Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
In the matter of Solomon: Solomon v Green [2001] FCA 1509
IN THE MATTER OF SOLOMON: DAVID SOLOMON v BRUCE NOEL GREEN and DENISE ANN GREEN N 7363 OF 2001 GYLES J SYDNEY 28 AUGUST 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 7363 OF 2001
IN THE MATTER OF SOLOMON BETWEEN: DAVID SOLOMON
APPLICANT
AND: BRUCE NOEL GREEN
FIRST RESPONDENT
DENISE ANN GREEN
SECOND RESPONDENT
JUDGE: GYLES J
DATE OF ORDER: 28 AUGUST 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondents' costs and the costs of the Official Trustee. 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 N 7363 OF 2001
IN THE MATTER OF SOLOMON BETWEEN: DAVID SOLOMON
APPLICANT
AND: BRUCE NOEL GREEN
FIRST RESPONDENT
DENISE ANN GREEN
SECOND RESPONDENT
JUDGE: GYLES J
DATE: 28 AUGUST 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT (EX TEMPORE) 1 This is an application dated 1 August 2001, commenced by the applicant in person for the annulment of a sequestration order. The applicant does not, in his application, state any ground for the annulment. The relevant section in question is s 153B of the Bankruptcy Act 1966 (Cth). 2 I have rejected the evidence which has been tendered for the applicant, being two affidavits sworn by the applicant, one of 21 August and one today's date, for reasons which will be recorded in the transcript. I left for later consideration an affidavit of 1 August 2001 which the solicitor for the respondent says he did not receive. That affidavit is essentially what might be called a pleading affidavit which, to some extent, cures the lack of detail in the application itself. However, it does not advance the matter from an evidentiary point of view. I think the appropriate course is to read that affidavit of 1 August 2001, not as evidence of any facts but rather as a statement of the basis upon which the applicant would wish to act. The applicant is effectively left without any evidence to support his case because of my rejection of his affidavits. Indeed, I ordered that his affidavit dated today be returned to him and it will not be filed because it is scandalous. 3 The question which now arises is whether the applicant should be permitted an adjournment to get his affidavits or his evidence in to order. The solicitor for the respondent submits that there is no occasion for this because there is no suggestion of anything having actually occurred since the sequestration order was made which would give rise to any proper ground for annulment. 4 I have been referred by the solicitor for the respondents to a chronology of events which may be gleaned from the Federal Court file which I have taken notice of and have invited any correction as to detail from the applicant. That reveals that the creditors' petition in this matter was first returned on 9 March 2001, adjourned to 23 March 2001, adjourned to 1 May 2001, adjourned to 22 May 2001, and further adjourned to 5 June 2001. On 5 June Wilcox J refused an application for a further adjournment, granted leave to amend the petition in certain respects, proceeded to hear the petition and made a sequestration order of which the applicant now seeks annulment. On 5 June 2001 the applicant filed a Notice of Appeal against that sequestration order and a Notice of Motion for a stay pending that appeal. That stay was refused. The applicant made a second application for a stay which was dismissed by Whitlam J, and on 17 July 2001 the applicant filed a Notice of Motion seeking leave to appeal against that decision. It appears that both the appeal against the sequestration order made by Wilcox J and the application for leave to appeal from the decision of Whitlam J will be heard in the November 2001 sittings of the Full Court on a date to be fixed. 5 The applicant has been unable to point out to me any fact which has occurred since 5 June 2001 which would give rise to a proper basis for annulment. He says that he has discovered further evidence of the matters which he wishes to advance against the validity of the judgment upon which the bankruptcy is based. It seems to me that his basic complaint is that there are a number of grounds for impeaching the judgment upon which the bankruptcy notice was based and so for impeaching the creditors' petition based upon the judgment. Those matters in essence were well known to the applicant on or before 5 June 2001. It seems to me that if the applicant did (as he suggests) bring these matters before Wilcox J, then he can rely upon them in his appeal, unless his Honour properly did not take those matters into account. If the applicant did not raise them before his Honour, there is no proper explanation for him not having done so. The mere fact that he may have obtained what he says is further evidence does not really change the principle which is at stake. 6 Under all of the circumstances I do not think it appropriate to grant any further adjournment of this matter to enable evidence to be put on in proper form. If it is put on in proper form then it would only effectively relate to matters which are to be the subject of the appeal to the Full Court. I would not regard it as an appropriate use of the power which the court has under s 153B of the Bankruptcy Act to, in effect, try the sequestration proceedings a second time when the matter is properly the subject of an appeal. 7 It may be doubted also whether the applicant will be able to put his evidence in better form. From the documents which I have seen, he seems to have great difficulty in separating his categorisation of events (presented in a fairly sensational fashion) on the one hand from a recitation of facts on the other. That, however, is not intended to suggest any view one way or another as to whether or not he has a valid grievance. For all I know he may. If he does then that will be sorted out in the Full Court in November. I therefore dismiss this application and order that the applicant pay the costs of the respondents and of the Official Trustee of this application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.
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