In litigation involving capacity, trusts and estates, proceedings are often commenced by way of application rather than action. Evidence is submitted in the form of supporting affidavits, and the parties have the opportunity to cross-examine each other on the evidence in each affidavit. In the normal course of applications, hearings proceed on the affidavit evidence, together with the trans of cross-examinations on those affidavits.
There are occasions, however, where the evidence of a non-party may be essential, or at least beneficial, to a determination of the issues raised. Within applications, counsel may avail themselves of rule 39.03 of the Rules of Civil Procedure, which provides for non-parties to be examined for the purpose of having a tran of their evidence available at the hearing of a pending motion or application.[1]