A motion is decided on affidavit evidence. Order 4 Rule 44 of the National Court Rules 1983 requires it, and the Motions (Amendment) Rules 2005 fix the timetable.
(1) Where a motion is founded on facts or on facts and documents, unless the Court otherwise orders, an affidavit setting forth those facts and having annexed to it those documents shall be filed with the notice of motion, and a copy served on the parties sought to be affected with the notice of the motion.
(2) A respondent may, before the date appointed for hearing or, by leave, within such further time as the Court fixes, file an answering affidavit and shall on the same day serve a copy on the applicant.
Rule 12 of the 2005 Rules
| Document | Deadline |
|---|---|
| Affidavits in support | On the date of filing the Motion — r 12(1) |
| Affidavits opposing, and counter motions | By 2 pm on the day before the hearing — r 12(2) |
| Motion file to the Motions Judge | By 3 pm on the day before — r 12(3) |
| Anything later | Leave required; the Registry will not accept affidavits after 2 pm the day before, or on the morning of the hearing — r 12(4) |
Not later. Rule 12(1) is explicit: all affidavits in support of the Motion must be filed on the date of filing the Motion.
The reason is that the respondent must be able to answer. Order 4 Rule 44(1) requires the affidavit to be served with the notice of motion, which under Order 4 Rule 42 must be at least three clear days before the hearing.
An applicant who files the motion and then produces the evidence a day before the hearing has defeated that scheme, and can expect the matter to be adjourned with costs.
Drafting the affidavit
(1) An affidavit shall be made in the first person.
(2) The body shall be divided into paragraphs numbered consecutively, each paragraph as far as possible confined to a distinct portion of the subject.
(5) Each page shall be signed by the deponent and by the person before whom it is sworn.
(6) An affidavit shall be in Form 50.
Rule 44(1) requires the affidavit to set forth the facts the motion is founded on. So work backwards from the relief:
- Extension of time — what the deadline was, why it was missed, when you learned of it, what prejudice there is.
- Injunction — the serious question to be tried, the damage that will occur, where the balance of convenience lies, and your undertaking as to damages.
- Default judgment — proof of service, the absence of a notice of intention to defend, and the amount claimed.
- Setting aside default judgment — the explanation for the default, the defence on the merits, and the promptness of the application.
Order 11 Rule 24 — annexures and exhibits
(1) A document to be used 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.
Rule 11(3) of the 2005 Rules deals with service of long affidavits: where affidavits served exceed five pages, copies of the first two pages and the last page of the affidavit (not the attachment) should be attached to the affidavit of service.
Rules 23, 25 and 26
| Defect | Consequence |
|---|---|
| Alteration in the jurat or body — r 23 | May be filed, but not used without leave unless the person before whom it was sworn initials the alteration and re-writes erased words in the margin |
| Irregularity in form — r 25 | May be filed, and may be used with leave |
| Not filed — r 26 | May not be used without leave |
| Deponent illiterate or blind, no certificate — r 22(3), (4) | May not be used unless the Court is satisfied it was read to the deponent and they seemed to understand it |
| Scandalous, irrelevant or oppressive matter — r 28 | The Court may order it struck out, or the affidavit taken off the file |
Where the person before whom an affidavit is sworn sees that the deponent is illiterate or blind, they 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 it.
Without that certificate the affidavit cannot be used unless the Court is separately satisfied. In a country with many languages and varying literacy, this is not a technicality — it is the safeguard that the deponent knows what they have sworn.
No cross-examination
With the exception of contempt hearings, there shall be no cross-examination of deponents of affidavits, except with leave of the Court.
That makes the affidavit decisive. Where facts are genuinely contested the Court may direct that evidence be given orally — Order 4 Rule 31(3)(b) — or that the proceeding continue on pleadings. But on an ordinary motion, what is in the affidavits is the evidence.
Note that an affidavit may be sworn before or after the commencement of the proceedings — Order 11 Rule 21 — and must be served a reasonable time before the occasion for using it arises under Rule 27. See how to prepare an affidavit.
Sources
- National Court Rules 1983 — O 4 rr 31, 42, 44; O 11 rr 21–28; Motions (Amendment) Rules 2005 rr 11, 12
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.