Giving Evidence to an Overseas Court: Affidavits Sworn in Australia

You can usually give written evidence to an overseas court by affidavit sworn in Australia. You swear or affirm it before an Australian notary, who completes the jurat and applies their seal. DFAT then usually adds an apostille or authentication. Whether the foreign court accepts the affidavit, and in what form, is for that court and your lawyer to decide.

Key takeaways

• An affidavit is written evidence, sworn or affirmed before an authorised person. A foreign court usually expects that person to be a notary.
• An Australian statutory declaration is for use in Australia. It is not a substitute for an affidavit abroad.
• Your overseas lawyer usually drafts the affidavit, but the facts must be yours and in words you understand.
• You can swear an oath or make an affirmation. Both carry the same legal weight.
• Documents you refer to become exhibits, each marked and signed by the notary.
• An affidavit may not be the end of it. The court may still want you cross-examined, sometimes by video.

Affidavit or statutory declaration?

Both are written statements of fact that you confirm are true, and both carry penalties if you lie. The difference is where they are used. A statutory declaration is made under Commonwealth or state or territory law, for Australian purposes, before an authorised witness such as a Justice of the Peace. DFAT's page on notarial services notes that Australian statutory declarations are for use only in Australia.

An affidavit is the sworn form of evidence used in courts, in Australia and in most common law countries. Many civil law systems have their own equivalents, such as a sworn declaration before a notary. When a foreign court asks for an affidavit from someone in Australia, it usually expects it to be sworn before an Australian notary, whose signature DFAT can then verify. A JP's signature cannot be apostilled. Our guide to a statutory declaration versus an affidavit explains the difference in more depth.

Who drafts the affidavit?

Usually your lawyer in the foreign country, or the lawyer for the party who asked for your evidence. They know what the court needs and the format it expects. That format varies. Common law courts expect numbered paragraphs in the first person, with a heading naming the court and the case. Other systems may want a different layout, a particular opening formula, or a declaration about penalties for false evidence.

The notary does not draft your evidence and does not advise on the case. But the words must be yours. Read every paragraph before the appointment. If something is wrong, overstated or not within your own knowledge, have it corrected before you swear. Where you are repeating what someone else told you, the affidavit should say so and name the source. Correcting a draft is routine. Swearing to something you know is inaccurate is a serious offence in most countries.

Oath or affirmation?

Your choice. An oath is sworn on a religious text or by reference to God. An affirmation is a solemn promise without religious content. Both have the same legal effect, and you do not have to explain why you prefer one. If you want to swear on a particular religious text, ask the notary in advance whether they have it, or bring your own. The notary will record which form you used in the jurat, the block at the end that says where, when and before whom the affidavit was sworn.

What happens at the appointment?

The notary first confirms your identity, usually from your passport or another photo identification. If the affidavit will be used abroad, a passport is often the most useful, because foreign courts recognise it. The notary then checks that you have read the affidavit, understand it and are making it freely. You swear or affirm that the contents are true, and sign in front of the notary.

The notary signs the jurat and applies their seal. Many notaries also ask you to initial each page, and any handwritten corrections, so no page can be swapped later. If the jurat was drafted for a foreign official, for example naming a "Notary Public of the State of New York", the notary will not sign it as it stands. They will usually attach their own jurat or certificate instead. Our guide to notarising an affidavit covers the appointment itself in more detail.

How are exhibits handled?

An exhibit is a document you refer to in the affidavit, such as a contract, an email chain or a bank statement. Each one is attached and identified, often by a letter or number. The notary usually signs a short exhibit note on each one, along the lines of "this is the exhibit marked A referred to in the affidavit of ... sworn before me". Some courts want a separate cover sheet for each exhibit.

Exhibits are usually copies. Bring the originals too, in case the notary or the court wants them compared. If the foreign court wants certified copies, the notary can certify copies after sighting the originals. That certifies the copy is a true copy, not that the document's contents are true. Our guide to certified copies of affidavits explains how copies of a sworn affidavit are handled.

Part of the affidavit	What it is	What to check
Heading	The court and the case	Names and case number match the court's records
Deponent details	Your name, address and occupation	Matches your identification
Numbered paragraphs	Your evidence, in the first person	Every fact is accurate and within your knowledge
Exhibits	Documents you refer to, each marked	Originals available; each exhibit note signed
Jurat	Where, when and before whom it was sworn	Names an Australian notary, not a foreign official
Translation, if any	A version in the court's language	Who the foreign court accepts as translator

What if you do not read the affidavit's language?

You must understand what you swear. If the affidavit is in a language you do not read, you need a translation you can read, or an interpreter at the appointment. Where an interpreter is used, many courts expect them to confirm, often in a short affidavit of their own, that they translated the document to you accurately. Our guide to notarising a foreign-language document covers how that works. The reverse also happens: an affidavit written in English for a court that works in another language. The foreign court decides who may translate it. Some require a sworn translator in their own country, so ask before you arrange one.

Does the affidavit need an apostille?

Often, yes. Many foreign courts want proof that the Australian notary is genuine. That proof comes from DFAT. For a country that is a party to the Apostille Convention, DFAT issues an apostille. For other countries, DFAT issues an authentication and that country's embassy or consulate legalises the document. Either way, DFAT verifies the notary's signature and seal, not your evidence. Membership changes, so check the HCCH status table on the day. Some courts, particularly between close legal partners, need no apostille at all. Your lawyer will know.

Is an affidavit always enough?

Not always. In many cases the other side can ask to cross-examine you on your affidavit, and some courts want oral evidence rather than written. The Attorney-General's Department explains, on its page about collecting evidence in Australia for foreign proceedings, that Australia does not object to people here giving evidence voluntarily to a foreign court by video or audio link. No Australian permission is needed if you face no penalty for declining. If you are compelled to give evidence, the foreign court must make a formal request. That goes through a treaty such as the Hague Evidence Convention, or directly to an Australian court. Those requests are handled by the lawyers and courts, not by you or a notary.

How do you prepare?

1. Get the draft and the instructions. Ask your lawyer who must witness it, whether it needs an apostille, and when the original is due.
2. Read every paragraph. Correct anything inaccurate or outside your own knowledge before the appointment.
3. Collect the exhibits. Bring copies to attach and the originals to compare.
4. Arrange translation or an interpreter. If you do not read the affidavit's language well.
5. Send the draft to the notary. So a jurat written for a foreign official can be fixed in advance.
6. Swear it before the notary. Bring your passport, and do not sign beforehand.
7. Arrange the apostille or legalisation. Then courier the original and keep a copy.

Common mistakes to avoid

The most common mistake is signing the affidavit before the appointment. It then has to be reprinted. The second is swearing a statutory declaration witnessed by a JP when the court asked for an affidavit. The third is leaving a jurat that names a foreign notary. The fourth is attaching exhibits without the exhibit notes, so the court cannot tell which document is which. The last is swearing to facts you only heard about, without saying so. Our guide to documents already signed explains what happens if you signed too early.

Here is an illustration, not a real case.

Grace lives in Hobart and is a witness in a contract dispute in Singapore. The Singapore lawyer sends a draft affidavit with three exhibits: a contract, two emails and a delivery note. Grace corrects one date and asks for a sentence to show that a conversation was reported to her by a colleague. She swears the affidavit before a notary, who marks each exhibit and attaches an Australian jurat. DFAT then adds an apostille. Months later, the court asks to cross-examine her, and she gives evidence by video link, voluntarily.

In short

An affidavit for an overseas court is usually drafted by the foreign lawyer and sworn or affirmed before an Australian notary. The notary completes the jurat, marks the exhibits and seals it. DFAT then usually adds an apostille or authentication. A statutory declaration is for Australian use and is not a substitute. The court may still want you cross-examined, often by video. Our legal declarations services page explains how a notary helps with sworn documents.

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Asked to swear an affidavit for a court overseas? Send us the draft and your lawyer's instructions, and we will explain each step before you book.