Litigants sometimes arrive at the Supreme Court with fresh affidavits about the merits, and sometimes arrive at a stay application with none. The Rules are specific about when affidavit evidence is received and when it is not.
The appeal: no affidavits
An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court (a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and (b) to draw inferences of fact.
The evidence on the appeal is the evidence below, reproduced in the appeal book. An affidavit sworn for the appeal that adds facts is fresh evidence, and it is not received unless the Court allows it under section 6(1)(a) on an application under Order 7 Division 20. See what appeal by way of rehearing means.
Further evidence on appeal
54. Application shall be made at the hearing of the appeal. 55. The application shall be (a) by notice stating the nature of the evidence sought to be called; and (b) supported by an affidavit stating the grounds. 56. Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the court to receive, shall be by affidavit. 57. The applicant shall file the Rule 55 notice and any affidavit not later than 21 days before the hearing. 58. The evidence of any other party shall be by affidavit filed not later than 14 days before the hearing. 59. A party shall lodge as many copies as the Registrar directs and serve a copy on each other party.
Two affidavits are therefore needed: one explaining why the evidence was not called below and why justice requires it now, and one containing the evidence itself. See bringing new evidence on appeal.
Applications: always on affidavit
| Application | Rule | What the affidavit must show |
|---|---|---|
| Extension of time to appeal | O 7 r 1(b) | Annex the judgment and reasons; why a notice cannot be filed within 40 days; why the further period sought is needed |
| Leave to appeal | O 7 r 4; Form 7 | The judgment; the nature of the case; facts supporting the questions involved |
| Urgent application or stay | O 13 r 14(6), (8) | The urgency; why service should be dispensed with; the prejudice if no order is made |
| Application to intervene in a reference | O 4 r 23 | The applicant’s interest in the proceedings |
| Section 57 enforcement application | O 6 r 2 | The facts giving rise to the application |
| Dismissal for want of prosecution | O 7 r 50(b); Form 11 | The steps not taken, reminders sent, prejudice suffered |
| Objection to competency | O 7 r 16 | Any party may file affidavits, for example on the date of judgment or service |
| Adjournment of a listed hearing | O 13 r 13(4) | Sufficient cause, to the bench before which the matter is listed |
| Election petition review leave | O 5 r 11 | The circumstances; annex the petition and the judgment and order |
| Application to dismiss for non-compliance at the hearing | O 13 r 12(6) | The directions and the non-compliance, served one clear working day before |
The form of an affidavit
The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to (c) Documents, Order 2 Division 3; and (h) any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed.
The Supreme Court Rules contain no form of affidavit, so the National Court’s Order 11 Rule 22 and Form 50 apply through Order 2 Rule 1(h): the deponent’s name, address and occupation, numbered paragraphs, a jurat sworn before a Commissioner for Oaths or other authorised person, and annexures identified by letter with a certificate on each. See Form 50 on the National Court Forms page.
What goes in and what stays out
An affidavit deposes to facts within the deponent’s knowledge, or on information and belief with the source stated. Submissions, legal conclusions and complaints about the trial Judge belong in the written submissions, not the affidavit, and a Judge will disregard them. A stay affidavit exhibits the judgment, the notice of appeal and the evidence of imminent enforcement; an extension affidavit gives dates and what happened between them.
The affidavit of service
Several rules require proof of service by affidavit: Order 5 Rule 15 for an election petition leave application, served personally with an affidavit of service filed within three days; Order 13 Rule 14(9)(f) for documents served under an urgent order; and, by Order 2 Rule 1(h), the National Court practice for any contested application where service is disputed. It states who served what, on whom, where, when and how.
Lodging
Affidavits are filed in the Registry and served at the address for service under Order 11 Rule 7. Order 7 Rule 59 requires further-evidence affidavits to be lodged in as many copies as the Registrar directs, because they are not in the appeal book. Affidavits used on an application before a single Judge are not part of the appeal book either, and Order 13 Rule 7(4) confirms that no book is needed for an interlocutory application. See how to make an application.
Sources
- Supreme Court Act (Chapter 37) — s 6
- Supreme Court Rules 2012 — O 2 r 1; O 4 r 23; O 5 rr 11, 15; O 6 r 2; O 7 rr 1, 4, 16, 50, 52–59; O 11 r 7; O 13 rr 7, 12–14
- National Court Rules 1983 — O 11 r 22; Form 50
Before relying on anything here, read the current text of the Supreme Court Rules 2012 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.