FEDERAL COURT OF AUSTRALIA

Samootin v Official Trustee in Bankruptcy [2010] FCA 587

THE COURT ORDERS THAT:

1.                  The Notice of Motion filed on 25 May 2010 is dismissed.

2.                  The Notice of Motion filed on 9 June 2010 is dismissed.

3.                  The Applicant is to pay the costs of Ms Giselle Monika Wagner and Mr Adrian Holmes of and incidental to the hearing of the Notices of Motion.

4.                  Leave to appeal is granted and stood over for hearing before the Judge of this Court to whom the proceeding is docketed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT
(Revised from Transcript)

1                                             On 10 June 2009 an Application was filed in this Court seeking (inter alia) an order that the “Official Trustee in Bankruptcy … make good loss caused by breach of duty” in respect to the bankruptcy of the present Applicant. On 29 July 2009 a Cross-Application was filed by the Official Trustee in Bankruptcy seeking (inter alia) an order that the present Applicant be declared a vexatious litigant.

2                                             The Application and Cross-Application name as parties only the present Applicant, Ms Samootin, and the Official Trustee in Bankruptcy.

3                                             Now before the Court as a duty matter is a Notice of Motion referred by the Registrar.

4                                             That Notice of Motion was filed on 25 May 2010 and seeks orders (inter alia) that Ms Giselle Monika Wagner and Mr Adrian Holmes be joined as Second and Third Respondents to the proceeding. Leave was also granted this morning to the present Applicant to file in Court a further Notice of Motion seeking leave to file, in the same proceeding, a “further Form 5 Application”. Counsel for the proposed Second and Third Respondents opposed leave being granted to file this Notice of Motion.

5                                             An application was also made by Ms Samootin that I disqualify myself, should I see fit to do so. That application was presumably based upon the views previously expressed in Samootin v Wagner [2008] FCA 1066. An appeal from that decision was dismissed: Samootin v Wagner [2009] FCAFC 77.

6                                             Ms Samootin rejected a suggestion that she defer the hearing and resolution of her present Motions until after the Cross-Application has been heard.

7                                             In support of both Motions, the Applicant read an Affidavit filed on 7 June 2010.

8                                             In respect to the Notice of Motion filed in Court this morning seeking leave to file the “further Form 5 Application”, the relief sought is refused for either of two reasons.

9                                             First, either the same Application or one seeking substantially the same relief has previously been considered by a Judge of this Court (Bennett J). Her Honour directed the Registrar not to accept that Application for filing. A letter subsequently sent to the present Applicant dated 20 May 2010 by the District Registrar of the Court stated:

I refer to the Application and supporting affidavit which you sought to have accepted for filing (“the documents”).

The documents were submitted to Justice Bennett pursuant to Order 46 Rule 7A(2) of the Federal Court Rules (copy enclosed for your information). Her Honour has directed that the Registrar refuse to accept the documents for filing as this matter has been dealt with in an Application for Special Leave to the High Court which was refused. The Application is an attempt to re-agitate the same subject.

Concurrence is expressed with the views expressed in that letter.

10                                          Secondly, the “further Form 5 Application”, be it regarded as either the same Application as was considered by Bennett J or a variant of that Application, in whatever form it now manifests itself, seeks relief which can be summarised as an order setting aside bankruptcy notice number NN1906-05. Even leaving aside the decision of Bennett J, and assuming that it is appropriate for any further Application to now be made, the relief sought has previously been considered by other Judges of this Court, both at first instance and on appeal. Ms Samootin correctly acknowledges that the “further Form 5 Application” seeks the same relief as has previously been sought, albeit now on different grounds. Whether that is the case or not can be left to one side. The “further Form 5 Application” now sought to be filed is an attempt to re-agitate the same issues as have previously been resolved against her.

11                                          The relief sought in the Notice of Motion filed in Court this morning is refused.

12                                          In respect to the Notice of Motion as filed on 25 May 2010, namely that Ms Wagner and Mr Holmes be joined as Respondents to the proceeding, it is again considered that the relief sought should be refused.

13                                          Order 6 rule 2 of the Federal Court Rules confers on the Court a discretion to join “respondents in any proceeding”. Whether the other requirements imposed by the Rules have been satisfied again may be left to one side. The discretion conferred by O 6 r 2 is exercised adversely to the present Applicant. It is not considered a proper exercise of the discretion to join parties to a proceeding that is an attempt to re-agitate issues previously resolved.

14                                          The relief sought in the Notice of Motion filed on 25 May 2010 is refused.

15                                          In respect to the application to disqualify myself should I see fit, two things should be said. First, I do not see any reason why I should disqualify myself from dealing with what is essentially an interlocutory application. Second, I do not consider that there is any basis upon which any such an application can properly be advanced.

16                                          The application to disqualify myself is also refused. 

17                                          The Applicant seeks leave to appeal from the decisions now made. That leave is granted and stood over for hearing before the Judge of this Court to whom the proceeding has been or will be docketed. That Judge can give such directions as is seen fit in relation to the hearing of that application for leave. Leave to appeal is granted to avoid any argument that the views previously expressed in Samootin v Wagner [2008] FCA 1066 may provide a basis for Ms Samootin to believe that the Motions now before the Court have not been properly addressed on such merits that they now present.

18                                          Irrespective of any views previously expressed, it is considered that the merits of the applications now before the Court warrant both Notices of Motion being dismissed.   

19                                          Counsel on behalf of the proposed Second and Third Respondents seeks costs of appearing this morning. It is considered that there is no reason why costs should not be awarded in favour of the proposed Second and Third Respondents. 

ORDERS

20                                          The Orders of the Court are:

(1)          The Notice of Motion filed on 25 May 2010 is dismissed.

(2)          The Notice of Motion filed on 9 June 2010 is dismissed.

(3)          The Applicant is to pay the costs of Ms Giselle Monika Wagner and Mr Adrian Holmes of and incidental to the hearing of the Notices of Motion.

(4)          Leave to appeal is granted and stood over for hearing before the Judge of this Court to whom the proceeding is docketed.

Associate:

Dated:         10 June 2010