FEDERAL COURT OF AUSTRALIA

Samootin v Official Trustee in Bankruptcy; In the Matter of Samootin
[2010] FCA 711

in the matter of alexANDRA SAMOOTIN

THE COURT:

1.         GRANTS leave to the applicant to file in Court her affidavit sworn on 6 July 2010 dealing with service of the Notice of Motion filed by her on 5 July 2010.

2.         NOTES that the matter was called outside the Courtroom and that initially there was no appearance either by or on behalf of the Official Trustee in Bankruptcy or by or on behalf of either Giselle Monika Wagner or Adrian Holmes.

3.         ORDERS that the whole of this proceeding (NSD 708 of 2010) be dismissed.

4.         MAKES no orders as to the costs of this proceeding.

5.         ORDERS that the time within which the applicant is to file a Notice of Appeal pursuant to the leave to appeal granted by Flick J on 9 June 2010 be extended up to and including 16 July 2010.

6.         DIRECTS that any Notice of Appeal which the applicant is minded to file pursuant to the order made by Foster J in par 5 above be no more than three pages in length.

7.         DIRECTS the applicant to file and serve by 28 July 2010 Written Submissions in support of any Notice of Appeal which she files, such Submissions to be no longer than four pages in length.

8.         DIRECTS the respondents, in the event that they wish to participate in the Appeal, to file and serve by 6 August 2010 Written Submissions in answer to those of the applicant. 

9.         DIRECTS the applicant to file and serve by 18 August 2010 any Submissions in reply, such Submissions to be no longer than four pages in length.

10.     In the event that a Notice of Appeal is filed within the timeframe specified in par 5 above, ORDERS that the NSW District Registrar of the Court or the Appeals Registrar of the Court notify the applicant as well as the Official Trustee in Bankruptcy, Giselle Monika Wagner and Adrian Holmes of the date when the appeal is listed before the Full Court.

11.     DIRECTS the NSW District Registrar of the Court to prepare Appeal Books, such Appeal Books to be prepared by 31 August 2010 and to contain only the following documents being documents filed in proceeding NSD 558 of 2009, namely:

(a)       The Application filed by the applicant on 10 June 2009;

(b)      The Notice of Motion filed by the Applicant on 25 May 2010;

(c)       The Affidavit sworn by the applicant on 23 May 2010 and filed on 25 May 2010;

(d)      The Affidavit sworn by the applicant on 26 May 2010 and filed on the same day;

(e)       The Notice of Motion filed by the applicant in Court on 9 June 2010;

(f)        The Affidavit of the applicant sworn on 7 June 2010 and filed on the same day;

(g)       The proposed Amended Originating Process handed up to Flick J on 9 June 2010;

(h)       The Transcript of the hearing before Flick J on 9 June 2010;

(i)         The Reasons for Judgment of Flick J delivered on 9 June 2010;

(j)        The Orders made by Flick J on 9 June 2010;

(k)      The Reasons for Judgment of Federal Magistrate McInnis delivered on 30 September 2005 in proceeding SYG 2039 of 2005 in the Federal Magistrates Court of Australia; and

(l)         The orders made by Federal Magistrate McInnis on 30 September 2005.

12.     NOTES that the Full Court, in considering how best to deal with the applicant’s Appeal, may also consider whether the leave to appeal granted by Flick J on 9 June 2010 should be revoked.

13.     NOTES that the documents referred to in subpars (k) and (l) of par 11 above are to be included in the Appeal Books because the applicant has requested that they be so included and that the relevance of those documents and the use to which they may be put will be matters to be decided by the Full Court.  

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.

in the matter of alexANDRA SAMOOTIN

REASONS FOR JUDGMENT

1                     There is presently before me an application filed by the applicant for leave to appeal from three decisions made by Flick J on 9 June 2010 (Samootin v Official Trustee in Bankruptcy [2010] FCA 587).  On that occasion, his Honour declined to disqualify himself from hearing two Notices of Motion filed by the applicant and then proceeded to dismiss both of those Motions.  One of the Motions was an application by the applicant to join Giselle Monika Wagner and Adrian Holmes as additional respondents in proceeding NSD 558 of 2009.  The other application was an application to amend the Application filed by the applicant in the same proceeding.

2                     His Honour’s decisions to decline to join Ms Wagner and Mr Holmes and to refuse leave to amend were interlocutory judgments of the Court.  The application that his Honour disqualify himself may be in a slightly different category, but I do not need to decide that question at the moment. 

3                     At the conclusion of argument on 9 June 2010, his Honour delivered judgment ex tempore.  The following exchange then occurred between his Honour and the applicant:  

HIS HONOUR:   Do you seek leave to appeal from that decision, Mrs Samootin?

MS SAMOOTIN:   Yes, I will, your Honour.

4                     His Honour then appears to have added to the ex tempore judgment which he had already delivered.  The material which was added was the material contained in [17] of his Honour’s published Reasons. 

5                     His Honour then made orders and the last of those orders was in the following terms:

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

6                     It seems reasonably clear that, on 9 June 2010, his Honour granted leave to appeal to the applicant from all three decisions which his Honour had made on that day.  Counsel for Ms Wagner and Mr Holmes informed me that she believed that, on 9 June 2010, his Honour had granted leave to appeal from all three decisions.

7                     Accordingly, the current application for leave to appeal is misconceived and otiose.  It is otiose because, in that application, the applicant seeks an order in the same terms as the relevant order made by Flick J on 9 June 2010.  For this reason, I will dismiss the application for leave to appeal which is currently before me.  I will make no order as to the costs of that application. 

8                     The applicant, having obtained leave to appeal, should have filed a Notice of Appeal by no later than 30 June 2010.  She has explained to me this morning that she did not appreciate that, on 9 June 2010, his Honour had granted her leave to appeal from the decisions which his Honour had made on that day.  She said that she had misunderstood the effect of his Honour’s orders.  It seems to me that, in the circumstances, I should extend the time within which the applicant might file her Notice of Appeal for a relatively short period of time.  I propose to do so up to and including 16 July 2010.  I will now make directions on the assumption that a Notice of Appeal will be filed within that timeframe with a view to readying the appeal for hearing.

9                     (Directions and orders made accordingly.)

Associate:

Dated:         8 July 2010