Court rules and procedures underpin the principle of procedural fairness in our legal system. Whether it is through the proper service of documents or preparation and filing of evidence, these rules and procedures ensure that parties to legal proceedings have their matters fairly heard and decided.
Solicitors have a paramount duty to the court and the administration of justice.[1] As officers of the court, we have a critical role to play in observing court rules and procedures, to ensure that our clients and the community at large are served and protected by the legal system.
Affidavits – why form is just as important as substance
Each court has rules that dictate how an affidavit is to be prepared and filed, and which are crucial for ensuring the admissibility and reliability of the affidavit as evidence in legal proceedings.
Solicitors are therefore reminded of the importance of preparing affidavits in accordance with the applicable court rules.
A breach may lead to the court disregarding the evidence and may ultimately be detrimental to your client’s case.
Annexures and exhibits
Any document that is referred to in an affidavit should either be attached as an annexure or exhibited. While annexures are attached to the affidavit and filed in court along with the affidavit, exhibits are kept separate.
Normally, annexures are used for smaller documents, such as emails, whereas exhibits are used for voluminous documents, such as a hundred-page expert’s report.
Irrespective of whether a document is attached as an annexure or exhibited, courts require their proper certification in order for it to be admitted as evidence in legal proceedings. Solicitors should ensure they follow the relevant court rules when annexing or exhibiting documents.
For example, under r 35.6 of the Uniform Civil Procedure Rules 2005 (NSW), “[a]n annexure to an affidavit must be identified as such by a certificate endorsed on the annexure (and not on a page separate from the annexure) signed by the person before whom the affidavit is made.” Whereas an exhibit to an affidavit “must be identified as such 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.”
By contrast, under r 17.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), the certification requirements are the same for annexures and exhibits, where each must be identified on its first page by a certificate with the same title as the affidavit and by the deponent’s initials followed by a number (starting with ‘1’ for the first annexure or exhibit).[2]
Key takeaways
Each court has its own set of rules for the preparation and filing of evidence. Solicitors, particularly those who practice in different courts and jurisdictions, should ensure they familiarise themselves and comply with the relevant rules.
Court rules and procedures are fundamental to ensuring procedural fairness to all parties involved in legal proceedings. As solicitors, we have a paramount duty to the administration of justice and observing court rules and procedures is an important aspect of this duty.
