Samootin v St George Bank Ltd; Samootin v Deans; Samootin v Shea & Ors

[2005] HCATrans 980

[2005] HCATrans 980

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S428 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

ST GEORGE BANK LIMITED

Respondent

Office of the Registry
  Sydney  No S429 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

PETER JOHN DEANS

Respondent

Office of the Registry
  Sydney  No S430 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 S280 of 2005

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

ADRIAN HOLMES

Sixth Respondent

Summonses

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 21 NOVEMBER 2005, AT 10.20 AM

Copyright in the High Court of Australia

MS A. SAMOOTIN appeared in person.

MR S.J. BURCHETT:   If your Honour pleases, I appear for the Bank in the first of those matters.  (instructed by St George Bank)

MR B.T.G. MUIR:   If the Court pleases, I appear for the respondent Deans in S429/2004 and the second, third and fourth respondents in S430/2004 and S280/2005.  (instructed by Brian Muir & Company)

MR M. DEMPSEY, SC:   If your Honour pleases, I appear for the fifth and sixth respondents, Ms Wagner and Mr Holmes, in S430/2004 and S280/2005.  (instructed by Mallesons Stephen Jaques)

HIS HONOUR:   I have a certificate from the Registrar indicating that in S430/2004 and S280/2005 the respondent Christopher George Shea submits to the order of this Court save as to costs.  Now, Ms Samootin and gentlemen, when I read the papers in this application over the weekend – my duties in the Court in the last fortnight preventing my doing so because I was in Canberra – I discovered the fact that the second respondent, Peter John Deans, is involved in the proceedings.  Mr Deans is, I think, the brother of Vanessa Deans who is a longstanding friend of mine whom I meet socially from time to time.  The connection with Mr Deans was made clear to me by the reference in the papers to Mr Deans’ nephew, Mr David Mack, and Ms Vanessa Deans’ married name is Mack and I then saw a connection between this case and the Deans family whom I have known. 

At a social engagement about two months ago Mrs Mack during the conversation referred to this litigation and began to make a comment about it.  I stopped her from doing so in case the matter should ever come before the Court, and she did not proceed to discuss the matter when I indicated that I did not want to hear anything about it.  But I thought I should disclose those facts this morning in case any of the parties feel that they want to make submissions that I should not participate in the matters.  I am sorry that this notice comes at a last moment, but it is in the nature of the work of this Court that we do not tend to have a lot of time to read these matters until just before the hearing.  So what do you say, Ms Samootin, do you object to my participating in the proceedings?

MS SAMOOTIN:   Yes, I do, your Honour, on the grounds that you do know the people who are involved in the case.

HIS HONOUR:   I do not really know the people involved and I do not know Mr Deans, but I do know his sister.

MS SAMOOTIN:   You do know his sister.

HIS HONOUR:   I know his sister’s mother and, therefore, his mother.

MS SAMOOTIN:   Yes, and they are the people that are involved in the case because my ex-husband knew them pretty well as well.

HIS HONOUR:   Yes.

MS SAMOOTIN:   He used to visit their family, he used to visit their home as well, so there could be said there could be judicial bias, because the parties that you know, my ex-husband, that is the first respondent, knew very well indeed and that he had visited them.  It could even be suggested that you might have even met Mr Shea at their place, though I am not saying that it did happen.

HIS HONOUR:   I am sorry?

MS SAMOOTIN:   It could be even suggested that you may have met Mr Shea at the Deans’ residence.

HIS HONOUR:   No, I do not know Mr Shea.  I do not know any of the parties to the proceedings, but I do know the sister of one of the parties and I have known her for a long time.

MS SAMOOTIN:   Yes, well, my ex-husband knows her pretty well as well.

HIS HONOUR:   Knows?

MS SAMOOTIN:   Vanessa Deans.  He knows the Deans family.

HIS HONOUR:   Yes.

MS SAMOOTIN:   He has visited Mr Deans’ mother and visited – what is it – Vanessa Deans and her father – her husband ‑ ‑ ‑

HIS HONOUR:   Yes, very well, I understand your submission.  Just sit down now.

MS SAMOOTIN:   Her husband is a professor as well.

HIS HONOUR:   I will ask Mr Burchett, what is your attitude?

MR BURCHETT:   The Bank has no problem at all with your Honour hearing the matter and we would submit that what your Honour has disclosed is not a sufficient reason for your Honour disqualifying yourself.

HIS HONOUR:   Yes.  I think, having regard to the nature of this case though, it would be desirable that one of the Justices should sit, if possible, who has had no connection whatever in any way, direct or indirect, with the parties.  What do you say about it, Mr Muir?  You are acting for Mr Deans.

MR MUIR:   Well, I appreciate your Honour’s position and although we would like it determined more promptly, I think in the interests of justice ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  What do you say, Mr Dempsey?

MR DEMPSEY:   I appreciate your Honour’s position and it would be desirable that the Court not be embarrassed in any possible way.  However, the matters disclosed by you do not and cannot constitute any reasonable basis for any apprehension of whatever nature that the Court would not decide the matter fairly on its merits.

HIS HONOUR:   In many cases I would agree with that submission, but this is an unusual case and it has had a very long history and there would be Justices who have had no connection with any of the parties.  What I would like to do is to adjourn briefly and see if one of the other Justices who is available today – I understand Justice Heydon cannot sit in the matter because he took part in proceedings in the Court of Appeal, but if I can just have a few minutes to make inquiries, I will check whether or not another Justice could take the matter over, though if they did, it probably would not be reached until later in the day and I would send a message in.  If not, it will simply have to be stood over to a date to be fixed and a new date indicated and I will have a message passed to you shortly as to what is going to happen. 

I do regret the fact that I did not have time before the weekend to look at these files.  They were delivered to my Chambers last week when I was in Canberra and it was only in the weekend that I came to read them and saw the connection when I saw the name Mack mentioned and therefore realised that this might have some connection with the Deans family whom I have known for 40 years.  I will adjourn now briefly and we will just see what we can do.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.42 AM:

HIS HONOUR:   Ms Samootin and gentlemen, I have spoken to the Chief Justice about the position that has arisen.  The Chief Justice has indicated that the Court will endeavour to get the parties a hearing date later in the week.  I cannot fix it just at the moment but it will be sometime this week and the new hearing date will be notified.  It might be as well for the parties to contact the Registry this afternoon and they may then be notified of the date if it is available.  It will just be a matter of finding a Justice who can deal with it, either in person or by video link later in the week.  I again apologise for the situation that has arisen, but there is no way that it could have been avoided I am afraid.  I conclude that I should disqualify myself from hearing and determining the proceedings and I do so.

The matter will therefore be adjourned to a date to be fixed to be notified to the parties sometime this week.  The costs of the return of the matter before the Court today will be costs in the several applications.

The Court will adjourn.

AT 10.44 AM THE MATTERS WERE ADJOURNED