FEDERAL COURT OF AUSTRALIA

Samootin v McNamara [2015] FCA 481

Citation:

Samootin v McNamara [2015] FCA 481

Parties:

ALEXANDRA SAMOOTIN v SALLY MCNAMARA (A REGISTRAR OF THE FAMILY COURT OF AUSTRALIA)

File number:

NSD 657 of 2014

Judge:

FOSTER J

Date of Judgment:

26 August 2014

Date of Orders:

26 August 2014

Date of publication of Reasons:

18 May 2015

Catchwords:

ADMINISTRATIVE LAW – whether a person who was dissatisfied with a decision of a Registrar of the Family Court of Australia to reject a proposed Initiating Application and supporting affidavits had established any basis for judicial review of that decision by a judge of the Federal Court of Australia pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, if so, whether relief should nonetheless be refused on discretionary grounds

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1), 10(2)(b)(ii), 10(3) and 13

Family Law Act 1975 (Cth), s 79A

Judiciary Act 1903 (Cth), s 78B

Family Law Rules 2004 (Cth), rr 1.08(1)(a), 18.08(2) and 24.10

Date of hearing:

26 August 2014

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

31

Solicitor for the Applicant:

The Applicant appeared in person

Solicitor for the Applicant:

Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 657 of 2014

BETWEEN:

ALEXANDRA SAMOOTIN

Applicant

AND:

SALLY MCNAMARA (A REGISTRAR OF THE FAMILY COURT OF AUSTRALIA)

Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

26 AUGUST 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.    The applicant’s Application (including her Interlocutory Application filed on 15 August 2014) be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the said Application (including the costs of and incidental to her Interlocutory Application).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 657 of 2014

BETWEEN:

ALEXANDRA SAMOOTIN

Applicant

AND:

SALLY MCNAMARA (A REGISTRAR OF THE FAMILY COURT OF AUSTRALIA)

Respondent

JUDGE:

FOSTER J

DATE:

18 MAY 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1    On or about 26 May 2014, the applicant, Alexandra Samootin, endeavoured to file an Initiating Application (Family Law), a financial statement and supporting affidavits in the Sydney Registry of the Family Court of Australia. The Registry officer of the Family Court who received Ms Samootin’s proposed Application was David Tang. Mr Tang was not a Registrar of the Family Court in May and June last year. On the same day, Ms Samootin’s proposed Application and all of the supporting material sought to be filed by her were referred to Ms Sally Anne McNamara, who is a Deputy Registrar of the Family Court, for her consideration. Ms McNamara is the respondent in the present proceeding.

2    Having considered the proposed Application, on 26 May 2014, Ms McNamara made a decision pursuant to r 24.10 of the Family Law Rules 2004 (Cth) (rules) to reject Ms Samootin’s proposed Application for filing.

3    Ms McNamara recorded her Decision in a Worksheet completed and signed by her which is entitled “Rejection of Document for Filing”. In that document, she stated her reasons for the decision which she had made in the following terms:

Application seeks orders which are not within the Court’s jurisdiction to make.

4    Ms McNamara then informed Mr Tang of her decision. Mr Tang then informed Ms Samootin orally that her proposed Application had been rejected for filing. On 2 June 2014, Mr Tang sent an email to Ms Samootin confirming the substance of his oral communication. That email was in the following terms:

Dear Ms Samootin,

I regret to inform you that your Initiating Application signed 21/05/2014 was rejected for filing on the grounds of the orders being sought not being in the jurisdiction of this Court.

Your Initiating Application is available for collection at reception.

Regards,

David Tang

Client Services Officer | Registry Services

Family Court & Federal Circuit Court

97–99 Goulburn Street Sydney NSW 2000

T: (02) 9217 7380 | F: (02) 9217 7136 | david.tang@familycourt.gov.au

5    Ms Samootin was dissatisfied with Ms McNamara’s decision to reject her proposed Application. However, she took no steps in the Family Court to challenge that decision. Rather, she decided to commence the present proceeding in this Court. She did so by filing an Originating Application for Judicial Review on 30 June 2014 (ADJR Application). At the time when she filed her ADJR Application, she named Mr Tang as the only respondent. In that Application, Ms Samootin identified the decision which she intended to challenge as the decision recorded in Mr Tang’s email of 2 June 2014. At that time, she took the view that Mr Tang had been the person within the Family Court who had made the decision to reject her proposed Application. She claimed an order setting aside Mr Tang’s decision of 2 June 2014 and an order transferring this proceeding to the Family Court. She also sought an order compelling the Family Court to accept for filing the Initiating Application which Ms McNamara had rejected and an order requiring the Family Court to hear and determine that Application.

6    By letter dated 17 June 2014, pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), Ms Samootin requested Mr Tang to provide reasons for the decision which she believed he had made on 2 June 2014.

7    Shortly after 17 June 2014, Mr Tang informed Ms Samootin verbally that he could not provide a statement of reasons to her because the relevant decision had been made by Ms McNamara. Ms Samootin did not ask Ms McNamara to provide a statement of reasons. For that reason, Ms McNamara believed that Ms Samootin was no longer pressing her request for a statement of reasons.

8    However, after the present proceeding was commenced, Ms McNamara realised that Ms Samootin was intending to press her request for a statement of reasons. On 18 August 2014, Ms McNamara provided a statement of her reasons for making the decision which she had made on 26 May 2014 to reject Ms Samootin’s proposed Application for filing.

9    Ms Samootin’s ADJR Application in this Court was first returned before me on 6 August 2014.

10    By letter dated 5 August 2014 sent by the Australian Government Solicitor (AGS) to Ms Samootin, the AGS set out the orders which it intended to seek on the first return of this proceeding. The AGS represents Mr Tang and Ms McNamara. The first of those orders was an order substituting Ms McNamara for Mr Tang as the only respondent in the proceeding. The remaining orders related to a proposal by the AGS to determine as a preliminary question whether relief should be refused on discretionary grounds. In its letter, the AGS set out briefly its reasons for proposing orders in those terms.

11    When the matter was called on before me on 6 August 2014, Ms Samootin applied to have the whole proceeding transferred to the Family Court. The AGS solicitor who appeared on that occasion for Mr Tang and Ms McNamara applied to have orders made in the terms of the orders proposed in the AGS’s letter of 5 August 2014.

12    I was not disposed to bifurcate the proceeding in any way. The orders which I made on 6 August 2014 were in the following terms:

THE COURT:

1.    ORDERS that “Sally McNamara (a Registrar of the Family Court of Australia)” be substituted as the respondent in lieu of “David Tang, Client Services Officer Registry Services, Family Court of Australia”.

2.    DIRECTS that, by 18 August 2014, the respondent file and serve all evidence upon which she intends to rely at the final hearing.

3.    DIRECTS that, by 22 August 2014, the applicant file and serve any evidence in reply.

4.    DIRECTS that, by 21 August 2014, the applicant file and serve a Written Submission of no more than eight (8) pages in length in support of her Application.

5.    DIRECTS that, by 25 August 2014, the respondent file and serve any answering Written Submission.

6.    ORDERS that both parties have liberty to apply on three (3) days’ notice or on such shorter notice as a judge might allow.

7.    ORDERS that the proceeding be listed for hearing at 10.15 am on 26 August 2014 before Foster J.

13    On 6 August 2014, Ms Samootin did not oppose the substitution of Ms McNamara for Mr Tang as the only respondent in the proceeding. In light of the fact that she had been informed of the AGS’s position on the day before the listing, I took her silence to signify agreement to that order being made. Thereafter, I treated Ms Samootin’s ADJR Application as a challenge to Ms McNamara’s decision made on 26 May 2014 and not as a challenge to Mr Tang’s communication of that decision to Ms Samootin by means of his email of 2 June 2014.

14    As anticipated, the matter came before me for final hearing on 26 August 2014. On that occasion, I dismissed Ms Samootin’s Application with costs. These are my reasons for making those orders.

The Statement of Reasons

15    In her Statement of Reasons, Ms McNamara gave a brief account of the circumstances in which Ms Samootin’s proposed Application came to her attention. She then referred to r 24.10(1) of the rules. She then stated that she rejected Ms Samootin’s Application for filing on two separate bases having concluded that:

(a)    The proposed Application did not comply with a requirement of the rules (see r 24.10(1)(c)); and

(b)    On its face, the proposed Application appeared to be an abuse of process, frivolous, scandalous or vexatious (see r 24.10(1)(e)).

16    Ms McNamara went on to explain that, in her proposed Application, Ms Samootin sought orders that the Family Court did not have the power to make with the consequence that her proposed Application did not comply with r 1.08(1)(a) of the rules. She drew attention to the fact that Ms Samootin was seeking relief under an international Convention identified by her as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Ms McNamara also noted that, while Ms Samootin’s proposed Application also included a claim for orders under s 79A of the Family Law Act 1975 (Cth) to set aside consent orders made by a Judge of the Family Court on 6 July 2009, being orders which the Court did have the power to make, it was inappropriate to accept the proposed Application unless and until it was redrafted so as to exclude all irrelevant references and extraneous material and so as to include only valid grounds for the exercise of the Court’s discretion under s 79A.

17    Ms McNamara then gave her reasons for her conclusion that the proposed Application constituted an abuse of process and was otherwise objectionable under r 24.10(e) in the following terms:

Rule 24(10)(e)

The proposed application—and, in particular, the proposed Initiating Application (Family Law)—on its face appears to me to be an abuse of process, frivolous, scandalous and/or vexatious for the following reasons:

a.    The majority of the “orders” sought are either not orders that the Family Court has the power to make (see paras 10-14 above) or are otherwise not appropriate orders of the Court.

b.    Paragraph 12 on p 15 of the proposed Initiating Application (Family Law) suggests that the application is proposed to be filed for the purpose of supporting a submission which Ms Samootin intends to make to the “Petitions Team, Convention on the Elimination of All Forms of Discrimination against Women, High Commissioner for Human Rights, United Nations, Geneva” (emphasis in the original).

c.    Five years have elapsed since the making of the consent orders now sought to be set aside.

d.    The proposed Initiating Application (Family Law) sets out numerous “grounds” which have no place in an application of this sort. These grounds refer to decisions made by other courts (see, for example, but non-exhaustively, para 5 on p 13). Further, these grounds make many references to allege bias and/or favouritism on the part of both Judges of other courts and Judges of the Family Court.

Date: 18 August 2014

Consideration

18    In the Initiating Application (Family Law) which Ms Samootin sought to file in the Family Court on or about 26 May 2014, she claimed that that Application concerned financial and other matters. She specified the other matters in the following terms:

Application of International Law – Convention on the Elimination of All Forms of Discrimination against Women to the review of the domestic proceeding; pursuant to section 79A setting aside consent orders given on 6 July 2009 (judge friends with exhusband’s counsel personally invited him to judge’s chambers after proceedings concluded).

19    Later in the same document, Ms Samootin claimed orders setting aside all of the orders and judgments of the Supreme Court of New South Wales made and given in matters concerning her over many years “… pursuant to breach of International Law CEDAW …”. At pp 12–18 of her Initiating Application, Ms Samootin set out the grounds upon which she intended to rely in support of the orders which she sought.

20    It is not necessary to recite those grounds in any detail. Those pages contain a lengthy, rambling and confused narrative of past events and include details of the very many grievances which Ms Samootin has against her former husband, her former husband’s solicitor, the Supreme Court and the Family Court.

21    Ms Samootin’s Initiating Application was accompanied by a number of folders containing what purported to be affidavits which she wished to file in the Family Court in support of her Initiating Application. In those affidavits, Ms Samootin expanded upon her grievances. Many documents are annexed or exhibited to them. For the most part, these documents are selected extracts from the many sets of proceedings in the Supreme Court of New South Wales and the Family Court with which Ms Samootin has been concerned since the early 1990s. In some of those materials, Ms Samootin has listed 15 respondents as parties to her proposed Application, including the Supreme Court of New South Wales, the Family Court of Australia, the Attorney-General of New South Wales, the Federal Attorney-General and the Official Trustee in Bankruptcy. Again, for present purposes, it is not necessary to refer to this significant amount of material in any detail.

22    In her ADJR Application, Ms Samootin did not articulate with any clarity the basis upon which she claimed to be entitled to the relief which she sought in that Application. Doing the best I can to tease out the material contained in that Application, Ms Samootin appeared to wish to argue the following:

(a)    Ms McNamara failed to refer to a notice purportedly given by Ms Samootin pursuant to 78B of the Judiciary Act 1903 (Cth) when making her decision to reject Ms Samootin’s Initiating Application;

(b)    Ms McNamara failed to furnish to Ms Samootin prior to 30 June 2014 a statement of reasons for making the relevant decision pursuant to s 13(1) of the ADJR Act; and

(c)    All of the grounds specified in s 5(1) of the ADJR Act were available to Ms Samootin although she did not elaborate in any way as to why this was so.

23    By an Interlocutory Application filed on 15 August 2014, Ms Samootin sought to have the orders which I had made on 6 August 2014 set aside. In addition, she claimed an order restoring Mr Tang as the sole respondent and, in effect, an order vacating the hearing fixed for 26 August 2014. At my direction, that Interlocutory Application was made returnable at the hearing on 26 August 2014. It was dismissed with costs on that day.

24    At the final hearing, Ms Samootin persisted with her contention that the correct respondent was Mr Tang, not Ms McNamara. She complained that I had erred when, on 6 August 2014, I ordered that Ms McNamara be substituted for Mr Tang as the sole respondent in the proceeding. She said that the AGS and the Court had forced Ms McNamara upon her as the respondent and had altered the nature of her proceeding by doing so.

25    I explained to Ms Samootin that, according to the evidence before me (which included an affidavit from Ms McNamara sworn on 18 August 2014 in which Ms McNamara stated unequivocally that she was the person who had made the relevant decision), the order which I had made on 6 August 2014 had not been made in error but had corrected the error which she had made in naming Mr Tang in the first place. Ms Samootin objected to Ms McNamara’s evidence but I admitted that evidence notwithstanding her objection.

26    Ms Samootin then made the following submissions:

(a)    By her Initiating Application in the Family Court, Ms Samootin had sought to invoke Art 4 of CEDAW concerning her marital property in Australia.

(b)    By seeking to file her Initiating Application in the Family Court and by bringing the present proceeding, Ms Samootin was endeavouring to exhaust all available remedies in Australia so that she could then take steps to petition the United Nations to seek relief under CEDAW.

(c)    Mr Tang’s email to her of 2 June 2014 was not “an official response” from the Family Court. In any event, both he and Ms McNamara failed to refer to or deal with her s 78B notice.

(d)    When consent orders were made in the Family Court on 6 July 2009, those orders were infected by bias. She complained that the Judge who made those orders is a friend of Counsel who appeared for Ms Samootin’s former husband on that occasion and, subsequent to making the orders, had had a private conversation with Counsel.

(e)    There was no available course in the Family Court to review Mr Tang’s decision recorded in the email of 2 June 2014. Ms Samootin was aware that she could apply in the Family Court to review a Registrar’s decision but took the view that she was unable to take a similar course in respect of Mr Tang’s decision.

27    The AGS advocate who appeared on behalf of Ms McNamara relied upon a Written Submission dated 25 August 2014 and also made oral submissions at the hearing. He submitted that Ms Samootin’s ADJR Application was without merit and that, even if the Court considered that the Application had some prospects, relief should be refused on discretionary grounds. In particular, he submitted that the Court should exercise its discretion under s 10(2)(b)(ii) of the ADJR Act to refuse to grant the leave because of the availability of an adequate alternative remedy.

28    The following submissions were made on behalf of Ms McNamara:

(a)    Ms Samootin appears to rely upon s 5(1)(c) and s 5(1)(d) of the ADJR Act. She apparently wants to argue that Ms McNamara did not have jurisdiction to make the decision which she made on 26 May 2014 to reject Ms Samootin’s Initiating Application for filing or, alternatively, that that decision was not authorised by the enactment in pursuant of which it was made. These contentions on the part of Ms Samootin are plainly wrong and should be rejected. Rule 24.10 of the rules is in the following terms:

24.10    Rejection of documents

(1)    A Registrar or judicial officer may reject a document filed or received for filing if the document:

(a)    is not in the proper form in accordance with these Rules;

(b)    is not executed in the way required by these Rules;

(c)    does not otherwise comply with a requirement of these Rules;

(d)    is tendered for filing after the time specified in these Rules or an order for filing the document;

(e)    on its face, appears to the Registrar to be an abuse of process, frivolous, scandalous or vexatious;

(f)    is tendered for filing in connection with a current case in a registry that is not the filing registry (see rules 22.10 and 24.09); or

(g)    is sent for filing through the Internet and the person sending the document has not complied with the court’s electronic filing procedures.

(2)    If a judicial officer rejects a document filed or received for filing under subrule (1), the judicial officer may give directions about any step already taken on the document, including a direction about costs.

(3)    A person may apply for review of a Registrar’s decision under subrule (1) or directions given by a judicial officer under subrule (2) by filing an Application in a Case without notice.

Note:    When a document sent for filing by electronic communication through the Internet is rejected, the court may notify each party to the case and each person to whom the document is directed.

Ms McNamara is a “Registrar” for the purposes of the above rule. For this reason, Ms McNamara was authorised by that rule to reject Ms Samootin’s Initiating Application and supporting documents provided that she was satisfied that one or more of the grounds listed in subpars (a)–(g) of r 24.10(1) was made out. Ms McNamara gave evidence that she was so satisfied.

(b)    There was no requirement on Ms McNamara to refer to and specifically address the so-called s 78B notice lodged by Ms Samootin with the Family Court.

(c)    The “rights” claimed by Ms Samootin under CEDAW are not rights which can be enforced directly under Australian law. These so-called rights have never been incorporated into Australian law.

(d)    Under s 10(2)(b)(ii) of the ADJR Act, this Court has a discretion to refuse to grant any relief to Ms Samootin if “… adequate provision is made by any law under this Act under which [Ms Samootin] is entitled to seek a review by the court, by another court , or by another tribunal, authority or person, of that decision, conduct or failure”. “Review” in s 10(2)(b)(ii) includes any review by way of reconsideration, rehearing, appeal and the grant of other specified relief (see s 10(3) of the ADJR Act).

(e)    Although Ms McNamara’s primary submission is that Ms Samootin’s case is hopeless, were the Court to form a different view, there is no doubt that Ms Samootin once had an adequate alternative remedy available to her. That remedy is found in r 24(3) of the rules, which provides that, where a Registrar rejects a person’s documents for filing, the person may apply for review of the Registrar’s decision by filing an Application in a Case without notice. If such an Application is made, the Family Court hears it as an original hearing (ie de novo). Such a review is a review on the merits. Further, although such an Application for Review is subject to time limits (as to which, see r 18.08(2) of the rules) and although Ms Samootin was out of time by 26 August 2014 (the time for making any such review application expired on 23 May 2014), the discretion available to the Court under s 10(2)(b)(ii) of the ADJR Act remains.

(f)    The alternative remedy available to Ms Samootin to challenge Ms McNamara’s decision in the Family Court itself was the appropriate remedy in the present case. There are good policy reasons why the Federal Court should not superintend Registrars of the Family Court or otherwise interfere in its administration by granting relief under the ADJR Act.

(g)    There was no basis upon which this proceeding could be transferred to the Family Court. That Court does not have power to exercise original jurisdiction under the ADJR Act and could not grant any of the relief sought by Ms Samootin in the present proceeding.

29    The submissions which I have summarised at [28] above are correct and I accept them.

30    I did not consider that Ms Samootin’s case had any merit whatsoever. Had I thought that it had any prospect of succeeding, I would nonetheless have dismissed it on discretionary grounds pursuant to s 10(2)(b)(ii) of the ADJR Act.

Conclusions

31    For all of the above reasons, on 26 August 2014 I dismissed Ms Samootin’s claim (including her Interlocutory Application filed on 15 August 2014) with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:    18 May 2015