Re Shoreline Currencies (Australia) Pty Ltd v Ex parte Morrison, P.

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IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1

BANKRUPTCY DISTRICT

OF THE STATE

No. P.2085 of 1986

NEW SOUTH WALES AND THE

)

AUSTRALIAN CAPITAL TERRITORY

)

RE :

PHILLIP MORRISON and

ELIZABETH MORRISON

Debtors

EX PARTE:

SHORELINE CURRENCIES

(AUSTRALIA) PTY

LIMITED (IN

LIQUIDATION)

Creditor

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

Mr. Gullotta, appearing for the debtor, seeks to read an

affidavit of Phillip Morrison, one of the debtors, sworn

February 1987.

It is accepted that adequate notice, to comply

with rule

135 of

the Bankruptcy Rules, was given

Morrison was required for

cross-examination.

Sub-rule ( 2 ) of that rule provides:

! C FEDERA'. COURT

"Where a notice under sub-rule (1) has affidavit. "

served on a party who filed an affidavit,

affidavit shall not be used as evidence

unless the deponent is produced for

cross-examination before the Court or the

4 ,

I have been referred to a number of

cases concerning

comparable rules, and in particular to Re O'Neill [l9721 V.R.

327

at 333; Re a Debtor (1979) 1 All E.R. 434 at 439; Re a Debtor

(1980) Ch. 565 at 570; Re Constantine (1947) S.A.S.R.

415 at 424

to 425; The Parisian (1887) 13 P.D.	16; and Re Lucas [l9521 1 All
E.R. 102.

have,

consent of both parties, looked at the

affidavit to see if anything arises from its contents bearing on the application of the rule. The only matter that clearly does arise from its contents is that it fails to comply with rule

132(l)(b),

that is to say it does not state the address and

occupation of the deponent.

However, the witness is shown as a

notary public at London, England,

and his address is indicated as

Albermarhl Street, London.

instanced in argument the

possibility that the contents of an affidavit might, on the face

of them, reveal a powerful reason why the deponent could not

attend within the jurisdiction, which might be relevant to the

exercise of the Court's power to give special leave. That does

not apply on the face of the

material in this affidavit.

Having regard to the sums of money which the evidence

thus far put before me shows the deponent has been able to conclude other than that the deponent could have arranged to

dispose of, and the circumstances of modern travel, though the

former factor has to be considered in the light of the fact that

a receiver has been appointed and in England there has been a

attend had he wished.

There is no suggestion he has applled to

I . I

^ '

3 .

obtain any variation of the requirements of the Mareva order to

realize any funds for the purpose of attending. In all the

circumstances, I think the proper ruling under rule 135 is that I

will not receive the

affidavit.

I	certify that this and the

preceding two ( 2 ) pages are a true copy of the Reasons for Judgment herein of his Honour

Mr. Justice Burchett.

C2L2 &'

Associate

Dated: 26 March, 1987.

CaseChat Overview and Summary

In the case of Re Shoreline Currencies (Australia) Pty Ltd v Ex parte Morrison, the Federal Court of Australia was tasked with determining whether an affidavit filed by Phillip Morrison could be admitted as evidence in the bankruptcy proceedings. The case involved Shoreline Currencies (Australia) Pty Ltd, the creditor, and Phillip and Elizabeth Morrison, the debtors. The court had to decide if the affidavit could be used in the absence of the deponent being present for cross-examination, as required by rule 135 of the Bankruptcy Rules.

The central legal issue revolved around the interpretation and application of rule 135, which mandates the presence of the deponent for cross-examination when an affidavit is filed. The court examined previous cases, such as Re O'Neill, Re a Debtor, and Re Constantine, to understand how similar rules were applied in comparable situations. The Morrisons argued that the affidavit should be admitted despite the absence of the deponent due to the deponent's failure to comply with rule 132(1)(b) regarding the statement of address and occupation. The creditor, Shoreline Currencies, opposed the admission of the affidavit, arguing that the deponent could have reasonably attended for cross-examination given the circumstances.

The court concluded that the affidavit should not be admitted as evidence because it did not comply with rule 132(1)(b) and there was no compelling reason to allow its use in the absence of the deponent. The court found that the deponent had been able to dispose of significant sums of money and had the means to travel, yet had made no effort to comply with the requirements for attendance. The court emphasised that the deponent had not applied for any variation of the Mareva order to facilitate their attendance. Consequently, the court ruled that the affidavit would not be received as evidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established