Re Dunne, a Bankrupt

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] IEHC 66
• Court: High Court
• Date: 13 February 2017

[2017] IEHC 66

THE HIGH COURT

BANKRUPTCY

Costello J.

IN THE MATTER OF THE BANKRUPTCY ACT 1988 AS AMENDED

IN THE MATTER OF SEAN DUNNE (A BANKRUPT – 2478)

Bankruptcy – S.85 of the Bankruptcy Act 1988 – Cross-examination of official assignee – Existence of factual disputes – Non-cooperation with official assignee.

Facts: The debtor had filed the present application seeking order for cross-examination of the official assignee in the proceedings instituted by the official assignee seeking an order for the postponement of automatic discharge of the bankrupts on the basis of the bankrupt's failure to co-operate. The debtor argued that since the official assignee had made the allegation that the debtor did not aid in making relevant investigations and disclosure of the documents, it became imperative to cross-examine the official assignee to that effect. The debtor submitted that he was entitled to serve a notice of cross-examination to the official assignee without obtaining the leave of the Court.

Ms. Justice Costello refused the bankrupt's application. The Court held that the debtor had not shown any factual conflict that would warrant an order for the cross-examination of the official assignee under s. 85A of the Bankruptcy Act 1988. The Court held that since the bankrupt's conduct was under question in the present case, the cross-examination of the official assignee could not be allowed unless it was proved that the official assignee was responsible for the alleged complaints made against the bankrupt in some way. The Court found that the bankrupt had not provided any document to show that he had fully complied with the official assignee in carrying out the bankruptcy procedure and hence, the issue of cross-examination of the official assignee without substantive evidence could not arise.

JUDGMENT of Ms. Justice Costello delivered on the 13th day of February 2017

The issue

1 This issue for decision is whether the bankrupt may cross examine the Official Assignee on affidavits he has sworn in an application brought by him pursuant to s. 85A of the Bankruptcy Act 1988. The Official assignee seeks an order pursuant to s. 85A(4) postponing the automatic discharge from bankruptcy of the bankrupt on the grounds that he has both failed to co-operate with the Official Assignee in the realisation of assets and has hidden from or failed to disclose to him income or assets which could be realised for the benefit of his creditors. He also seeks an order pursuant to s. 85A(3) directing further investigations into the matters complained of and that the bankruptcy period shall not stand discharged pending that investigation.

Order 76 rr73 and 76

2 The bankrupt argues that in fact he is entitled to serve a notice of cross examination upon the Official Assignee pursuant to O. 76, r. 73 of the Rules of the Superior Courts and that he does not require leave of the Court to serve such notice. This is disputed by the Official Assignee who argues that the matter falls to be decided under O. 76, r. 76 and that leave of the Court is required.

3 Order 76, rule 73 provides:—

'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.'

4 On the other hand r. 76 provides:—

(1)'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...'

5 The bankrupt argues that the Official Assignee has brought the s. 85A proceedings himself and has sworn affidavits in support of his own application. He, the bankrupt, is not a person ' wishing to require the attendance of the Official Assignee... to give evidence in their official capacity'. He therefore submits that the Official Assignee is (a) not a witness within the meaning of r. 73 and that (b) he is entitled to rely upon the provisions of r. 76. He says it follows that the bankrupt is entitled to rely upon the provisions of r. 73 and to serve a notice for cross examination on the Official Assignee without obtaining liberty so to do from the Court.

6 The issue has been considered in an earlier proceeding in this bankruptcy. In a judgment delivered on 6th March, 2014 in In the Matter of Sean Dunne (a bankrupt) [2014] IEHC 113 McGovern J. dealt with the bankrupt's application to cross examine the Official Assignee in relation to affidavits he swore to ground his application for warrants of seizure pursuant to s. 28 of the Bankruptcy Act 1988. On that occasion the bankrupt argued that he was entitled to cross examine the Official Assignee pursuant to r. 73 and the Official Assignee argued that he was subject to the provisions of r. 76 and that he was not a ' witness' within the meaning of r. 73.

7 McGovern J. accepted the submission of the Official Assignee and stated that the Official Assignee was not a witness within the meaning of O. 76, r. 73. He said ' that is not to say that he is not, where appropriate, amenable to cross examination.'

8 The bankrupt sought to distinguish the situation between the current application and the one before McGovern J. in 2014 on the basis that this application related to an application under s. 85A to extend the period of bankruptcy whereas the previous case concerned an application for a warrant of seizure pursuant to s. 28 of the Act. He submitted that an application pursuant to s. 85A was of graver consequence and therefore could not be compared with an application pursuant to s. 28.

9 I can see no justification in the Rules of the Superior Courts for differentiating between the functions of the Official Assignee under different sections of the Bankruptcy Act and therefore of the application of different rules in the Rules of the Superior Courts to the Official Assignee. Rule. 76 is not qualified or ambiguous. The fact that it extends also to officials working in the Office of the Official Assignee indicates that the rule is concerned with the performance of the statutory obligations and functions conferred upon the Official Assignee. I can see no merit in an argument that there should be a distinction between the statutory powers or functions being exercised for the purpose of construing this rule. I accept the authority of McGovern J. In the Matter of Sean Dunne (a bankrupt) [2014] IEHC 113, and I therefore reject the submission of the bankrupt that he is entitled to serve a notice to cross examine the Official Assignee pursuant to O. 76, r. 73.

Liberty to cross examine the Official Assignee

10 Pursuant to r. 76, the Official Assignee may be cross examined with liberty of the Court. This was recognised by McGovern J. in the judgment referred to above. He considered the matter a month later in Re Sean Dunne (a bankrupt) [2014] IEHC 285 in a judgment he delivered on 10th April, 2014. At para. 11 he observed that anyone wishing to require the attendance in court of the Official Assignee or any other officer serving in the Office of the Official Assignee must apply to the Court for liberty to do so. He stated:—

'There are good public policy reasons for such a filtering process. It protects a court official from frivolous or vexatious applications which could have a significant impact on how he conducts the business of the court. The court should be sparing in the exercise of its discretion to order the attendance of the Official Assignee or one of his officers for cross-examination on affidavits sworn in bankruptcy proceedings.'

11 I had to consider whether to permit the cross examination of the Official Assignee under O. 40 r. 1 (not O. 76 r. 76) in proceedings against the bankrupt's wife, in Lehane v. Dunne [2016] IEHC 96. Ms. Dunne brought a motion seeking to have the proceedings dismissed on the grounds of forum non conveniens. A number of affidavits were filed by Ms. Dunne and the Official Assignee and attorneys acting on her behalf and on behalf of the Trustee in Bankruptcy of the bankrupt in proceedings in the United States. Ms. Dunne brought an application for liberty to cross examine the Official Assignee and the Trustee's counsel, Mr. Miltenberger. In Lehane v. Dunne [2016] IEHC 96 I noted that it was not necessary that the conflict on the affidavits be one of fact. At para. 15 I identified the task of the court in determining whether or not to permit cross examination of a deponent under O. 40, r. 1 of the Rules of the Superior Courts as follows:—

'[t]he Court must first identify the issues that fall to be determined on...