Dunning v Dunning
[2012] NSWSC 23
•03 February 2012
Supreme Court
New South Wales
Medium Neutral Citation: Dunning v Dunning [2012] NSWSC 23 Hearing dates: 2 December 2011 Decision date: 03 February 2012 Jurisdiction: Common Law Before: Harrison J Decision: Plaintiff's application for leave to reopen dismissed
Catchwords: PROCEDURE - separate question - plaintiff's application to reopen following judgment - whether interests of justice favour reopening for purpose of admitting new material - whether new material likely to produce different result in any event - application dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Dunning v Dunning [2011] NSWSC 1278
Gaskin v Ollerenshaw [2010] NSWSC 788
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143
N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672Category: Separate question Parties: Nathan Bradley Dunning by his tutor Melissa Louise Dunning (Plaintiff)
Scott MacKenzie Dunning (First Defendant)
Lindsey Saddington (Second Defendant)
QBE Insurance (Australia) Limited (Third Defendant)Representation: D Benson (Plaintiff)
R Cheney SC (Third Defendant)
Slater and Gordon (Plaintiff)
Lee & Lyons Lawyers (Third Defendant)
File Number(s): 2010/213532
Judgment
HIS HONOUR : I published my reasons for judgment in this matter on 11 November 2011: see Dunning v Dunning [2011] NSWSC 1278. By notice of motion filed in Court on 2 December 2011 Ms Dunning now seeks an order that she be given leave "to reopen the evidence to admit further evidence" from her. That evidence is contained in an affidavit sworn 23 November 2011 which, subject to QBE's opposition to the application, was read without objection.
The genesis of the application would appear to be Ms Dunning's consideration of what I said at [33] of my original judgment. I concluded that paragraph by saying, "[i]t is significant that no formalisation of a change in the childcare arrangements is reflected in the records of the Child Support Agency". I am informed that Ms Dunning became concerned to draw to my attention certain documents contained in the Child Support Agency file that had not been tendered in evidence at the original hearing and which arguably amounted to evidence of a formalisation of a change in the childcare arrangements relating to her.
Despite the fact that the application is opposed, it is convenient, in order to give some content to Ms Dunning's concerns, to refer to the material that she presumably contends amounts to fresh or new evidence. It seems that the material referred to below is some of the correspondence that passed between the Commonwealth Child Support Agency and Ms Dunning in 2009.
On 14 January 2009 the Child Support Agency wrote to Ms Dunning in the following relevant terms:
"ACCEPTANCE OF YOUR CHILD SUPPORT ASSESSMENT APPLICATION
We are writing to advise you that the Child Support Agency has accepted a child support application to assess both parents for the costs of [your children] and have calculated the amount of child support you should receive. We have advised Scott of these details and have requested he make these payments to CSA."
That letter then proceeded to set out the details of the amounts to which Ms Dunning was entitled with respect to each of her children. The letter said, "[y]our child support amount from 19 December 2008 is $253.21 per fortnight and will continue unless your assessment is changed".
The Child Support Agency next wrote to Ms Dunning on 2 April 2009 relevantly as follows:
"OBJECTION DECISION REACHED
We are writing to advise you that the Child Support Agency has disallowed the recent objection to the Child Support Agency decision on 17 February 2009 to the particulars of the assessment relating to the level of care for [your children] being reflected as in the sole care of Melissa from 19 December 2008."
That letter enclosed a document entitled "OBJECTION DECISION REPORT" which provided Ms Dunning with details of the decision concerning Mr Dunning's objection to her successful application to the Child Support Agency for child support from him from 19 December 2008. The document reveals that Mr Dunning objected to the Agency's "decision on 17 February 2009 to the particulars of the assessment relating to the level of care for [the children] being reflected as in the sole care of Melissa from 19 December 2008". Under the sub-heading "What are the grounds relied upon?" the following appears:
"Scott states he objects to the start date of the child support to Melissa Dunning for [the children].
Scott claims that he was in a private agreement of 50% care with Melissa at the time of her lodging the claim.
Scott states the children were in my [ sic , his] care up and including 1 January 2009 with the end of our [ sic , their] shared cycle being 14 January 2009."
Under the further sub-heading "What are the relevant findings of fact?" the following matters are listed:
"19 December 2008 Melissa contacted CSA to request to end private collection and resume collection through CSA.
5 January 2009 Melissa contacted CSA to confirm the care levels for all the children as being reflected in her sole care. Melissa advised that the children had spent a week with Scott from Boxing Day but would not be spending any further over night time with him.
8 January 2009 Scott contacted CSA to advise that he had exactly 50/50 care - 1 week on, 1 week off...
CSA advised Scott that the case was currently closed with a pending registration in progress.
CSA advised Scott that Melissa had notified that she had sole care of the children and that evidence would need to be provided by both parties if care was in dispute. Scott advised that Melissa was withholding access of children because of what happened with Nathan.
CSA advised that the actual care that was taking place would need to be recorded and if this was to change Scott could notify. Scott advised that he did have mediation set up at the end of the month.
CSA advised Scott that as there was technically an oral agreement as he advised that he did not have care this would be updated to reflect Melissa having sole care of the children.
*****
29 January 2009 Scott contacted CSA to say he did not agree with the care level that was in place. Scott advised that before the case was registered they had a private agreement of shared care and that Melissa had taken the children from 1 January 2009 and would not let him have shared care now. CSA advised that he may object to the care if he wanted it to reflect shared care from the 19/12/2008 until 01/01/2009...
*****
23 February 2009 Scott contacted CSA and confirmed he was objecting as he maintains that their shared care arrangement ended 1 January 2009 therefore he was disputing the assessment from 19 December 2008...'
The document then proceeded to set out a summary of the material contained in it, part of which is as follows:
"Scott claims that at the time Melissa applied for child support through CSA on 19 December 2008 he had shared care of all children. Melissa stated that the children were only with Scott for one week from Boxing Day and that she was the primary carer for the children.
CSA accepted the registration and care details as advised by Melissa as at the time Scott did advise he was not having care.
I am satisfied that that there was not and has not been any evidence provided to indicate that Scott had care of the children at the time the case was registered for collection.
*****
Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period...
CSA is not restricted to considering only where the child lives or stays overnight when determining a percentage of care. A person can provide care for a child who is at boarding school, in hospital or in separate accommodation. A person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent, a schoolteacher) does not provide care. The issue is who has responsibility for making arrangements for, and decisions about, the child's welfare and not the accommodation arrangements themselves.
I am not satisfied that the percentage care for Nathan has changed. In this circumstance, CSA will be satisfied that the state of affairs known to it at the time the assessment was made are continuing and it will not amend the assessment. Neither party provided any evidence to support their claim of care for Nathan therefore I am unable to determine any change in his level of care.
The objection is disallowed."
In addition to this material Ms Dunning tendered two email sequences passing between her and Mr Dunning. The first is dated 16 October 2008. At 13.23 Ms Dunning wrote as follows:
"Hi Scott,
Can you please let me know as soon as you decide about the Christmas leave period.
I will do my best to accommodate your leave requirements whilst also meeting my own needs.
Ideally, I would like to apply for leave within the next two weeks. If you don't think you will know what options are available to you by that point can you please let me know."
Mr Dunning replied at 14.36 in these terms:
"At this stage I will be having from the evening of the 24 th December 2008, till the morning of Monday 5 th January 2009.
I may have another week off near the end of January, but that will have to be discussed with my employer and Defence.
I still want to stick to week about during the holidays, as yourself and Lindsey had planned previously."
The second is dated 17 October 2008. Ms Dunning wrote at 8.01 as follows:
"Thanks for the reply. I don't exactly know what this means in relation to when you would like to have the children as you mentioned New Years Eve was a problem.
I thought that if you wanted them for a week, then it would be good if you had them for a week from boxing day (as you're off work and they're going to your house that day anyway).
I was going to try and take two or hopefully three weeks off (not sure if I can manage that much) from when they return to my place. If you want to have new years eve free then I would prefer to have the kids from the day after boxing day straight thru for a two week period if that works.
I do understand that you would like to continue with the week about thing during the holidays but I would like at least a two week, even three if I can manage it, block with them. I want to spend my leave with the kids, as I am sure you do also.
Anyway, if you can let me know what you think (if you understand what I have tried to say)."
Mr Dunning's response came at 8.17 as follows:
"I will have the children from boxing day till at least the 5 th of January, which is 10 days. I won't be able to get more than a few extra days after that.
I don't want to be owing you more than a few days at a time, as you are liable to want to cash in at short notice.
*****
I will get back to you regarding holidays. I am not keen to have the children in such a large chunk in return.
I think we should keep it close to the way we agreed, as I don't trust you at all, and think it is a ploy to suit your future plans or schemes."
The evidence does not reveal whether either party provided these emails to the Child Support Agency at any time.
It seems apparent from Ms Dunning's latest affidavit that she was in possession of this material on the last occasion but had not provided it to her solicitor until after she had read my earlier judgment. This emerges from the following paragraphs of her affidavit:
"2 On Friday 11 November 2011 I did attend at Court when his Honour delivered judgment prior to final orders.
3 I did not fully understand what I heard in Court that day but Mr Benson did attempt to explain.
4 Over the weekend of 12 and 13 November 2011 I did read the reasons for the decision and was particularly struck by what appeared at paragraph 33 and paragraph 34 in that it appeared that his Honour did not believe me due to the absence of documents from CSA in particular.
6 It did occur to me that there has been written communication from CSA to me and the first defendant, which did not occur to me prior to reading those lines.
7 I took steps to discover those documents and I did provide copies to Slater & Gordon on Friday 18 November 2011.
*****
9 The existence of these documents had never occurred to me as being relevant to the claim and I had not even referred to them before now nor had I provided them to Slater & Gordon.
10 I did not understand why they were not in the documents produced by CSA under Freedom of Information."
Submissions
QBE contended that the Uniform Civil Procedure Rules 2005 do not contain a specific provision dealing with the reopening of a party's case. It referred me to Gaskin v Ollerenshaw [2010] NSWSC 788. However, UCPR 36.16(1) provides that the Court may set aside or vary a judgment or order if an application to do so is made before the judgment or the order is entered. QBE submitted that great caution should be exercised before this rule is utilised.
Both parties referred me to Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, which adopted an approach summarised in what Dawson J said when citing with approval an earlier decision of the High Court in Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 684:
"[3] The applicant, who now appears in person, seeks to argue a number of grounds in support of her application. However, as we had occasion to point out recently in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28, the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard."
QBE emphasised that the courts will not simply respond to some "undefined feeling that an injustice has occurred which the court must correct": Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 153-155. It also referred to what Kirby P said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538 as follows:
"There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed."
QBE submitted that Ms Dunning was now asking me to consider what was known to her or otherwise within her possession when the matter was first heard. The fact that the significance or even the existence of that material "never occurred" to her is not a sufficient basis for permitting Ms Dunning now to reopen her case on the issue. Moreover, QBE submitted that in the light of my conclusions and finding at [35] of my earlier decision, there was no utility in permitting Ms Dunning to do so.
Ms Dunning submitted that the evidence upon which she now wished to rely had not been withheld from the Court on the basis of some forensic strategy or tactic, which might ordinarily or at least arguably tell against the late reception of the material. In all of the circumstances, therefore, it was in the interests of justice to permit Ms Dunning to reopen her case in order enable her to rely upon the new material: see, for example, N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561.
Disposition
In my opinion Ms Dunning's application should be dismissed. First, all of the material that she now wishes to tender could have been utilised when the matter was originally argued. I can see no basis, consistent with authority, upon which it would be fair to permit Ms Dunning to relitigate an issue that has already been decided, particularly in circumstances where the purpose of the application to reopen is to lead evidence that was known to exist and available for use at the time of the original hearing. It was not suggested to me in terms that my earlier judgment had either proceeded upon some misunderstanding of the facts that were in evidence before me or that it involved some misapplication of the law, or that any such misunderstanding, misapprehension or misapplication was not in any event attributable solely to Ms Dunning's own neglect or default.
Secondly, and more fundamentally, however, none of the material to which my attention is now drawn suggests, if admitted into evidence, that any different result should follow. It is apparent that Ms Dunning contacted the Child Support Agency on 19 December 2008 but its decision to alter the child support collection arrangements on her application is not determinative of the outcome in these proceedings. It is not in my opinion even persuasive. It may have been different if material in the Agency's file contained letters or emails from Mr Dunning in which he acknowledged or admitted that the shared custody arrangement had changed in the way Ms Dunning promotes or which otherwise suggests that he conducted his side of the arrangement in a way that was consistent only with the changes to it for which Ms Dunning contends.
On the contrary, quite the opposite is true. There is clear evidence that Mr Dunning was objecting to the alterations to the collection of child support payments because he maintained that the shared custody arrangement had not changed. He wrote to the Child Support Agency in clear and unambiguous terms. His written protestations are in conformity with the evidence given by him and Ms Saddington before me at the original hearing. The records of the Agency also confirm that Mr Dunning continued to maintain that the shared care arrangement did not end until 1 January 2009 and that he was disputing the Agency's child support assessment that was calculated from 19 December 2008. It is on one view difficult to understand upon precisely what basis the Agency was able to come to its decision in the face of competing claims presented to it.
It is also apparent that the arrangement created or evidenced by the emails passing between Ms Dunning and Mr Dunning on 16 and 17 October 2008 is inconsistent with the position as it was apparently explained to the Agency some weeks later. The import of that exchange supports Mr Dunning's explanation to the Agency that the children were in his care until 1 January 2009 in accordance with the arrangement worked out between Ms Dunning and Ms Saddington. The conclusions reached by the Agency may well have been different if that material had been supplied to it, but the Agency's conclusion is not a matter that forecloses my decision in any event. None of the new evidence suggests that Ms Dunning and Mr Dunning agreed to do other than "keep it close to the way [they] agreed".
The change in the childcare support payments that were accepted and implemented by the Child Support Agency from 19 December 2008, and which are documented within and reflected by its records, do not also indicate or reflect a formalisation of the childcare arrangements from that date in fact. The evidence is heavily persuasive the other way, and the Agency's decision remains curiously enigmatic in the circumstances. As the Agency's own material makes clear, the issue for it in any event related to who was responsible for the children's welfare rather than the accommodation arrangements themselves. My concern, expressed at the end of [33] in my earlier judgment, was directed to the total absence of any material from the Child Support Agency in the evidence before me at that time. Having now been referred to that material I consider that no different result would follow if Ms Dunning were given leave to reopen to permit the tender of so much of the material as she now wishes to rely upon.
Order
I consider that Ms Dunning's application for leave to reopen should be dismissed.
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Decision last updated: 03 February 2012
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