Bankrupt denied cross-examination of Official Assignee without specific notice of motion and affidavit detailing grounds.

Neutral Citation: [2014] IEHC 113

THE HIGH COURT

BANKRUPTCY

[2013 No. 2478]

IN THE MATTER OF SEAN DUNNE A BANKRUPT

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 6th day of March 2014

1. This is an application brought on behalf of the bankrupt to cross-examine the Official Assignee on an affidavit sworn by him on 26th

November, 2013. The matter comes before the court pursuant to a notice of motion issued on 3rd December, 2013, which also seeks

other reliefs but those matters were not canvassed at the hearing before me but will be dealt with at a further hearing fixed for 19th

March, 2014.

2. In opening the application, counsel for the bankrupt informed the court that he was not confining his application to the affidavit

sworn by the Official Assignee on 26th November, 2013, but all affidavits sworn by the Official Assignee in this matter since that date.

3. Mrs. Gayle Dunne, the wife of the bankrupt, Mr. John Dunne, a son of the bankrupt, and Traviata Ltd., an Isle of Man company

which claims to have an interest in the property were represented by a solicitor who informed the court that he was supporting the

application of the bankrupt.

4. The bankrupt’s wish to cross-examine the Official Assignee arises out of conflicting claims to a property known as 19, Churchfield,

Straffan, County Kildare (situated in the grounds of the K-Club) and the contents of the property.

5. Counsel for the bankrupt claimed that he is entitled to cross-examine the Official Assignee and he relies on O. 76, r. 73 of the Rules

of the Superior Courts which states “wherever a witness has made an affidavit or deposition in support of any application or

proceeding in the court, any Party to such application or proceeding may by notice require the attendance of such witness for

cross-examination”. He compared that to the procedure in O. 38, r. 3 dealing with proceedings by special summons where a party

seeks to cross-examine a deponent and which provides that “. . . unless such deponent is produced accordingly, his affidavit shall

not be used as evidence unless by the special leave of the court”. He also referred to a similar procedure in proceedings commenced

by summary summons which is to be found in O. 37, r. 2.

6. Counsel for the Official Assignee relies on O. 76, r. 76(1) which states “any person wishing to require the attendance of the Official

Assignee or any other officer serving in the office of the Official Assignee at any court or place to give evidence in their official

capacity or to produce any records in their custody, shall first apply to the judge for liberty to do so . . .” He says that there is no

ambiguity in this rule and that it clearly applies to the Official Assignee or other officer serving in the office of the Official Assignee

and not to a “witness” which is covered by O. 76, r. 73.

7. The Official Assignee says that he has no difficulty in attending court for cross-examination but can only do so in response to an

order of the court. He says that there is no ambiguity in O. 76, r. 76.

8. I agree with the Official Assignee. It seems to me that he is not a “witness” within the meaning of O. 76, r. 73, even if he has

sworn a number of affidavits dealing with issues of fact and issues of his belief. As Official Assignee, he has powers and duties going

way beyond that of a witness and is to be indemnified in respect of any actions which he takes qua Official Assignee in the absence

of mala fides. That is not to say that he is not, where appropriate, amenable to cross-examination.

9. Counsel for the Official Assignee argued that if the bankrupt is correct, then an Official Assignee could be cross-examined on any

affidavit sworn by him without the necessity of an application to the court and this could give rise to problems if a vexatious

bankrupt, for example, sought such an order for the purpose of delaying or frustrating the conduct of the bankruptcy.

10. It seems to me that because the position of the Official Assignee is different to that of a “witness” in the normal sense of the

word, that O. 76, r. 76(1) is designed to introduce a filter mechanism so as to enable the court to decide whether or not it is

appropriate that the Official Assignee or any other official in his office should have to attend to give evidence in their official capacity

or produce records in their custody.

11. I am satisfied that r. 76(1) covers cross-examination of the Official Assignee on any affidavit that may have been sworn by him.

12. That being the case, it is necessary for the bankrupt to bring an application to the court for liberty to cross-examine the Official

Assignee on his affidavit because in so doing, he is giving evidence in his official capacity. The same applies with regard to the

production of any records in his custody.

13. In order for the court to decide whether or not to make such an order, it is, in my view, necessary for the bankrupt to set out on

affidavit the matters on which he wishes to cross-examine the Official Assignee and why it is necessary for him to do so.

14. In this case, counsel for the bankrupt has indicated that it is necessary to have the Official Assignee cross-examined because

there is a dispute between him and the bankrupt and the other parties mentioned above, concerning the ownership of the property at

19, Churchfield, Straffan, County Kildare and the contents thereof.

15. The Official Assignee has not indicated whether he wishes to cross-examine the bankrupt and his wife, Mrs. Gayle Dunne, in

relation to affidavits sworn by them dealing with the issues in controversy. Affidavits were also sworn by Ms. Martine Fleming, a

director of Traviata Ltd., and Mr. Michael Fox, a general construction foreman who was employed by Mr. John Dunne in the

construction of the house at 19, Churchfield, Straffan, County Kildare. Counsel for the Official Assignee has not indicated whether he

wishes to cross-examine any of these deponents on their affidavits. But it seems to me that if he wishes to do so, it may have a

bearing on how I should exercise my discretion in considering the application made by the bankrupt.

16. I will hear counsel for the Official Assignee in due course on what steps (if any) he wishes to take in that regard. But as a general

proposition, it seems to me to be undesirable that in a conflict of fact surrounding the ownership of the dwelling and contents at 19,

Churchfield, Straffan, County Kidare the court should make a decision on the basis of the cross-examination of the Official Assignee

alone. If the Official Assignee wishes to cross-examine any of the deponents who have sworn affidavits concerning this issue, he

should make an application to the court for that purpose and the court will require to know whether or not the bankrupt or any of the

other deponents who are outside the jurisdiction will make themselves available for cross-examination.

17. So far as this application is concerned, if the bankrupt wishes to cross examine the Official Assignee, I direct that he serves a

notice of motion on the Official Assignee specifying the Affidavits on which he wishes to do so, together with an affidavit setting out

the matters on which he requires to cross-examine him and the necessity for such cross-examination.