The Law of Affidavits
By: John Levingston
Affidavits are used in Courts and Tribunals including arbitrations, to provide the evidence-in-chief of witnesses. There are evidentiary, formal and procedural rules which apply to affidavits. Non-compliance can result in the evidence being excluded, the case being lost, or proceedings adjourned with adverse costs orders against the party, or against the lawyer who prepared the affidavit. Most young lawyers serve an informal apprenticeship drafting affidavits under the supervision of more experienced colleagues, learning from their experience and saving their own references and precedents. Some, less fortunate are 'thrown in at the deep end' without guidance or supervision. In addition, case management has created new pressures for compliance with short timetables for filing and serving affidavits, so there is no luxury of time available in preparing affidavits which involves taking relevant instructions, putting it into an admissible form without mistakes and so it can survive objections.This is the first work on Affidavits published in Australia and sets out to provide a reference for evidentiary, formal and procedural rules together with precedents.
AI Overview
"The Law of Affidavits" by John Levingston is a comprehensive legal reference book that provides an in-depth guide to the law and practice surrounding affidavits. Here is a detailed overview of the book:
Key Themes
- Evidentiary, Formal, and Procedural Rules: The book covers the essential rules and procedures governing affidavits, including their use in courts, tribunals, and arbitrations.
- Jurisdictional Coverage: The second edition of the book has been updated to include not only Australia and New Zealand but also Singapore, making it a valuable resource for practitioners across these jurisdictions.
- Preparation and Compliance: It emphasizes the importance of proper preparation and compliance with evidentiary, formal, and procedural rules. Non-compliance can lead to severe consequences, such as exclusion of evidence, loss of cases, or adverse costs orders.
- Professional Obligations: The book discusses the professional obligations of lawyers when drafting affidavits, including the need for supervision and guidance, especially for young lawyers.
- Practical Guidance: It provides practical guidance on various aspects of affidavits, such as their form, content, attachments, filing, service, objections, and use at hearings.
Plot Summary
The book is structured to serve as a ready reference for lawyers involved in preparing affidavits. It includes detailed chapters on:
- Introduction to Affidavits: Explains what an affidavit is and its role in legal proceedings.
- Professional Obligations: Discusses the ethical and professional responsibilities of lawyers when dealing with affidavits.
- Preparation: Covers the steps involved in preparing an affidavit, including taking instructions and ensuring admissibility.
- Objectives: Outlines the objectives of an affidavit, focusing on admissibility, relevance, and probativity.
- Use of an Affidavit: Explains how affidavits are used in legal proceedings, including their role in providing evidence-in-chief.
- Form and Content: Provides guidance on the formal requirements and content of an affidavit.
- Attachments and Exhibits: Discusses the proper way to attach annexures and exhibits to an affidavit.
- Filing and Service: Covers the procedures for filing and serving affidavits.
- Objections and Irregularities: Addresses potential objections and irregularities that can arise during the preparation or use of an affidavit.
- Attendance of Deponent: Explains the role of the deponent (the person making the affidavit) and the procedures for their attendance.
- Use at Hearings: Discusses how affidavits are used during hearings and potential issues that may arise.
- Discretion and Cross-Examination: Covers the discretion of courts and tribunals in dealing with affidavits and the process of cross-examination.
- False Statements and Contempt: Addresses the consequences of false statements in affidavits and contempt of court.
- Adverse Consequences: Outlines the potential adverse consequences of non-compliance with the rules governing affidavits.
Critical Reception
The book is widely regarded as essential for all lawyers involved in preparing affidavits. It is praised for its comprehensive coverage of evidentiary, formal, and procedural rules, as well as its practical guidance on the preparation and use of affidavits. The second edition has been thoroughly updated and expanded, making it a valuable resource for practitioners across Australia, New Zealand, and Singapore.
Availability
The book is available in hardcover and can be purchased through various legal bookstores and online platforms, including AbeBooks and Wildy & Sons Ltd. The second edition was published in May 2024 by The Federation Press.