When evidence and submissions get mixed

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Part 2 of Evidence or submissions. How they get mixed and how to unmix a paragraph.

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A barrister with a NSW evidence practice.

How they get mixed

The usual failure is an affidavit that argues. It starts as a plain account and, by paragraph fifteen, has become a letter to the judge: "It was obvious that they had already decided to terminate." "This was clearly a breach." "No reasonable employer would have done this." Every one of those sentences is a submission wearing an affidavit's clothes. The court cannot treat them as facts, the other side may apply to have them struck out, and the plain paragraphs around them lose some of their credibility by association.

The opposite failure is quieter. Submissions that state facts the affidavit never mentioned, because the writer knew them and forgot they had to be proved. The court reads the submission, looks for the evidence, finds none, and the point is lost.

An affidavit is your words about what you know

Never draft affidavit content with an AI tool, and do not let this guide tempt you to "tidy" an affidavit into something more persuasive. The affidavit guide explains what belongs and what does not, and the rules in NSW courts about generative AI and sworn evidence.

Sort a paragraph

Take any paragraph you have written and test each sentence with two questions.

Did I see, hear, do or receive this? If yes, it is evidence. It goes in the affidavit, in plain past tense, with the document annexed or exhibited as your court requires. This test is for organising an affidavit; disputed facts may need other admissible support as well.
Is this what I think the court should conclude, or what the law says? If yes, it is a submission. It goes in the submissions, with a reference to the affidavit paragraph that proves the fact it rests on.

A sentence that answers yes to both is two sentences. Split it. "I received the invoice on 3 April, which was clearly a breach" becomes "On 3 April 2026 I received the invoice annexed and marked B" in the affidavit, and "the invoice (exhibit B) was issued after termination and was not payable under clause 8" in the submissions.

A sentence that answers no to both, such as "everyone in the industry knows this is standard practice", is neither. It is an assertion without a witness. It comes out, or it becomes a question about what admissible evidence could establish it.

From Jordan's case file

Fictional example: Paragraph 14, before and after

Jordan's first draft affidavit contained this paragraph: "14. Meridian terminated the agreement on 20 March 2026 without any proper basis. They had obviously decided to do this weeks earlier, as their own internal documents would show, and the April invoice proves they were not acting in good faith." He ran the two questions over each sentence. What had he actually received? An email on 20 March with a notice attached, and an invoice on 3 April. What did he know first-hand about Meridian's internal decisions? Nothing. What was "without proper basis" and "not in good faith"? Conclusions he wanted the court to reach. The affidavit paragraph became: "14. On 20 March 2026 I received the email annexed and marked C, attaching the notice of termination annexed and marked D. On 3 April 2026 I received the invoice annexed and marked E. I did not perform any services for Meridian after 20 March 2026." The submissions gained a paragraph: "The respondent issued an invoice for April (exhibit E) fourteen days after giving notice of termination (exhibit D) and after the applicant had ceased work (Lee affidavit, para 14). The applicant submits that the invoice was not payable under clause 8 of the agreement (exhibit A, page 4), and that its issue is relevant to the credit of the respondent's account of the termination." The internal-documents point went nowhere, because Jordan had no evidence of it. It became a line in his notes about what to ask for. The request, refusal, exhibit method started there.

Checklist

Where your evidence is by affidavit, every fact you rely on appears in one, from someone who can properly give it; other admissible routes (oral evidence, witness statements, admissions, agreed facts) remain available where the court allows
Affidavit sentences are free of argument and characterisation; first person, past tense is the usual style, not a rule
Every document relied on is put in evidence by an authorised route, usually annexed to an affidavit or kept as a separate exhibit under your court's rules, not just mentioned in submissions
Every submission that states a fact cites the evidence that establishes it, by paragraph and document
Every legal proposition in submissions has a citation you have checked at the source
Sentences that are both fact and argument split into two, in two documents
No affidavit content drafted or rephrased by an AI tool
The rules and practice notes for your court checked for the form, length and timing of each document

General information only, not legal advice. What may be included in evidence, and the form, length and timing of affidavits and submissions, are governed by the Evidence Act 1995 (NSW), the Uniform Civil Procedure Rules and the practice notes of the court dealing with your matter; federal and other state courts have their own rules. All names, documents, dates and events in the examples are fictional. Last reviewed: September 2026.