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Affidavits

An affidavit is a written statement that is confirmed by the oath or affirmation of the party making it before a person authorised to receive affidavits. Affidavits are used in court proceedings and for other purposes authorised by law.

When you complete an affidavit you are given a choice to make an affirmation or to swear an oath.

The forms below are examples of the affidavit form to be used in the state of Victoria. Each court and tribunal has special rules about the format of an affidavit, so please check with the relevant court or tribunal if this form can be used for your matter.

 


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Persons who can receive affidavits

Under Section 123C of the Evidence (Miscellaneous Provisions) Act 1958 (as of 12 June 2015), (previously Evidence Act 1958), affidavits for use in any court or for any legal purpose may be sworn and taken within Victoria before persons including:

  • any judge or associate to any judge
  • an Association Judge of the Supreme Court or the associate to such Associate Judge
  • an associate judge of the County Court or the associate to such associate judge
  • a justice of the peace or a bail justice
  • the prothonotary or deputy prothonotary of the Supreme Court, the registrar or deputy registrar of the County Court, the principal registrar or a register or deputy registrar of the Magistrates’ Court or the principal registrar or a registrar or deputy registrar of the Children’s Court
  • the registrar of probates or an assistant registrar of probates
  • a senior member or ordinary member of the Victorian Civil and Administrative Tribunal who, immediately before the commencement of section 8.2.1 of the Legal Profession Act 2004, was the registrar or a deputy registrar of the Legal Profession Tribunal
  • a member or former member of either House of the Parliament of Victoria
  • a member or former member of either House of the Parliament of the Commonwealth
  • a public notary
  • a legal practitioner
  • a police officer of or above the rank of sergeant or for the time being in charge of a police station
  • a person employed under Part 3 of the Public Administration Act 2004 with a classification that is prescribed as a classification to which this section applies
  • a senior officer of a Council as defined in the Local Government Act 1989
  • a person registered as a patent attorney under Chapter 20 of the Patents Act 1990 of the Commonwealth
  • a fellow of the Institute of Legal Executives (Victoria)
  • any officer or person empowered, authorised or permitted by or under any Act of Parliament to take affidavits in relation to the matter in question or in the particular part of Victoria in which the affidavit is sworn and taken.

The person before whom an affidavit is sworn or taken must legibly write, type or stamp his or her name and address below his or her own signature where it appears on the affidavit.

Persons empowered to take and receive affidavits may not demand or take any fee for taking and receiving an affidavit.

Using an interpreter

People who do not feel confident swearing an affidavit in English can request the services of an interpreter.

When an interpreter is used, the process is as follows:

  • The interpreter undertakes 'the interpreter's oath', which ensures that the interpreter translates what they hear to the best of their ability and in accordance with the law.
  • The interpreter reads the affidavit to the deponent (person swearing the affidavit).
  • The interpreter administers the oath to the deponent. The deponent may repeat the oath in their own language.

Hearing-impaired people

Any deponent (person swearing the affidavit) with a hearing impairment or preferring to communicate in sign language, may use an interpreter. The interpreter's oath and form of jurat used for persons of a culturally and linguistically diverse background should be modified accordingly.

When an interpreter is not used

When an interpreter is not used and the deponent can read and write, he/she should sign the affidavit and choose whether to swear or affirm the content of the affidavit.

If the deponent chooses to swear the affidavit ('make an oath') he/she should be handed a religious text (usually the Bible) and a paper with the statement: 'Is this your name and signature?'.

Upon the deponent making an affirmative gesture, the person taking the affidavit should show the deponent a paper on which is written: 'I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular'. Again, an affirmative gesture is required.

If the deponent chooses to affirm the affidavit ('make an affirmation') he/she should be shown a paper with the statement: 'I solemnly and sincerely affirm and declare that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular'.

Again, an affirmative gesture is required from the deponent.

If the deponent is hearing but not speech-impaired, the oath may be administered by asking the deponent to read aloud the oath, which should be placed before the deponent in writing.

Commonly used terms

Affirmations

An affirmation is a formal declaration, with the same effect as an oath, made in place of an oath if a person objects to taking an oath or finds it contrary to their religious beliefs. If a person wishes to make an affirmation, they will be asked to repeat the following:
“I [name of person making affirmation] do solemnly, sincerely and truly, declare and affirm that this my affidavit is true and correct and is signed with my name and usual signature.”

Oaths

An oath is a spoken promise to tell the truth. Oaths are made while holding the Bible, the New Testament, the Old Testament or other appropriate religious text.

Deponent

A deponent is the person who is swearing the affidavit.

Exhibits

Affidavits may refer to documents titled 'exhibits', which will be distinguished by letters or numbers, for example 'A', 'B' and 'C'.

Jurat

The certification at the end of an affidavit, which states when and where the affidavit was sworn or affirmed, and by whom, followed by the signature, address and title of the person the affidavit was sworn/affirmed in front of. A jurat will usually take the following form:


“Sworn / Affirmed at [insert suburb or town] in the State of Victoria, this [insert day] day of [insert month] [insert year].
Before me [signature of person receiving the affidavit].”
[Print, stamp or type name, address and title of witness underneath signature of person receiving the affidavit]

[adding more text here]

 

Author: Department of Justice and Regulation
Publisher: Department of Justice and Regulation
Date of Publication: 2015
Copyright: State of Victoria, 2015.

 

 

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