Samootin v Shea - [2004] NSWCA 115

NEW SOUTH WALES COURT OF APPEAL

CITATION: Samootin v Shea & Ors [2004] NSWCA 115

FILE NUMBER(S):
40641/03

HEARING DATE(S): 5 April 2004

JUDGMENT DATE: 05/04/2004

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 M Wagner - Fifth Respondent
Adrian Holmes - Sixth Respondent

JUDGMENT OF: Giles JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): EQ 1973/01

LOWER COURT JUDICIAL OFFICER: Palmer J

COUNSEL:
Appellant in person
B Muir (Solr) - Second to Fourth Respondents
J Reid (Solr) - Fifth and Sixth Respondents

SOLICITORS:
Appellant in person
Brian Muir & Co - Second to Fourth Respondents
Mallesons Stephen Jaques - Fifth and Sixth Respondents

CATCHWORDS:
Subpoenas - unrepresented party requires leave to issue - appeal - ground of appeal that trial judge declined to hear witnesses - whether leave to subpoena one of the witnesses to give evidence in the appeal - basis on which the witness would give evidence in the appeal - leave refused.

LEGISLATION CITED:

DECISION:
Notice of Motion filed on 16 March 2004 is dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40641/03
ED 1973/01
GILES JA
Monday 5 April 2004

SAMOOTIN v SHEA & ORS

Judgment

HIS HONOUR: By her notice of motion filed on 16 March 2004 Ms Samootin seeks, in essence, two orders. One was an order granting leave to subpoena Mr Famularo to give evidence. The other was an order granting leave to issue a subpoena for the production of a particular file. Leave is necessary because Ms Samootin is not represented by a solicitor and Pt 37 r 6(1A) of the Rules provides that in that situation a subpoena shall not issue except by leave of the Court.
So far as the notice of motion seeks leave to issue a subpoena for the production of the file, it can be quickly dealt with. It turns out that the file has in fact been produced, in circumstances of I am not certain but which do not matter. Ms Samootin wants to have a subpoena for the production of a different file, and explains that it is a file which had been produced to the Family Court, was to have been transferred to this Court, but could not be found last Friday when she inquired. I have said to Ms Samootin I am not going to entertain an application in respect of that file.
Some background is necessary as to the application for leave to subpoena Mr Famularo to give evidence.
The appeal is an appeal from Palmer J, who gave a judgment on 1 August 2003. His Honour expressed understandable difficulty in ascertaining the issues in the proceedings. In short, Ms Samootin and her former husband owned a property at Mona Vale, which was sold and the proceeds of sale from which were used…

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 [2004] NSWCA 115
Case: [2004] NSWCA 115
Decision Date: 5 April 2004

CaseChat Overview and Summary

The parties involved were Samootin and Shea. The dispute concerned an application for leave to issue subpoenas, specifically in the context of an appeal. The court that made the decision was not explicitly identified in the provided text, but the nature of the application suggests it was an appellate court.

The primary legal issue before the court was whether to grant leave to subpoena a witness to give evidence in the appeal. This question arose in circumstances where an unrepresented party typically requires leave to issue subpoenas. A further issue was whether the ground of appeal, which alleged the trial judge declined to hear witnesses, was a sufficient basis for allowing the witness to give evidence on appeal.

The court refused leave to subpoena the witness. The reasoning appears to have been based on the lack of a sufficient basis for the witness to give evidence in the appeal, particularly in light of the grounds of appeal raised. The court did not consider the circumstances warranted departing from the usual practice regarding the admission of evidence on appeal.

Consequently, the Notice of Motion filed on 16 March 2004 was dismissed, and Samootin was ordered to pay the costs of the application.

Orders

Orders of the court

Notice of Motion filed on 16 March 2004 is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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