RICARD ESTATE (RE)

The Court considered whether the self-represented Deponent/Applicant had given Undertakings to several requests for evidence during Cross-Examination on an Affidavit. The Respondent's position was that the Applicant had given twelve Undertakings and had not yet fulfilled them.

The issue of undertakings had arisen during a prior Application on an unrelated matter. At that time, Justice Lema had reviewed the index of Undertakings in the transcript and inferred that all Undertakings had been given. This was also the information provided to the Court by the Respondent's counsel. However, in response to the Applicant's protests, Justice Lema seized the matter and adjourned it to review the transcripts in their entirety.

The Court recognized that Part 6 of the Rules do not contain an equivalent to Rule 5.30, which allows undertaking requests in Part 5 questioning. However, surveying the relevant case law, the Court confirmed that undertaking requests can be appropriate in limited circumstances in questioning on an affidavit. Relying on prior jurisprudence, Justice Lema noted that undertaking answers form part of the transcript pursuant to Rule 6.7 and should be filed with the transcript.

Justice Lema acknowledged that, at the prior Application, the Court had erred by inferring from the index of Undertakings that all twelve of the Undertakings had been given. The Court cited case law for the principle that the text of the undertakings, not the Court Reporter's summary, must be examined. Reviewing the text of the transcript, Justice Lema found that only two Undertakings had been given. In several instances, the Applicant had denied the Undertaking, but the Respondent's counsel had declared on the record that the Undertakings "stand" or "still stand". The Court confirmed that an undertaking must be accepted by the deponent; counsel cannot "foist" undertakings onto the deponent simply by stating that they "stand".

The Court commented that counsel should have advised of the true state of affairs, i.e., that only two of the twelve Undertakings had been given. Justice Lema set deadlines for the Applicant to provide the information for which she accepted Undertakings and held that any further responses would have to be sought by an Application to compel.