Re Van Haeff, Robert William Ex Parte Lawson, George Eric [1983] FCA 202

2. That the bankrupt within seven days deliver to the trustee the duplicate certificates of title for the lands described as lots 76 and 77 on registered plan number 149387, County of Stanley, Parish of Mackenzie, certificates of title volume 5422 folios 197 and 198.

3. That the trustee do pay out of the property of the bankrupt the costs of and auncidental to this application to be

4. Such further or other order as to the court may seem meet.

In support of the application the trustee has sworn two affidavits. I was unformed from the bar table, without objection, that these affidavits were served on the bankrupt on 18 July 1383. Mr Van Haeff informed me that he first gave notice requiring Mr Lawson to attend for cross-

Without going to the detail of Mr Lawson's affidavits, they set out a good deal of material as to which there would appear to me to be no possibility of real dispute. For instance, he sets out the making of the sequestration order, correspondence with the bankrupt - details of land holding and the like. He also annexes to

his affidavits contracts into which he proposes to enter.

Mr Van Haeff, who appeared in person, sought to have the affidavits rejected because Mr Lawson was not available to be cross-examined. Apparently Mr Lawson is

overseas and will not be back in Australia until some date

In an effort to elicit the Matters upon which Mr Van Haeff desired to cross-examine Mr Lawson, I asked him to state what those matters were. Although he said he had some hundreds of matters to raise the principal matters appear to be matters such as that Mr Lawson is not an fact his trustee; that the valuation of the land which Mr Lawson proposes to sell is "hopelessly low"; that there are no proven 'ebts in his bankrupt's estate; that the sequestration. order was made without legal justification and, in particular, that the judge who made it had no

jurisdiction to make it; that the reasons why Mr Lawson

wants to sell the land are invalid; and that the bankrupt

does not have the title deeds referred to in the affidavit.

"135 (1) Where a party to a proceeding has served on another party to the proceeding a copy of

an a Fidavit filed by that first-mentioned party in connexion with the proceeding, the second-mentioned

party may, a reasonable time before the date fixed for the hearing of the proceeding, serve on the first-mentioned party a notice in writing requiring the production of the deponent for cross - examination on the hearing.

has been served on a party who filed an affidavit, the affidvit shall not be used as evidence unless

before the Court or the Court gives special leave to use the affidavit. "

I should state that, although the application was made on 6 July 1983, the bankrupt has not filed pursuant to rule 106 any notice of opposition to the application, nor has he filed any affidavit in reply. There is no doubt that, normally the affidavit of a deponent who is required to attend for cross-examination will not be admitted in evidence, if he does not present himself for cross- examination. But this is not an invariable rule. Rule 135 sub-rules (1) and (2) make express provision to the contrary in appropriate cases.

In my view this is not an appropriate case to require Mr Lawson to attend for cross-examination. In the first place, the bankrupt waited until 12 August to give a

notice requiring him to attend. That is to say, he waited

until three days before the return date for hearing of this

In the second place, having regard to the contents of Mr Lawson's affidavit and to the matters upon which Mr Van Haeff desires to question him, I think that it would be proper for me to exercise my discretion under rule 135(2) to

permit the applicant to use the affidavits. There is no doubt that I have such a discretion even apart from the existence of rule 135. See re A Debtor (Number 37 of 1976

Liverpool) ex parte Taylor v The Debtor (1980) 1 All E.R.

The one matter which has exercised my mind in this respect is the circumstance that Mr Lawson has annexed a valuation to one of his affidavits. Had I thought that the bankrupt would be prejudiced by reliance by Mr Lawson on the valuation, I would have, as a term of permitting Mr Andrews to use the affidavit, required the valuer to attend so that

But I do not think it is necessary in the interests of justice that I should impose such a term. There is no suggestion from the bankrupt that he wishes to place any

evidence before the court disputing the reasonableness of the valuation. He has had an adequate opportunity to raise

the valuation of the property as a matter upon which he

relies in opposition to the application. Moreover, it has

to be remembered that all that Mr Lawson has done is to annexe the valuer's valuation to his own affidavit. Mr Lawson does not purport to be a valuer himself and therefore I can see no purpose in him being present to be

The applicant also relies upon the affidavit of Mr Tamothy David Ferrier. Again, no notice to attend for cross~examination was given to Mr Ferrier until last Friday. All the considerations to which I have already referred apply a fortiori to Mr Ferrier. It is quite apparent to me

that 1f this deponent were permitted to be cross-examined he

would be asked questions which could not possibly have any

relevance to the application and could only prolong it.

Quite apart from that, I am satisfied that Mr Van Haeff does not suffer any prejudice from being unable to cross-examine Mr Ferrier. I should in this respect note

that the bankrupt has stated from the bar table that he does not have the certificates of title referred to by Mr Ferrier in the affidavit. I do not think that it would be proper for the court to make an order in respect of the certificates of title until Mr Van Haeff has had full opportunity of placing before the court evidence on oath that he does not have them. Accordingly, although Mr Van

Haeff has not filed any evidence, I propose to now offer him

the opportunity of going into the witness box and verifying on oath, if he wishes so to do, that he does not have possession of the certificates. Mr Van Haeff you have heard what I said about the certificates of title. If you

wish to state on oath that you do not have them, or you do

not know where they are, you may do so now. Do you wish to do that?

I have no doubt that this 1s a proper case for the making of orders 1 and 3 as sought in the

As to order 2, Mr Van Haeff has sworn in the witness box that he now does not have possession of the certificates of title and that he gave them to the Church of Independent Reality with which he apparently has some

I am.not at all persuaded at the moment that Mr Van Haeff would not be able to gain possession of those

\ccordingly I propose also to make order 2. However should he find after making diligent search that the

documents cannot be found, I have little doubt that the

trustee would not seek to enforce order 2. If he did and

the facts were put before the court, the court would not

take any action in respect of non-compliance with order 2 if it were satisfied that Mr Van Haeff did not have the

documents and that they were not under his control.

Van Haeff, as inviting you not to make a diligent search for those documents, because if you do not, then you could be at