Samootin & Anor v Shea & Ors S283/2000 [2001] HCATrans 620 (23 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S283 of 2000

B e t w e e n -

ALEXANDRA SAMOOTIN AND MELISSA ALEXANDRA SHEA

Applicants

and

CHRISTOPHER GEORGE SHEA, PETER JOHN DEANS, SHEA DEALITE PTY LTD, S.R. DEANS PTY LTD, EMMA THOM, GRANT JAMES PINKNEY, ALEXANDER KIRK, MARGARET SAMOOTIN, LEILA JOAN DARE, TANYA TURIK

Respondents

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 3.30 PM

Copyright in the High Court of Australia

MS A. SAMOOTIN appeared in person.

KIRBY J: I have a certificate from the Deputy Registrar which states that by affidavit sworn on 9 November, 21 November, 22 November 2001, the first applicant deposes to having served the respondents the following documents: application for special leave to appeal, applicant's summary of argument and draft notice of appeal, application book, supplementary book and exhibit F. No appearance has been filed in respect of the first, second, third, fourth, sixth, seventh, eighth and ninth respondents. A submitting appearance has been received in respect of the fifth respondent, Ms Emma Thom, who has advised that she does not seek to be heard on the application for special leave to appeal. She submits to any order of the Court save as to costs. A letter has been received from the solicitors for the tenth respondent, Ms Tanya Turik, advising that the tenth respondent does not intend to make any submissions. A letter has also been received from the second applicant, Ms Melissa Alexandra Shea, advising that she is taking no part in the application.

MS SAMOOTIN: That is correct, your Honour. Mr Deans, one of the respondents, is here in Court, as well.

KIRBY J: Yes.

CALLINAN J: Ms Samootin, you won your case before the Full Court of the Family Court.

MS SAMOOTIN: Yes, there is one - - -

CALLINAN J: I do not understand why you are appealing. You see, you have won there.

MS SAMOOTIN: Yes, I know, but the problem is that the declaration that Justice Cohen made of me being - declared me an infirm person - has not been revoked or lifted.

CALLINAN J: But the effect of the Full Court's decision is to invalidate, in effect, or to nullify completely what his Honour found. That is the effect of the decision. It is very much a decision in your favour. Do you understand what I am saying to you?

MS SAMOOTIN: I understand what you are saying, but what happened - - -

CALLINAN J: You really do not have anything to appeal against. That is the problem. You have won. One of the orders that the Full Court made was that your original application of 31 August 1999, to review the orders of the Judicial Registrar, be remitted for rehearing by a judge of the Sydney Registry of the court, other than Justice Cohen. So you have really won and you have a right now to go back to have your hearing - the hearing that you have not had.

MS SAMOOTIN: Yes, and that is what I am working towards.

CALLINAN J: We cannot do any more for you, Ms Samootin. We just cannot do any more than that.

MS SAMOOTIN: But what worries me is the fact that I have been declared an infirm person, but that - - -

CALLINAN J: Well, I understand that, but the effect of what the Full Court has said is that that order or declaration should not have been made - not without giving you a hearing and not without proper notice and all of those things. So - - -

MS SAMOOTIN: But that declaration was never lifted. I feel as though it is a stigma.

CALLINAN J: I understand how you feel.

MS SAMOOTIN: I feel as though there is a stigma against me when I go into the court.

CALLINAN J: I think you can be confident that that stigma now - I can understand why you would say that - but why that stigma now is meaningless. It does not exist, because the Full Court has said that the order which might have caused that stigma has no effect. It has been set aside. It is as if it had never been made.

MS SAMOOTIN: In other words, what you are saying, that me being declared that I am an infirm person no longer exists?

CALLINAN J: Well, the Full Court said, at page 33 of the record book, in effect, that what happened in your case was a "fundamental miscarriage of justice".

MS SAMOOTIN: "Miscarriage of justice", that is correct.

CALLINAN J: The court said - I think it was Justice Lindenmayer said:

I think this court sitting on appeal cannot allow the fundamental miscarriage of justice which occurred to her to go unanswered.

So the Full Court has said that you were done a "fundamental miscarriage of justice" and that that should not have been done and, "for that reason alone," the court should grant your application for leave to appeal and should allow your appeal. So we just cannot do any more than that, Ms Samootin, and - - -

MS SAMOOTIN: I know, but as I said to you, when I - - -

CALLINAN J: - - - if I might say so, I think you have done well. You did well. You succeeded in the Full Court. There is nothing more the Full Court could have done for you and there is nothing we can do for you.

MS SAMOOTIN: Yes, it has just disturbed me a great deal, because with the Protective Division - I was taken to the Protective Division and I prepared my case and I won my case there, and the case was dismissed against me for being declared as an infirm person. But it was never carried over to the full extent I felt to the Full Court.

CALLINAN J: Well, if anybody ever says anything to you with respect to Justice Cohen's order, all you need do is point to that passage which I have just read and which you know very well that what his Honour did was a "fundamental miscarriage of justice".

MS SAMOOTIN: Yes, and that is why I have prepared all the other books, as well, because what I based my declarations on, or allegations on, was in relation to my son being sold as an illegal organ donor. But I know you do not have the jurisdiction - - -

CALLINAN J: I know what you say about that. We do not have to be concerned about that here.

MS SAMOOTIN: No.

CALLINAN J: All we can deal with is your application, and we cannot do any more for you than has been done.

MS SAMOOTIN: I understand that.

CALLINAN J: And I am sure the presiding Judge, Justice Kirby, will confirm that.

MS SAMOOTIN: But you can understand my point of view, because it always disturbed me being declared an infirm person. I know what you said, that - - -

CALLINAN J: If anybody ever says anything, you just point to that other passage.

MS SAMOOTIN: Yes. Because one of the judges said, in the lower court, on 1 December, after I brought it to her attention that declaration was never revoked, that she was going to try to do something about it. She did make an application to the Full Court about having that declaration revoked, or remitted, or set aside, but nothing ever came out of that.

CALLINAN J: But it has been set aside.

MS SAMOOTIN: There is no need for it to be set aside.

CALLINAN J: No, but it has been set aside.

MS SAMOOTIN: It has been set aside by what has been said.

CALLINAN J: Yes, and, in fact, there is actually an order setting aside the orders of Justice Cohen. So that is set aside.

MS SAMOOTIN: Yes. So all the others are orders that relate - - -

CALLINAN J: Well, the other orders are that you can go back and have your hearing for a review - - -

MS SAMOOTIN: Yes. That has not been held, as yet.

CALLINAN J: - - - of the Judicial Registrar's order.

MS SAMOOTIN: Yes. Okay.

CALLINAN J: So there is nothing further we can do for you.

MS SAMOOTIN: No. That is all right. As I said, I was very concerned about it and, being a self-represented litigant, just having that over my head did concern me a lot. No one ever told me that the orders that were given in the Full Court revoked that declaration, and that is the honest truth.

CALLINAN J: Well, let me just make the point clear to you. If you look at page 37, paragraph 3, you will see that the Full Court has ordered:

That orders 1 and 2 of the said orders of 21 September, 1999 be set aside.

MS SAMOOTIN: Yes.

CALLINAN J: So they are set aside.

MS SAMOOTIN: They are just orders, but the declaration about those orders which was written in hard copy - - -

CALLINAN J: It is not really a declaration - well, any order that might give effect, or have any effect at all, in relation to that has been set aside.

MS SAMOOTIN: I see. This is what I - - -

CALLINAN J: So you need not trouble about it any more.

MS SAMOOTIN: Okay. So I have got nothing to worry about any more?

CALLINAN J: No. Not in respect of that, no.

MS SAMOOTIN: Thanks. That is a great relief.

CALLINAN J: Right.

MS SAMOOTIN: Thank you. I know it sounds silly to you, being a learned - - -

CALLINAN J: No, it does not sound silly to me.

MS SAMOOTIN: But to me, it means a lot to me.

CALLINAN J: It does not sound silly to me at all, Ms Samootin.

MS SAMOOTIN: Yes. Okay, good. Thank you.

KIRBY J: Just sit down for a moment, because I have to give the short reasons of the Court.

The applicant succeeded in the Full Court of the Family Court of Australia. The Full Court found that a fundamental miscarriage of justice had occurred in her case. An earlier order of Justice Cohen of that court, to which the applicant objected, was set aside. The matter was ordered to be remitted to be heard by a judge of the Family Court other than Justice Cohen.

In these circumstances, as Justice Callinan has explained to the applicant, there is no relief in this Court to which the applicant is entitled. An appeal to this Court would be futile. Accordingly, the application is dismissed.

The Court will now adjourn until the next sittings in Canberra.

AT 3.40 PM THE MATTER WAS CONCLUDED