Samootin v Shea - [2012] NSWCA 378

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Samootin v Shea [2012] NSWCA 378
Hearing dates: On papers
Decision date: 20 November 2012
Before: Campbell JA
Decision:
(1) The application for leave to appeal filed by Mrs Samootin on 31 May 2012 be dismissed as an abuse of process.
(2) The Registrar is directed, should Mrs Samootin file a further court process seeking, in substance, leave to appeal from any of the following decisions:
Palmer J 1 August 2003
Palmer J 27 August 2003
Palmer J 24 June 2004
Palmer J 28 June 2004
Palmer J 20 June 2008
Hammerschlag J 16 July 2007
Hammerschlag J 17 July 2007
Hammerschlag J 30 July 2007
Hammerschlag J 3 September 2007
to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in chambers, whether the court should fix a new return date and notify the parties, or whether Ms Samootin should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
[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:
PRACTICE AND PROCEDURE - abuse of process - where proceedings claim relief applicant lacks standing to seek, and lack of standing has been held in earlier proceedings to exist - proceedings dismissed as abuse of process

PRACTICE AND PROCEDURE - restraint of Supreme Court proceedings - where proceedings claim relief applicant lacks standing to seek and lack of standing has been held in earlier proceedings to exist - court has inherent power to prevent abuse of its jurisdiction - where appropriate to make an order in the fashion of Teoh v Hunters Hill Council (No 4)
INTERNATIONAL LAW - treaties and conventions - international treaties to which Australia is a signatory do not form part of Australian domestic law
Legislation Cited: Judiciary Act 1903 (Cth)
Cases Cited: Samootin v Shea [2010] NSWCA 371
Samootin v Shea [2011] HCASL 120
Samootin v St George Bank Ltd [2006] HCATrans 512
Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324
Brennan v Brennan (1953) 89 CLR 129
Chow Hung Ching v R (1948) 77 CLR 449
Category: Principal judgment
Parties: Alexandra Samootin (Applicant)
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)
The Official Trustee in Bankruptcy (Seventh Respondent)
Supreme Court of New South Wales (Eighth Respondent)
The Attorney-General (Ninth Respondent)
The Attorney General of New South Wales (Tenth Respondent)
Representation:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Samootin v Shea

Details

AGLC: Samootin v Shea [2012] NSWCA 378
Case: [2012] NSWCA 378
Decision Date: 20 November 2012

CaseChat Overview and Summary

In Samootin v Shea, the applicant, Mrs Samootin, sought leave to appeal a decision of the court. The respondent, Ms Shea, contended that the proceedings constituted an abuse of process.

The central legal issue before the court was whether Mrs Samootin's application for leave to appeal should be dismissed as an abuse of process, given that her lack of standing to seek the relief claimed had been determined in earlier proceedings. The court also considered its inherent power to restrain proceedings that constitute an abuse of its jurisdiction.

Campbell JA reasoned that the Supreme Court possesses an inherent power to prevent the abuse of its jurisdiction. His Honour found that the proceedings brought by Mrs Samootin were an abuse of process because they sought relief in circumstances where her lack of standing had already been definitively established in prior litigation. The court applied the principle that international treaties to which Australia is a signatory do not form part of Australian domestic law, which was relevant to the underlying substantive claims.

The court ordered that Mrs Samootin's application for leave to appeal be dismissed as an abuse of process. Furthermore, the Registrar was directed to take specific steps should Mrs Samootin file further court processes seeking leave to appeal from a list of specified earlier decisions, including vacating return dates and referring the matter to a judge to determine whether to fix a new return date or invite Mrs Samootin to show cause why the proceedings should not be summarily dismissed as vexatious and an abuse of process.

Orders

Orders of the court

(1) The application for leave to appeal filed by Mrs Samootin on 31 May 2012 be dismissed as an abuse of process.

(2) The Registrar is directed, should Mrs Samootin file a further court process seeking, in substance, leave to appeal from any of the following decisions:

Palmer J 1 August 2003

Palmer J 27 August 2003

Palmer J 24 June 2004

Palmer J 28 June 2004

Palmer J 20 June 2008

Hammerschlag J 16 July 2007

Hammerschlag J 17 July 2007

Hammerschlag J 30 July 2007

Hammerschlag J 3 September 2007

to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in chambers, whether the court should fix a new return date and notify the parties, or whether Ms Samootin should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Samootin v Shea [2012] NSWCA 378
Hearing dates:	On papers
Decision date:	20 November 2012
Before:	Campbell JA
Decision:	(1) The application for leave to appeal filed by Mrs Samootin on 31 May 2012 be dismissed as an abuse of process. (2) The Registrar is directed, should Mrs Samootin file a further court process seeking, in substance, leave to appeal from any of the following decisions: Palmer J 1 August 2003 Palmer J 27 August 2003 Palmer J 24 June 2004 Palmer J 28 June 2004 Palmer J 20 June 2008 Hammerschlag J 16 July 2007 Hammerschlag J 17 July 2007 Hammerschlag J 30 July 2007 Hammerschlag J 3 September 2007 to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in chambers, whether the court should fix a new return date and notify the parties, or whether Ms Samootin should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the proceedings as vexatious and an abuse of process. [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:	PRACTICE AND PROCEDURE - abuse of process - where proceedings claim relief applicant lacks standing to seek, and lack of standing has been held in earlier proceedings to exist - proceedings dismissed as abuse of process PRACTICE AND PROCEDURE - restraint of Supreme Court proceedings - where proceedings claim relief applicant lacks standing to seek and lack of standing has been held in earlier proceedings to exist - court has inherent power to prevent abuse of its jurisdiction - where appropriate to make an order in the fashion of Teoh v Hunters Hill Council (No 4) INTERNATIONAL LAW - treaties and conventions - international treaties to which Australia is a signatory do not form part of Australian domestic law
Legislation Cited:	Judiciary Act 1903 (Cth)
Cases Cited:	Samootin v Shea [2010] NSWCA 371 Samootin v Shea [2011] HCASL 120 Samootin v St George Bank Ltd [2006] HCATrans 512 Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 Brennan v Brennan (1953) 89 CLR 129 Chow Hung Ching v R (1948) 77 CLR 449
Category:	Principal judgment
Parties:	Alexandra Samootin (Applicant) 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) The Official Trustee in Bankruptcy (Seventh Respondent) Supreme Court of New South Wales (Eighth Respondent) The Attorney-General (Ninth Respondent) The Attorney General of New South Wales (Tenth Respondent)
Representation: