Samootin v Shea [2013] NSWCA 312 | Case summary

Court of Appeal (NSW)|2013-09-05|Before: McColl JA, Basten JA, Gleeson JA, Gageler J, Campbell JA, Palmer J, Hammerschlag J, Coll JA

The application for review 33Ms Samootin relies upon a number of affidavits for the purpose of the review hearing. In relation to her first notice of motion filed 4 December 2012, these comprise: (1)An affidavit sworn 3 January 2013 which seeks to invoke and makes claims under Art 4 of CEDAW, and annexes a copy of an affidavit together with annexures filed by Ms Samootin on 6 July 2009 in proceedings in the Family Court of Australia between herself and her former husband, Mr Shea. (2)Various affidavits of service on the named parties to the review application as well as affidavits of service relating to service of notices under s 78B of the Judiciary Act on the Attorneys General of the Commonwealth and the States. (3)An affidavit sworn 13 March 2013 which seeks leave of this Court to proceed with her notice of motion to have the matter transferred to the High Court of Australia. (4)An affidavit sworn 21 March 2013 in substantially similar terms to the affidavit sworn 11 March 2013 in support of the application to transfer the proceedings to the High Court of Australia. 34None of the Attorneys General of the Commonwealth and the States have appeared in response to the s 78B notices. 35In relation to Ms Samootin's notice of motion filed 22 March 2013, she relied on the following affidavits: (1)An affidavit sworn 2 April 2013 explaining why she wished to revert to the form of her original summons filed 31 May 2012. (2)An affidavit sworn 5 April 2013 seeking leave to file an amended summary of argument. (3)An affidavit sworn 24 April 2013 seeking leave to have all the affidavits and other data filed by her (including the list of chronological events filed 22 December 2012) accepted as part of the proceedings. 36In relation to Ms Samootin's amended notice of motion filed 30 April 2013, she relied upon the following affidavits: (1)An affidavit sworn 28 May 2013 seeking leave of the Court to file certain "data", being material collected from hearings before various courts including the Federal Court of Australia, the Federal Magistrates Court of Australia, the Full Court of the Federal Court and the High Court of Australia. (2)An affidavit sworn 13 June 2013 referring to and annexing copies of various documents relating to default judgments obtained against Ms Samootin by various persons in respect of non-payment of legal costs. (3)An affidavit sworn 24 June 2013 relating to an unsuccessful application by Ms Samootin in the Federal Court of Australia to set aside a bankruptcy notice dated 2 August 2013. (4)An affidavit sworn 17 August 2013 relating to bankruptcy proceedings taken against Ms Samootin in 2006, ultimately leading to a sequestration order made against her estate on 24 May 2006 and an unsuccessful appeal by Ms Samootin against that sequestration order, which was determined by Wilcox J made on 21 July 2006. 37The voluminous affidavit material relied upon by Ms Samootin relates to the circumstances of the controversy the subject of the litigation she has been involved in over many years in numerous courts, and various contentions about her having certain rights under international law.

Application for removal of proceedings into the High Court 38It is also relevant to note that on 22 August 2013, Gageler J dealt with an application by Ms Samootin for leave to issue or file a proceeding for removal into the High Court of Australia of the proceedings before this Court: In the Matter of an Application by Alexandra Samootin for Leave to Issue a Proceeding (S30/2013, Gageler J, 22 August 2013, unreported). His Honour refused to grant such leave and said: "On 7 December 2012 Ms Alexandra Samootin sought to file an ex parte application for an order under s 40 of the Judiciary Act 1903 (Cth) removing into this Court a cause pending in the Court of Appeal of the Supreme Court of New South Wales. On 14 February 2013, Heydon J directed the Registrar pursuant to rule 6.07 of the High Court Rules 2004, not to issue or file the application for removal without the leave of a Justice first had and obtained. Ms Samootin now seeks that leave by an application filed on 28 February 2013 and supported by an affidavit of the same date. The cause Ms Samootin would seek to have removed into this Court purports to be an application for "judicial review" of a decision of Campbell JA itself dismissing as an abuse of process an application for leave to appeal to the Court of Appeal. The application for removal would be a further abuse of process. Leave to issue or file it is refused."

Applicant's submissions 39Ms Samootin provided the following written submissions, and also made oral submissions on the hearing of her applications: (1)Applicant's submissions dated 10 September 2012 filed 12 September 2012. (2)Applicant's further submissions filed 2 October 2012. (3)Applicant's submissions filed 12 November 2012. (4)Applicant's submissions filed 11 March 2013. (5)Applicant's submissions filed 3 May 2013. 40The essential contentions in Ms Samootin's written and oral submissions were as follows: (1)That Campbell JA erred in dismissing her application for leave to appeal against the identified decisions as an abuse of process, because he was wrong "in international law". (2)That the reasoning of Campbell JA (at [33]), which is set out at [16] above, was erroneous because the authorities cited by his Honour, pre-dated Australia's ratification of CEDAW on 28 July 1983. (3)That the various orders of Palmer J and Hammerschlag J concerning which she seeks relief were themselves a contravention of CEDAW in relation to the marital property, and thus void ab initio. It was contended that she did not receive equality before the law, particularly in her attempt to redeem the mortgage over the Oxford Falls Road properties, which was unsuccessful before Palmer J. 41Ms Samootin explained in her oral submissions that she was seeking to exhaust all domestic remedies as sought in the draft notice of appeal, before making a final petition to the United Nations under the CEDAW Optional Protocol.

Consideration 42The applications by Ms Samootin before this Court involve two aspects. First, a review of the decision of Campbell JA dismissing the 2012 application as an abuse of process and making a Teoh-type order. The nature of such a review is explained above at [32]. 43Secondly, an application that this Court transfer these proceedings to the High Court on the ground that the latter has exclusive jurisdiction, by reason of s 38(a) of the Judiciary Act, to deal with Ms Samootin's claims concerning contravention of CEDAW. 44In my view, Ms Samootin's challenge to the decision of Campbell JA is entirely unmeritorious. Further, there is no power in this Court to transfer these proceedings to the High Court of Australia.

Abuse of process 45No error has been shown in the reasons of Campbell JA for dismissing the 2012 application on the ground of abuse of process. This is because first, this Court has already determined in the 2010 appeal judgment, that Ms Samootin lacks standing to challenge the various orders of Palmer J and Hammerschlag J, against which she seeks leave to appeal, other than the order of Palmer J made on 20 June 2008 (which was not challenged in the 2010 appeal proceedings). 46Secondly, the same reasoning applies in relation to the order of Palmer J made on 20 June 2008, being the one new element of the 2012 appeal proceedings. 47Thirdly, an application by Ms Samootin for special leave to appeal from the 2010 appeal judgment was unsuccessful. Moreover, in refusing that application for special leave to appeal, Gummow and Keifel JJ said that this Court had correctly concluded that Ms Samootin did not have standing to bring the application for leave to appeal which it dismissed in the 2010 appeal judgment (see [9] above). 48The essential thrust of Ms Samootin's complaint is that Campbell JA erred not as a matter of domestic law, but that he was wrong in not applying international law, in particular, Art 4 of CEDAW. 49In my opinion, no error has been shown in the reasoning of Campbell JA (at [33] and [35]), which are set out at [16] and [18] above. It is irrelevant that Australia's ratification of CEDAW in 1983 postdated the decision of the High Court in Chow Hung Ching v R, cited by Campbell JA. That decision of the High Court remains good law. 50In Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, Mason CJ and Deane J said (at 286-287): "It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute" citing, amongst other decisions, Chow Hung Ching v R. See also Re East; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at 362 [19], which in turn cited Teoh at 286-287 and 298. 51It may be observed that the Australian government has given partial effect to the provisions of CEDAW, in the Sex Discrimination Act 1984 (Cth): see s 3(a). However, as the application was argued in this Court, no attempt was made to suggest that any provision of the Sex Discrimination Act provided any foundation for the relief claimed by Ms Samootin in her draft notice of appeal. 52Indeed, Ms Samootin submitted that the Sex Discrimination Act is "virtually useless and not applicable and that's what they told me". The latter statement appears to be in reference to a decision of Bennett J in the Federal Court: see Samootin v Hannigan [2012] FCA 462. In that case, Bennett J dismissed an application by Ms Samootin challenging a decision of a Deputy District Court Registrar which rejected the filing of an interlocutory application and an application for leave to appeal a decision of a judge of the Federal Court. Ms Samootin was unsuccessful in her challenge to that decision on the ground of asserted discrimination on the basis of sex.

Federal treaty jurisdiction argument 53Campbell JA did not find it necessary to decide whether the High Court had exclusive jurisdiction under s 38(a) of the Judiciary Act, to deal with Ms Samootin's claims of contravention of CEDAW. This was because, for the reasons given by his Honour (at [35]), the outcome of the 2012 application would be the same, whether or not the High Court had exclusive jurisdiction to deal with such claims. No error has been shown in the manner in which Campbell JA dealt with the federal treaty jurisdiction argument. 54Furthermore, in order to attract the original jurisdiction of the High Court by force of s 75(i) of the Constitution, it would be necessary for Ms Samootin to identify a justiciable controversy arising under a treaty. She fails at this anterior stage. This is because CEDAW gives no "immediate right, duty or liability to be established by the determination of the Court": see Re East; ex parte Nguyen at [18] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ citing Re Judiciary and Navigation Acts [1921] HCA 20;(1921) 29 CLR 257 at 265. See also Scott v Bowden [2002] HCA 60; (2002) 194 ALR 593 at [7] per McHugh J.

The Teoh- type order 55As to the challenge to the Teoh-type order made by Campbell JA, no error of principle had been shown. Nor is the decision to make such an order plainly wrong, particularly having regard to the history recounted in the 2010 appeal judgment. On the contrary, as a matter of discretion, there are very good reasons for this order to have been made, taking into account the history recounted in the 2010 appeal judgment.

Transfer of proceedings 56Insofar as Ms Samootin seeks an order that this Court transfer the proceedings into the High Court of Australia, this Court has no power to do so. The power to remove proceedings into the High Court is invested in the High Court itself under s 40 of the Judiciary Act, in relation to the types of matters there identified. 57Further, although Ms Samootin has apparently commenced an application in the High Court seeking to appeal against the decision of Gageler J, refusing leave to issue a proceeding in the High Court to remove these proceedings into the High Court, this does not provide any basis for this Court to act in the manner sought by Ms Samootin.

Conclusion 58In my view, no error has been shown in the decision of Campbell JA under review. Ms Samootin does not have standing to bring these applications, and each of the notices of motion filed by Ms Samootin on 4 December 2012, 22 March 2013 and 28 May 2013 should be dismissed. 59It is unnecessary to make any costs order in favour of any of the listed respondents to the notices of motion, as none of them appeared on the hearing of the applications.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2013

Judgment 1McCOLL JA: I agree with Gleeson JA's reasons and the orders his Honour proposes. 2BASTEN JA: I also agree with Gleeson JA. 3GLEESON JA: On 31 May 2012, Ms Samootin sought leave to appeal from 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 (the appeal decisions). On 20 November 2012, Campbell JA dismissed her application (the 2012 application), as an abuse of process: [2012] NSWCA 378 (the 2012 appeal judgment). His Honour also made a Teoh-type order in respect of any further court process filed by Ms Samootin seeking leave to appeal from any of the decisions the subject of the leave application: see Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; (2011) 81 NSWLR 771. That order is recorded at [24] below. 4Ms Samootin has sought, pursuant to s 46(4) of the Supreme Court Act 1970, to review the judgment of Campbell JA. 5The appeal decisions concerned a long running controversy relating to the sale of a house in Mona Vale, owned jointly by Ms Samootin and her former husband, Mr Christopher Shea, and the use of the net purchase price as part of the purchase price of properties at 24 and 26 Oxford Falls Road, Beacon Hill. That controversy concerned Ms Samootin's proportion of the proceeds of sale of the Mona Vale property and her proportionate beneficial interest in the Oxford Falls Road properties. The dispute has given rise to litigation in numerous courts since 2001. 6Ms Samootin became bankrupt on 24 May 2006. Ms Samootin was discharged from bankruptcy pursuant to s 149 of the Bankruptcy Act 1966 (Cth) on 22 June 2009. 7On 21 December 2010, this Court held that Ms Samootin lacked standing to appeal against all but one of the appeal decisions. This was because the applications sought to vindicate alleged rights that, if they ever existed, would have vested in her Trustee in Bankruptcy and would not have revested in Ms Samootin upon her discharge from bankruptcy: Samootin v Shea [2010] NSWCA 371 (the 2010 appeal judgment). 8The 2010 appeal judgment lists Ms Giselle Wagner and Mr Adrian Holmes as the fifth and sixth respondents respectively. Those persons should not have been listed as respondents to that judgment because previously, on 24 May 2010, Allsop P made an order dismissing the 2010 appeal proceedings against the fifth and sixth respondents. 9On 9 June 2011, the High Court rejected Ms Samootin's application for special leave to appeal from the 2010 appeal judgment: Samootin v Shea [2011] HCASL 120. In the course of rejecting that application, Gummow and Keifel JJ said: "Since 2001, the applicant has instituted a plethora of proceedings against the present respondents concerning a particular property transaction. As a result of a costs order made against the applicant in one of the proceedings, she was made bankrupt and her estate vested in the Official Trustee upon her bankruptcy pursuant to the relevant provisions of the Bankruptcy Act 1966 (Cth). The present application relates to the value of a proprietary interest to which the applicant claims she is entitled. However, such interest vested in the Official Trustee upon the applicant's bankruptcy. The Court of Appeal correctly concluded that the applicant did not have standing to bring the application for leave to appeal which it dismissed. Special leave to appeal to this Court is refused." 10The new element in the 2012 application was the order of Palmer J made on 20 June 2008. That order appears at [26] of the 2012 appeal judgment. It is unnecessary to repeat it here. The order related to the costs of a valuation report and directions given in relation to the sale of the property at 24 Oxford Falls Road. 11Campbell JA observed that the order of Palmer J made on 20 June 2008 was made while Ms Samootin's bankruptcy was on foot (at [27]). It related to the administration by the Official Trustee of her bankrupt estate. Ms Samootin's challenge to that order was incompetent as she lacked standing, for the same reasons as identified in the 2010 appeal judgment. 12The amended draft notice of appeal in the 2012 application sought restitution or compensation for what Ms Samootin contended were losses she had suffered, or money she had expended, concerning the properties at Oxford Falls Road. Campbell JA stated that any rights she might have had to make such claims vested in the Official Trustee, and remained vested there, for the reasons given in the 2010 appeal judgment (at [28]). 13The respondents to the 2012 application were listed as 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. As noted by Campbell JA (at [29]), the latter four respondents were joined because Ms Samootin claimed that "leave of the Court is sought that the Federal and State Attorney Generals pay the Applicant out" (sic). In particular, Ms Samootin sought 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 Supreme Court. 14As also noted by Campbell JA (at [30]), the 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 part). 15The same respondents are listed as respondents to the applications now before the Court: see [25], [28] and [29] below. 16Ms Samootin argued before Campbell JA that the 2012 application should not be dismissed or struck out as an abuse of process because that would be a contravention of various provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She contended that various of the orders concerning which she sought relief were themselves in contravention of CEDAW, and thus void ab initio. This submission was disposed of by Campbell JA (at [33]) as follows: "The 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 [478-479]). 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." 17Ms Samootin put an alternative argument why the 2012 application should not have been struck out as an abuse of process. She relied on s 38(a) of the Judiciary Act 1903 (Cth) as conferring exclusive jurisdiction on the High Court of Australia in "matters arising directly under any treaty". She contended that this Court did not have power to dismiss the proceedings or strike them out as an abuse of process as her matter arises directly under CEDAW. 18His Honour disposed of this argument (at [35]) as follows: "I 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." 19Ms Samootin put a further argument that the ninth respondent (the Federal Attorney General) should remain as a respondent because Ms Samootin was claiming compensation from that Attorney General, by reason of the loss of which she complained having been occasioned by Australia's failure to comply with its international obligations to implement CEDAW. 20Campbell JA observed that the only role that the ninth respondent and the seventh respondent (the Official Trustee) had in the proceedings was as sources from which the monetary entitlement that Ms Samootin sought in the 2012 application could be claimed (at [43]). His Honour concluded that: "...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." 21In relation to the making of the Teoh-type order, Campbell JA noted (at [45]) that the Court had given directions on 8 October 2012 for Ms Samootin to file any submissions on or before 12 November 2012 on the topic, amongst others, of why it would be inappropriate to make such an order, but no submission had been made by Ms Samootin. 22Campbell JA observed (at [46]) as follows: "The 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." 23The 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 2012 application. Campbell JA considered that it was appropriate to include that decision in the Teoh-type order at [47]. 24Accordingly, Campbell JA made an order in the following terms: "(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."

Nature of review 32The principles applicable on the application for review of a decision of this Court are well settled. They were most recently stated in Collier v Lancer [2013] NSWCA 185 at [19]-[20]: "An application for review pursuant to the Supreme Court Act, s 46(4) is not an appeal (s 19(2) of the Act and UCPR, r 51 2 and r 51 58). [What an] applicant for review must show is that there has been an error of principle in the exercise of the power or that the decision was plainly wrong (Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136, Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchie's Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure. In Rinehart v Welker [2011] NSWCA 403, this Court noted, at [48], the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal's order set aside ... ."

Samootin v Shea

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