Samootin v Shea

[2004] NSWSC 989

CITATION:	Samootin v Shea [2004] NSWSC 989
HEARING DATE(S):	11 October 2004
JUDGMENT DATE:	11 October 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Stay of costs order refused.
CATCHWORDS:	APPEAL AND NEW TRIAL [248] - Appeal - Practice and procedure - Stay of proceedings - Application for special leave to appeal to High Court intended but not instituted - Summons for leave to appeal to Court of Appeal filed - Stay application where appeal to Court of Appeal pending usually dealt with by Court of Appeal or Judge of Appeal rather than Judge in Division - Whether Judge in Division should deal with stay application which is hopeless.
LEGISLATION CITED:	Supreme Court Rules 1970 Part 52A r 9
CASES CITED:	Samootin v Shea (No 3) NSWCA 3 June 2004 unreported
PARTIES :	Alexandra Samootin (P & XD)) Christopher George Shea (1D) Peter John Deans (2D & 1XC) Loan Design Pty Ltd (3D & 2XC) S R Deans Pty Ltd (4D & 3XC) Giselle M Wagner (5D) Adrian Holmes (6D)
FILE NUMBER(S):	SC 1973/01
COUNSEL:	In person (P) No appearance (1D) B Muir, Solicitor (2-4D) J Reid, Solicitor (5 & 6D)
SOLICITORS:	In person (P) In person (1D) Brian Muir & Co (2-4D) Mallesons Stephen Jaques (5 & 6D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 11 OCTOBER 2004

1973/01 ALEXANDRA SAMOOTIN v C G SHEA & ORS

JUDGMENT

1 HIS HONOUR: Before me is a notice of motion by Alexandra Samootin, which essentially seeks a stay of costs orders made by Palmer J in these proceedings. The bulk of those orders were made before the matter went this year to the Court of Appeal, where leave to appeal from Palmer J's orders was refused, save that leave was granted to permit the correction of what were recognised to be inconsistencies or errors in the orders: see Samootin v Shea (No 3) NSWCA 3 June 2004 unreported. The corrections were made by Palmer J on 28 June 2004. As I understand it, there were no substantive changes made by those orders to Palmer J's earlier orders. There was merely a correction of the inconsistencies to which the Court of Appeal had drawn attention.

2 In her notice of motion, Miss Samootin gives as the reason she advances for a stay of the costs order to be that she is seeking to lodge an application for special leave to appeal to the High Court from the Court of Appeal's judgment of 3 June 2004. This is as best as I can understand the substance of her proposed application to the High Court, since she has not brought to Court or put into evidence and there is not in Court a copy of that application. Whether or not the application was ever lodged in the High Court it has not been accepted by the High Court because the filing fee was not paid and the Deputy Registrar has refused to grant a waiver of the fee. She has apparently lodged an application with the Administrative Appeals Tribunal in relation to that refusal and that application is still outstanding. The simple fact of the matter is that on her own material there is not currently pending in the High Court an application for special leave to appeal and I am not made aware of the content of the application which she seeks to make.

3 Whilst it is for the High Court and not for a Judge of this Court to express views as to the likelihood of success of an application to that Court for special leave to appeal, it is difficult to see the basis for a successful application for special leave to appeal on the face of the Court of Appeal's judgment of 3 June 2004, which, except in the small regard mentioned above, dismissed that appeal as incompetent.

4 Miss Samootin has also read two affidavits of herself in support of the motion. The first is an affidavit of 1 October 2004. It appears from that affidavit that she has filed a holding summons for leave to appeal in the Court of Appeal against the orders of Palmer J of 28 June 2004, which I have already mentioned. Before she filed her present motion on 1 October 2004, she sent a communication to Palmer J's Associate. His Honour's Associate sent a reply to Miss Samootin and the other parties and placed a copy of that on the file. That stated:

“The Judge has requested me to inform all parties that he will not list Miss Samootin's proposed Notice of Motion before him or before any other judicial officer. This is because the Notice of Motion seeking to have the Court's orders set aside is incompetent in that this Court has no power to make the orders sought.”

5 The costs orders made in paragraph 6 of the short minutes of order dated 28 June 2004 were not new orders made on that day; they repeated the costs orders which had already been made in favour of the second, third and fourth defendants in paragraph 6 of the short minutes of order dated 29 September 2003. Costs orders in favour of the fifth and sixth defendants were made on 27 August 2003. If the costs orders made on 27 August 2003 and 29 September 2003 were to be set aside or varied, that could only be done by the Court of Appeal. However, Miss Samootin's appeal in these proceedings was dismissed by the Court of Appeal on 3 June 2004. The short minutes of order dated 28 June 2004 merely corrected some of the orders relating to an inquiry before the Master, which had appeared in the judgment dated 29 September 2003. The costs orders in paragraph 6 of the short minutes of order dated 29 September 2003, which related to the costs of the proceedings up to that date, did not require correction or other amendment as a result of anything said by the Court of Appeal when dismissing Miss Samootin's appeal.

6 The position is that Miss Samootin's appeal from the orders made on 27 August 2003 and 29 September 2003 having been dismissed, this Court has no power to set aside any part of those orders including the order as to costs. The notice of motion proposed to be filed by Miss Samootin referred to in her letter of 1 October 2004 should not be filed. If Miss Samootin attempts to file that notice of motion, the Registry should reject it.

7 I should add that the motion presently before me was filed before that letter was written. I should also add in fairness to Miss Samootin that the motion as before me does not seek to set aside any of the earlier orders but to stay them until the appellate procedures to which I have referred can be dealt with. This application cast in the form I have indicated is not one which the Court is utterly without power to make. Insofar as a stay of proceedings pending an appeal to the Court of Appeal is concerned, that application is usually made to the Court of Appeal rather than to a judge in a Division. The application in respect of the proposed application for special leave to appeal to the High Court could not be made to the High Court because those proceedings, on the evidence before me, have not been instituted. However, I must say that, rather than suggesting the proceedings go elsewhere, on the basis of the material before me I think I should deal with the application before me.

8 On the material before me there is at present no current application for special leave to appeal to the High Court. It is extremely difficult to see on the face of the judgment of the Court of Appeal sought to be appealed from that there could be a successful application for special leave to appeal.

9 So far as the holding summons in the Court of Appeal is concerned, whilst the appropriate application is not to set aside any of the present orders, but to stay the effect of the costs order pending the Court of Appeal dealing with those proceedings, there is nonetheless great force arising from the observations which Palmer J has made. What is sought to be appealed against in that summons for leave to appeal is Palmer J's orders of 28 June 2004, whereby his Honour did not make fresh substantive orders, but merely cast into a form which removed errors from the orders including costs orders which had previously been made and which had been the subject of an unsuccessful appeal to the Court of Appeal. In these circumstances it also seems to me that the application for a stay of the costs order by reference to that appeal is hopeless and ought be refused. As these are the two bases on which the application is made before me, the result of that application will be that the notice of motion of 1 October 2004 will be dismissed.

10 On the one hand, the second to fourth defendants and, on the other, the fifth and sixth defendants both ask for costs of the application against Miss Samootin and both ask for costs on the indemnity basis. Mr Muir on behalf of the second to fourth defendants sent a letter dated 6 October threatening to apply for costs on the indemnity basis if the motion was pursued. Miss Reid for the fifth and sixth defendants sent a similar letter, although this was sent rather late in the day, being sent by a facsimile transmission which was marked as having an OK result at 18:21 on 8 October 2004, after close of business on the last business day before the motion was to be heard. That of itself may have been too late to be operative to turn costs on the ordinary basis into costs on the indemnity basis. However, leaving aside the warning given as to the basis as to which costs would be applied for, this seems to me to be a case for indemnity costs arising from the hopelessness of the application which was made and the fact that the five defendants mentioned have been put to inconvenience as a result of having to attend all day in a busy Duty List to have this motion disposed of. The reasons why I have characterised the motion as hopeless are the reasons I have given for its dismissal.

11 In the circumstances, the orders of the Court in relation to this motion will be that Miss Samootin pay the costs of the second to sixth defendants inclusive of the motion on the indemnity basis.

12 Miss Reid has applied that I make an order that the costs ordered in favour of her client be assessed and paid forthwith. As I understand it, it may be that such an order is not necessary in the case of these costs, since it is certainly arguable that the proceedings against her client are concluded, so that Part 52A r 9 of the Supreme Court Rules 1970 does not apply. This is not so in the case of Mr Muir's clients, the second to fourth defendants, since there are accounting proceedings still outstanding, and the correct characterisation of the situation in the case of those parties probably is that the matter is not concluded.

13 It seems to me in light of what I have said that the costs in favour of the fifth and sixth defendants ought be able to be assessed and paid forthwith. Whilst the order may not be necessary, for the purposes of clarifying any doubt as to that matter, I shall make that order. It is therefore ordered that the costs today ordered in favour of the fifth and sixth defendants may be assessed and paid forthwith. I refuse to make that order in respect of the costs ordered to be paid to the second to fourth defendants.

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Last Modified: 11/17/2004