Gordon R.G. & Anor v Prudence Alice Pike [1995] FCA 761

CATCHWORDS

Evidence - Evidence Act 1995 - admissibility of transcript of examination of the bankrupt - reliance upon exception to hearsay rule in civil proceedings if maker of representation not available - evidence in regard to a crucial issue - general discretion to exclude evidence exercised as inability to cross-examine bankrupt would significantly disadvantage the respondent. Evidence Act 1995, ss63, 135 RONALD GEORGE GORDON (Bankrupt), OFFICIAL TRUSTEE IN BANKRUPTCY (Applicant) v PRUDENCE ALICE PIKE (Respondent) No. NB 502 of 1993 BEAUMONT J. SYDNEY 1 SEPTEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) GENERAL DIVISION ) No. NB 502 of 1993 ) BANKRUPTCY DISTRICT OF THE ) ) STATE OF NEW SOUTH WALES )

RE RONALD GEORGE GORDON Bankrupt EX PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY Applicant PRUDENCE ALICE PIKE Respondent CORAM: Beaumont J. DATED: 1 September 1995

RULING (NO. 1) ON DISCRETION TO EXCLUDE HEARSAY EVIDENCE These are proceedings in which the Trustee in Bankruptcy seeks to set aside two transactions which, it is said, constituted the settlement of property by the bankrupt made within two years before the commencement of the bankruptcy within the meaning of s.120(1) of the Bankruptcy Act 1966. One of the transactions challenged consists of a payment made in September 1991 in the sum of $15,250 in circumstances which need not be detailed here, save to note that it is claimed, on behalf of the respondent, that the ultimate source of the funds which were in part used to meet the cheque in the sum of $15,250, was the proceeds of sale of an aircraft which, according to the case of the Trustee, was beneficially owned by the bankrupt but which, according to the case of the respondent, was owned by other parties. It appears, therefore, that the beneficial ownership of the aircraft is likely to become a central issue in the proceedings. In support of his case, the Official Receiver has sworn an affidavit to which he exhibits the transcript of an examination under s.81 of the Bankruptcy Act (Exhibit GLC2). Reliance is placed by the Official Receiver on questions and answers appearing at pp.42 and 43 of the transcript of the examination held on 27 July 1994. In summary, that material deals with two questions. First, the ownership of the aircraft, and secondly, the details of its sale and, in particular, a description of the circumstances in which the sale proceeds were paid into the account of the bankrupt at the National Bank at Dubbo. As to the latter matters, there is no dispute, and since this material is common ground, that part of the tender is unnecessary as there is no issue in that respect. However, in respect of the former class of material there is, as I have said, a real issue. The critical passage in the transcript appears at line 9 on p.42 in which the bankrupt was asked whether he owned the aircraft and gave the following answer: "Have you owned a Cessna 182 Skylane?---Yes, I have."