Samootin v Shea

[2006] NSWSC 535

CITATION:	Samootin v Shea & Ors [2006] NSWSC 535
HEARING DATE(S):	30/05/06
JUDGMENT DATE :	30 May 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	05/30/2006
DECISION:	1. I order that the plaintiff's notice of motion of 5 April 2006 be stayed until further order; 2. The costs of today will be the second defendant's costs of the notice of motion of 5 April 2006.
CATCHWORDS:	PRACTICE & PROCEDURE – Plaintiff sought leave to charge second defendant with contempt of court – Plaintiff’s application in state of disorder – Section 56(3) Civil Procedure Act 2005 (NSW) considered – Plaintiff a bankrupt – Section 60(2) Bankruptcy Act 1966 (Cth) considered –Leave refused – Plaintiff’s notice of motion stayed until further order.
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW)
PARTIES:	Alexandra Samootin v Christopher George Shea & 5 Ors
FILE NUMBER(S):	SC 1973/01
COUNSEL:	Plaintiff: In Person 2nd Defendant: In Person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Tuesday, 30 May 2006

1973/01 Alexandra Samootin v Christopher George Shea & Ors

JUDGMENT

1 HIS HONOUR: This is an application brought by a notice of motion filed on 5 April 2006 for leave to charge the second defendant with contempt of Court for not complying with orders described as orders 2 and 3 of the orders made by Justice Campbell on 13 September 2004. There are other paragraphs in the notice of motion but they do not seek any relief, save costs.

2 There are many difficulties with the application. First, it is not clear what is the leave sought. Secondly, if the application should be treated as one in which the plaintiff applies for the punishment of the second defendant for alleged contempt, it is not accompanied by an appropriate statement of charge. The statement of charge must clearly identify the precise conduct alleged to constitute contempt. The statement of charge which accompanied the notice of motion is a discursive document of some twelve pages, reciting the history of various procedural orders made, and referring to the contents of various documents. It concludes by charging that the second defendant has not complied with Justice Campbell's orders of 13 September 2004 and then quotes from a document which was the subject of his Honour's orders. It also wrongly alleges that I made a finding that the second defendant was in contempt of Court in a judgment I gave in these proceedings on 1 July 2005.

3 During the course of the hearing of the application, I endeavoured to ascertain from Ms Samootin the evidence she relied upon in support of the application. She referred to various earlier documents. She has not yet read an affidavit which was filed in support of the notice of motion, but it is sufficient to say that it is very difficult to ascertain from that document precisely what is relied upon as the evidence to substantiate the charge.

4 On 25 October 2005, Registrar Walton made an order or direction in the following terms:

“I find that these orders of Justice Campbell made on 13 September 2004 have been substantially complied with".

5 It has now emerged that on 24 May 2006, a sequestration order was made against the estate of the plaintiff. On the same day, an order was made that that sequestration order be stayed tor seven days.

6 Subsection 60(2) of the Bankruptcy Act 1966 (Cth) provides:

" An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. "

7 The present application is an interlocutory proceeding in an action brought by the plaintiff which, prima facie, is stayed, or will be stayed if the existing stay is not extended. Having regard to the disorder of the present application and having regard also to the policy of s 60 of the Bankruptcy Act, which includes the policy that a bankrupt estate not be diminished by becoming exposed to orders for costs, I consider that the present application should be stayed until further order.

8 If the principal proceedings do not become subject to a stay, there will still be a serious question as to whether the stay of the existing notice of motion should be lifted.

9 Subsection 56(3) of the Civil Procedure Act 2005 (NSW) imposes a duty on parties to civil proceedings to assist the Court to further the overriding purpose of the Act and rules of the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

10 It appears to me that the present application, which seeks to charge the second defendant with contempt is, in the circumstances I have outlined, not conducive to the just, quick and cheap resolution of the real issues in these proceedings arising from the inquiry directed by Justice Palmer on 28 June 2004.

11 I order that the plaintiff's notice of motion of 5 April 2006 be stayed until further order.

12 HIS HONOUR: After I delivered those reasons, Ms Samootin stated that in setting out the order made by Registrar Walton on 25 October 2005, I omitted to refer to a further order the Registrar made in the following terms:

“3. I order that second to fourth defendants to produce any further documents covered by paragraph 1 of the amended notice to produce annexed to page 5 to the affidavit of Miss Samootin sworn on 9 August 2005 by 5pm on 1 November 2005.”

13 That submission demonstrates the disorder of the present application. The notice of motion does not charge a breach of order 3 made by Registrar Walton on 25 October 2005. Her submission gives me no reason to vary or to discharge the order which I have made.

14 The costs of today will be the second defendant's costs of the notice of motion of 5 April 2006.

******