The High Court refused a request to cross-examine a witness whose affidavits were filed in a motion over parallel Irish and US bankruptcy proceedings. It held that questioning him would not assist the court in deciding the motion to dismiss the Irish case. A reciprocal request to question another witness therefore did not arise.
The underlying proceedings were brought by Christopher Lehane, Official Assignee in the bankruptcy estate of Seán Dunne, against Gayle Dunne. The plaintiff seeks to set aside transfers of shares in Mavior and an interest in the Lagoon Beach Hotel in Cape Town, as well as related loans, or obtain damages and tracing relief. Those claims remain to be determined; this ruling dealt only with requests to cross-examine on affidavits filed for the dismissal motion.
The defendant’s motion sought to strike out or dismiss the Irish proceedings on grounds of forum non conveniens and abuse of process. The court noted that a US bankruptcy trustee was pursuing related claims in a separate US proceeding, Adversary Proceeding 15-5019. A second US proceeding, 15-5020, which mirrored the Irish claim, had been dismissed with the defendant’s consent so the claims could be pursued in Ireland.
The defendant sought to question Timothy Miltenberger, who had sworn affidavits for the plaintiff, about matters including overlapping claims, the risk of inconsistent decisions, the plaintiff’s title to sue, and the expense of parallel litigation. The plaintiff sought a reciprocal order for the cross-examination of Alec Ostrow, who had sworn affidavits for the defendant.
Justice Costello said cross-examination on an interlocutory motion is discretionary. The applicant must show a probable conflict in the affidavits relevant to an issue the court must decide, and that the issue cannot be decided justly without cross-examination. She found that the proposed questioning largely concerned future decisions by the US trustee or courts, matters not within Miltenberger’s control, or coordination plans still under discussion. The judge also noted that a US bankruptcy court had recognised the plaintiff’s right to maintain the Irish proceedings and ruled that they did not breach the US automatic stay.
The court concluded that cross-examination of Miltenberger was unnecessary to decide the dismissal motion and refused the relief sought in the notice of motion. As Miltenberger would not be cross-examined, the plaintiff’s application to question Ostrow did not arise. The judgment did not decide the dismissal motion itself or the underlying asset-transfer claims.