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…

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.

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Details

Case: [2006] NSWSC 535
Decision Date: 30 May 2006

CaseChat Overview and Summary

The plaintiff, Samootin, sought leave to charge the second defendant, Shea, with contempt of court. This application arose from a previous proceeding between the parties in which Shea had been ordered to pay compensation to Samootin. Samootin claimed Shea had failed to comply with this order, resulting in the contempt application. The application was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether Samootin was entitled to seek leave to charge Shea with contempt and, if so, whether such leave should be granted. The court needed to consider the provisions of Section 56(3) of the Civil Procedure Act 2005 (NSW), which relates to applications for leave to charge a person with contempt, and Section 60(2) of the Bankruptcy Act 1966 (Cth), which addresses the effect of a person's bankruptcy on their ability to make such an application. The court also needed to consider the state of the plaintiff's application, which was in a state of disorder.

In determining the application, the court held that Samootin, being a bankrupt, was precluded from applying for leave to charge Shea with contempt under Section 60(2) of the Bankruptcy Act. Furthermore, the court found that the application was in a state of disorder, as required by Section 56(3) of the Civil Procedure Act, and therefore, the application was refused. The court stayed the plaintiff's notice of motion until further order, indicating that the application could be reconsidered if the relevant conditions were met.

Orders