What is difference btw affidavit and affidavit in chief
Rashmi Ullal
(Querist) 10 April 2018
This query is : Resolved
What is difference btw affidavit and affidavit in chief? to be give in consumer forum?
As there are allegations in the reply from opposite party. Should I file separate case in civil court for defamation against the opposite parties, as they have told that DVD is perfectly fine, but my eyes only are not good.
Full story here:
http://www.lawyersclubindia.com/experts/Should-i-file-evidence-by-way-of-affidavit-separate--677881.asp
Azhagananth
(Expert) 10 April 2018
Affidavit are used interchangeably in legal proceedings to refer to an affidavit that provides the evidence in support of an application for particular orders.
Affidavit in chief - is the main affidavit evidence in support of a party’s claim or defense in court proceedings. It should contain all the evidence required to make out the claim or defense. A party may file many affidavits in chief in support of its case or defense.
you may file Rejoinder/Reply statement to the Written statement/Version filed by the Opposite Parties and reserve right for defamation by separate proceedings.
The Rejoinder/Reply statement may be filed along with Chief proof affidavit [since the opposite party may challenge the same as dragging].
And you should challenge the same in the Chief proof affidavit too.
Rashmi Ullal
(Querist) 10 April 2018
Affidavit part I understood. It should contain what my complaint said and a verification to that effect stating that whatever stated in the affidavit it true.
Now why I have to reply to the version of the opposite party? Like this I will be filing objections to the version of the opposite party. Then they will again file objections to my statement of objections. Like this there will be no end to reply and counter reply.
Then someone said to file written arguments. Why should I file written arguments? Without the opposite party advocate not arguing how can I simply file written arguments?
My understanding is. If opposite party advocate argues in oral. and I am unable to counter argue, I can note down the oral arguments, and then file written arguments. That will make sense. Without opposite party not arguing at all, how can I argue? that too in writing?
Seniors and Experts of this Honourable Forum please clarify.
Ms.Usha Kapoor
(Expert) 11 April 2018
.
The Object and Purpose of Giving Evidence in chief by Affidavit or
Witness Statement
1.1
Affidavits (and witness statements) are written statements of evidence in chief. Their
content is dictated by substantive rules of evidence and their form by rules of court
(including Practice Notes and the like issued by the Court): their style involves a choice
of language and by drafting they occasionally excite interest in the judge who finally
determines the issues.
1
In this paper, except where necessary to distinguish, I shall use
the expressions “written evidence”, “affidavit” and “witness statement”
interchangeably.
There appear to be four justifications advanced
from time to time for evidence in chief
being given by way of Affidavit or Witness Statement rather than orally.
First, it is thought that giving of evidence by way of Affidavit or Witness Statement
saves valuable court time
in the hearing of a matter (with the attendant assumption
that thereby there will be a saving in cost and minimisation of inconvenience to parties
and witness
Secondly, it has been said that one purpose of advance disclosure of intended evidence
is the
promotion of early settlement.
3
Thirdly, it has been observed that the filing and serving of Affidavits or Witness
Statements ensures the early appraisal of the opposite party with information about the
matters truly in issue, thereby ensuring the saving of time and money wasted in
trial
by ambush.
Lastly, it has been said that one particular benefit of exchange of witness statements is
that it provides in a practical way for the co-operation of parties. to ensure that only the
1
real issues in dispute are brought forward for the trial and it encompasses the need for
the parties to be clear and precise in illuminating the issues for trial.
Requiring written evidence
is sometimes called the “cards on the table” approach and
it has been said the “advantages” of having evidence in chief served in writing on the
other side before the trial are so compelling that even in
fraud
cases or cases where credit
is in issue, evidence in chief should be given in writing except in the most
exceptional circumstances
.
The Object and Purpose of Giving Evidence in chief by Affidavit or
Witness Statement
1.1
Affidavits (and witness statements) are written statements of evidence in chief. Their
content is dictated by substantive rules of evidence and their form by rules of court
(including Practice Notes and the like issued by the Court): their style involves a choice
of language and by drafting they occasionally excite interest in the judge who finally
determines the issues.
In this paper, except where necessary to distinguish, I shall use
the expressions “written evidence”, “affidavit” and “witness statement”
interchangeably.
There appear to be four justifications advanced
from time to time for evidence in chief
being given by way of Affidavit or Witness Statement rather than orally.
First, it is thought that giving of evidence by way of Affidavit or Witness Statement
saves valuable court time
in the hearing of a matter (with the attendant assumption
that thereby there will be a saving in cost and minimisation of inconvenience to parties
and witness
Secondly, it has been said that one purpose of advance disclosure of intended evidence
is the
promotion of early settlement.
3
Thirdly, it has been observed that the filing and serving of Affidavits or Witness
Statements ensures the early appraisal of the opposite party with information about the
matters truly in issue, thereby ensuring the saving of time and money wasted in
trial
by ambush.
Lastly, it has been said that one particular benefit of exchange of witness statements is
that it provides in a practical way for the co-operation of parties. to ensure that only the
real issues in dispute are brought forward for the trial and it encompasses the need for
the parties to be clear and precise in illuminating the issues for trial.
Requiring written evidence
is sometimes called the “cards on the table” approach and
it has been said the “advantages” of having evidence in chief served in writing on the
other side before the trial are so compelling that even in
fraud
cases or cases where credit
is in issue, evidence in chief should be given in writing except in the most
exceptional circumstances
.
The Object and Purpose of Giving Evidence in chief by Affidavit or
Witness Statement
1.1
Affidavits (and witness statements) are written statements of evidence in chief. Their
content is dictated by substantive rules of evidence and their form by rules of court
(including Practice Notes and the like issued by the Court): their style involves a choice
of language and by drafting they occasionally excite interest in the judge who finally
determines the issues.
1
In this paper, except where necessary to distinguish, I shall use
the expressions “written evidence”, “affidavit” and “witness statement”
interchangeably.
1.2
There appear to be four justifications advanced
from time to time for evidence in chief
being given by way of Affidavit or Witness Statement rather than orally.
First, it is thought that giving of evidence by way of Affidavit or Witness Statement
saves valuable court time
in the hearing of a matter (with the attendant assumption
that thereby there will be a saving in cost and minimisation of inconvenience to parties
and witnesses).
Secondly, it has been said that one purpose of advance disclosure of intended evidence
is the
promotion of early settlement.
Thirdly, it has been observed that the filing and serving of Affidavits or Witness
Statements ensures the early appraisal of the opposite party with information about the
matters truly in issue, thereby ensuring the saving of time and money wasted in
trial
by ambush.
4
Lastly, it has been said that one particular benefit of exchange of witness statements is
that it provides in a practical way for the co-operation of parties to ensure that only the
1
P.M. Donohoe QC “
Affidavits
” being a paper delivered to the
NSW Bar Association Bar Practice Course in
1990.
2
See, e.g.,
Emmett, ‘
Practical Litigation in the Federal Court of Australia: Affidavits
’
(2000) 20 Australian Bar
Review 28 at 28;
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
(2006) 229 CLR 577 at 635
[175].
3
Akins v Abigroup Limited
(1998) 43 NSWLR 539 at 551
;
Hodgson v Amcor Ltd
(2011) 32 VR 495 at 521
[84].
4
Akins v Abigroup
at 551;
Concrete
at 635 [175];
Saad v State of New South Wales
[2013] NSWSC 154 at [52]
;
Hodgson v Amcor Ltd
at [82].
Page
3
real issues in dispute are brought forward for the trial and it encompasses the need for
the parties to be clear and precise in illuminating the issues for trial.
5
1.7
Requiring written evidence
is sometimes called the “cards on the table” approach and
it has been said the “advantages” of having evidence in chief served in writing on the
other side before the trial are so compelling that even in
fraud
cases or cases wher
e
credit
is in issue, evidence in chief should be given in writing except in the most
exceptional circumstances
Azhagananth
(Expert) 11 April 2018
When the allegations made by the other side is not opposed, then it will interpreted by the other side as "Admission of their case". so it necessary to give reply to Written statement/Version either by way of Rejoinder or in the Chief Proof affidavit. it the same is not opposed in your evidence, then the same may be adverse against you.
usual procedure is that, the person who has approached the court has commence all the things first... it may be the complaint, Evidence and Argument/ Written argument.
It is the duty of the party to prove each and every part of the statements pleaded on their side and disprove the statements of the other side.
In clear terms the Plaintiff/Petitioner/Complainant has to prove their case and should not pick holes on the case of the Defendant/Respondent/Opposite parties.
Written argument, is the better way to submit our case to the Judge who is going to decide the case. we should assist/help the court in effective way to "Understand our case" . Written argument is the best way of assisting the court/forum to understand our case. Assisting the Court/forum in understanding the case is the best way of getting success in case.
