NEW SOUTH WALES DISTRICT REGISTRY ) No. G3469 of 1994
GENERAL DIVISION )
On Appeal from a Single Judge of the Federal Court of
Australia
BETWEEN:
AUSTRALIAN
SECURITIES
COMMISSION
Applicant
AND:
EMAD KAMEL SOLOMON
First Respondent
AND:
TRANSPHERE (SOUTH PACIFIC)
PTY. LIMITED
Second Respondent
AND:
THE EDDIE SOLOMON EMPORIUM
PTY. LIMITED
Third Respondent
AND:
HOT CAKES PTY. LIMITED
Fourth Respondent
CORAM: Jenkinson, O'Loughlin and Sackville JJ.
PLACE: Sydney
DATE: 17 September, 1996
CORRIGENDA
1. On Minutes of Order and First Page of Judgment: delete No. G3469 of 1994 and substitute No. NG206 of 1996.
W.M.J. Hardman
Associate to Justice Jenkinson
Date: 22 November, 1996
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IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G3469 of 1994
GENERAL DIVISION )
On Appeal from a Single Judge of the Federal Court of Australia
BETWEEN:AUSTRALIAN SECURITIES COMMISSION
Applicant
AND:EMAD KAMEL SOLOMON
First Respondent
AND:TRANSPHERE (SOUTH PACIFIC) PTY. LIMITED
Second Respondent
AND:THE EDDIE SOLOMON EMPORIUM PTY. LIMITED
Third Respondent
AND:HOT CAKES PTY. LIMITED
Fourth Respondent
CORAM: Jenkinson, O'Loughlin and Sackville JJ.
PLACE: Sydney
DATE: 17 September, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The respondents' application for leave to appeal be dismissed.
2.The applicant's costs of the said application be paid by the
respondents.
(Note:Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G3469 of 1994
GENERAL DIVISION )
- 2 -
On Appeal from a Single Judge of the Federal Court of Australia
BETWEEN:AUSTRALIAN SECURITIES COMMISSION
Applicant
AND:EMAD KAMEL SOLOMON
First Respondent
AND:TRANSPHERE (SOUTH PACIFIC) PTY. LIMITED
Second Respondent
AND:THE EDDIE SOLOMON EMPORIUM PTY. LIMITED
Third Respondent
AND:HOT CAKES PTY. LIMITED
Fourth Respondent
CORAM: Jenkinson, O'Loughlin and Sackville JJ.
PLACE: Sydney
DATE: 17 September, 1996
REASONS FOR JUDGMENT
JENKINSON J: The court has given careful consideration to the
submissions by Mr. Solomon on behalf of himself and the other respondents, both the submissions in writing and all the material at the back of the appeal book and also what Mr. Solomon has said today. But the court is unable to find any basis for thinking that there might be any error in the decision
of Tamberlin J. He was provided with a report to which the law gives prima facie evidentiary value. The salient statements in the report were not contradicted. Indeed, as we understand,
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there was not even cross-examination on any of the salient points. The learned judge had really no course that he could have taken but the course which he did take. Because we
consider that there is no prospect of an appeal succeeding we have formed the view that the appropriate course to take is to
refuse leave to appeal from what is confessedly an interlocutory
order.
O'LOUGHLIN J: I agree with what the presiding judge has said.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Australian Securities Commission v Solomon [1996] FCA 850
Case
[1996] FCA 850
Decision Date
CaseChat Overview and Summary
The Federal Court of Australia was presented with an appeal in the case of Australian Securities Commission v Solomon, concerning a decision made by a single judge in a prior proceeding. The Australian Securities Commission sought to challenge the decision, which was made in relation to Emad Kamel Solomon and several companies including Transphere (South Pacific) Pty. Limited, The Eddie Solomon Emporium Pty. Limited, and Hot Cakes Pty. Limited. The core legal issues the court needed to resolve involved the assessment of the single judge's decision and whether there were any grounds for granting leave to appeal from an interlocutory order.
The court found that the single judge had properly evaluated the report, which carried a prima facie evidentiary weight, and had not encountered any contradictory evidence or cross-examination on the key points. As such, the single judge's decision was deemed to be within the appropriate scope and no alternative course of action was available to him. Given the lack of a viable basis for a successful appeal, the court concluded that the most appropriate action was to deny the application for leave to appeal from the interlocutory order.
The judges, Jenkinson, O'Loughlin, and Sackville, unanimously agreed that the single judge's decision was sound and that no error was apparent in it. Therefore, the court dismissed the respondents' application for leave to appeal and ordered that the applicant's costs associated with the application be borne by the respondents.