Samootin v Shea & Ors [2004] NSWCA 115

New South Wales Court of Appeal

CITATION : Samootin v Shea & Ors [2004] NSWCA 115 HEARING DATE(S) : 5 April 2004 JUDGMENT DATE : 5 April 2004

JUDGMENT OF : Giles JA DECISION : Notice of Motion filed on 16 March 2004 is dismissed with costs.

CATCHWORDS : Subpoenas - unrepresented party requires leave to issue - appeal - ground of appeal that trial judge declined to hear witnesses - whether leave to subpoena one of the witnesses to give evidence in the appeal - basis on which the witness would give evidence in the appeal - leave refused. Alexandra Samootin - Appellant Christopher George Shea - First Respondent Peter John Deans - Second Respondent PARTIES : Loan Design Pty Ltd - Third Respondent S R Deans Pty Ltd - Fourth Respondent Giselle M Wagner - Fifth Respondent Adrian Holmes - Sixth Respondent FILE NUMBER(S) : CA 40641/03 Appellant in person COUNSEL : B Muir (Solr) - Second to Fourth Respondents J Reid (Solr) - Fifth and Sixth Respondents Appellant in person SOLICITORS : Brian Muir & Co - Second to Fourth Respondents Mallesons Stephen Jaques - Fifth and Sixth Respondents

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT EQ 1973/01 FILE NUMBER(S) : LOWER COURT Palmer J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40641/03 ED 1973/01

GILES JA

Monday 5 April 2004 SAMOOTIN v SHEA & ORS Judgment 1 HIS HONOUR: By her notice of motion filed on 16 March 2004 Ms Samootin seeks, in essence, two orders. One was an order granting leave to subpoena Mr Famularo to give evidence. The other was an order granting leave to issue a subpoena for the production of a particular file. Leave is necessary because Ms Samootin is not represented by a solicitor and Pt 37 r 6(1A) of the Rules provides that in that situation a subpoena shall not issue except by leave of the Court. 2 So far as the notice of motion seeks leave to issue a subpoena for the production of the file, it can be quickly dealt with. It turns out that the file has in fact been produced, in circumstances of I am not certain but which do not matter. Ms Samootin wants to have a subpoena for the production of a different file, and explains that it is a file which had been produced to the Family Court, was to have been transferred to this Court, but could not be found last Friday when she inquired. I have said to Ms Samootin I am not going to entertain an application in respect of that file. 3 Some background is necessary as to the application for leave to subpoena Mr Famularo to give evidence. 4 The appeal is an appeal from Palmer J, who gave a judgment on 1 August 2003. His Honour expressed understandable difficulty in ascertaining the issues in the proceedings. In short, Ms Samootin and her former husband owned a property at Mona Vale, which was sold and the proceeds of sale from which were used together with other money in the purchase of properties at Beacon Hill. Ms Samootin's claim was described before me as a claim to be restored to her position prior to the sale of the Mona Vale property, meaning ownership of one of the Beacon Hill properties and a sum of money. That can be seen in the orders which she sought in her statement of claim, although somewhat obscurely. 5 The substance of the orders Ms Samootin sought is that she was unhappy with the beneficial ownership of the Beacon Hill properties as she understood it to be. Whether her understanding was correct is doubtful, because before Palmer J the relevant defendants freely acknowledged that the properties were beneficially owned by Ms Samootin to the extent of the amount contributed by her through her share of the proceeds of sale of the Mona Vale. His Honour declared that the registered proprietor of the properties held them on trust for Ms Samootin and others in proportion to their contributions to the acquisition of the properties, and made orders for an inquiry to determine the respective interests of the beneficial co-owners and the taking of accounts. 6 In her appeal Ms Samootin seeks that these orders be set aside and that the matter be remitted for a re-hearing. She does not in her notice of appeal ask that the Court of Appeal make some other orders more favourable to her. 7 Ms Samootin's grounds of appeal include a ground that Palmer J erred in "dismissing" her subpoenaed witnesses without them being heard, and Mr Famularo is one of the subpoenaed witnesses. What seems to have happened is this. 8 The hearing was fixed for a date in July 2003. In June 2003 Ms Samootin obtained leave to issue a subpoena to Mr Famularo requiring that he attend and give evidence orally. Mr Famularo was an officer of the St George Bank, which had provided loan funds for the purchase of the Beacon Hill properties, and had apparently been the officer handling the loan application and documentation. Implicit in the issue of the subpoena, and from other materials before me, Mr Famularo was probably not willing to provide an affidavit to Miss Samootin or to attend without a subpoena. 9 There came a point in the proceedings when Ms Samootin asked his Honour, "When can I subpoena the witnesses into court to give their evidence?". It seems that his Honour was unaware that there were witnesses to be called orally. Upon identification of Mr Famularo as a witness, his Honour declined to allow him to be called, saying that St George Bank was not a party to the proceedings. On one view, and this is not a time to reach more than a prima facie view, his Honour's reasoning was that because St George Bank was not a party to the proceedings the evidence of Mr Famularo was not relevant to any issue in the proceedings. It is that of which Ms Samootin wishes to complain under the ground of appeal to which I earlier referred. 10 The question then is, what is the basis on which Mr Famularo would give evidence in the appeal. 11 The order Ms Samootin seeks is, in more detail, that Mr Famularo be subpoenaed to give evidence before a single Judge of the Court of Appeal. Ms Samootin has explained that she would then annex a transcript of his evidence to an affidavit identifying it as such, so that the rules of court whereby evidence before the Court of Appeal should be put on affidavit would be complied with. It may be that that would not comply with the rules, and that the procedure which Miss Samootin envisaged would not be appropriate. However, it is better to go to the more substantive question of the basis on which evidence would be led on the assumption that Mr Famularo would give evidence orally at the hearing of the appeal. 12 If Palmer J erred in declining to receive the evidence of Mr Famularo, his error would be demonstrated by argument based upon the position as it was made known to his Honour at the time. That could include the evidence led before his Honour to that time whereby the relevance of any evidence Mr Famularo might give could be forecast. I do not think that it would be material to making out the ground of appeal to show what evidence Mr Famularo gave when called before the Court of Appeal. Should the ground of appeal bring a new trial then, of course, it would be open to call Mr Famularo under a subpoena and have the benefit of his evidence, so far as it might be relevant, in the new trial which Ms Samootin has sought. 13 It may be that the Court of Appeal could be asked to conclude that Palmer J's substantive decision was incorrect in light of evidence placed before the Court of Appeal through calling Mr Famularo, being evidence which it might be said could not have been led by Ms Samootin because the Judge declined to receive it. The grounds of appeal may not have enlivened this course, but there were suggestions of that in Ms Samootin's submissions before me. For that purpose it is necessary now to form a view as to the relevance of what Mr Famularo might say. 14 The matters Ms Samootin put forward as having relevance can be gleaned from her affidavit sworn on 16 March 2004, particularly paragraphs 7 to 13, and the amended written submissions filed by her in the appeal on 4 December 2003, paragraphs 44 to 52. Before going to those materials in more detail, it should be said that it became quite clear from Ms Samootin's submissions that she did not know what Mr Famularo might say. She was really fishing, and wanted to call him to find out what he would say, although no doubt hopeful that it would be of assistance in her case. 15 In the written submissions it is said that in off-the-record discussions with Mr Famularo he told Ms Samootin in general terms that there were loans being generated in order to deprive a person of their assets by transferring money or assets from the rightful owner under company titles to other parties. This, as I understand it, is along the lines of what Ms Samootin said was done to her, that is, she was deprived of her assets by some conduct involving use of a company. I cannot imagine that evidence of that kind would be admissible. 16 Then it is said in the affidavit and the submissions that Mr Famularo would be shown to have behaved in a misleading manner and unconscionably in connection with signature of a St George Bank letter of offer. What Ms Samootin seems to have in mind is that her former husband thought that he was an equal shareholder in the company which purchased the Beacon Hill properties when he was not. It is very difficult to see how this could have anything to do with the issues which Palmer J had to decide. The orders made recognised rights of, amongst others, Ms Samootin's former husband, notwithstanding that he was not an equal shareholder in the company. 17 Ms Samootin said this in paragraph 50 of her written submissions: "I wanted to ascertain during the hearing in what manner the second and fifth respondent had been involved in alienating the first respondent and I from our respective rights of possession over our respective proposed purchase, i.e. what instructions had the second and fifth respondents given to Mr Famularo; what was the intention of alienating the properties from us that we purchased with our moneys. These transactions had occurred during the conveyancing period of the purchase of the two properties 24 and 26 Oxford Falls Road, Beacon Hill, and was relevant to the proceedings. These matters were brought up during the hearing: T302.53-306.21." 18 This, I think, can be equated with an earlier general assertion that Mr Famularo "had been involved in the transfer of the assets of the Shea/Samootin assets into the hands of the second respondent". The level of generality of this demonstrates its fishing nature. 19 Having read in full the affidavit and submissions, I am satisfied that it would be no more than speculation that Mr Famularo might have given material evidence in the proceedings before Palmer J and also speculative that anything he might say before the Court of Appeal would have a bearing upon demonstrating error on his Honour's substantive decision. Given the basis of his Honour's decision, it would be even more difficult for anything said by Mr Famularo to be material to determining on appeal whether or not there had been error on his Honour's part. 20 On the evidence before me, Mr Famularo does not object to being subpoenaed to give evidence. His stance appears to be that he will comply with a subpoena if a subpoena is issued, and he does not suggest hardship in compliance. Nonetheless, leave should not be given unless there is good reason. Subpoenas are important steps in the litigious process and they carry important consequences. They have consequences not only for the person subpoenaed, but also for the other parties to the litigation and for the Court itself. I must be satisfied that there is some point in a subpoena to Mr Famularo whereby he is commanded to attend before the Court of Appeal and give evidence. I am not so satisfied. Accordingly, I decline leave to issue the subpoena. 21 The result is that the notice of motion filed on 16 March 2004 is dismissed with costs. **********