Samootin v Shea [2004] NSWSC 989

New South Wales Supreme Court

CITATION : Samootin v Shea [2004] NSWSC 989 HEARING DATE(S) : 11 October 2004 JUDGMENT DATE : 11 October 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Stay of costs order refused.

CATCHWORDS : APPEAL AND NEW TRIAL [248] - Appeal - Practice and procedure - Stay of proceedings - Application for special leave to appeal to High Court intended but not instituted - Summons for leave to appeal to Court of Appeal filed - Stay application where appeal to Court of Appeal pending usually dealt with by Court of Appeal or Judge of Appeal rather than Judge in Division - Whether Judge in Division should deal with stay application which is hopeless. LEGISLATION CITED : Supreme Court Rules 1970 Part 52A r 9 CASES CITED : Samootin v Shea (No 3) NSWCA 3 June 2004 unreported Alexandra Samootin (P & XD)) Christopher George Shea (1D) Peter John Deans (2D & 1XC) PARTIES : Loan Design Pty Ltd (3D & 2XC) S R Deans Pty Ltd (4D & 3XC) Giselle M Wagner (5D) Adrian Holmes (6D) FILE NUMBER(S) : SC 1973/01 In person (P) COUNSEL : No appearance (1D) B Muir, Solicitor (2-4D) J Reid, Solicitor (5 & 6D) In person (P) SOLICITORS : In person (1D) Brian Muir & Co (2-4D) Mallesons Stephen Jaques (5 & 6D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 11 OCTOBER 2004

1973/01 ALEXANDRA SAMOOTIN v C G SHEA & ORS JUDGMENT 1 HIS HONOUR: Before me is a notice of motion by Alexandra Samootin, which essentially seeks a stay of costs orders made by Palmer J in these proceedings. The bulk of those orders were made before the matter went this year to the Court of Appeal, where leave to appeal from Palmer J's orders was refused, save that leave was granted to permit the correction of what were recognised to be inconsistencies or errors in the orders: see Samootin v Shea (No 3) NSWCA 3 June 2004 unreported. The corrections were made by Palmer J on 28 June 2004. As I understand it, there were no substantive changes made by those orders to Palmer J's earlier orders. There was merely a correction of the inconsistencies to which the Court of Appeal had drawn attention. 2 In her notice of motion, Miss Samootin gives as the reason she advances for a stay of the costs order to be that she is seeking to lodge an application for special leave to appeal to the High Court from the Court of Appeal's judgment of 3 June 2004. This is as best as I can understand the substance of her proposed application to the High Court, since she has not brought to Court or put into evidence and there is not in Court a copy of that application. Whether or not the application was ever lodged in the High Court it has not been accepted by the High Court because the filing fee was not paid and the Deputy Registrar has refused to grant a waiver of the fee. She has apparently lodged an application with the Administrative Appeals Tribunal in relation to that refusal and that application is still outstanding. The simple fact of the matter is that on her own material there is not currently pending in the High Court an application for special leave to appeal and I am not made aware of the content of the application which she seeks to make. 3 Whilst it is for the High Court and not for a Judge of this Court to express views as to the likelihood of success of an application to that Court for special leave to appeal, it is difficult to see the basis for a successful application for special leave to appeal on the face of the Court of Appeal's judgment of 3 June 2004, which, except in the small regard mentioned above, dismissed that appeal as incompetent. 4 Miss Samootin has also read two affidavits of herself in support of the motion. The first is an affidavit of 1 October 2004. It appears from that affidavit that she has filed a holding summons for leave to appeal in the Court of Appeal against the orders of Palmer J of 28 June 2004, which I have already mentioned. Before she filed her present motion on 1 October 2004, she sent a communication to Palmer J's Associate. His Honour's Associate sent a reply to Miss Samootin and the other parties and placed a copy of that on the file. That stated: