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Witness Statements are generally used in Local Court matters.
Affidavits are generally used in District, Supreme and Federal Courts.
The rules of the relevant Court will provide guidance on whether an Affidavit or a Witness Statement should be used.
To be useful, an Affidavit or Witness Statement MUST succinctly and accurately convey the key facts of a case to prove or defend a claim.
See also UCPR 31.4 for information about the power of the Court to direct any party to serve on each other active party a written statement of the oral evidence that the party intends to adduce in chief of any questions of fact to be decided at any hearing (i.e. this Witness Statement).
An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.
For more information please read our FAQ.
Another important difference between an Affidavit and a Witness Statement is that before the contents of a Witness Statement can become formal evidence as to the truth of the matter, the maker of the statement MUST adopt the statement in the witness box after being formally 'sworn in'.
✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;
✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;
✅ For use in all NSW Court registries for all NSW Courts including Local (General & Small Claims), District (All Lists^), Supreme (Common Law & Equity Divisions).
Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.
The preparation of a Witness Statement is a difficult and time consuming legal task.
In short, due to the complexities involved in the proper preparation of a Witness Statement, together with the crucial importance of ensuring the facts and evidence support your application +/or pleadings:
➲ We recommend you contact our legal team to obtain legal advice and guidance.
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An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.
^ Although a common practice. It is no longer necessary for a religious text to be available when swearing an Affidavit in NSW due to amendments to the Oaths Act introduced by Schedule 2 of the Identification Legislation Amendment Act 2011) and the Oaths Regulation 2011 (NSW).
Another important difference between an Affidavit and a Witness Statement is that before the contents of a Witness Statement can become formal evidence as to the truth of the matter, the maker of the statement MUST adopt the statement in the witness box after being formally 'sworn in'.
The maker of the Affidavit, known as the deponent, still needs to attend Court in most cases as they will usually be required for cross-examination.
Credits:
This FAQ is extracted from page 201 of the Practitioner's Guide to Civil Litigation 4th edition published by the NSW Law Society (Civil Litigation Committee).
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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