Samootin v Shea & Ors
[2005] HCATrans 181
[2005] HCATrans 181
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S430 of 2004
No S518 of 2004
B e t w e e n -
ALEXANDRA SAMOOTIN
Applicant
and
CHRISTOPHER GEORGE SHEA
First Respondent
PETER JOHN DEANS
Second Respondent
LOAN DESIGN PTY LTD
Third Respondent
S R DEANS PTY LTD
Fourth Respondent
MS GISELLE M WAGNER
Fifth Respondent
ADRIAN HOLMES
Sixth Respondent
Office of the Registry
Sydney No S519 of 2004
B e t w e e n -
ALEXANDRA SAMOOTIN
Applicant
and
CHRISTOPHER GEORGE SHEA
First Respondent
PETER JOHN DEANS
Second Respondent
LOAN DESIGN PTY LTD
Third Respondent
S R DEANS PTY LTD
Fourth Respondent
GISELLE MONICA WAGNER
Fifth Respondent
Summons
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 29 MARCH 2005, AT 11.11 AM
Copyright in the High Court of Australia
__________________
MS A. SAMOOTIN appeared in person.
MR B.T.G. MUIR: Your Honour, for the second to fourth respondents, your Honour. (instructed by Brian Muir & Company)
MR M. DEMPSEY, SC: If your Honour pleases, I appear for the fifth and sixth respondents. (instructed by Mallesons Stephen Jaques)
HIS HONOUR: Yes, Ms Samootin. How do you prefer to be called? Mrs or Ms?
MS SAMOOTIN: Ms Samootin or Miss Samootin.
HIS HONOUR: Ms. Yes.
MS SAMOOTIN: I am the applicant in the proceedings and I am seeking stay orders, a stay of proceedings of all the costs orders, except for the accounting of the Supreme Court.
HIS HONOUR: Yes.
MS SAMOOTIN: I got a stay in the courts below. And this is on the basis of my special ‑ ‑ ‑
HIS HONOUR: I have read those. Now, let me say at the outset, my practice on stay orders is to give parties no more than 10 minutes to put their arguments in support of a stay application. I take the view that they should not get as long a time as they get on the special leave application. Now, I have read your papers, and why should I grant you a stay, given the fact that you have already been refused a stay in the Supreme Court?
MS SAMOOTIN: On the basis that I was not given a fair hearing.
HIS HONOUR: By whom?
MS SAMOOTIN: Initially by Justice Palmer.
HIS HONOUR: It has nothing to do with Justice Palmer.
MS SAMOOTIN: In the Court of Appeal as well.
HIS HONOUR: And it has nothing to do with the Court of Appeal. It is a question – unless you are talking about Justice Giles. The only matter before me of any relevance here is whether you should obtain a stay order in respect of the costs. So far as your application for extension of time, that can be dealt with by the Full Court when it deals with your special leave application. But it seems to me that the only relevant matter here this morning is the stay orders, and you have to persuade me that the interests of justice require this Court to take the unusual step of staying these costs orders.
MS SAMOOTIN: Well, then, perhaps you can correct me if I am wrong, perhaps we could just look at the front page of Justice Palmer’s judgment of 1 August 2003.
HIS HONOUR: But it has nothing to do with Justice Palmer. This is an application against a discretionary judgment, or it is an application perhaps afresh to me, to exercise a discretion to grant you a costs order. Now, I have read all the papers in these matters and, quite frankly, it seems to me your prospects of getting special leave are nil.
MS SAMOOTIN: I understand that, your Honour, because when I first came to the Court, I realised my prospects were nil when I had my properties taken off me.
HIS HONOUR: Well, why are you wasting your money and your time?
MS SAMOOTIN: I am not wasting my money and time. I am trying my best, because I realise there is a rort going on in the Court, because of ‑ ‑ ‑
HIS HONOUR: No, no. Now, I am not going to permit you to make allegations against judges and other parties.
MS SAMOOTIN: No, I understand that, because I have been through all this before when I was raped at RNS Hospital. Now, with reference to the stay orders, what I am trying to do is to stop the properties from being sold, because, according to the law of presumption of resulting trust, my ex‑husband and I paid for the purchase ‑ ‑ ‑
HIS HONOUR: But the properties have been sold, have they not?
MS SAMOOTIN: They have not, because I have injunction orders over the property in the Family Court of Australia. Now, if the bankruptcy proceedings go ahead, there is a likelihood that the subject matter of the proceedings, that is, the two properties, will be sold, and enforcement proceedings will be issued against me, but ‑ ‑ ‑
HIS HONOUR: You can make an application for a stay there. You can make an application in the Bankruptcy Court if there is a bankruptcy proceeding, or in another court. But one of the grounds for obtaining a stay is that you have real prospects of succeeding in your special leave application. I do not think you have any prospects of succeeding. You fail on the facts. The trial judge did not accept your evidence.
MS SAMOOTIN: I know that, your Honour, because he was working the ‑ ‑ ‑
HIS HONOUR: But how are you going to set that aside, Ms Samootin?
MS SAMOOTIN: Because he is working – according to the law of presumption of resulting trusts, my ex‑husband and I should have had the beneficial and legal title transfer trusts.
HIS HONOUR: It has nothing to do with that ‑ ‑ ‑
MS SAMOOTIN: Yes.
HIS HONOUR: The trial judge found that you willingly consented.
MS SAMOOTIN: Rubbish, I would not give any man any money at all, especially being a victim of sexual assault.
HIS HONOUR: I know you say that. Ms Samootin, the trial judge saw you and he rejected your evidence and that is the end of it. What is ‑ ‑ ‑
MS SAMOOTIN: And he did not even accept my evidence.
HIS HONOUR: Well, that is exactly your problem, and that is how you cannot succeed. Now, all you are doing is you are incurring costs, you will get a costs order against you and, at the end of the day, there is going to be nothing left for yourself.
MS SAMOOTIN: Your Honour, once my property was taken off me, there was nothing left at all for me, at all.
HIS HONOUR: Yes, there is ‑ ‑ ‑
MS SAMOOTIN: I understand that, I understand the rort that is going on. I am making the allegations, I do not care if you throw the book at me.
HIS HONOUR: I am not going to throw the book at you, no.
MS SAMOOTIN: Because I am stating the truth. Once Mr Deans got my properties away from me, I did not consent to him, I did not even know the man, I was not related to him. He took them. He took my marital home and he took my money.
HIS HONOUR: I understand you say these things, and the fact is it came before a judge, he rejected ‑ ‑ ‑
MS SAMOOTIN: Before a judge who manipulated the case for the benefit of the respondents.
HIS HONOUR: No, he saw you give evidence ‑ ‑ ‑
MS SAMOOTIN: He rejected my evidence before I even gave the evidence, and not only that, the fifth and sixth respondents – the fifth respondent did not produce a file and subpoena which I could have used prior to the hearing, and during the hearing, until the end of the hearing.
I did not even see that file and it was removed from the courtroom straight away by her legal counsel.
HIS HONOUR: Ms Samootin ‑ ‑ ‑
MS SAMOOTIN: And Justice Giles, I noticed in his judgment, he does not refer to the catchwords that Justice Palmer used on his judgment, and that is the resulting trust.
HIS HONOUR: Yes, but you failed on the facts. A resulting trust has nothing to do with the case because, according to Justice Palmer, you consented to this being dealt with. You even took delivery of the cheque.
MS SAMOOTIN: Excuse me, your Honour, I took the delivery of the cheque because the solicitor gave it to me. She should have taken that conveyancing right to the end, right to the date of settlement. She was involved in swindling me out of my money.
HIS HONOUR: No, she gave evidence – the trial judge accepted the evidence of what was her name? Was it Knowles, the clerk?
MS SAMOOTIN: No, that was the clerk.
HIS HONOUR: Clerk, yes, the clerk, and she ‑ ‑ ‑
MS SAMOOTIN: And I have picked holes in that evidence. She also produced evidence that she never told me that she was transferring the properties to Mr Deans. She did not even tell Mr Shea, that is, the first respondent.
HIS HONOUR: But in any event, look, you have ‑ ‑ ‑
MS SAMOOTIN: But if you feel as though I have a no case to answer I have already accepted that before I came here. It is the same way when I reported my rape to the Chatswood detectives. There was ample evidence of assault, but I knew, even though I reported it, that nothing could be done about it.
HIS HONOUR: Ms Samootin, you will have an opportunity to go before two Justices of this Court and argue your case on a special leave application. My view at the moment is, having read the papers, that you have no real prospects of succeeding, because it is not the sort of case the High Court will take on or could take on.
MS SAMOOTIN: No, and I realised that too, after Mr Shea admitted that he is involved in our son’s death. That is why I had everything taken off me.
HIS HONOUR: Well, there is ‑ ‑ ‑
MS SAMOOTIN: Whereby my son, Andrew Shea, was set up as an illegal organ donor up in Brisbane to have an accident and he was taken away from the accident scene alive. And when I saw him on the third day his body was still warm and he sustained injuries, facial injuries, after the police photographs were taken of him at the accident site, the police identification photographs. I was going to utilise the house moneys from the former sale of the home to investigate further Andrew’s death.
HIS HONOUR: I know that is the allegation you make ‑ ‑ ‑
MS SAMOOTIN: That is the allegation I make.
HIS HONOUR: ‑ ‑ ‑ and you allege that Deans is involved in it, do you not?
MS SAMOOTIN: My ex‑husband knew him for four years.
HIS HONOUR: Yes.
MS SAMOOTIN: And they were involved in setting up a company called Senses Alive, and so were the other parties that are involved in the Family Court litigation.
HIS HONOUR: Yes.
MS SAMOOTIN: They all knew each other. There is no reason any woman would give a strange man her house and her moneys. Absolutely none.
HIS HONOUR: The trial judge took the view that you were an intelligent, shrewd woman, but you were prepared to fabricate evidence, and I cannot ‑ ‑ ‑
MS SAMOOTIN: I heard that, I know that.
HIS HONOUR: We cannot reverse that, I mean ‑ ‑ ‑
MS SAMOOTIN: Well, I am certainly going to try to reverse it because, frankly, he lied. That is it. And to say that a judge is ‑ ‑ ‑
HIS HONOUR: This Court just cannot grant special leave in that sort of case. It is not the sort of case we deal with.
MS SAMOOTIN: I understand that. It is just too hard.
HIS HONOUR: No, it is not too hard, it is just that we do not have the material. We do not have the witnesses, we did not see the witnesses.
MS SAMOOTIN: The witnesses did not even appear in court, they were dismissed before they were heard. This is contrary to the Evidence Act.
HIS HONOUR: Well, I know you say that, but look, Ms Samootin ‑ ‑ ‑
MS SAMOOTIN: But they were. I had two of the witnesses in court and they were dismissed.
HIS HONOUR: Let me just give you this piece of advice. I am sure you will not accept it, but please give serious thought to the cost that you are incurring and the costs that are being ordered against you . The other side in this case are asking that you pay not only costs, but costs on what is called an indemnity basis, which means you have to pay all the costs that they incur.
MS SAMOOTIN: I understand that, your Honour, but I am going to fight for my rights to the bitter end. You have to understand that and they have
to understand that. They should not have touched my property in the first place.
HIS HONOUR: You are to be admired for that, but ‑ ‑ ‑
MS SAMOOTIN: And I have known of other cases where women who are my age, who should be relaxing a bit, have their properties taken off them, and just to think I am going to be intimidated or told to shut up because there is a solicitor who is involved in the rort, no way.
HIS HONOUR: Yes.
MS SAMOOTIN: No way.
HIS HONOUR: Well, Ms Samootin, on the material before me, there is no way I can make a stay order.
MS SAMOOTIN: I understand that. I understood that before I came here, but I am trying every possible road to get justice for what has happened to me.
HIS HONOUR: But look at the result. I am going to have to make an order for costs against you for this motion.
MS SAMOOTIN: I understand that, I understand that, and you can make the order for costs and refuse my application. That is fine, but I have made the application and that is what I want the world to see.
HIS HONOUR: Well, thank you.
MS SAMOOTIN: Because, as I said, I was rorted out of my house, and no matter what Justice Palmer says, he is not in my mind and I am not going to be brainwashed into what he said about me as to be the truth, because that is not the truth, Justice is about truth being presented in a court, and the truth was presented in a court to a certain degree, but not all the evidence was presented to the court.
HIS HONOUR: Thank you, Ms Samootin. Yes, I need not hear you, Mr Dempsey.
This is an application for a stay of various orders made by various judges in the Supreme Court of New South Wales, including judges of the Court of Appeal, pending the hearing of three special leave applications. An application for a stay of orders has already been refused by Justice Giles in the Court of Appeal. I have studied the papers. There are no grounds upon which I could possibly make an order staying the various orders which Ms Samootin seeks to have stayed.
In the first place, the special leave applications need an extension of time. That is a matter to be dealt with by the Full Court which hears the special leave applications. Given her limited prospects of success in the special leave applications, I think it is highly probable that the applications for an extension of time will be refused on that ground alone, quite apart from any discretionary grounds. In the circumstances, there is no ground for making an order staying any of the proceedings, the subject of this application.
I should note that the Deputy Registrar has certified that he has been informed by the first respondent in each matter, Christopher George Shea, that he submits to the order of the Court, save as to costs. He also certifies and he has been informed by Peter John Deans, the second respondent and the director of the third and fourth respondents, that he will be appearing on behalf of the second, third and fourth respondents, although he has not yet filed a notice of appearance.
In those circumstances, I must refuse the application for a stay. What do you say about costs, Mr Muir?
MR MUIR: We seek costs, your Honour.
HIS HONOUR: Yes, Mr Dempsey.
MR DEMPSEY: Your Honour, last week – I seek costs, and on an indemnity basis on the basis ‑ ‑ ‑
HIS HONOUR: I am not aware of any order of this Court ordering costs on an indemnity basis and I do not propose to set the first precedent for it.
MR DEMPSEY: If your Honour pleases.
HIS HONOUR: The application will be dismissed with costs. Adjourn the matter.
AT 11.26 AM THE MATTER WAS CONCLUDED
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