Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Samootin v Shea [2013] NSWCA 312 Hearing dates: 5 September 2013 Decision date: 20 September 2013 Before: McColl JA at [1];
Basten JA at [2];
Gleeson JA at [3]Decision: The applicant's notices of motion filed 4 December 2012, 22 March 2013 and 28 May 2013 are each dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - practice and procedure - application for review - s 46(4) Supreme Court Act 1970 - where proceedings dismissed by a single Judge of Appeal as an abuse of process - where an order in the type of Teoh v Hunters Hill Council (No 4) has been made - whether judge erred in not applying Convention on the Elimination of All Forms of Discrimination against Women
APPEAL - practice and procedure - s 38(a) Judiciary Act 1903 (Cth) - application for removal of proceedings to the High Court - where leave to issue or file a proceeding for removal to the High Court has been refused by a judge of the High CourtLegislation Cited: Bankruptcy Act 1966 (Cth)
Judiciary Act 1903 (Cth), ss 38, 40
Sex Discrimination Act 1984 (Cth), s 3
Supreme Court Act 1970, s 46(4)
Uniform Civil Procedure Rules 2005, r 44.5Cases Cited: Chow Hung Ching v R (1948) 77 CLR 449
Collier v Lancer [2013] NSWCA 185
In the Matter of an Application by Alexandra
Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Re East; ex parte Nguyen [1998] HCA 73; 196 CLR 354
Re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257
Samootin for Leave to Issue a Proceeding (S30/2013, Gageler J, 22 August 2013, unreported)
Samootin v Hannigan [2012] FCA 462
Samootin v Shea [2011] HCASL 120
Scott v Bowden [2002] HCA 60; 194 ALR 593
Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771Texts Cited: Convention on the Elimination of All Forms of Discrimination against Women Category: Principal judgment Parties: Alexandra Samootin (Appellant)
Christopher George Shea (First respondent)
Peter John Deans (Second respondent)
Loan Design Pty Ltd (Third respondent)
S R Deans Pty Ltd (Fourth respondent)
Giselle Monika Wagner (Fifth respondent)
Adrian Holmes (Sixth respondent)
Official Trustee in Bankruptcy (Seventh respondent)
Supreme Court of New South Wales (Eighth respondent)
The Federal Attorney General (Ninth respondent)
The Attorney General of New South Wales (Tenth respondent)Representation: Counsel:
Appellant in person
Solicitors:
Appellant in person
File Number(s): 2012/173280 Decision under appeal
- Jurisdiction:
- 9003
- Citation:
- [2012] NSWCA 378
- Date of Decision:
- 2012-05-31 00:00:00
- Before:
- Campbell JA
- File…
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Details
- AGLC
- Samootin v Shea [2013] NSWCA 312
- Case
- [2013] NSWCA 312
- Decision Date
CaseChat Overview and Summary
This matter concerned an application by Ms Samootin for review of decisions made by a single judge of the Supreme Court of New South Wales, Court of Appeal. The proceedings involved multiple respondents, including Mr Shea, Mr Deans, various companies, Ms Wagner, Mr Holmes, the Official Trustee in Bankruptcy, and the Attorneys-General for the Commonwealth and New South Wales. The core of the dispute revolved around Ms Samootin's alleged losses and expenditures concerning properties, and her standing to pursue claims related to these matters.
The Court of Appeal was required to determine whether Ms Samootin had standing to appeal against certain decisions, particularly an order made by Palmer J in 2008 concerning the costs of a valuation report and directions for property sale. A further issue was whether the proceedings constituted an abuse of process, and whether a judge had erred in not applying the Convention on the Elimination of All Forms of Discrimination against Women. The Court also considered an application for removal of proceedings to the High Court under s 38(a) of the Judiciary Act 1903 (Cth), which had previously been refused by a High Court judge.
The Court reasoned that Ms Samootin lacked standing to pursue the claims, as any rights she might have had to make such claims had vested in the Official Trustee in Bankruptcy during her bankruptcy and had not revested in her upon discharge. This principle had been established in a prior appeal judgment in 2010, which was upheld by the High Court's refusal of special leave to appeal. The Court also noted that the Supreme Court of New South Wales was not an entity capable of being joined as a respondent in proceedings before it.
The applicant's notices of motion filed on 4 December 2012, 22 March 2013, and 28 May 2013 were each dismissed.
The Court of Appeal was required to determine whether Ms Samootin had standing to appeal against certain decisions, particularly an order made by Palmer J in 2008 concerning the costs of a valuation report and directions for property sale. A further issue was whether the proceedings constituted an abuse of process, and whether a judge had erred in not applying the Convention on the Elimination of All Forms of Discrimination against Women. The Court also considered an application for removal of proceedings to the High Court under s 38(a) of the Judiciary Act 1903 (Cth), which had previously been refused by a High Court judge.
The Court reasoned that Ms Samootin lacked standing to pursue the claims, as any rights she might have had to make such claims had vested in the Official Trustee in Bankruptcy during her bankruptcy and had not revested in her upon discharge. This principle had been established in a prior appeal judgment in 2010, which was upheld by the High Court's refusal of special leave to appeal. The Court also noted that the Supreme Court of New South Wales was not an entity capable of being joined as a respondent in proceedings before it.
The applicant's notices of motion filed on 4 December 2012, 22 March 2013, and 28 May 2013 were each dismissed.
Orders
Orders of the court
The applicant's notices of motion filed 4 December 2012, 22 March 2013 and 28 May 2013 are each dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 21 December 2010, this Court held that Ms Samootin lacked standing to appeal against all but one of the appeal decisions. This was because the applications sought to vindicate alleged rights that, if they ever existed, would have vested in her Trustee in Bankruptcy and would not have revested in Ms Samootin upon her discharge from bankruptcy: Samootin v Shea [2010] NSWCA 371 (the 2010 appeal judgment). The 2010 appeal judgment lists Ms Giselle Wagner and Mr Adrian Holmes as the fifth and sixth respondents respectively. Those persons should not have been listed as respondents to that judgment because previously, on 24 May 2010, Allsop P made an order dismissing the 2010 appeal proceedings against the fifth and sixth respondents. On 9 June 2011, the High Court rejected Ms Samootin's application for special leave to appeal from the 2010 appeal judgment: Samootin v Shea [2011] HCASL 120. In the course of rejecting that application, Gummow and Keifel JJ said: The new element in the 2012 application was the order of Palmer J made on 20 June 2008. That order appears at [26] of the 2012 appeal judgment. It is unnecessary to repeat it here. The order related to the costs of a valuation report and directions given in relation to the sale of the property at 24 Oxford Falls Road. Campbell JA observed that the order of Palmer J made on 20 June 2008 was made while Ms Samootin's bankruptcy was on foot (at [27]). It related to the administration by the Official Trustee of her bankrupt estate. Ms Samootin's challenge to that order was incompetent as she lacked standing, for the same reasons as identified in the 2010 appeal judgment. The amended draft notice of appeal in the 2012 application sought restitution or compensation for what Ms Samootin contended were losses she had suffered, or money she had expended, concerning the properties at Oxford Falls Road. Campbell JA stated that any rights she might have had to make such claims vested in the Official Trustee, and remained vested there, for the reasons given in the 2010 appeal judgment (at [28]). The respondents to the 2012 application were listed as Mr Shea, Mr Deans, Loan Design Pty Ltd, SR Deans Pty Ltd, Ms Wagner, Mr Holmes, the Official Trustee in Bankruptcy, the Supreme Court of New South Wales, the Attorney General (of the Commonwealth of Australia) and the Attorney General of New South Wales. As noted by Campbell JA (at [29]), the latter four respondents were joined because Ms Samootin claimed that "leave of the Court is sought that the Federal and State Attorney Generals pay the Applicant out" (sic). In particular, Ms Samootin sought that the Federal Attorney General make that payment on behalf of the Official Trustee in Bankruptcy, and the State Attorney General on behalf of the Supreme Court. As also noted by Campbell JA (at [30]), the Supreme Court is not an entity that is capable of being joined as a respondent in legal proceedings brought in the Supreme Court (of which the Court of Appeal is a part).
Ratio Decidendi
Legal Principle Established
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