Evidence generally – Order 40

Question 1

How can a W give evidence?

Answer 1

Evidence of a witness shall be given
1. On an interlocutory or other application in any proceeding by affidavit;
2. At trial commenced by writ – orally;
3. At trial commenced by originating motion – affidavit.
Not binding – r40.03 can overturn

Question 2

What is a deposition?

Answer 2

Where an affidavit is filed in any proceeding, the court may make an order that the deponent be examined before the court at such time and place as it directs.

Question 3

How will a deposition be admissible?

Answer 3

A deposition will not be admissible unless
- it is done in compliance with O41; and
- the witness is either unavailable or there is consent. R40.07

Question 4

What can the court order re matters outside of court process/ arbitration/ deposition

Answer 4

The court can order the following on matters outside the court’s process such as arbitration or deposition
* a person to attend for cross examination (broader than the deposition powers because the person does not need to have made an affidavit);
* the attendance of a person and the production by a person of a document or a thing (cross over with subpoena and non party discovery);