The affidavit is the workhorse of National Court practice. Order 11 Division 3 of the National Court Rules 1983 sets out the requirements, and they are more exacting than they look.
Rule 22
(1) An affidavit shall be made in the first person.
(2) The body of an affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(5) Each page of an affidavit shall be signed by the deponent and by the person before whom it is sworn.
(6) An affidavit shall be in Form 50.
Sub-rule (5) is the requirement most often missed. Both the deponent and the person before whom the affidavit is sworn must sign each page, not merely the jurat at the end.
An affidavit signed only at the end is irregular. It may still be filed under Rule 25(1), and may be used with the leave of the Court under Rule 25(2) — but you are then asking for an indulgence at the very moment you want the Court concentrating on the merits.
What to put in, and what to leave out
- Depose to facts, not argument. Submissions belong in an address; the affidavit is evidence.
- Say what you know, and how you know it. Where you rely on information from another person, identify the source and say that you believe it to be true.
- One subject per paragraph, as sub-rule (2) requires.
- Give dates, places and names. “In about March” is worth far less than “on 14 March 2025 at the defendant’s Lae office”.
- Exhibit the documents you refer to.
- Keep it as short as the subject allows. Under Order 4 Rule 17, costs occasioned by an unnecessarily prolix document are borne by the party using it.
Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court may order that the matter be struck out or that the affidavit be taken off the file.
Losing an entire affidavit because of a few gratuitous paragraphs is a real risk. Abuse of the other side is not evidence.
Remember too that referring to a document in an affidavit exposes it to a notice to produce under Order 9 Rule 9 — with only four days to respond.
Rule 22(3) and (4)
(3) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, he must certify in or below the jurat that —
(a) the affidavit was read in his presence to the deponent; and
(b) the deponent seemed to understand the affidavit.
(4) Without that certificate, the affidavit may not be used unless the Court is satisfied that it was read to the deponent and that he seemed to understand it.
Many deponents in Papua New Guinea do not read English fluently, and many affidavits are prepared in English from instructions given in Tok Pisin or a local language.
Where the deponent cannot read the document, the certificate is mandatory, and its absence puts the affidavit at risk. Where the affidavit is read over in translation, the prudent course is to record that in the affidavit itself — who interpreted, into what language, and that the deponent confirmed the contents.
Translation is a checklist item at the mention, and it is better dealt with then than at trial.
Rule 23
Where there is any interlineation, erasure or other alteration in the jurat or body of an affidavit —
(a) the affidavit may nevertheless be filed, unless the Court otherwise orders; but
(b) it may not be used without the leave of the Court unless the person before whom it is sworn initials the alteration and, in the case of an erasure, re-writes in the margin any words or figures written on the erasure and signs or initials them.
(2) The same applies to an account verified by affidavit as if the account were part of the affidavit.
Rule 24
(1) A document to be used in conjunction with an affidavit shall, where convenient, be annexed to it.
(2) Where annexure is inconvenient, the document may be made an exhibit.
(3) An exhibit must be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn.
Rules 25 to 27
Rule 25 — an affidavit may, unless the Court otherwise orders, be filed notwithstanding any irregularity in form, and may, with the leave of the Court, be used notwithstanding any irregularity in form.
Rule 26 — an affidavit may not be used without leave of the Court unless it has been filed.
Rule 27 — a party intending to use an affidavit shall serve it on each other interested party a reasonable time before the occasion for using it arises; and the Court may give directions concerning the service of affidavits.
Rule 26 is absolute in effect: an unfiled affidavit cannot be used without leave. Filing is not a formality to be attended to afterwards.
Rule 27’s standard is “a reasonable time before the occasion for using it arises” — judged by how much the other side needs to answer it. On a substantial application, serving the night before is not reasonable, and an adjournment with costs is the likely result.
Directions about the filing of witness statements and affidavits are a checklist item at the mention, so the timetable is often fixed by order rather than left to the general standard.
An affidavit supports almost every application: a notice of motion; substituted service under Order 6 Rule 12(2); leave to serve abroad under Order 6 Rule 20(3); an affidavit of service under Order 6 Rule 18; verified discovery under Order 9 Rule 2(3); and verification of a defence under Order 8 Rule 24. Each has its own additional requirements, but Order 11 Division 3 governs the form of all of them.
Sources
- National Court Rules 1983 — O 4 r 17; O 6 rr 12, 18, 20; O 8 r 24; O 9 rr 2, 9; O 10 r 9A (Listings Rules 2005); O 11 rr 21–28; Form 50
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.