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[2003] NSWSC 171
Supreme Court of NSW
2003-03-17
Palmer J
Original judgment source is linked above.
CITATION : Samootin v Shea and Ors [2003] NSWSC 171 HEARING DATE(S) : 17 March 2003 JUDGMENT DATE : 17 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Plaintiff's Motion to vacate hearing date dismissed with costs.
CATCHWORDS : PRACTICE AND PROCEDURE - LITIGANT IN PERSON - VACATION OF TRIAL DATE - Plaintiff (litigant in person) sought vacation of trial date for third time on ground that her medical condition prevented her from conducting her own case - protracted proceedings in this Court and Family Court - property subject to injunction and undertaking pending determination of proceedings - Plaintiff refused medical examination by Defendants and refused to consent to her doctor speaking to Defendants' doctors on ground of invasion of privacy and embarrassment. - HELD: Plaintiff's medical evidence insufficient to support conclusion that Plaintiff was unfit to conduct her trial herself - the interests of justice required the trial to proceed on date fixed. - PRACTICE AND PROCEDURE - ABSENCE OF PARTY - Plaintiff filed Notice of Motion to vacate trial date for third time - Motion fixed for hearing - Plaintiff stated that she would not attend hearing due to her medical condition. - HELD: Plaintiff's Notice of Motion would be heard in her absence - insufficient medical evidence to support Plaintiff's refusal to attend. Alexandra Samootin - Plaintiff Christopher George Shea - First Defendant PARTIES : Peter John Deans - Second Defendant Loan Design Pty Limited - Third Defendant Giselle M. Wagner t/a Northern Beaches Legal Service - Fifth Defendant FILE NUMBER(S) : SC 1973/01 COUNSEL : B. Muir (Sol) - Second to Fourth Defendants J.W.J. Stevenson - Fifth Defendant SOLICITORS : Brian Muir & Co - Second to Fourth Defendants Mallesons Stephen Jaques - Fifth Defendant
1 Before the Court is a contested application by the Plaintiff, Ms Samootin, to vacate the hearing of this matter which has been fixed before me for five days commencing on 24 March 2003. Ms Samootin has appeared for herself from the commencement of these proceedings, but she is not before the Court today. The Second to Fourth Defendants are represented by Mr Muir, solicitor, and the Fifth Defendant is represented by Mr Stevenson of Counsel. The First Defendant has not played any active part in these proceedings for some time and is not represented today. 2 In the extraordinary circumstances to which I shall refer in detail hereunder, I have determined that Ms Samootin's application should be heard in her absence and that it should be dismissed with costs. In order to explain what may appear otherwise to be a somewhat draconian ruling, it will be necessary to set out something of the tortuous history of these proceedings to date. 3 The proceedings arise from the dissolution of the marriage between Ms Samootin and the First Defendant, Mr Shea. They were married in 1971 and when they were divorced in June 1993 they jointly owned a property at Waterview Street, Mona Vale, which was the matrimonial home. In 1997 the Mona Vale property was sold and the proceeds of sale were used to purchase two adjoining properties, numbers 24 and 26 Oxford Falls Road, Beacon Hill. The Beacon Hill properties were purchased, ultimately, in the name of the Third Defendant. Ms Samootin says that the purchase in the name of Third Defendant alone, which unquestionably which was effected with money from the sale of the Mona Vale property, was made without her consent and that she was thereby defrauded of her interest in the proceeds of sale of the Mona Vale property and of the interest which she was to have in the Beacon Hill properties. She alleges that the First to Fourth Defendants were all parties to the fraud, as was the Fifth Defendant, a solicitor, who acted on the sale of the Mona Vale property and on the purchase of the Beacon Hill properties. 4 The First to Fourth Defendants say that the employment of the proceeds of sale of the Mona Vale property in the purchase by the Third Defendant of the Beacon Hill properties was done with the full knowledge and consent of the Ms Samootin and that she was to share in the benefits of a proposed redevelopment of the Beacon Hill properties. The Fifth Defendant says that she merely complied with instructions on the sale and the purchase, including instructions from Ms Samootin. 5 On 21 April 1999, Ms Samootin obtained ex parte an injunction in the Family Court restraining the First and Second Defendants as directors of the Third Defendant or otherwise from procuring any dealing with or disposition of the Beacon Hill properties until further order. Ms Samootin appeared in person on that application and on the many interlocutory proceedings thereafter in the Family Court. According to the evidence of the Second Defendant's solicitors, there were some 87 interlocutory proceedings, including a number of applications to the Full Court and at least one application to the High Court. In addition, there have been proceedings between the parties in the Local Court and in the District Court. The proceedings in the Family Court are not concluded and the injunction restraining dealings with the Beacon Hill properties is still in place. 6 On 29 March 2001, Ms Samootin appeared in person before Bryson J and obtained ex parte orders for the short service of a Summons commencing these proceedings. On 23 April 2001, Hamilton J gave leave to Ms Samootin to apply for an expedited hearing of these proceedings. 7 The matter was then entered in the Expedition List and on 27 April 2002 Austin J received undertakings to the Court by the Second to Fourth Defendants that they would not take any step to evict Ms Samootin at 26 Oxford Falls Road, where she was then, and still is, living pending determination of these proceedings. A timetable for the filing of further evidence was then set. 8 There have since that time been twenty hearings in the Court for the purpose of bringing these proceedings to trial, in each of which Ms Samootin has appeared in person and each of which has occupied a substantial amount of Court time. It is necessary to give some further detail about some of these hearings. 9 On 21 June 2002, at the conclusion of a protracted directions hearings hearing in the Expedition List, I fixed the proceedings for hearing before me for seven days commencing on 22 October 2002. That was a date which Ms Samootin had satisfied herself was convenient to her. 10 On 5 July 2002, Ms Samootin made application by Notice of Motion for two orders. The first was for a stay of the operation of the orders which I had made on 21 June on the ground that she intended to appeal to the Court of Appeal against a decision of Windeyer J given on 17 June 2002 refusing her leave to join the St George Bank as a party to the proceedings. The second order sought was that I disqualify myself from hearing the proceedings on the ground of bias or unfairness. In an ex tempore judgment I gave my reasons for refusing to make both orders, and dismissed Ms Samootin's Notice of Motion with costs. 11 On 1 October 2002, I granted leave to Ms Samootin to file in Court a Notice of Motion seeking to vacate the trial date on the ground that there was pending in the Court of Appeal an application for leave to appeal against the decision of Windeyer J given on 17 June 2002. I refused that application for reasons set out in an ex tempore judgment. In essence, the reason was that on the previous day Ms Samootin had requested the Court of Appeal to adjourn her application for leave until 7 November 2002, being a date after the date fixed for the trial of the proceedings, without informing the Court of Appeal that the trial had been fixed to commence on 22 October 2002. After I had refused Ms Samootin's Notice of Motion, Ms Samootin informed me that she wished to make an application for the vacation of the hearing date on medical grounds. I then gave directions for the filing of evidence and for the conduct of that application. On 10 October 2002, I gave further directions as to the hearing of the Notice of Motion, including directions for the examination of Ms Samootin by the Defendants' doctors. 12 On 17 October 2002, Ms Samootin's Notice of Motion came on for hearing before me. I vacated the hearing date provisionally, for reasons set out in an ex tempore judgment. After reviewing the evidence, I noted that, in my view, Ms Samootin had refused to attend a medical examination by the Defendants' doctors and to comply with the Court's directions in that regard without a good reason. Nevertheless, as a result of the cross examination of Ms Samootin's surgeon, Dr Peach, I was persuaded that Ms Samootin was suffering from diverticular disease and other ailments described by Dr Peach such that she would be in considerable discomfort if she were obliged to conduct her trial without having had surgery. Dr Peach's evidence was that he had booked Ms Samootin for surgery the following day, 18 October 2002, and that all of Ms Samootin's problems should be rectified by that surgery. He said that Ms Samootin would be fit to conduct her trial after three months of recovery. 13 Conditional upon Ms Samootin undergoing surgery on 18 October 2002, I vacated the trial date of 22 October 2002 and fixed the trial to commence before me on 3 March 2003 for seven days. 14 Dr Peach performed surgery on Ms Samootin on 18 October 2002. He has provided a report dated 28 October 2002 in which he describes in detail the procedures carried out. Dr Peach's report concludes: "In summary, this patient has undergone a major intra-abdominal procedure which will take her some time to recover from. Providing she does not suffer any complications, she is likely, in my opinion, to be well enough to continue with her legal matters from about February 2003.
The problem she has had with the diverticulitis is being monitored and treatment administered on an 'as required' basis." 15 On 10 February 2003, the matter came before me for pre-trial directions. On that day Ms Samootin filed in Court a Notice of Motion seeking an order that the trial fixed for 3 March be vacated "due to my inability to attend the hearing due to urgent medical treatment (operation on 19.2.03)" . In support of that application Ms Samootin filed in Court an affidavit sworn by her on 10 February 2003. Paragraphs 2 to 5 of that affidavit were as follows: "2. I had major surgery carried out on 18.10.02. The problem in relation to the cystocoele and rectocoele in my vaginal/rectal area had not been repaired by Dr Peach.
The copy letter is signed by Dr O'Shea. 18 There has been no explanation for the significant disparity between the two documents. 19 To return to Ms Samootin's affidavit of 10 February: the affidavit annexed a photocopy document entitled "Recommendation for Admission" to Manly Hospital, dated 7 February 2003, apparently signed by Dr O'Shea. Under the heading "Problem/Diagnosis" appeared: "Prolapse discomfort, no incontinence" . Under the heading "Planned procedure(s)" appeared "Repair cystocoele and rectocoele" . On page 4 is shown another illegible procedure followed by the words "if required" . The form shows that the planned admission date and the planned procedure date was 19 February 2003. 20 In support of her application on 10 February, Ms Samootin referred to the certificate by Dr O'Shea dated 7 February 2003 which she had attached to her affidavit and said: "I didn't tell her anything about the court case or anything" and, again, "I have the doctor's certificate here and, as I said, I said nothing about the court case. It was her decision to book me in because of the amount of discomfort I am suffering all the time" . The copy letter dated 7 February 2003 produced from Dr O'Shea's file does, of course, refer to "court attendance" . The photocopy of that letter attached to Ms Samootin's affidavit of 10 February makes no reference to court. 21 On 10 February, Mr Muir, who appeared for the Second to Fourth Defendants, sought a medical examination of Ms Samootin. I asked Ms Samootin whether she would consent to Dr O'Shea discussing her condition with the Defendants' doctors, as that might well satisfy the Defendants. Ms Samootin said that she could not consent on the ground that she " [didn't] see any purpose in it at all" and that Dr O'Shea was very busy. I asked Ms Samootin to reconsider her position, explaining the consequences at length: see transcript pp.4-5. At p.6 of the transcript Ms Samootin gave her consent. I fixed the further hearing of the application for 13 February 2003 before me and confirmed with Ms Samootin that she consented to the Defendants' doctors speaking to Dr O'Shea prior to 13 February. 22 Later on 10 February 2003, my Associate a facsimile from Ms Samootin in which she withdrew her consent to the Defendants' doctors speaking to Dr O'Shea. 23 On 13 February 2003, Ms Samootin's application came on for hearing before me. She obtained leave to file in Court a further affidavit sworn by her on that date. In that affidavit, she says that she withdrew her consent to the Defendants' doctors speaking to Dr O'Shea on the ground, in substance, that it was an unwarranted intrusion into her privacy. Attached to the affidavit was a certificate dated 12 February 2003 from a Dr Wynter, stating that Ms Samootin "is due to undergo gynaecological surgery on 19/2/03" and that Ms Samootin found it very traumatic and stressful to have to discuss "such private problems in a public forum" . There had been no prior reference to Dr Wynter as a treating doctor of Ms Samootin. 24 Ms Samootin renewed her application to vacate the hearing fixed for 3 March on the ground that she was to have surgery on 19 February 2003. After hearing Ms Samootin and the other parties, I said: "If the date is vacated because of Ms Samootin's operation which is to take place on 19 February, I note that Dr O'Shea says that Ms Samootin will be unavailable for work from 19 February until 18 March, that is, allowing a period of about a month for Ms Samootin to recover after the operation.
Ms Samootin, is there any reason why, if the hearing for 3 March is vacated because of your operation, you could not conduct the case as soon as possible after 18 March, which is the date your doctor has said you should be fit? Is there any reason you can think of now, and it is subject to your operation being successful, but is there any reason that you would be unable to conduct the case as soon as possible after 18 March?
Applicant: Well, not that I can think of, provided I can sit down comfortably for period for time, given the nature of the operation." 25 On the basis of the position which had then been put to the Court by Ms Samootin, namely that she was due to have an operation on 19 February, I vacated the hearing date fixed for 3 March and re-fixed the hearing for 24 March 2003 for five days. 26 It has emerged from Dr O'Shea's medical file, produced on subpoena and made available in Court today, that on the day before this hearing, i.e. 12 February, Dr O'Shea had had a consultation with Ms Samootin as a result of which the surgery which had been planned for 19 February was "postponed indefinitely" . The note in Dr O'Shea's file reads as follows: "12.2.03 Patient to have second opinion - subspecial urogynae-cologist. Surgery postponed indefinitely. Conversation with Alexandra Samootin. "No report to be released without my consent." Patient agrees for second opinion to suitable doctor. Surgery may be booked after second opinion … patient upset on phone re surgery being postponed and states she will arrange to see another doctor." 27 The copy of the letter dated 7 February 2003 produced on subpoena from Dr O'Shea's file bears an additional notation: "Amendment - surgery postponed". 28 Ms Samootin did not inform the Court on 13 February 2003 that as a result of the consultation which she had had with Dr O'Shea the previous day, the surgery planned for 19 February had been postponed indefinitely. 29 By letter dated 16 February 2003 to the Defendants' solicitors Ms Samootin withdrew her consent to the Defendants to speak to Dr O'Shea about her condition. 30 The surgery due to be performed on Ms Samootin on 19 February did not take place. 31 On 24 February 2003, my Associate sent a facsimile to all parties requesting to be advised if there was any reason why the hearing should not commence on 24 March, as previously fixed. Ms Samootin responded by facsimile dated 28 February 2003. She requested that the hearing be vacated due to her medical condition. She said that she was being assessed by other specialists. She attached a photocopy letter from a Dr Lee dated 27 February 2003 which simply stated that Dr Lee had examined Ms Samootin on 27 February and that "he/she is suffering from chronic abdominal pain from an intestinal complaint. He/she will be unfit for work from 19 February 2003 to 19 May 2003 inclusive" . Why this certificate referred to "he/she" and why it referred to 19 February, being a date more than a week prior to the date of the medical examination and the date of the certificate has not been explained. 32 The matter was re-listed before me on 5 March 2003. Ms Samootin was asked why the operation scheduled for 19 February had been postponed. She said: "She sent me a letter mentioning something about the hearing dates.
His Honour: I'm sorry. I was asking why the operation on 19 February was not carried out.
Applicant: You will have to ask the doctor yourself. She sent me a letter saying that she cancelled the operation because of some hearing date. Apparently, from the face of it, it appears that somebody contacted her and told her about the hearing date because I never mentioned a hearing date to her.
Applicant: No, I don't have it with me. I have it in my filing cabinet.
His Honour: That is a very material letter, Ms Samootin.
Applicant: I didn't realise that, your Honour. I can fax it to you if you like.
His Honour: Are you saying that the operation which was scheduled for 19 February was cancelled without your prior knowledge and consent by the doctor herself?
Applicant: Yes, your Honour, and not only that but that same day I already had been to Manly Hospital. I was booked in to have the operation.
His Honour: The operation then you say was cancelled by Dr O'Shea?
Applicant: Dr O'Shea." 33 I interpose to say that Dr O'Shea's file, produced on subpoena, does not contain any letter to Ms Samootin saying that "she [i.e. Dr O'Shea] cancelled the operation because of some hearing date" . 34 The Defendants opposed any application by Ms Samootin to adjourn the hearing date fixed for 24 March. Accordingly, after discussion with the parties including Ms Samootin, I fixed 17 March for the hearing of a contested application by Ms Samootin to vacate the hearing date. I gave directions for the issue of subpoenas and for the filing of any further evidence in order to ensure that the hearing of that contested application would proceed on 17 March. 35 On 14 March 2003 Ms Samootin sent by facsimile a letter to the Defendants and to my Associate in the following terms: "Please find enclosed a medical certificate from Mona Vale Hospital wherein I had vaginal repair carried out on 11.3.03.
I have been given 6 weeks leave for complete rest. At the end of 6 weeks I go back to my gynaecologist for a review. It is then that I shall be given a time when I shall be able to resume normal duties.
It would be appreciated if the defendants would stop being a 'nuisance' to my treating specialists, and let me get on with getting myself fixed up.
I won't be going to the hearing on Monday, 17.3.02 [sic] ."
The "doctor's certificate" was in the following terms: "Dear Mr/Mrs/Miss Alex Samootin
This is to certify that you have been treated for medical problem [sic] in the Inpatient/Accident & Emergency/Outpatients Department of this Hospital on 11/3/3 and that you will be unable to resume your usual occupation until 6 weeks
Date: 13/3/3 Signature: [signed] " 36 On the same date at 9.42am, my Associate, at my direction, sent a facsimile letter to Ms Samootin and to the Defendants in the following terms: "The Judge has received your facsimile letter dated 14 March 2003.
The Judge has requested me to inform you that he does not regard the "Doctor's Certificate" attached to your letter as providing satisfactory evidence of your inability to attend the hearing next Monday, 17 March, of your Motion to vacate the trial date. The Judge's reasons are as follows:
The Judge has requested me to inform you that in view of the protracted history of this matter he does not intend to adjourn the hearing of your Motion on Monday simply on the basis of this unsatisfactory certificate.
Accordingly, this letter is to advise you that your Motion will be dealt with on Monday, 17 March 2003, at 10.00am, whether or not you are present." 37 At 9.57am on 14 March, my Associate received a facsimile from Ms Samootin comprising the second page of my Associate's letter to her earlier that morning with the following words inserted in Ms Samootin's handwriting: "I am too sore & too sick to get further medical evidence to satisfy your needs. If need be you're quite welcome to subpoena my records from Mona Vale Hospital wherein all details of my operation are listed." 38 At 12.17pm that day, another copy of that facsimile was sent to my Associate with the added words: "P.S. I cannot attend the hearing on 17/3/03. You have the medical certificate." 39 At 3.37pm on Sunday, 16 March 2003, the following facsimile from Ms Samootin was received: "Please find enclosed a medical certificate from Dr J Greaves, Emergency, Mona Vale Hospital, dated 15.3.03.
In the certificate it is stated that I had a prolapse surgery on 11.3.03. On 15.3.03, I went to hospital as I had been bitten on my bottom by a spider when I sat on the toilet seat. The outcome of the spider bite was that I was nauseous, light headed, dizzy and got a bad headache. I then tripped over something and hurt my wound. I started to bleed more heavily than I had been bleeding before. At the hospital, I was told that I could have torn a stitch. I was told that I could have anti-venom shot. But the side effects were bad. I was told to go home and rest. If I got worse, I was to go back to hospital. I was told that it would take me at least three days to get over the painful spider bite on my bottom.
I regret that Justice Palmer is unsatisfied with the Doctor's Certificate that is produced by Mona Vale Hospital. I was a public patient. Perhaps Justice Palmer could address the issue of the certificate with the CEO at Mona Vale Hospital.
I won't be going to the hearing on Monday, 17.3.03. I am too sick and dizzy to get any more medical certificates from a local doctor, who has the time to write according to what Justice Palmer wants. If I move around too much, it exacerbates the bleeding. The spider bite is very painful. I am still light-headed, dizzy, nauseous and still have a bad headache. I can't stand up for long. I have to lie down most of the time. I am following doctor's orders."
Attached to the facsimile was the following letter on the letterhead of Northern Sydney Health dated 15 March 2003: "To whom it may concern,
Re: SAMOOTIN ALEXANDRA [address stamp]
Alexandra was seen at Mona Vale emergency department today with bleeding following vaginal prolapse surgery on 11th March. She was also seen in regards to a bite ? [sic] by red back spider."
The letter is signed by Dr Jacqueline Greaves "Emergency Locum" . 40 I note that in the facsimile letters from Ms Samootin to my Associate and the attached certificate sent on 14 March there is no reference to "prolapse surgery" carried out at Mona Vale Hospital on 11 March. I note further that Dr Greaves' certificate seems to suggest that whether Ms Samootin received a bite by a spider is questionable. It is a matter of inference from the terms of Dr Greaves' certificate that what appears in that certificate is entirely what the doctor was told by Ms Samootin. 41 I expressly refrain from making any finding as to Ms Samootin's credit as a basis for determining that her Motion to vacate the hearing date should be heard in her absence and that it should be dismissed. I make the determination having regard only to two grounds: the first ground is whether I am satisfied by the medical evidence adduced by Ms Samootin in support of her application that her condition is now so serious that she cannot herself conduct the trial for a period of five days, commencing on 24 March. The second ground is whether it is in the interests of justice, having regard to the position of all parties and to the conduct of these proceedings, that the date for hearing be vacated a third time and that it be postponed indefinitely. 42 As to the first ground, I am not satisfied on the medical evidence adduced by Ms Samootin that her present medical condition is so urgent and so serious as to justify postponement of the trial indefinitely. My reasons are as follows. 43 I take into account that Dr O'Shea's file shows that on 12 February 2003 Ms Samootin apparently wanted a second opinion as to her condition and that surgery was to be postponed indefinitely. I take into account that Dr Peach's post-operation report did not draw attention to the necessity for any further operation or to any complications which had arisen in the course of surgery. I am unable to place any weight on the "certificate" dated 13 March 2003 for the reasons set out in my Associate's letter dated 14 March. I am unable to place any weight at all on the certificate provided by Dr Lee since he has given no details for his conclusions or any reasons or any details for arriving at those conclusions. 44 Further, I am not able to give any weight to the certificate provided by Dr Greaves. That certificate gives no detail as to what was said to be "surgery" on 11 March and it expresses no conclusions as to the alleged "spider bite" . 45 Satisfactory medical evidence could have been provided by Ms Samootin in support of her application. It has not been provided. Ms Samootin had the opportunity of satisfying the Defendants' doctors that her condition was as she alleged by consenting to Dr O'Shea speaking to the Defendants' doctors. She gave that consent and then withdrew it. I am not satisfied that the reason that she has given for withdrawing that consent outweighs the Defendants' right to test her assertions. 46 As to the second ground, I am of the opinion that the interests of justice require that the trial proceed. The parties have been in litigation over the subject properties since 1999 in the Family Court, and since early 2001 in this Court. The Second to Fourth Defendants have been restrained from dealing with the properties pending resolution of these proceedings. There have been very many interlocutory proceedings in this Court and the Defendants are anxious to bring the matter to conclusion. Of particular prejudice to the Fifth Defendant, a solicitor, is that there is an allegation of a serious fraud hanging over her head so long as these proceedings remain unresolved. 47 For these reasons, I have come to the conclusion that the interests of justice require that Ms Samootin's Motion be heard in her absence and that it be dismissed with costs. 48 The consequence is that the trial will proceed on 24 March 2003.
Last Modified: 03/19/2003 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.
Samootin
Shea and Ors