Samootin v Shea

The 2012 Appeal Proceedings - Procedural Steps 6On 31 May 2012, Ms Samootin began fresh proceedings in this Court, by filing an Application for Leave to Appeal ("the 2012 Appeal Proceedings"). The decisions against which she sought leave to appeal were decisions of Palmer J on 1 August 2003, 27 August 2003, 28 June 2004 and 20 June 2008, and decisions of Hammerschlag J on 16 July 2007, 17 July 2007, 30 July 2007 and 3 September 2007. 7On 6 June 2012 she filed an Amended Summons Seeking Leave to Appeal. It altered the decisions concerning which leave to appeal was sought to those of Palmer J of 1 August 2003, 27 August 2003 and 28 June 2004, and omitted the decisions of Hammerschlag J. 8The 2012 Appeal Proceedings were listed for directions on 9 July 2012 before the Registrar. 9On 26 June 2012 Ms Samootin wrote to the Registrar saying that she was unwell. Her letter to the Registrar requested that the hearing be adjourned for three months from Monday, 2 July 2012. She attached a certificate from a Dr Taylor certifying that Ms Samootin was unfit to attend a court case for three months from 2 July 2012. It stated she had had a major operation two weeks before the date of the certificate, 25 June 2012. The certificate stated its conclusion in a single sentence, and gave no reasons why three months was the appropriate period. In any event, it related only to her attending a court case, not to her ability to write or type documents, at such speed as she found possible. 10The Registrar gave directions in open court on 9 July 2012, as follows: "1. The applicant is to file and serve written submissions by 30 July 2012 why the proceedings should not be dismissed or struck out as an abuse of process. 2. It is noted that the Court will deal with the matter in chambers on the papers unless there is a proper reason why the matter should be dealt with in open Court. 3. The applicant is to address any request for the matter to be dealt with in open Court in her written submissions. 4. The question of whether the ninth respondent should be removed from the proceeding is reserved. 5. The matter is listed for further directions on 8 October 2012 should the matter not be dismissed as an abuse earlier." 11Ms Samootin was notified of those directions on 16 July 2012. The communication that advised her of the directions also said: "In view of the delay in advising you of the directions, the time for filing and serving your submissions is extended until 6 August 2012." 12On 27 July 2012, Ms Samootin sent an email to the Registrar seeking an extension of time. She said in it: "... my present state of health during my convalescence prevents me from preparing lengthy submissions. I did try to do the submissions, but a portion of the wound area got very painful; and the following day I was very ill. My physiotherapist tells me that the core muscles have suffered severe trauma and need to knit properly. You have Dr Taylor's certificate stating that I am unfit to attend due to an operation that I had. Attached hereto in the pdf file is a copy of PaLMS; clinical analysis of the 35 centimeters of my bowel that was removed during the operation. In other words, it was a rather 'brutal' operation that I underwent. I get very tired easily and need to rest. I am 69 years of age. I was told by the specialist that this extreme tiredness will last at least three months. I cannot lift heavy files otherwise I will get scar tissues." 13She annexed a pathology report dated 14 June 2012 relating to analysis of a specimen of bowel tissue. 14Her application on 27 July 2012 was not supported by any contemporaneous medical opinion. She annexed some doctors' reports relating to some medical procedures she had had in 2002. She contends that her current medical problems are connected with medical problems that occurred in 2002, which she attributes at least in part to the way in which Palmer J conducted one of the hearings before him. 15Notwithstanding that application, on 12 September 2012 Ms Samootin filed some submissions that stated that they were pursuant to the orders of the Registrar on 9 July 2012. 16On 12 September 2012 Ms Samootin filed a Notice of Motion in the 2012 Appeal Proceedings. The substantive orders it sought were: "1 The Applicant is seeking an Extension of Time to submit her Submissions pursuant to the Orders given by Registrar Riznyczok on 9 July 2012. The Applicant was incapacitated due to ill health. The Applicant had submitted a Medical Certificate stating that she was unfit to attend Court hearings until 8 October 2012. 2 The Applicant is seeking Orders that this matter not be dismissed as an 'abuse of process' in chambers by Registrar Riznyczok as her matter comes under the international law namely the Convention of the Elimination of All Forms of Discrimination against Women. The Applicant is the subject of international law which is the Convention of the Elimination of All Forms of Discrimination against Women. The Applicant understands that matters that are directly related to international law come under the jurisdiction of the High Court of Australia. 3 The Applicant is seeking that her matter be listed on 8 October 2012 for further directions. ..." The date of 8 October 2012 referred to in order 1 is incorrect. The medical certificate had related to a period ending on 2 October 2012. 17In support of that Notice of Motion Ms Samootin filed an affidavit dated 7 September 2012. It is 27 pages long in the body of the affidavit, and 152 pages including annexures. The only recent information in it relating to her state of health is that: (a) Following some blood tests carried out on 28 July 2012, her doctor has recommended that she take folic acid tablets with vitamin C. (b) On 27 August 2012, she was given a course of antibiotic treatment for flu and chest infection, the prescription for which, with repeat, was for medicine that taken at the prescribed dosage would last a fortnight. (c) On 24 July 2012, the surgeon who had performed the recent operation on her explained to her why that procedure had been necessary. (d) At a date she does not identify, she was advised she would need monthly vitamin B12 injections for the rest of her life. 18She gives a lengthy account of medical problems that she has had over a period commencing in 1986, and the manner in which those medical problems interacted with hearings of her case before Palmer J. She had applied on various occasions to adjourn proceedings before Palmer J on the basis of her medical condition, and regarded it as improper that his Honour then made her medical condition a subject that was discussed with legal representatives of the opposing parties. She expresses concern about Palmer J having rejected her third application to adjourn the hearing on the basis of her medical condition. It is difficult to understand that particular concern as, a week later, Palmer J reversed that decision, when Ms Samootin presented him with evidence from medical practitioners that supported the seriousness of her condition. 19On the basis of this history, Ms Samootin states: "The Applicant refuses to comprise [sic] herself again to the Court concerning her health care as it is in total conflict with doctor's "ORDERS"." 20Also in her affidavit, Ms Samootin refers to an incident in 2000 that led to her obtaining an apprehended violence order against Mr Deans, the Second Respondent. That resulted in a chain of litigation through the District Court, the Court of Appeal and the High Court of Australia. The High Court dismissed Ms Samootin's application for special leave to appeal: Samootin v St George Bank Ltd [2006] HCATrans 512 (7 September 2006). Ms Samootin says she "particularly wanted to address the situation whereby women who were victims in need of protection by way of AVOs had no redress of appeal to the High Court." 21The topic of the manner in which her application for an apprehended violence order was dealt with has no bearing on whether the 2012 Appeal Proceedings are an abuse of process. 22The matter was before the Court for further directions on 8 October 2012. The Court gave the following directions:

1. Any supplementary affidavit of service be filed on or before 5 November 2012
2. Any further affidavit or submissions by Ms Samootin directed to the topics identified in the orders of the Registrar made on 9 July 2012 be filed on or before 12 November 2012
3. The submissions referred to in direction number 2 should include submissions on why the Court should: (a) not make an order of the type made in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324, along the following lines: The Registrar is directed, should the applicant file a further court process seeking, in substance, leave to appeal from any of the following decisions: Palmer J 1 August 2003 Palmer J 27 August 2003 Palmer J 28 June 2004 Palmer J 20 June 2008 Hammerschlag J 16 July 2007 Hammerschlag J 17 July 2007 Hammerschlag J 30 July 2007 Hammerschlag J 3 September 2007 to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in chambers, whether the court should fix a new return date and notify the parties, or whether Ms Samootin should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the proceedings as vexatious and an abuse of process (b) permit the Supreme Court of NSW to remain as a party to the proceedings.
4. The matter be stood over to 3 December 2012, before the Registrar if it has not been disposed of by orders in chambers prior to that date. The orders as originally made contained a clerical error, but that was corrected, and Ms Samootin was notified of the correction. Ms Samootin was provided in Court with a copy of the decision in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324. 23In response to those directions, on 12 November Ms Samootin has filed: (a) an affidavit made 17 October 2012 comprising 331 pages; (b) an affidavit made 27 October 2012 comprising 279 pages; (c) an affidavit made 8 November 2012 comprising 88 pages; (d) an affidavit made 10 November 2012 comprising 130 pages; (e) an affidavit made 12 November 2012 comprising 3 pages; (f) submissions dated 12 November 2012 comprising 10 pages. Those documents are in total eleven centimetres thick. 24In her affidavit of 12 November 2012, she states that she has another affidavit to file and will have that affidavit ready by the next hearing which is listed to be held on 3 December 2012. No leave has been given for the filing of any such affidavit. The hearing on 3 December 2012 is contingent on the matter not having been disposed of before then. This decision is made on the basis of materials that Ms Samootin has already provided. 25Notwithstanding that the Amended Summons narrowed the orders against which Ms Samootin wished to appeal, her most recent affidavits (which are a mix of factual assertions and submission) continue to allege error concerning the full range of orders that have been unfavourable to her, including decisions of Hammerschlag J, and decisions in the Federal Court. No amended draft notice of appeal has been filed, so the only draft notice of appeal before the court is against all the decisions identified in the original summons. It is safer to make this present judgment on the basis that Ms Samootin wishes to challenge the full range of orders made against her.

Discussion 26It will be seen that all but one of the orders against which Ms Samootin originally sought leave to appeal in the 2012 Appeal Proceedings are ones that this Court held, in the 2010 Appeal Judgment, Ms Samootin lacks standing to appeal against. The order that represents the new element in the 2012 Appeal Proceedings is the order of Palmer J made on 20 June 2008. That order is in the following terms: "The Court orders that:

1. The costs of the valuation report are chargeable to the trust estate.
2. Liberty to apply is granted to both the Official Trustee and Loan Design Pty Ltd.
3. The costs of this application are to be paid from the trust estate. The Court directs that:
4. Loan Design Pty Ltd or Peter John Deans is authorised to purchase part of the trust estate, being the property at No.24 Oxford Falls Road Beacon Hill at a price to be determined as follows: i) a registered valuer be appointed, upon the joint instructions of Loan Designs Pty Ltd and the Official Trustee, to produce a valuation of that property, ii) the valuer is to be instructed to express an opinion as to the present market value of the property prepared on 2 separate basis: a) taking into account the fact that the property was passed in at an auction held on 10 November 2007, and alternatively, b) ignoring that circumstance. (iii) Loan Design Pty Ltd and Peter John Deans are entitled to purchase the property at the average of the 2 valuation figures. That entitlement is to be exercised within 7 days of the receipt by the parties of the valuation report." 27That order was made while Ms Samootin's bankruptcy was on foot. It relates to the administration by the Official Trustee of her bankrupt estate. For exactly the same reasons as Ms Samootin's lack of standing made her appellate proceedings challenging the various judgments identified in the orders made in the 2010 Appeal Proceedings incompetent, so too are any appeal proceedings that she brings challenging the order of 20 June 2008 incompetent. 28An Amended Draft Notice of Appeal that Ms Samootin has filed in the 2012 Appeal Proceedings identifies the relief that she seeks. It all relates to obtaining restitution or compensation for what she contends are losses she has suffered, or money she has expended, concerning the properties at 24 and 26 Oxford Falls Road. For the reasons given in the 2010 Appeal Judgment, any rights she might have had to make such claims vested in the Official Trustee, and remain vested there. 29The Respondents that she lists to the 2012 Appeal Proceedings are Mr Shea, Mr Deans, Loan Design Pty Ltd, SR Deans Pty Ltd, Ms Wagner, Mr Holmes, the Official Trustee in Bankruptcy, the Supreme Court of New South Wales, the Attorney-General (of the Commonwealth of Australia) and the Attorney-General of New South Wales. The basis on which the latter four Respondents are joined is that she claims "leave of the Court is sought that the Federal and State Attorney-Generals pay the Applicant out." She seeks that the Federal Attorney-General make that payment on behalf of the Official Trustee in Bankruptcy, and the State Attorney-General on behalf of the Court. 30The Supreme Court is not an entity that is capable of being joined as a respondent in legal proceedings brought in the Supreme Court (of which the Court of Appeal is a division). 31Notwithstanding the oppressive bulk of the evidence that Ms Samootin has filed, it all relates to a recounting of the circumstances in which the proceeds of sale of the Mona Vale house came to be expended on the houses at Oxford Falls Road, Beacon Hill, and the years of litigation that she has had relating to those houses, mixed with contentions about her having certain rights under international law. Much of the bulk of the material is made up of copies of initiating processes, notices of motion, evidence, judgments and submissions in her previous litigation. The documentation also includes court documentation, correspondence, and reports to creditors relating to her bankruptcy. 32Ms Samootin's submissions on why the proceedings should not be dismissed or struck out as an abuse of process refer repeatedly to various treaties to which Australia has become a party. She contends that for her application to be struck out as an abuse of process by an Australian domestic court would be a contravention of various provisions of, in particular, the Convention on the Elimination of All Forms of Discrimination against Women ("The Discrimination Against Women Treaty"). She contends that various of the orders concerning which she seeks relief were themselves contravention of that Treaty, and thus void ab initio. 33The law that this Court applies in deciding whether a proceeding that has been initiated in it is an abuse of process is Australian domestic law. International treaties that have been ratified by the Australian government do not as such form part of our domestic law (Chow Hung Ching v R (1948) 77 CLR 449 at 462, 471 and 477) or operate as a direct source of individual rights and obligations under that law (Chow Hung Ching v R at 286-287). If a government enacts legislation to implement a treaty, it is the Australian legislation that is part of the domestic law, not the treaty itself. In accordance with Australian domestic law, an order of a judge of a superior court is, subject to presently irrelevant exceptions, valid unless and until it is set aside on appeal: Brennan v Brennan (1953) 89 CLR 129 at 134 per Williams ACJ, Webb and Kitto JJ. For the reasons given in the 2010 Appeal Judgment, Ms Samootin does not have standing to challenge on appeal the orders that she seeks to challenge in the 2012 Appeal Proceedings. Thus, the 2012 Appeal Proceedings are an abuse of process. 34Ms Samootin puts an alternative argument why the proceedings should not be struck out as an abuse of process. It is that s 38(a) Judiciary Act 1903 (Cth) confers on the High Court of Australia exclusive jurisdiction in "matters arising directly under any treaty". She submits that the Registrar "does not have the power to dismiss these proceedings or strike them out as an abuse of process as the Applicant's matter arises directly under [the Discrimination Against Women Treaty]". 35I express no view on whether in truth the High Court of Australia has exclusive jurisdiction concerning the claims that Ms Samootin articulates in the 2012 Appeal Proceedings. It is unnecessary to do so because Ms Samootin's argument places her on the horns of a dilemma. If the argument is right, then this Court does not have jurisdiction to hear the appeal at all, and for that reason it should be dismissed. If the argument is wrong, the appeal is an abuse of process because Ms Samootin lacks the standing to bring the claims that are made in it, and this Court can dismiss it under its inherent power to control its own procedure. Dealing with Matter in Chambers? 36Ms Samootin made some submissions about why the matter should not be dealt with in chambers on the papers. One is that the Registrar might have a conflict of interest, because of some administrative steps he had taken in her previous litigation, at a time when the Registrar was acting as Prothonotary of the Supreme Court. It is unnecessary to consider those matters, as the application has been referred to me. 37Another basis on which Ms Samootin submits that the matter should be dealt with in open court is an alleged friendship between his Honour Justice Kirby of the High Court (as he then was) and Mr Deans, that was referred to in some proceedings in 2001 in the High Court. She also refers to Justice Kirby having, on that occasion, stated that he was friendly with other members of Mr Deans' family. She alleges that a nephew of Mr Deans had worked for Malleson Stephen Jaques, solicitors for some of the Respondents, for a period of time. 38Another basis upon which she contends that the matters should be dealt with in open court is because she is a "subject of international law", and dismissal of her matter in chambers: "... could be deemed by the Petitions Team, Convention on the Elimination of all Forms of Discriminated [sic] against Women, High Commissioner for Human Rights, United Nations, Geneva to have been carried out in a "covert manner" for the benefit of the Respondents (including itself) wherein she claims that she was gender-discriminated against in the State of Australia." This Court must make decisions on what it understands the law to be, not by reference to what a body in another country might think of its decision. 39A similar submission is that a benefit of the matter being dealt with in open court is that if the Registrar were to dismiss the matter in chambers it "could be considered to have been carried out in a 'covert' manner for the benefit of the Respondents". When the matter has been referred to me for decision, that consideration falls away, even if (contrary to my present view) it otherwise had any weight. 40None of those matters provide a reason for the matter to be dealt with in open court. Role of Seventh and Ninth Respondents 41Ms Samootin submits that the Ninth Respondent (the Federal Attorney-General) should remain as a Respondent because she is claiming compensation from that Attorney-General, by reason of the loss of which she complains having been occasioned by Australia's failure to comply with its international obligations to implement the Discrimination Against Women Treaty. 42Ms Samootin says that she has yet to put in further submissions concerning the conduct of the Seventh Respondent (the Official Trustee) in her matter. 43As is shown by the relief claimed in the 2012 Appeal Proceedings, the only role that the Ninth Respondent and the Seventh Respondent have in the proceedings is as sources from which the monetary entitlement that she seeks in the 2012 Appeal Proceedings can be claimed. Quite apart from any other problems with their presence as parties to the 2012 Appeal Proceedings, their role is parasitic upon her claim to entitlement from the first six Respondents. For that reason, she has no standing to bring any of the claims that she brings against any of the Respondents. 44For those reasons, the 2012 Appeal Proceedings should be dismissed as an abuse of process. Teoh Order 45Notwithstanding the terms of the direction given on 8 October 2012, ([22] above), no submission has been made about why it would be inappropriate to make an order of the type made in Teoh v Hunters Hill Council (No 4). 46The history recounted in the 2010 Appeal Judgment shows that Ms Samootin has tenaciously and repeatedly brought proceedings seeking to claim legal rights by virtue of having lost what was once her interest in the Mona Vale property. Even after the 2010 Appeal Judgment has unanimously held that she lacks standing to bring such claims, and the High Court has confirmed the correctness of that decision, she persists in bringing such claims. As explained in Teoh v Hunters Hill Council (No 4), this Court has an inherent power to see that its process is not abused, and the Court can act on its own motion to prevent such abuse. Ms Samootin's persistence in seeking to bring claims that she has no standing to bring is such that it is appropriate to make an order of the type contemplated by direction number 3 given on 8 October 2012. 47The order anticipated by the directions of the Court on 8 October 2012, did not include the decision of Palmer J of 20 June 2004, which was challenged in the proceeding leading to the 2010 Appeal Judgment. It is appropriate to include that decision in the following orders. 48I order that (1) The application for leave to appeal filed by Mrs Samootin on 31 May 2012 be dismissed as an abuse of process. (2) The Registrar is directed, should Mrs Samootin file a further court process seeking, in substance, leave to appeal from any of the following decisions: Palmer J 1 August 2003 Palmer J 27 August 2003 Palmer J 24 June 2004 Palmer J 28 June 2004 Palmer J 20 June 2008 Hammerschlag J 16 July 2007 Hammerschlag J 17 July 2007 Hammerschlag J 30 July 2007 Hammerschlag J 3 September 2007 to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in chambers, whether the court should fix a new return date and notify the parties, or whether Ms Samootin should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

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