Re Sean Dunne (a bankrupt)

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 06 March 2014
• Neutral Citation: [2014] IEHC 113
• Date: 06 March 2014
• Court: High Court
• Docket Number: [No. 2478/2013]

[2014] IEHC 113

THE HIGH COURT

[No. 2478/2013]

Dunne (a bankrupt), In re

BANKRUPTCY

IN THE MATTER OF SEAN DUNNE A BANKRUPT

RSC O.76 r73

RSC O.38 r3

RSC O.37 r2

RSC O.76 r76(1)

Bankruptcy – Official Assignee – Witnesses – Cross-examination - Rules of the Superior Courts

Facts: This was an application brought on behalf of a bankrupt to cross-examine the Official Assignee in relation to affidavits sworn by him pursuant to O. 76 of the Rules of the Superior Courts. The bankrupt contended it was necessary to cross-examine the Official Assignee because of conflicting claims in relation to a property and its contents.

Held by McGovern J, that if the bankrupt wished to cross examine the Official Assignee he was required to serve a notice of motion specifying the affidavits on which he wished to do so, together with an affidavit setting out the matters to be to cross-examined and the necessity for such cross-examination.

Mr. Justice Brian J. McGovern

1 This is an application brought on behalf of the bankrupt to cross-examine the Official Assignee on an affidavit sworn by him on 26^th November, 2013. The matter comes before the court pursuant to a notice of motion issued on 3^rd 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 19^th 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 26^th 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...