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:
- Any supplementary affidavit of service be filed on or before 5 November 2012
- 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
- 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.
- 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.