Green v Solomon

[2001] FCA 625

FEDERAL COURT OF AUSTRALIA

Green v Solomon [2001] FCA 625

IN THE MATTER OF DAVID SOLOMON

BRUCE NOEL GREEN & ANOR v DAVID SOLOMON
N7994 of 2000

MADGWICK J
22 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7994 of 2000

BETWEEN:

BRUCE NOEL GREEN
FIRST APPLICANT

DENISE ANNE GREEN
SECOND APPLICANT

AND:

DAVID SOLOMON
RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

22 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The hearing of the creditors’ petition be adjourned for two weeks.

2.The respondent is to pay the petitioning creditors’ costs thrown away by the adjournment.

3.The matter be listed before the duty judge in two weeks time.

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	N7994 of 2000

BETWEEN:

BRUCE NOEL GREEN
FIRST APPLICANT

DENISE ANNE GREEN
SECOND APPLICANT

AND:

DAVID SOLOMON
RESPONDENT

JUDGE:	MADGWICK J
DATE:	22 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter the respondent debtor seeks an adjournment, of the hearing of a creditor’s petition based essentially on two grounds. 

2. The first is that he has filed an application for special leave to the High Court from a judgment of the New South Wales Court of Appeal given yesterday, which refused him leave to appeal from a judgment given by Naughton DCJ in the District Court of New South Wales last year. 

3. The proceedings before Naughton DCJ concerned whether an invention sold by the respondent to the creditors worked properly.  Apparently, the respondent based his case on demonstrating to the learned Judge that the device did work.  It worked in court on one day, then it was inspected by the legal advisers of the creditors and failed to work thereafter.  The respondent claimed that the only reason for this could be that the legal advisers must have, at least inadvertently, interfered with the functioning of the device in the course of inspecting it.  I have been informed that the Court of Appeal yesterday viewed certain video footage taken, presumably by court security cameras, while the creditors’ legal advisers examined the device.  The Court also had read to it an affidavit from a proposed expert witness saying that interference would be the only reason that the invention would not work, in the circumstances.  The Court of Appeal felt that this material was insufficient to ground a new trial.  It is to be noticed that such is a conclusion on a factual matter by a bench of two senior judges.  

4. It is always invidious for a judge of a lower court to be required to form any view on the prospects of success proceedings in the High Court, but it must be said that the prospects of success of an application for special leave to appeal appear remote.  The question turns on fact and it is special leave which must be sought.  The High Court has made it clear that it is concerned with general issues of principle as the touchstone of whether special leave to appeal will be granted.  Quite apart from the probable correctness of the finding of their Honours in the Court of Appeal, it is very difficult to discern, from what I have been told, any principle of general importance. 

5. However, the respondent has another basis for adjournment.  This is that his son, aged 39, died three weeks ago in circumstances for which the family have yet to receive a satisfactory explanation.  The respondent says that the family wishes to have the matter investigated by a coroner.  The death of an adult child is likely to be little less, if at all, distressing than the death of an infant child and my view is that the respondent should be afforded a little more time to effect such recovery as he is able from that distressing event. 

6. Accordingly, I will adjourn the matter for a further fortnight.  That will have the result that, if Mr Solomon wishes, he can seek to obtain an appropriately urgent stay or stays of proceeding from a Justice of the High Court.  The respondent is, however, to pay the petitioning creditors’ costs thrown away by the adjournment.  The matter will be listed before a duty judge in a fortnight’s time.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             29 May 2001

Counsel for the Applicants:	G. Nell
Solicitor for the Applicants:	Ian B. Mitchell Solicitor
Respondent appeared in person.
Date of Hearing:	22 May 2001
Date of Judgment:	22 May 2001