Solomon & Ors v Ausn Securities Com

[1997] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S181 of 1996

B e t w e e n -

EMAD KAMEL SOLOMON

First Applicant

TRANSPHERE (SOUTH PACIFIC) PTY LIMITED

Second Applicant

THE EDDIE SOLOMON EMPORIUM PTY LIMITED

Third Applicant

HOT CAKES PTY LIMITED

Fourth Applicant

and

AUSTRALIAN SECURITIES COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 JUNE 1997, AT 11.42 AM

Copyright in the High Court of Australia

_________________________

MR E.K. SOLOMON appeared in person.

MR J.T. GLEESON:   May it please the Court, I appear for the respondent.  (instructed by P. Stepek, Australian Securities Commission)

McHUGH J:   Mr Solomon, you not only seek to appear for yourself but you also seek to appear for three companies.

MR SOLOMON:   Yes, your Honour.

McHUGH J:   What authority have you to appear for those companies having regard to the fact that receivers have been appointed in respect to them?

MR SOLOMON:   I am a director, your Honour, of the companies.

McHUGH J:   That certainly does not give you authority in all circumstances to appear.  Just sit down for a moment.  What do you say about this, Mr Gleeson?

MR GLEESON:   Your Honour, there is a technical problem.  The way the matter proceeded in the Full Court we took no objection to Mr Solomon purporting to act on behalf of himself and the three companies, even though at that time a provisional liquidator had been appointed.  That is on page 44 of the application book.

McHUGH J:   Yes.  Having regard to the way the matter proceeded in the Full Court we will allow Mr Solomon to appear on behalf of these companies.  Yes, Mr Solomon.

MR SOLOMON:   Thank you, your Honour.  Your Honour, I am seeking leave to appeal against the orders appointing a provisional liquidator.

GUMMOW J:   Well, you are seeking leave to appeal against the refusal by the Full Federal Court of leave to appeal against Justice Tamberlin’s orders.

MR SOLOMON:   Yes, your Honour, yes.

GUMMOW J:   There has been a step in the middle.

MR SOLOMON:   Your Honour, the point of law that I raise is that the Commission’s report should not be allowed as evidence in order to appoint a provisional liquidator.  I am relying on the case mentioned in my list of authorities.  It is Mutual Home Loans, I think.  Your Honours, you have to excuse me because I am visually impaired and I cannot read so I am just relying on memory.  The case I am relying on is called Mutual Home Loans.  The judge refused to allow a provisional liquidator to be appointed on the grounds that the Commission’s report was not allowed to be used as evidence.  Judge Tamberlin in his judgment relied on the Commission’s - - -

McHUGH J:   This was on a winding up, was it not?

GUMMOW J:   Mutual Home Loans was a winding up case?

MR SOLOMON:   Yes, your Honour, yes.  But Judge Tamberlin concluded that he will appoint a provisional liquidator because there is prospect that the winding up order would be granted.  In any case, your Honours, Judge Tamberlin should not have relied on the Commission’s report in his finding.  Also, when the matter went to the Full Court in the Federal Court, in the judgment the judges concluded that the Commission’s report represents prima facie evidence and I think this was wrong in point of law.

Your Honours, I am also seeking leave to appeal against an order of 15 September 1994 ordering me to surrender my passport and another order appointing - - -

GUMMOW J:   But the appeal to the Full Court of the Federal Court was against the orders of Mr Justice Tamberlin.

MR SOLOMON:   Yes, your Honour.  I also sought leave to appeal against these two orders but I was not allowed to bring the matter to the Full Court.

McHUGH J:   There is no judgment of the Full Court in the papers, is there, concerning those two matters?

MR SOLOMON:   Pardon, your Honour?

McHUGH J:   There is no judgment of the Full Court in respect of what you say is an application for leave to appeal against the orders of Justice Lindgren and Justice O’Loughlin?

MR SOLOMON:   I did bring the matter to the attention of the Full Court and, I believe, in the judgment - - -

McHUGH J:   The judgment only deals with the decision of Justice Tamberlin.

MR SOLOMON:   It does also deal with the judgment of O’Loughlin.  I was told that it is way out of time and cannot be brought to the Court’s attention.

McHUGH J:   Justice O’Loughlin was one of the judges who sat on the Full Court.  So, you could not have been appealing to him against a judgment of his.

GUMMOW J:   That appears at page 44 of your record, line 40:

we are able to deal with here today is only your application for leave to appeal against the order Tamberlin J.....Do you follow?

MR SOLOMON:   Yes.

MR SOLOMON:   That is right, I was only allowed to mention Judge Tamberlin case.  Leaving this aside, your Honour, if you will allow me to mention it.

McHUGH J:   But I do not see how we can.

MR SOLOMON:   Yes, your Honour.

McHUGH J:   Indeed, the order of Justice O’Loughlin was made by consent, was it not?

MR SOLOMON:   It was made by consent but the way by which it was made I believe - I was led to believe that this will end the case; will end the proceedings.

McHUGH J:   You are making statements from the Bar table.  One of the complaints made against you, Mr Solomon, is that your book contains assertions that are contrary to the evidence and unsupported by the evidence.

MR SOLOMON:   Yes, your Honour.  I will not mention - but the case of liquidation of the companies, I believe it was made in error and it has drastic effects on my business, on my creditors  - - -

McHUGH J:   You were given liberty to apply so you can always go back, can you not?

MR SOLOMON:   But if Judge Tamberlin takes the view that the companies will be wound up anyway, it causes a problem.

McHUGH J:   It would certainly cause problems if they are wound up but if you have further evidence available at some stage there is no reason why you cannot go back and seek to have the orders appointing the provisional liquidator discharged.

MR SOLOMON:   Yes, your Honour.

McHUGH J:   Justice Gummow and I have carefully read your written submissions and the papers that you have filed.  Have you anything further to say, Mr Solomon?

MR SOLOMON:   No, your Honour.  I have prepared a written version of my oral submission, just because I cannot refer to the documents, I cannot see properly, and I - - -

McHUGH J:   Strictly speaking, these documents should be supplied and filed in accordance with the rules but would you give Mr Gleeson a copy of them and hand two copies up.

MR SOLOMON:   Yes.

McHUGH J:   Much of this seems to deal with matters before Justice Lindgren.  Yes, all right, we have read that.  A large part of it deals with the matter concerning Justice Lindgren which is not before us, Mr Solomon.

MR SOLOMON:   Yes, your Honour.

McHUGH J:   Now, have you anything further to say?

MR SOLOMON:   No.

McHUGH J:   Thank you very much.  The Court need not hear you, Mr Gleeson.

The Full Court of the Federal Court refused leave to appeal from interlocutory orders made by Justice Tamberlin on 8 February 1996.  The Full Court held that there was no prospect of the appeal succeeding because there was no basis for thinking that there might be any error in Justice Tamberlin’s decision.  The Full Court correctly applied the principles governing the grant of leave to appeal in interlocutory matters.  An appeal to this Court enjoys no prospects of success.  Accordingly, special leave to appeal is refused.

MR GLEESON:   I make an application for costs.

McHUGH J:   Yes.  Mr Solomon, the Commission seeks costs.  What do you say about that?

MR SOLOMON:   I will leave it at your discretion, your Honour.

McHUGH J:   Yes, thank you, Mr Solomon.  The usual order will be made.  The application is dismissed with costs.

MR GLEESON:   May it please the Court.

AT 11.55 AM THE MATTER WAS CONCLUDED