert may give evidence-in-chief in the proceeding only by a report.

(2)The report may be tendered as evidence in the proceeding only if—
(a)the report has been disclosed under this part; or
(b)the court gives leave.

(3)Subject to a direction given under division 2, any party to the proceeding may tender the report as evidence in the proceeding, but only if the party produces the expert for cross-examination, if required.

(4)Unless the court orders otherwise, the report may be admitted in evidence in the proceeding only if the report confirms the expert has read, and agrees to be bound by, the code of conduct.

(5)The expert may give oral evidence-in-chief in the proceeding only if the court gives leave.

(6)Also, unless the court orders otherwise, the expert may give oral evidence in the proceeding only if the court is satisfied the expert has acknowledged, whether in a report prepared in relation to the proceeding or otherwise in relation to the proceeding, that the expert has read, and agrees to be bound by, the code of conduct.

Question 26

Rule 429H

Answer 26

429H
Requirements for report

(1)A report prepared by the expert must be addressed to the court and signed by the expert.

(2)The report must include the following information—
(a)the expert’s qualifications;
(b)all material facts, whether written or oral, on which the report is based;
(c)the expert’s reasons for each opinion expressed in the report;
(d)references to any literature or other material relied on by the expert to prepare the report;
(e)for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report—
(i)a description of what was done; and
(ii)whether the inspection, examination or experiment was done by the expert or under the expert’s supervision; and
(iii)the name and qualifications of any other person involved; and
(iv)the result;
(f)if there is a range of opinion on matters dealt with in the report—a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
(g)if the expert believes the report may be incomplete or inaccurate without a qualification—the qualification;
(h)a summary of the conclusions reached by the expert;
(i)a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.

(3)If the expert believes an opinion expressed in the report is not a concluded opinion, the report must state, where the opinion is expressed, the reason for the expert’s belief.
Examples of reasons why an expert may believe an opinion is not a concluded opinion—

*insufficient research
*insufficient data

(4)The expert must confirm in the report that—
(a)the expert has read, and agrees to be bound by, the code of conduct; and
(b)the factual matters stated in the report are, as far as the expert knows, true; and
(c)the expert has made all inquiries considered appropriate; and
(d)the opinions stated in the report are genuinely held by the expert; and
(e)the report contains reference to all matters the expert considers significant; and
(f)the expert understands the expert’s duty to the court and has complied with the duty.

Question 27

Rule 429I

Answer 27

429I
Disclosure of report

A party intending to rely on a report prepared by the expert must, unless the court orders otherwise, disclose the report as soon as practicable and, in any case—
(a)if the party is a plaintiff—within 90 days after the close of pleadings; or
(b)if the party is a defendant—within 120 days after the close of pleadings; or
(c)if the party is neither a plaintiff nor a defendant—within 90 days after the close of pleadings for the party.

Question 28

Rule 429J

Answer 28

429J
Immunity

The expert has the same protection and immunity for the contents of a report disclosed under this part as the expert could claim if the contents of the report were given orally in the proceeding.

Note—
See also rules 429O and 429T in relation to when particular reports are taken to be disclosed under this part.

Question 29

Rule 429K

Answer 29

429K
Supplementary report following change of opinion

(1)Subrule (2) applies if the expert changes, in a material way, an opinion included in a report prepared by the expert under this part (an earlier report).

(2)Unless the expert knows the proceeding has ended, the expert must, as soon as practicable after the change of opinion, give written notice of the change of opinion, and the reason for the change, to—
(a)if the expert is a court-appointed expert—the registrar; or
(b)otherwise—the party who appointed the expert.

(3)If a notice under subrule (2) is given to the registrar, the registrar must refer the matter to the court for directions.

(4)If a notice under subrule (2) is given to the party who appointed the expert, the party must apply to the court for directions.

Question 30

Rule 429L

Answer 30

429L
Appointment of expert

Two or more parties to a proceeding (the appointing parties) may, in writing, jointly appoint an expert under this subdivision to prepare a report on an issue arising in the proceeding.

Question 31

Rule 429M

Answer 31

429M
Requirements for appointment

(1)An appointment may be made under rule 429L only if—
(a)the appointing parties agree in writing on the following matters—
(i)the issue arising in the proceeding the expert evidence may help resolve;
(ii)the identity of the expert;
(iii)when the report must be prepared by the expert and given to the appointing parties;
(iv)liability for the fees and expenses payable to the expert; and
(b)the expert has been made aware of the content of this part and consents to the appointment.

(2)A copy of the agreement must—
(a)be signed by each of the appointing parties; and
(b)as soon as practicable after being signed by the appointing parties, be served on any other party to the proceeding who is not an appointing party in relation to the expert.

Question 32

Rule 429N

Answer 32

429N
Provision of statement of facts

(1)The appointing parties must give the expert a statement of facts, agreed to by the appointing parties, on which to base the report.

(2)However, if the appointing parties do not agree on a statement of facts, then—
(a)unless the court directs otherwise, each of the appointing parties must give the expert a statement of facts on which to base the report; and
(b)the court may give directions about the form and content of the statement of facts to be given to the expert.

Question 33

Rule 429O

Answer 33

429O
Disclosure of report

The report prepared by the expert is taken to be disclosed under this part if—
(a)a copy of the report has been given to each of the appointing parties; and
(b)within 14 days after the day the last of the appointing parties is given a copy of the report, the appointing parties give a copy of the report to each party to the proceeding who is not an appointing party in relation to the expert.

Question 34

Rule 429P

Answer 34

429P
Restriction on other expert evidence

Unless the court orders otherwise, the expert is the only expert who, in relation to the appointing parties, may give evidence on the issue in the proceeding.

Question 35

Rule 429Q

Answer 35

429Q
Cross-examination of expert

Unless the court orders otherwise, each party to the proceeding has the right to cross-examine the expert.

Question 36

Rule 429R

Answer 36

429R
Appointment of expert

(1)The court may, at any time, whether on its own initiative or on the application of a party to a proceeding, appoint an expert (a court-appointed expert) to prepare a report on an issue arising in the proceeding.
(2)However, an appointment may be made under subrule (1) only if the expert has been made aware of the content of this part and consents to the appointment.

Question 37

Rule 429S

Answer 37

429S
Requirements in relation to report

Unless the court orders otherwise—
(a)a court-appointed expert appointed in relation to an issue arising in a proceeding must—
(i)prepare a report on the issue; and
(ii)give the report to the registrar, together with sufficient copies of the report for all parties to the proceeding; and
(b)the registrar must—
(i)file the report in a sealed envelope; and
(ii)within 7 days after receiving the report, forward a copy of it to each party to the proceeding.

Question 38

Rule 429T

Answer 38

429T
Disclosure of report

A report prepared for a proceeding by a court-appointed expert is taken to be disclosed under this part if the registrar forwards copies of the report to the parties to the proceeding—
(a)as required under rule 429S(b)(ii); or
(b)as otherwise directed by the court.

Question 39

Rule 429U

Answer 39

429U
Orders and directions for court-appointed experts

(1)The court may make an order, or give a direction, it considers appropriate in relation to a court-appointed expert, including, for example, a direction about liability for the fees and expenses payable to the expert.

(2)If the court directs that a report from another expert may be obtained by a court-appointed expert, the other expert’s report must be attached to the court-appointed expert’s report when it is given to the registrar.

(3)The court may receive in evidence the report of a court-appointed expert on terms the court considers appropriate.

Question 40

Rule 429V

Answer 40

429V
Expert may apply for directions

(1)An expert appointed under subdivision 1 or 2 in relation to a proceeding may apply to the court for directions to facilitate the preparation of a report for the proceeding.

(2)The application must be served on the parties to the proceeding and on any other person as directed by the court.

(3)The court may give the directions the court considers appropriate to facilitate the preparation of the report, including, for example, a direction about an inspection, examination or experiment for the report.

Question 41

Rule 430

Answer 41

430
Contents of affidavit

(1)Except if these rules provide otherwise, an affidavit must be confined to the evidence the signatory for the affidavit could give if giving evidence orally.

(2)However, an affidavit for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the signatory for the affidavit states the sources of the information and the grounds for the belief.

Note—
For an application because of default, see chapter 9 (Ending proceedings early), part 1 (Default).

(3)On assessment, all or part of the costs of an affidavit not complying with these rules or unnecessarily including copies of or extracts from documents may be disallowed.

Question 42

Rule 431

Answer 42

431
Form of affidavit

(1)An affidavit must be in the approved form.

(2)A note must be written on an affidavit stating the name of the signatory for the affidavit and the name of the party on whose behalf it is filed.

(3)An affidavit must be made in the first person.

(4)An affidavit must describe the signatory for the affidavit and state the signatory’s residential or business address or place of employment.

(5)The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.

(6)Each page of an affidavit must be numbered.

Question 43

Rule 432

Answer 43

432
Swearing or affirming affidavit

(1)The signatory or substitute signatory for an affidavit and the witness for an affidavit must sign each page of the affidavit.

(2)Subrule (3) applies if—
(a)there is 1 signatory for the affidavit; or
(b)although there are 2 or more signatories for the affidavit, both or all of the signatories are not swearing or affirming the affidavit at the same time before the same witness.

(3)A statement (the jurat) must be placed at the end of the body of the affidavit and must—
(a)state the full name of the signatory; and
(b)state whether the affidavit was sworn or affirmed; and
(c)state the day and the place the signatory made the affidavit; and
(d)be signed by the signatory in the presence of the witness; and
(e)be signed in accordance with the Oaths Act 1867; and
(f)otherwise be as in the approved form.
Note—

See also the Oaths Act 1867, sections 13B and 13E for other matters that must be stated in the jurat or otherwise included on the affidavit.

(4)Subrule (5) applies if there are 2 or more signatories for the affidavit, 2 or more of whom are swearing or affirming the affidavit at the same time before the same witness.

(5)In addition to any statement required under subrule (3), a statement (also the jurat) must be placed at the end of the body of the affidavit and must—
(a)state the full name of each of the signatories; and
(b)state, for each of the signatories, whether the affidavit was sworn or affirmed; and
(c)state the day and the place both or all of the signatories made the affidavit; and
(d)be signed by the signatories in the presence of the witness; and
(e)be signed in accordance with the Oaths Act 1867; and
(f)otherwise be as in the approved form.

Note—
See also the Oaths Act 1867, sections 13B and 13E for other matters that must be stated in the jurat or otherwise included on the affidavit.

(6)For this rule, the place a signatory made an affidavit is the place the signatory was located when the affidavit was made.

Question 44

Rule 433

Answer 44

433
Certificate of reading or signature for person making affidavit

(1)If the witness for an affidavit considers that the person making it is incapable of reading the affidavit, the witness must certify in or below the jurat that—
(a)the affidavit was read or otherwise communicated in the witness’s presence to the person making it; and
(b)the person seemed to understand the affidavit; and
(c)the person signified that the person made the affidavit.

(2)If the witness for an affidavit considers that the person making it is physically incapable of signing the affidavit, the witness must certify in or below the jurat that—
(a)the affidavit was read or otherwise communicated in the witness’s presence to the person making it; and
(b)the person seemed to understand the affidavit; and
(c)the person signified that the person made the affidavit.

(3)If an affidavit is made by a person who is incapable of reading the affidavit or physically incapable of signing the affidavit and a certificate under subrule (1) or (2) does not appear on the affidavit, the affidavit may be used in a proceeding only if the court is satisfied that—
(a)the affidavit was read or otherwise communicated to the person making it; and
(b)the person seemed to understand it; and
(c)the person signified that the person made the affidavit.

Note—
See also the Oaths Act 1867, parts 4 and 6A for provisions allowing a substitute signatory to sign a document at the direction of a signatory.

Question 45

Rule 434

Answer 45

434
Alterations

(1)This rule applies if there is an interlineation, erasure or other alteration in any part of an affidavit.

(2)The affidavit may be filed but, unless the court orders otherwise, may be used only if the interlineation, erasure or other alteration—
(a)has been initialled by the signatory or substitute signatory for the affidavit in the same way the signatory or substitute signatory signed the affidavit; and
(b)has been initialled by the witness for the affidavit in the same way the witness signed the affidavit.

(3)To remove any doubt, it is declared that an affidavit must not be altered after it has been made, signed and witnessed under the Oaths Act 1867, whether the affidavit is in the form of a physical document or an electronic document.

(4)In this rule—
electronic document has the meaning given by the Oaths Act 1867, section 1B.
physical document has the meaning given by the Oaths Act 1867, section 1B.

Question 46

Rule 435

Answer 46

435
Exhibits

(1)A document to be used with and mentioned in an affidavit is an exhibit.

(2)Another thing to be used with and mentioned in an affidavit may be an exhibit, if practicable.

(3)A group of different documents may form 1 exhibit.

(4)If it is impracticable to exhibit the document to be used with and mentioned in an affidavit, a copy of the document may be an exhibit to the affidavit.

(5)An exhibit to an affidavit must have—
(a)a letter, number or other identifying mark on it; and
(b)a certificate in the approved form on it or bound with it.

(6)The certificate—
(a)must be signed by the signatory or substitute signatory for the affidavit in the same way the signatory or substitute signatory signed the affidavit; and
(b)must be signed by the witness for the affidavit in the same way the witness signed the affidavit.

(7)However, if an affidavit is made under rule 433, only the witness for the affidavit must sign the certificate.

(8)An exhibit to an affidavit must be filed at the same time as the affidavit.

(9)Subrules (10) and (11) apply if an affidavit is filed in physical form and either—
(a)an exhibit to the affidavit is comprised of a group of documents; or
(b)there is more than one documentary exhibit to the affidavit.

(10)The documents are to be presented in a way that will facilitate the court’s efficient and expeditious reference to them.

(11)As far as practicable—
(a)the documents are to be bound in 1 or more paginated books; and
(b)a certificate is to be bound—
(i)if there is 1 book—at the front of the book; or
(ii)if there is more than 1 book—at the front of each book dealing with the exhibits in the book; and
(c)an index to each book is to be bound immediately after the certificate.

(12)If an affidavit is filed in electronic form with 1 or more exhibits, an index must be filed with the affidavit listing—
(a)the body of the affidavit; and
(b)the exhibits and related certificates; and
(c)the number of pages in each exhibit that is a document.

(13)If a document or other thing has been filed in a proceeding, whether or not as an exhibit to an affidavit, in a subsequent affidavit filed in the proceeding—
(a)the document or thing must not be made an exhibit to the affidavit; and
(b)the document or thing may be referred to in the affidavit in a way sufficient to enable the document or thing to be identified.

Question 47

Rule 436

Answer 47

436
Irregularity

(1)An affidavit may, unless the court orders otherwise, be filed despite an irregularity in form, including a failure to use the approved form.

(2)An affidavit may, with the leave of the court, be used despite an irregularity in form and the affidavit must have on it a memorandum by the court or the appropriate associate or clerk that it was used by leave.

(3)An affidavit used under subrule (2) is afterwards taken as a regular affidavit.

Question 48

Rule 437

Answer 48

437
Filing

Unless the court gives leave, an affidavit may be used in a proceeding only if it has been filed.

Question 49

Rule 438

Answer 49

438
Service

The court may, at any time, give leave to a party to use an affidavit that has not been served or that was served later than the time specified in these rules.

Question 50

Rule 439

Answer 50

439
Examination of signatory for affidavit

(1)If an affidavit is to be relied on at a hearing, the court may order the signatory for the affidavit to be examined and cross-examined before the court and may order the person to attend the court for the purpose.

(2)If an affidavit to be relied on at a hearing is served on a party more than 1 business day before the hearing and the party wishes the signatory for the affidavit to attend the court for cross-examination, the party must serve a notice to that effect on the party on whose behalf the affidavit is filed at least 1 business day before the date the person is required for examination.

(3)If an affidavit to be relied on at a hearing is served on a party less than 2 business days before the hearing, the signatory for the affidavit must attend the court to be available for cross-examination unless the party otherwise agrees.

(4)If the signatory for the affidavit does not attend the court in compliance with the notice or subrule (3), the court may refuse to receive the affidavit into evidence.

(5)However, the court may—
(a)dispense with the attendance for cross-examination of a signatory for an affidavit; and
(b)direct that an affidavit be used without the signatory for the affidavit being cross-examined in relation to the affidavit.

(6)Unless the court orders otherwise, a party who serves a notice under subrule (2) for the signatory for an affidavit to attend the court is not liable to pay the expenses of the attendance.

Question 51

Rule 440

Answer 51

440
Scandal and oppression

If there is scandalous or oppressive matter in an affidavit, the court may order that—
(a)the affidavit be removed from the file; or
(b)the affidavit be removed from the file and destroyed; or
(c)the scandalous or oppressive matter in the affidavit be struck out.

Question 52

Rule 441

Answer 52

441
Affidavit taken before party

The court may not receive, and a party may not file, an affidavit witnessed by a party personally.