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.