Samootin v Official Trustee in Bankruptcy

REASONS FOR JUDGMENT 1 The applicant, Ms Alexandra Samootin, seeks an extension of time within which to appeal from orders made by Jacobson J on 21 April 2009. By those orders, his Honour ordered that an application brought by Ms Samootin be dismissed and that she pay the costs of the respondent, the Official Trustee in Bankruptcy (the Official Trustee). Ms Samootin is a bankrupt, a sequestration order having been made in respect of her estate by the Federal Magistrates Court on 24 May 2006. 2 Ms Samootin relies on an affidavit in which she explained that there were several reasons for her failure to file a notice of appeal within the time fixed by the rules. She is self-represented and has not had legal advice in relation to the matter. Ms Samootin says that she miscalculated the time when she had to file the notice of appeal, although no particulars of the miscalculation were provided. She also explained that she has been indisposed by reason of illness for the past month and that during the time when the notice of appeal should have been filed she was engaged in preparing material in other litigation. Counsel for the Official Trustee accepts that, in ordinary circumstances, the explanation would have sufficed for an extension of time, and concedes that the Official Trustee has suffered no prejudice by reason of any delay. 3 However, the Official Trustee opposes the grant of an extension of time on the basis that any appeal would be futile. In her notice of appeal Ms Samootin identifies what she characterises as errors in law and errors in fact on the part of the primary judge. The orders that she seeks in substance are that the Official Trustee make good the loss that he has caused to what is described as the "Shea/Samootin marital estate." In her amended application of 16 March 2009, Ms Samootin claimed relief in relation to the conduct by the Official Receiver in relation to litigation in the Supreme Court of New South Wales. In the primary judge's reasons of 21 April 2009, his Honour dealt with the various pieces of litigation in the Supreme Court. Much of the disputation in the Supreme Court concerns ownership of property in which Ms Samootin had an interest and other property in which she claims an interest. Orders have been made in the Supreme Court in relation to most of those issues, including orders for the taking of accounts for the purposes of determining Ms Samootin's interest in the properties. 4 That relief that is claimed in the draft notice of appeal was not claimed in the amended application of 16 March 2009. Ms Samootin frankly acknowledged that the matters that she wishes to raise on the appeal were not matters that were litigated before the primary judge. She says that, as a result of the hearing before the primary judge, she now perceives that she may have other causes for complaint against the Official Trustee. She says that she wishes to adduce additional evidence before the Full Court so that the Full Court can deal with the new issues that she wishes to raise. On the other hand, Ms Samootin also accepts that, if that is not appropriate, she does not press the application for an extension of time but rather will commence a fresh proceeding making the claims that she wishes to make in respect of any alleged misconduct on the part of the Official Trustee as her trustee in bankruptcy. 5 It is clearly inappropriate for a Full Court to be invited to deal with issues that were simply not litigated before the primary judge. There is, of course, provision in the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules for leave to be given to a party to adduce fresh evidence on the hearing of an appeal. However, such fresh evidence is designed to enable the Full Court to deal with the issues that were litigated in the proceeding. The introduction of fresh evidence is not a mechanism for a completely new issue or complaint to be litigated before a Full Court, rather than before a single judge. 6 Ms Samootin has not made any complaint that the primary judge erred in ordering her to pay the respondent's costs in circumstances where her application was dismissed. In her proposed notice of appeal, in addition to seeking an order that the Official Trustee make good loss that he has caused, Ms Samootin also asks for an order that the Official Trustee pay his own costs in the proceeding before the primary judge. As I understand her position, that would only have followed from success in the appeal. 7 In follows, in my opinion, that an appeal in terms of the draft notice of appeal annexed to Ms Samootin's affidavit of 20 May 2009 would be doomed to failure. Accordingly there would be no utility in extending the time for Ms Samootin to file that notice of appeal. Whether or not it is open for her to commence a fresh proceeding is not a matter upon which I can express any view at this stage. It will be a matter for Ms Samootin to commence whatever proceeding she wishes to ventilate her complaint about the conduct of the Official Trustee. 8 In the circumstances I consider that it is appropriate to dismiss the application for the extension of time with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.