Earlier this week I blogged about whether it is possible to convert an Application into an Action on a contested basis. Although the answer to this question is yes if it meets certain criteria, there are some circumstances in which the court will refuse to convert the Application into an Action. Similarly there are circumstances in which one may decide to keep their proceeding as an Application and never attempt to convert it into an Action. Should you find yourself in one of these circumstances you need to be mindful of certain procedural differences between an Application and an Action to ensure all relevant evidence is before the court.
Likely the greatest difference between an Application and an Action is that an Application proceeds on a written record while an Action proceeds by way of oral evidence. This is codified by rule 39.01 of the Rules of Civil Procedure, which states that all evidence on an Application shall be given by affidavit unless a statute or rule provides otherwise. As a result of this requirement if you are proceeding as an Application you need to ensure that all evidence you intend to rely upon is contained in an affidavit. In the case of something like a will challenge this would notably include all productions which are typically sought in the early stages of the will challenge, including any relevant medical or legal records. If these materials are not contained in an affidavit they are not properly before the court as evidence.
You also need to be mindful of the timing requirements of serving affidavits. Rule 39.02(2) generally prohibits you from filing any additional affidavit evidence after you have cross-examined an adverse party of their own affidavit, providing:
“A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.” [emphasis added]
Although Rule 39.02(2) provides for potential exceptions if the parties consent or leave of the court is provided, attention should still be paid to the general prohibition of additional affidavits being served after you have cross-examined an adverse party. If there is evidence you know you intend to rely upon and this evidence is available prior to you conducting cross-examinations you should ensure it is contained in an affidavit and served prior to cross-examinations to ensure you do not go offside Rule 39.02(2).
Thank you for reading.