Affidavits in New South Wales: form, jurat and practice notes

New South Wales rewards attention to detail. The form of an affidavit is prescribed, the rules of court set out what must appear where, the Oaths Act 1900 (NSW) imposes a specific identity certification on the witness, and the Supreme Court has issued practice notes that add requirements on top. Each of those is a separate source of obligations, and an affidavit can satisfy three of them and still be sent back.

This note collects the requirements that actually cause problems, rather than restating the form.

The form

Affidavits in the NSW civil courts are made under Part 35 of the Uniform Civil Procedure Rules 2005, in Form 40. Use the current version: the form has been revised more than once, and a superseded version is an avoidable reason for a registry to query a filing.

The heading must reproduce the court, registry, proceedings number and parties exactly as they appear on the originating process. An affidavit headed with an abbreviated party name, or with the parties in the wrong order, is a document that does not obviously belong to the proceedings it was filed in.

Signing: every page

This is the single most common defect. In New South Wales each page of an affidavit must be signed by the deponent and by the person before whom it is sworn or affirmed. Not just the page carrying the jurat — every page.

The purpose is straightforward: it makes a page substitution obvious. It also means an affidavit cannot be finalised by signing the last sheet of a document whose earlier pages were printed separately, which is precisely the practice it is there to prevent.

The jurat

The jurat records that the affidavit was sworn or affirmed: by whom, before whom, on what date, and at what place. Three points about it:

• It must be dated, and dated on the day it was actually sworn.
• It must not stand alone on a final page. Some text of the affidavit must appear with it, so that it cannot be detached and attached to something else.
• It is completed by the witness, at the time. It is not filled in beforehand by the deponent.

Section 34 of the Oaths Act

Separately from the court rules, section 34 of the Oaths Act 1900 (NSW) requires the witness to certify certain things about identity. In substance: that the witness saw the deponent's face, or the special justification for it being covered, and either that the witness has known the deponent for at least twelve months or that the witness confirmed the deponent's identity from an identification document, which must be named. The twelve-month period and the classes of identification document are prescribed by the Oaths Regulation 2024 (NSW), made under section 34.

This certification is required whether the witnessing happens across a desk or over a video call. It is a requirement on the witness rather than on the deponent, but it appears on the deponent's document, and an affidavit missing it is defective.

Annexures and exhibits

An annexure must be identified by a certificate endorsed on the annexure itself — explicitly not on a separate page preceding it — and signed by the person before whom the affidavit is made. The pages of the affidavit together with any annexures must be numbered consecutively in a single series of numbers.

That pagination rule is worth reading twice. It is a single series across the affidavit and its annexures, not one series for the affidavit and a fresh one for each attachment.

An exhibit is identified by a certificate attached to the exhibit, entitled in the same manner as the affidavit, and signed by the person before whom the affidavit is made.

One specific trap: on an affidavit of service, do not annex copies of documents that have already been filed in the proceedings. The rules deal with this directly, and the instinct to attach everything produces a bundle the registry does not want and the court does not need.

Witnessing by audio-visual link

New South Wales has made permanent provision for remote witnessing in section 14G of the Electronic Transactions Act 2000 (NSW). It is one of the more developed regimes in the country, and it sets out what the witness must actually do:

1. Observe the deponent signing the document in real time.
2. Be reasonably satisfied that the document the witness signs is the same document, or a copy of it.
3. Sign the document or the copy.
4. Endorse the document with a statement specifying the method used to witness the signature and stating that the document was witnessed in accordance with section 14G.

No particular wording is prescribed for the endorsement. Something of this shape suffices:

This document was signed in counterpart and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000.

Two points that are regularly misunderstood.

Remote witnessing is not electronic signing. Section 14G authorises witnessing over a video link. It does not of itself authorise the deponent to sign electronically. Unless another NSW law permits an electronic signature for the particular document, the deponent signs in wet ink and the witness signs a counterpart or a scanned copy. Treating the two as a package is the most expensive mistake available here, because it produces a document that looks properly executed and is not.

Neither party needs to be in New South Wales. The signatory and the witness may both be outside the State. What matters is the law the document is made under.

A related limitation: copies cannot be certified over an audio-visual link. Certification of a copy requires the original in the certifier's hands.

The Supreme Court practice notes

The Supreme Court's general practice notes sit on top of the rules. Two matter here.

SC Gen 4 — Affidavits is the Court's practice note dealing specifically with affidavits.

SC Gen 23 deals with the use of generative artificial intelligence, and it is the more consequential recent development for anybody preparing evidence. It was first issued on 21 November 2024, replaced by the current version issued on 28 January 2025, and took effect on 3 February 2025.

Its effect on evidentiary material is restrictive. Generative AI must not be used to generate the content of an affidavit, witness statement or character reference, including by altering, embellishing, strengthening, diluting or otherwise rephrasing a witness's evidence. The premise stated is that such documents should contain and reflect a person's own knowledge, not AI-generated content.

It also imposes a positive obligation: the affidavit, witness statement or character reference must contain a disclosure that generative AI was not used in generating its content. The disclosure extends to any annexure or exhibit the deponent prepared for the purposes of the evidence, unless leave has been obtained to use generative AI for it.

Because this area is moving, check the current version of the practice note before finalising evidence, and check the position in the particular court. The requirements are not uniform across NSW courts and tribunals, and they have already been amended once.

Beyond the Supreme Court

The Supreme Court's practice notes bind proceedings in that Court. The Local Court and the District Court have their own requirements, and NCAT is a different creature again: it is a tribunal, its procedure is governed by its own legislation and rules, and what it expects is not what Part 35 prescribes. Check the rules of the body you are filing in rather than assuming the Supreme Court position travels.

A working checklist

1. Current Form 40, heading reproduced exactly from the originating process.
2. Numbered paragraphs, first-hand knowledge, sources named where you depose to information and belief.
3. Annexure certificates endorsed on the annexures themselves; continuous pagination across the affidavit and all annexures.
4. Exhibit certificates attached to the exhibits and entitled as the affidavit.
5. Any disclosure required by the current generative AI practice note.
6. Every page signed by the deponent and the witness.
7. The oath or affirmation actually administered and answered.
8. Jurat dated, in place, not stranded alone on a page.
9. The section 34 identity certification completed.
10. Where witnessed remotely, the section 14G endorsement added — and wet-ink signatures unless electronic signing is separately authorised.

This note is general information about affidavits in New South Wales, current as at the date shown. It is not legal advice. Court rules and practice notes change, the generative AI practice note in particular has already been amended, and nothing here substitutes for the current rules of the court your affidavit is going to.