The High Court has refused Sean Dunne’s application for permission to cross-examine the Official Assignee on affidavits supporting a separate application under section 85A of the Bankruptcy Act 1988.
The Official Assignee alleges that Mr Dunne failed to co-operate in realising assets and concealed or failed to disclose income or assets available to creditors. The Assignee has asked the court to direct further investigation and keep the bankruptcy from being automatically discharged while that investigation proceeds. The court has not decided that application in this judgment.
Ms Justice Costello ruled on 13 February 2017 that Mr Dunne could not require the Official Assignee’s attendance under the ordinary affidavit cross-examination rule, Order 76, rule 73. Because the Official Assignee is performing statutory functions, the request fell under rule 76, which requires the court’s permission. The judge followed an earlier decision in Mr Dunne’s bankruptcy proceedings.
To obtain permission, Mr Dunne needed to identify the matters on which he wished to question the Official Assignee and explain why questioning was necessary. The judge said his affidavit did not do that, and did not show a likely conflict on the affidavits relevant to the issues the court would have to decide.
The judgment records that Mr Dunne referred to allegations concerning Lagoon Beach Hotel in South Africa, Walford on Shrewsbury Road in Dublin, and 19 Churchfields in Straffan, County Kildare. The court said the section 85A application would focus on Mr Dunne’s actions and any relevant failures to act. It would not determine ownership of those properties or assess the Official Assignee’s belief as such. The court would decide the underlying application on the totality of the evidence.
The court therefore refused permission to cross-examine the Official Assignee. It made no finding in this decision on whether Mr Dunne failed to co-operate or concealed assets, and did not determine whether his bankruptcy discharge should be postponed.