Due to the social distancing regulations put in place to help deal with the COVID-19 outbreak, Australian courts have implemented a myriad of solutions to address the traditional method of swearing or affirming an affidavit in person.
Under normal circumstances, the execution of documents is a complex area of law - however compromises have been made in order to accommodate these extraordinary times.
At this stage, few of the solutions involve digital signatures, despite the fact that (in principle) electronic signatures are valid under the common law, and have largely become accepted in the execution of various documents, including contracts and agreements (subject to any relevant statutory requirements or notable exceptions such as deeds and companies signing under s127 of the Corporations Act 2001).
In fact, a large majority of contracts in Australia are signed digitally, meaning that under the common law, it is plausible for a digital affidavit to be executed and sworn or affirmed through a livestream (via Zoom, FaceTime or other similar platforms) attended by the relevant parties, in lieu of the parties meeting in person.
The procedure for affidavits could temporarily transition into a digital platform across every jurisdiction. As a suggestion, this procedure could potentially involve the following steps:
- The Deponent identifies themselves, and indicates their intention in respect of the documents, and any further evidence required.
- Both parties provide their written consent to the use of digital signatures.
- Deponent digitally affixes their signature to an affidavit, during a livestream on an application such as Microsoft Teams, FaceTime or Zoom.
- The authorized affidavit taker will watch the livestream.
- Subsequently, the authorized affidavit taker can digitally swear or affirm the affidavit.
Unfortunately, each court currently has its own protocol in relation to the taking of Affidavits.
Below is a summary of some of those protocols, accurate as of 9 April 2020:
County Court of Victoria
- Registrar will accept the filing of an Affidavit which has not been sworn or affirmed, provided that a sworn or affirmed version is filed as soon as practicable.
- Ensure that the affidavit is signed by the deponent, and that a paragraph is included in the body of the affidavit stating that it cannot be sworn or affirmed at this stage due to measures to minimise the spread of COVID-19.
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Supreme Court of Victoria
- The Chief Justice has made an order under r 2.04 of the Supreme Court (General Civil Procedure) Rules 2015 dispensing with the requirement under rr 2.05 and 05 of the Probate Rules to file an affidavit of searches in support of applications for probate or administration.
- There will no longer be a requirement to file an affidavit of searches in support of applications for probate or administration.
- Applications for probate and administration (and all documents filed in the Probate Office) must be sent via post to Registrar of Probates. It is recommended all applications that include original Wills be sent via registered post.
- Once the Probate Office receives an application for probate or administration, Probate Office staff will conduct all searches in respect of the application that formerly would have been conducted by or on behalf of the applicant when preparing an affidavit of searches.
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Magistrates Court of Victoria
- The Court expects parties to sign and witness Affidavits in the usual way.
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VCAT
- The Tribunal expects parties to sign and witness Affidavits in the usual way.
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Federal Court of Australia
- The Court will accept unsworn Affidavits for the time being, that will need to be sworn or affirmed when the situation changes.
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NSW Family Court and Federal Circuit Court
- Signatures on documents and Affidavits may be done electronically.
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Family Court of Australia
- Affidavits and other documents requiring a signature under the Family Law Rules 2004 or the Federal Circuit Court Rules 2001 may be signed digitally, including by having a person type their name into the signature block in lieu of a physical signature.
- Court will accept documents which have not been witnessed, provided the deponent is available to swear or affirm that the contents of the documents are true and correct to the best of their knowledge, information and belief.
If you have a query relating to any of the information in this piece, or if you have a specific question regarding a matter of your own, please don't hesitate to get in touch today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
