Fixing An Affidavit Before Filing

[James McGeough]

I have a query and hopefully someone can assist.

I am overseas and I prepared an affidavit for the WA courts which I executed / signed in front of a legally qualified witness who then signed and stamped my affidavit correctly as is required.

My executed affidavit was shipped by FedEx to Perth. In the shipping, two previous (old) signed pages were left in the affidavit package by error (an administrative error) so there were two duplicate pages (which should have been removed) left inside the package by error.

After shipping I contacted my Perth lawyer and I advised them of this error and I instructed them as to where the duplicate pages were and which old pages should be removed.

My Perth lawyer explained that the affidavit could not be filed because of the duplicate pages. He said that once an affidavit is executed, the affidavit can not be changed.

Is this pedantic ?

It is my understanding that, prior to filing an executed affidavit, it is acceptable to check the document completely and to ensure all the content is complete with all pages and attachments in the correct order and, if there happened to be a duplicate or erroneously placed page, or duplicate attachment, it would be acceptable to fix such an administrative error before filing.

Can someone comment on this?

Thanks!

 

[Rob Legat - SBPL]

It's not pendantic, and the lawyer is quite right not to make the change. It may differ from court to court, and jurisdiction to jurisdiction, but generally Affidavits can only be slightly amended in certain circumstances. For example if there has been a slight typographical error, an amendment can be made and restore in front of a qualified witness. In practice, this is rarely done because it creates an opportunity to question the correctness and worth of the affidavit's contents. It is much safer to just prepare a new affidavit.

You can't add or remove parts of an affidavit once sworn, and you certainly can't get a third party to do it.

 

[James McGeough]

Thanks Rob,

After my post here I decided to obtain legal advice on my query; I received the following from a legal practitioner in Perth:

"If the affidavit you originally executed has been admitted into evidence, (namely, filed with the court and served on the opposing party) and you now wish to amend that affidavit, then to do so you will need to swear a further affidavit.

If however, the affidavit has not been admitted into evidence, then you may amend it provided that the amendments have been signed before an authorised witness."

I can understand when you say:

"you can't add or remove parts of an affidavit once sworn"

but, what if such changes are made in front of the same witness ? who then signs the added or changed documents ? what if all this is executed in the same "sworn" session? or what if it's a separate session with another sworn statement i.e. "I swear..." etc. ?

Is not the essential character of an affidavit the fact that the contents are "sworn" to be true in front of a qualified witness ?

Welcome your comments...

 

[Rob Legat - SBPL]

Effectively yes. But by adding or removing parts, you're effectively stating that your original affidavit was not true and correct. That's just asking for it to be challenged.

 

[James McGeough]

Effectively yes. But by adding or removing parts, you're effectively stating that your original affidavit was not true and correct. That's just asking for it to be challenged.

Understood but, page 1 of most affidavits will include a paragraph stating something like:


"The statement of facts made by me in this affidavit are:


(a) unless otherwise stated made on the basis of my own observation, recollection, knowledge or belief; or"


Sometimes a recollection or a belief can be strengthened or better qualified; sometimes better evidence is discovered prior to actual filing; sometimes new information can be received after execution but prior to filing.


The pertinent point, and I'm sure we would both agree on this, is that the motives for any addition or change must be ethical.


It does concern me if 'process' is given more weight than the integrity and honesty and the fullness of sworn disclosure which I believe must take priority over some aspect of the process.

 

[Rob Legat - SBPL]

All of which is correct, and you would make a supplementary affidavit in such a case - not amend the old one.

In any case, that's not what we're talking about here. In this case, it's incorrect pages - information you were aware of at the time.

In terms of 'process', a similar principle applies here as it does in many other areas. Some people are ethical and honest, and some people are not. The people who aren't will use whatever means are available to play the 'system' to their advantage. So, instead, everyone has to abide by the same rules.