Solomon v Green

[2001] FCA 974

FEDERAL COURT OF AUSTRALIA

Solomon v Green [2001] FCA 974

DAVID SOLOMON v BRUCE NOEL GREEN & DENISE ANN GREEN
N 899 of 2001

WHITLAM J
9 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 899 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DAVID SOLOMON APPELLANT
AND:	BRUCE NOEL GREEN FIRST RESPONDENT
AND:	DENISE ANN GREEN SECOND RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	9 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appellant’s motion, notice of which was filed on 18 June 2001, be refused.

2.   The appellant pay the respondents’ costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 899 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DAVID SOLOMON APPELLANT
AND:	BRUCE NOEL GREEN FIRST RESPONDENT
AND:	DENISE ANN GREEN SECOND RESPONDENT

JUDGE:	WHITLAM J
DATE:	9 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a motion for a stay of a sequestration order made by Wilcox J on 5 June 2001. The act of bankruptcy relied on was that mentioned in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). The bankruptcy notice was founded on a judgment given in the District Court of New South Wales by Naughton DCJ on 28 August 2000 in favour of the respondents against the appellant.

2. On 5 June 2001 the appellant filed a notice of appeal and a notice of motion seeking a stay of the sequestration order.  In support of that motion, the appellant filed an affidavit which stated:

   “1.Justice Wilcox has not taken [sic] my arguments in detail before delivering judgment.

   2.The mistake in serving out of time has prejudiced my application since I had legal representative [sic] when the mistake was committed, [sic] something I do not enjoy now.

   3.I was not given the opportunity to an adjournment [sic] to make an evaluation to [sic] my assets to enable me to make an offer to the opponent.

   4.I offered assets to the court to allow me to proceed with my normal life which was rejected.  The assets in question were my Patents for a Hygienic Seat and my Toilet Seat Mould, which has a value in excess of $500,000 (m$½).  This has been declined by the judge.  The Judgment Debt is only $80,256.”

3. That motion was listed for hearing before Stone J on 12 June 2001, when, in the absence of the appellant, her Honour made an order dismissing the motion with costs.  The appellant was, however, given liberty to apply in respect of her Honour’s order within 7 days.  The appellant did not avail himself of that liberty but instead filed on 18 June 2001 a further notice of motion seeking a stay of the sequestration order made by Wilcox J.  That is the motion before the Court today.

4. In support of his motion, the appellant has read three affidavits, the one initially filed on 5 June 2001, one filed on 18 June 2001 and a further affidavit filed in court today which was made on 7 July 2001.  The affidavit made on 18 June 2001 is in substantially the same form as that reproduced at [2], although in paragraph 4 he noted that the offer of assets was “flatly rejected”.  The affidavit filed in court today is in relatively short compass.  It contrasts some information relating to the judgment founding the bankruptcy notice and the subsequent proceedings in the New South Wales Court of Appeal.  Apparently an application for leave to appeal from the judgment of Naughton DCJ was heard and dismissed by the Court of Appeal on 21 May 2001 and an application for a stay of that order was heard and dismissed by Hodgson JA on 4 June 2001, that is, the day before the creditors’ petition was heard by Wilcox J. 

5. There is no evidence before me of what occurred on the hearing of the creditors’ petition but it appears to be common ground that an application was made for the adjournment of the hearing and this was refused by Wilcox J.  So far as I can gather from the terms of the affidavit filed on 5 June 2001, the appellant contends that an adjournment of the hearing of the petition should have been granted because of the appellant’s offer of assets to “allow him to proceed with his normal life”.  However, there is nothing in the material presently before me which suggests an arguable case that his Honour’s exercise of discretion in respect of an adjournment of the petition miscarried.

6. The kind of case that the appellant evidently wished to pursue on any adjourned hearing of the creditors’ petition turned on the way in which the judgment of Naughton DCJ was procured.  So much appears from both the terms of the affidavit filed and read in court today and the nature of matters agitated before the Court of Appeal.  Whether or not any such case was in fact even urged before Wilcox J I am unable to ascertain on the material before me.  The appellant said with obvious sincerity that he wishes to pursue grave allegations against counsel, the parties and the trial judge himself.  Again, there is no evidence before me on the present application which would shed light on the extent to which these matters were agitated before Wilcox J.

7. Of course, it is trite that, on the hearing of a creditor’s petition, the Court may go behind the judgment debt.  Wren v Mahoney (1972) 126 CLR 212. The nature of that exercise was well explained by the Full Court of this Court in Wolff v Donovan (1991) 29 FCR 480. Wilcox J would have been in no doubt about the nature of that exercise and of the two stages that determine whether to embark upon it. In my view, on the basis of the material led in support of the present application for a stay, there is no arguable case that any decision not to go behind the suspect judgment was flawed.

8. I note that the appellant is acting for himself.  But his notice of appeal, filed on 5 June 2001, states no grounds for the appeal and none are apparent in the materials.  At this stage it also seems, the appeal papers having been settled, that the appellant will seek to adduce further evidence on the appeal.  In all of the circumstances there is nothing before me which indicates any basis on which a stay could be granted.

9. One other aspect of the matter may be mentioned.  An application for a stay was previously made on notice to a Judge of the Court. No explanation has been given for the failure of the appellant to avail himself of the opportunity to apply in respect of the order made by Stone J.  Where successive applications are made for relief of the same sort, an explanation is called for, even when the litigant is acting for himself.

10. Accordingly, in respect of the appellant’s motion, notice of which was filed on 18 June 2001, I order that the motion be refused with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            25 July 2001

The appellant appeared in person.
Counsel for the respondents:	G J Nell
Solicitor for the respondents:	Ian B Mitchell
Date of hearing:	9 July 2001
Date of judgment:	9 July 2001