ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                                             This judgment deals with two matters.  The first is an appeal against interlocutory orders made on 9 June 2010.  Leave to appeal was granted when the orders were made.  The second matter is an application for leave to appeal out of time against a judgment of the Federal Magistrates Court of Australia (“the FMCA”) given on 30 September 2005.

The appeal

2                                             A little over twelve months ago the appellant and the present respondents were parties to an appeal in this Court in the same capacities (except that the Official Trustee in Bankruptcy was the third, not the first, respondent and Ms Wagner and Mr Holmes were the first and second respondents respectively rather than the second and third respondents as they are in the present proceedings).

3                                             In the judgment in that earlier appeal (Samootin v Wagner [2009] FCAFC 77) the Full Court described the procedural course of events to that point in the following terms (at [4] – [9]):

4          The appellant commenced proceedings in the Supreme Court of New South Wales against her ex-husband, Mr Shea, a Mr Deans and Shea Dealite Pty Ltd in March 2001 (‘Supreme Court Proceeding 1973/2001’).  The first respondent was joined as the fifth defendant to those proceedings on 21 November 2001 and the second respondent was joined as the sixth defendant to those proceedings pursuant to leave granted by Palmer J on 3 June 2003.  On 4 July 2003, the New South Wales Court of Appeal dismissed an application for leave to appeal from interlocutory orders made by Palmer J on 17 October 2002, with costs.  The costs of those proceedings were assessed and judgment was entered in the sum of $9,006.44 in Supreme Court Proceeding 11966/2005 on 13 May 2005 in favour of the first respondent.  On 1 August 2003, Palmer J delivered judgment in Supreme Court Proceeding 1973/ 2001, dismissing the appellant’s claim against Ms Wagner and Mr Holmes, with costs.  The costs of those proceedings were assessed and judgment was entered in the sum of $155, 522.69 in Supreme Court Proceeding 11967/2005 on 13 May 2005 in favour of the first and second respondents.  All appeals and applications for leave to appeal from judgments underlying the two costs judgments have been dismissed.

5          On 17 June 2005, the first and second respondents caused a bankruptcy notice to be issued to the appellant based on the costs judgments (‘the Bankruptcy Notice’).  On 2 August 2005, the appellant filed an application to set aside the Bankruptcy Notice which was dismissed by Federal Magistrate McInnis with an order for indemnity costs in favour of the first and second respondents on 30 September 2005.  On 2 November 2005, the first and second respondents filed a creditor’s petition in the Federal Magistrates Court on the basis of the appellant’s failure to comply with the Bankruptcy Notice.  On 23 December 2005, the appellant filed a notice of intention to oppose the creditor’s petition.  The creditor’s petition and related applications were heard before Federal Magistrate Lloyd-Jones on 27 April 2006 and 24 May 2006.  The sequestration order against the appellant’s estate was made on 24 May 2006.

6          On 31 May 2006, the appellant filed a notice of appeal in this Court seeking to set aside the sequestration order.  On 21 July 2006, Wilcox J dismissed the appeal.

7          On 14 March 2007, the appellant filed an application in the Federal Magistrates Court seeking, inter alia, to annul the sequestration order made against her estate and to set aside, annul or strike out, the bankruptcy notice upon which the sequestration order was founded.  Federal Magistrate Smith dismissed this application on 4 July 2007.

8          On 31 July 2007, the appellant filed an application in this Court seeking an extension of time within which to serve a notice of appeal from the judgment and orders of Smith FM and on 21 August 2007 she filed an application for leave to appeal from the judgment and orders of Smith FM. Gyles J dismissed these applications.

9          On 29 April 2008, the appellant filed an application in this Court seeking, inter alia, to annul her bankruptcy and filed an amended application in this regard on 16 June 2008.  Flick J dismissed the application on 21 July 2008.  It is from that order that the appellant’s appeal is brought.

4                                             The decisions referred to did not exhaust the proceedings in this Court.  On 31 May 2006 a stay of the sequestration order was refused by Stone J (Samootin v Wagner [2006] FCA 689).  On 19 October 2007 Jacobson J rejected a challenge to the conduct of the first respondent which alleged that it had unlawfully caused a serious loss in the value of property in which the appellant had an interest before her estate was sequestrated (Samootin v Official Trustee in Bankruptcy [2007] FCA 1618).

5                                             In the judgment which was the subject of the appeal to the Full Court last year (Samootin v Wagner [2008] FCA 1066) Flick J referred at [19] to the sequestration order made against the estate of Ms Samootin on 24 May 2006 (Wagner & Anor v Samootin [2006] FMCA 688).  Flick J went on to note at [20] – [21]:

20        An application to stay the sequestration order has been dismissed by a judge of this Court: Samootin v Wagner [2006] FCA 689. An appeal against the making of the sequestration order has also been dismissed: Samootin v Wagner [2006] FCA 945.

21        Thereafter an application was filed by Ms Samootin with the Federal Magistrates Court on 14 March 2007 seeking the annulment of the sequestration order made on 24 May 2006. That application was dismissed: Samootin v Wagner [2007] FMCA 1100. An application for an extension of time within which to appeal against the dismissal was also dismissed: Samootin v Wagner [2007] FCA 1366.

6                                             The application before Flick J on that occasion again sought an order that the sequestration order made on 24 May 2006 be annulled and various other orders.  Flick J came to the conclusion that the application should be dismissed as an abuse of process.  He awarded indemnity costs against Ms Samootin.  It was against those orders that the appeal was brought last year.  The appeal was dismissed.

7                                             After the hearing of the appeal on 26 May 2009 but before judgment was delivered on 26 June 2009 Ms Samootin commenced a further proceeding in this Court against the first respondent to the present appeal.  In that proceeding she again sought an order that the Official Trustee in Bankruptcy make good an alleged loss to the value of a property in which she earlier held an interest.  She also sought compensation of $100,000 for “pain, suffering, degradation and humiliation”.  On 25 May 2010 Ms Samootin filed a notice of motion seeking that Ms Wagner be joined as second respondent to the proceedings and Mr Holmes as third respondent.  On 9 June 2010 Ms Samootin filed a further notice of motion seeking leave to make a further application to set aside the bankruptcy notice which was issued against her on 17 June 2005 and seeking an extension of time in which to submit such an application.  The further application was intended to raise collateral attacks against the bankruptcy notice and against judgments in the Supreme Court of New South Wales upon which the bankruptcy notice was based.  The collateral challenges were intended to provide a foundation for a further order that the sequestration order made on 24 May 2006 be set aside.  All of these matters have been the subject of repeated and exhaustive attention in earlier proceedings in the Supreme Court of New South Wales, the New South Wales Court of Appeal, the FMCA and in this Court.

8                                             The most recent proceedings were again assigned to Flick J.  On 9 June 2010 his Honour dismissed each of the notices of motion and also an application made orally that he should disqualify himself from hearing the proceedings.  The effect of the orders dismissing the notices of motion is that Ms Samootin has no leave to file a further application challenging either the bankruptcy notice issued to her or the sequestration order made against her estate and she has not been granted an extension of time in which such an application might be made.  At Ms Samootin’s request Flick J, at the same time, gave leave to appeal against his orders (Samootin v Official Trustee in Bankruptcy [2010] FCA 587).  It is against his Honour’s orders made on 9 June 2010 that the present appeal has been brought.

9                                             The matters which required attention by Flick J were not open to Ms Samootin to litigate or to challenge further.  As between Ms Samootin and each of the respondents Ms Samootin is estopped from further challenging the order sequestrating her estate.  She has exhausted all available legal challenges directly or normally available against, or in relation to, the sequestration of her estate.  There was no error made by Flick J when he dismissed the two notices of motion.

10                                          No attempt was made by Ms Samootin in her written or oral submissions on the appeal to provide any support for the application she made to Flick J that he should disqualify himself.  Nor was it a ground of her appeal.  No more need be said about that issue.

11                                          The appeal should be dismissed.

The application for leave to appeal

12                                          By motion, of which notice was given on 15 July 2010, Ms Samootin seeks leave to appeal against a judgment of the FMCA on 30 September 2005 refusing to set aside the bankruptcy notice which led to the sequestration of her estate(Samootin v Wagner & Anor [2005] FMCA 1512).  The motion also seeks an extension of time in which to appeal.  The motion was listed to be heard at the same time as the appeal.

13                                          The motion is misconceived.  Challenges to the bankruptcy notice and to the sequestration order have been repeatedly dismissed, as the history set out earlier shows.  As we have already said, Ms Samootin has exhausted all normal avenues of challenge available to her.

14                                          The motion also must be dismissed.

Costs

15                                          In each of these matters there is no reason why costs should not follow the event.

Orders

16                                          We will make the following orders:

1.                  The appeal against the orders made by Flick J on 9 June 2010 is dismissed with costs.

2.                  The notice of motion filed on 15 July 2010 is dismissed with costs.

Associate:

Dated:         8 September 2010