The Court of Appeal has allowed Sean Dunne to cross-examine the Official Assignee about the opinions and beliefs set out in affidavits supporting an application to extend his bankruptcy. The court did not decide whether the bankruptcy period should be extended.
The Official Assignee’s application under section 85A of the Bankruptcy Act sought an extension on the basis that Mr Dunne had failed to cooperate in the realisation of assets or disclose information about income or assets. The Official Assignee initially also sought an order for further investigation, but counsel confirmed during the appeal that the application would proceed only for an extension under section 85A(4).
The High Court had refused Mr Dunne’s application to cross-examine the Official Assignee and a US bankruptcy trustee who had sworn an affidavit. Mr Dunne appealed that refusal. The Court of Appeal considered both whether leave was required and whether it should have been granted.
The appeal court held that the bankruptcy rules did not allow Mr Dunne to require the Official Assignee’s attendance by serving a notice to cross-examine. It also held that the rule requiring court permission when someone calls the Official Assignee to give evidence in an official capacity did not govern this situation. Instead, Mr Dunne needed leave under the general rule for cross-examination of affidavit-makers on applications.
In granting leave, the court said the Official Assignee’s belief that Mr Dunne had failed to cooperate would itself be evidence before the High Court, alongside the underlying facts. The court said Mr Dunne should be able to question the basis for that belief, even though many of the underlying facts were largely uncontested. The consequences of an extension could be significant, and cross-examination could affect the court’s assessment of the evidence and the length of any extension.
The Court of Appeal allowed the appeal and granted leave to cross-examine the Official Assignee on the opinions and beliefs expressed in his affidavits. It directed Mr Dunne to serve a notice identifying the parts of those affidavits he intended to question. The court’s order did not determine the section 85A application or grant permission to cross-examine the US trustee.