FEDERAL COURT OF AUSTRALIA

Samootin v Official Trustee in Bankruptcy [2011] FCA 771

THE COURT ORDERS THAT:

1.    The applicant be granted leave to file in Court a notice of motion dated 5 July 2011.

2.    The applicant’s notice of motion dated 5 July 2011 and filed in Court on 7 July 2011 be dismissed.

3.    The applicant’s notice of motion filed on 10 June 2011 be dismissed.

4.    The applicant pay the respondent’s costs of the motion in 3.

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

1    This is an application for leave to appeal from the whole of the judgment of Jacobson J given on 3 June 2011 cited as [2011] FCA 613. By orders made in pursuance of his Honour’s reasons for judgment, his Honour dismissed the applicant’s notice of motion, with costs, being an application to re-open matter NSD 2070 of 2007 – the subject of reasons for judgment and orders in Samootin v Official Trustee in Bankruptcy [2007] FCA 1618, from which an application for leave to appeal was dismissed; Samootin v Official Trustee in Bankruptcy [2008] FCA 914 – and for it to be heard concurrently with a proceeding recently commenced in this Court: matter NSD 164 of 2011.

2    The present application was supported by an affidavit of the applicant sworn 9 June 2011, and by a draft amended notice of appeal filed on 1 July 2011 setting out the grounds upon which the applicant intended to rely in the event that her application was granted. The applicant, in support of her application, also relied on written submissions, supplemented by oral submissions.

3    At the outset of the hearing, I granted the applicant leave to file in Court a notice of motion dated 5 July 2011 moving the Court for orders including an order that I recuse myself from hearing the application ‘and in future matters’, on the ground that I had a conflict of interest by reason of having presided on a Full Court in Samootin v Wagner [2009] FCAFC 77. I declined to do so.

4    In all of the material that I have been given an opportunity to consider, in particular the applicant’s affidavit in support, which is quite voluminous, I have been unable to identify any error in his Honour’s reasons for judgment. I asked the applicant to identify for me those errors in his Honour’s reasons on which she should rely, in the event that I was to accede to her leave application. The applicant generally identified matters referred to in [3] and [19] to [21] of his Honour’s reasons. However, close review of those paragraphs does not reveal any error on his Honour’s part. Indeed, those paragraphs are no more than a recitation of what has occurred in the past.

5    His Honour dismissed the applicant’s motion before him principally because there was no material before him to bring the matter within the exceptions to the well-recognised public and private interest in the finality of litigation that has become the subject of final orders. This principle, as his Honour indicated at [23] of his reasons, may be found in the decision of the High Court in Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300, in the passages referred to by his Honour from the reasons of Mason CJ and Brennan J. His Honour concluded that none of the exceptions to the general rule relating to the finality of litigation stated by the High Court in Dyason had any application in the present case.

6    My review of the material that has been put before me, both by way of evidence and submission, impels me to the view that his Honour was undoubtedly correct in the conclusion to which he came. In my view, the applicant would have no prospect of succeeding on an appeal from his Honour’s judgment on the grounds contained in the draft amended notice of appeal. In those circumstances, there is no alternative but to refuse leave.

Associate:

Dated:    7 July 2011