New South Wales Court of Appeal CITATION: Samootin v Shea [2010] NSWCA 124 HEARING DATE(S): 24 May 2010 JUDGMENT DATE: 24 May 2010 JUDGMENT OF: Allsop P at 1 EX TEMPORE JUDGMENT DATE: 24 May 2010 1. The Court makes order 2 in the notice of motion dated 17 May 2010 filed on behalf of the fifth and sixth opponents to proceedings 40598/07 as applicants to the motion (Ms Giselle Wagner and Mr Adrian Holmes) that is the proceedings as against those parties are dismissed. DECISION: 2. Dismiss the notice of motion filed in court by Ms Samootin. 3. Order Ms Samootin to pay the costs of the fifth and sixth opponents as applicants to the motion of the motion brought by them and of her motion filed in court today. CATEGORY: Principal judgment Christopher George Shea (1st Respondent) Peter John Deans (2nd Respondent) Loan Design Pty Ltd (3rd Respondent) PARTIES: S R Deans Pty Ltd (4th Respondent) Giselle Monika Wagner (5th Respondent) Adrian Holmes (6th Respondent) Alexandra Samootin (Appellant) FILE NUMBER(S): CA 2007/266108 COUNSEL: Ms K Dawson (5th & 6th Respondents) In person (Appellant) SOLICITORS: Mallesons Stephen Jaques (5th & 6th Respondents) In person (Appellant) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 2007/40598 2001/1973 LOWER COURT JUDICIAL OFFICER: Hammerschlag J LOWER COURT DATE OF DECISION: 3 September 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2007/266108 ALLSOP P Monday 24 May 2010 ALEXANDRA SAMOOTIN v CHRISTOPHER GEORGE SHEA Judgment 1 ALLSOP P: This is a notice of motion brought by two persons, Ms Giselle Monika Wagner and Mr Adrian Holmes, to whom I will refer as the fifth and sixth defendants throughout these reasons. The nature of the application brought by those two persons is to have proceedings in this Court dismissed as against them, together with costs. The proceedings that are presently on foot in this Court that may attract the need for that order are a summons for leave to appeal filed by Ms Samootin in October 2007 against orders made by Hammerschlag J. The significance and context of the application before me requires a little history. Before I do that, however, I should also note that also before me is a notice of motion filed in court today by Ms Samootin seeking three orders: (1) that the leave of the Court is sought to adjourn the matter to 2.30pm next Monday before the Registrar; (2) alternatively to dismiss the notice of motion of Ms Wagner and Mr Holmes; and (3) that costs are to be costs of the appeal. 2 An affidavit of Mr Stockdale was filed together with an exhibit, and Ms Samootin filed an affidavit sworn today's date, although misentitled as sworn on 22 May 2007. Ms Samootin has also made reference to an affidavit she filed in the Court of Appeal on 22 July 2009. 3 I need to commence with the recognition that there was a contested hearing before Palmer J for seven days in 2003 on 14 - 18 July, 21 and 22 July; that proceeding involved a number of parties, including Ms Samootin's former husband. Relevantly, it concerned money and land in dispute between Ms Samootin and the first to fourth defendants. The fifth defendant, Ms Wagner, is and was a solicitor who acted on the transaction. Ms Samootin accused Ms Wagner of both negligence and breach of fiduciary obligation in Ms Wagner's conduct of the conveyance, in particular by the steps that were taken by Ms Wagner and her firm in dealing with the property and transferring money. 4 Central to the case was oral evidence of Ms Samootin and the conveyancing clerk employed by Ms Wagner. I will not seek to set out in detail all the reasons of Palmer J. It is sufficient to say that his Honour, having seen the witnesses, did not accept the evidence of Ms Samootin and did accept the evidence of other witnesses in the proceedings, including the law clerk, and based substantially on those findings found for the fifth defendant. 5 The sixth defendant was the purchaser of the fifth defendant's legal practice. He did not purchase that practice until well after the event. On no basis could he have been responsible for the tort — he was not a partner of the fifth defendant at the time of the asserted tort and breach of duty. For these reasons, Palmer J ordered on 27 August 2003 that there be judgment entered for the fifth and sixth defendants with costs. Those orders were entered on 4 August 2004. 6 His Honour, however, made detailed orders that concerned the other defendants. Those orders involved, amongst other things, the taking of accounts after an inquiry. There were some difficulties with those orders pointed out by the Court of Appeal, but after correction, the matter went before Hammerschlag J in the Equity Division. By this stage an order for sequestration of the estate of Ms Samootin had been made and the official trustee became substituted for Ms Samootin as plaintiff and remained a cross-defendant to the cross-claim. 7 Hammerschlag J made orders in July 2007. Those orders are before me as an exhibit to Mr Stockdale's affidavit. It should be noted that in relation to those short minutes of order, the fifth and sixth defendants were not identified as parties, however, they may well have been joined to the proceedings. Hammerschlag J indicated that they need not attend, and they did not. In any event, their only interest in the resolution of monetary orders between the official trustee, Ms Samootin and the first to fourth defendants was if Palmer J's dismissal of the proceedings against them in the form of a judgment could be overturned. 8 In 2004, Ms Samootin sought to appeal the decision of Palmer J. On 3 June 2004 that appeal was dismissed as incompetent and general leave to appeal was refused but limited leave to appeal was granted, so that the declarations and orders for an inquiry could be reformulated. 9 The appeal came before the court and the court raised the competency issue. After hearing submissions — and I am referring now to the judgment of Giles JA on 17 February 2005 — the Court, comprised of Handley JA, Sheller JA and Ipp JA, heard the application as a leave application and refused leave to appeal. Application was then made for special leave to appeal to the High Court. That application was dismissed. Later — and this was what came before Giles JA on 7 February 2005 — Ms Samootin once again sought leave to appeal, needing, of course, an extension of time within which to file an application for leave to appeal, that is from Palmer J's judgment. Giles JA dismissed that application. Thus, for all intents and purposes, by 17 February 2005, when Giles JA dismissed that application, the complaint by Ms Samootin about the loss of her case against the fifth and sixth defendants was at an end. 10 As I said earlier, in 2007 the proceedings for inquiry and account were heard by Hammerschlag J. It is from those orders that a holding summons for leave to appeal was filed on 11 September 2007. The fifth and sixth defendants, Ms Wagner and Mr Holmes, were made parties to that application. An ordinary summons for leave to appeal was filed in October 2007. Ms Wagner and Mr Holmes were named as opponents to that document with the words "not applicable" adjacent to each. This reflected correctly Ms Samootin's understanding that they were not relevantly affected by the orders before Hammerschlag J. There is some dispute between Ms Samootin and the fifth and sixth defendants as to whether those documents were served. It matters not. 11 The 2007 application is still on foot. Why a matter for leave to appeal in its third year is still alive in the Court, I need not deal with today. That can be resolved on another occasion. However, in July last year, Ms Samootin filed and served an amended summary of argument and an amended draft notice of appeal. The holding summons, the ordinary summons and the amended draft notice of appeal, subject to one aspect, appear to complain only about the orders made by Hammerschlag J. To that end, it is unnecessary for me to set out the contents of those documents. The exception to which I refer was part of the amended draft notice of appeal, which is, of course, not the moving summons or application, rather the notice of appeal in draft that would be relied upon if leave were given. That amended draft notice of appeal sought orders for the leave of the court to set aside Palmer J's judgment of 1 August 2003 and orders of August 2003, June 2004 and June 2008; the leave of the court for a new trial, implicitly a new trial to replace that undertaken by Palmer J; and the leave of the court that all defendants and the official trustee pay for their own costs in all previous proceedings. 12 The amended summary of argument at para 19 simply referred in one paragraph to the great miscarriage of justice that Ms Samootin said had occurred at the trial before Palmer J. There is no formal application before the Court in the nature of a further application for leave to appeal from Palmer J's judgment and orders. That application for leave to appeal was heard by three judges. It was dismissed relevantly and two judges of the High Court of Australia dismissed the application for special leave. There has already been one application for an extension of time to file and serve an application for leave to appeal; that was dismissed by Giles JA. 13 Ms Samootin has indicated today that she intends in the future to make another such application or like application; that may be. That application will be dealt with when it arises on its merits. What I am asked to deal with today is the request by these parties to be removed from this litigation, insofar as they are parties to it. The order sought, as I said, was an order dismissing the proceedings pursuant to Uniform Civil Procedure Rules Part 13 r 4. That may or may not be precisely the correct ground. When one examines the summons for leave, it seeks leave from orders of Hammerschlag J only. However, it is clear that Ms Samootin wishes to draw the fifth and sixth defendants back into this costly litigation by the terms of the amended notice of appeal and the amended summary of argument. What is clear, it seems to me, is that the fifth and sixth defendants should be freed from this litigation, given that there is no basis legitimately revealed before me today why there would be any prospect of an extension of time for filing an application for leave to appeal against Palmer J's judgment. In those circumstances, the orders made by Hammerschlag J having no bearing upon the position of the fifth and sixth defendants, it is just that they should be removed from this litigation. 14 The question of costs arises. Ms Samootin has resisted the request by the fifth and sixth defendants to be removed from her application for leave which presently does not involve them. I think in those circumstances, and in the full history of the matter, the order that I would make will include an order for costs. 15 For the above reasons, I make order 2 in the notice of motion dated 17 May 2010 filed on behalf of the fifth and sixth opponents to proceedings 40598/2007, that is, Ms Giselle Wagner and Mr Adrian Holmes; that is, I dismiss the proceedings as against those parties. Secondly, I dismiss the notice of motion filed in court by Ms Samootin. Thirdly, I order Ms Samootin to pay the costs of the fifth and sixth opponents and applicants to the motion of the motion brought by them and of her motion filed in court today. ********** 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.