6.20: Form of questioning and transcript
6.8: Questioning witness before hearing

Case Summary

A procedural question arose in the context of a Summary Judgment Application brought by Precision against Yangarra. Yangarra sought to issue subpoenas to four Precision personnel, pursuant to Rule 6.8. The transcript of the examinations of those four witnesses would then be put in evidence in the Summary Judgment Application.

Master Prowse determined that Yangarra was entitled to Question the four witnesses pursuant to Rule 6.8. The only issue was “whether Yangarra’s examination is an examination in chief or a cross-examination”.The Law under former Rule 266 was settled: the Examination of the party issuing the subpoena was an Examination in Chief. According to Master Prowse, this has not changed in the new Rules: “A party calling a witness under Rule 6.8 must conduct the examination as an examination in chief, as previously under Rule 266”.

Master Prowse noted that Rule 6.8 makes reference to Rule 6.20, which states that Questioning by Parties adverse in interest may take the form of Cross-Examination:

6.20(2) Questioning and questioning again under this rule by parties adverse in interest may take the form of cross-examination.

Master Prowse stated that the correct way to determine if a Party is adverse in interest is as follows:

The party who issues the subpoena is calling the witness as his/her witness – therefore it is the other party who is ‘adverse in interest’ and may cross-examine.

Master Prowse concluded by noting that: “[if] Yangarra chooses to subpoena a witness under Rule 6.8, then that is their witness. Yangarra cannot be considered ‘adverse in interest’ to their own witness”.


View CanLII Details