Hammerton v Gleeson - [2010] SASC 342

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HAMMERTON v GLEESON
[2010] SASC 342
Reasons for Decision of The Honourable Justice Peek
14 December 2010
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - JUDGMENTS AND ORDERS
Application for setting aside of order striking out appellant’s interlocutory application of 6 April 2010 – consideration of substantive application of 6 April 2010 – application by respondent for summary judgment in respect of appellant’s 6 April 2010 application and for alternative order that appellant’s application is frivolous, vexatious and/or an abuse of process of the Court – application by respondent seeking further order that appellant be prohibited from instituting further proceedings in certain circumstances made implicitly pursuant to s 39, Supreme Court Act 1935.
Held: order striking out appellant’s application is set aside – Dr Hammerton and Dr Marmanidis both unrepresented at time of filing April application – no material upon which to reject their version of fact – however, summary judgment declared in favour of respondent on appellant’s April application – appellant’s interlocutory application discloses no reasonable cause of action and is also frivolous, vexatious and an abuse of process of the Court - no order made under s 39, Supreme Court Act 1935.
De Facto Relationships Act 1996 (SA); Supreme Court Rules 1987 rr 84.12, 25.04, 3.01; Supreme Court Rules 2006 rr 242, 232, 193; Criminal Law Consolidation Act 1935 (SA); Supreme Court Act 1935 (SA) s 39, referred to.
Cavanagh-Lang v O'Callaghan [2000] SASC 187, considered.

HAMMERTON v GLEESON
[2010] SASC 342
Civil
PEEK J
Background

Since the parties have had different status at various stages of the litigation to be referred to, I will refer to them by their surnames.
Proceedings were instituted in the District Court by Ms Gleeson against Dr Hammerton, pursuant to s 9 of the De Facto Relationships Act 1996, following the break down of their relationship. Ms Gleeson, sought orders for a division of property and also damages for assault. At trial, she alleged, amongst other things, that Dr Hammerton had failed to disclose all his assets. After conflicting expert evidence, the trial Judge, Judge Kitchen, concluded that, in the period before and after separation, the defendant had not failed to disclose assets.
On 8 October 2004, judgment was entered for Ms Gleeson reported at [2004] SADC 133. The trial Judge ordered that, pursuant to s 10 of the Act, Dr Hammerton pay to Ms Gleeson the amount of $210,000, inclusive of interest. The Judge then heard argument on the issue of costs. Dr Hammerton contended that he should be awarded costs on two issues upon which he had succeeded, being the claim that he had assaulted and injured Ms Gleeson and the claim that he had failed to disclose all his assets.
In a judgment delivered on 4 November 2004, the trial Judge rejected the argument and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hammerton v Gleeson

Details

AGLC: Hammerton v Gleeson [2010] SASC 342
Case: [2010] SASC 342
Decision Date: 14 December 2010

CaseChat Overview and Summary

In this case, the parties involved are Dr Hammerton and Dr Marmanidis, who were unrepresented at the time of filing their interlocutory application on 6 April 2010, and Ms Gleeson, who is the respondent. The nature of the dispute revolves around the interlocutory application filed by Dr Hammerton on 6 April 2010, and the subsequent orders made by the court. The matter was heard in the Supreme Court of South Australia. The court was tasked with deciding whether the order striking out Dr Hammerton's interlocutory application should be set aside, and whether the substantive application filed on 6 April 2010 disclosed a reasonable cause of action. Additionally, the court considered Ms Gleeson's application for summary judgment in respect of Dr Hammerton's 6 April 2010 application, and whether the application was frivolous, vexatious, or an abuse of process.

The legal issues before the court involved the interpretation and application of Rule 84.12 of the Supreme Court Rules 1987, which allows the court to vary or set aside a judgment or order if the justice of the case so requires. The court also had to consider whether the lack of representation for Dr Hammerton and Dr Marmanidis at the time of filing the April 2010 application was a sufficient ground for setting aside the order striking out the application. Furthermore, the court was required to determine whether the interlocutory application filed on 6 April 2010 disclosed a reasonable cause of action, and whether it was frivolous, vexatious, or an abuse of process. The court also considered Ms Gleeson's application for summary judgment and whether the court should make an order prohibiting Dr Hammerton from instituting further proceedings in certain circumstances, pursuant to s 39 of the Supreme Court Act 1935.

In reaching its decision, the court noted that Dr Hammerton and Dr Marmanidis had filed affidavits stating that they were not represented at the hearings on 7 and 14 May 2010, and that they were unaware of the hearings. The court found that there was no material upon which to reject their version of the facts, and that the order striking out the April 2010 application should be set aside. However, the court also found that the interlocutory application filed on 6 April 2010 disclosed no reasonable cause of action, and was frivolous, vexatious, and an abuse of process. The court declared summary judgment in favour of Ms Gleeson on the April 2010 application, and dismissed the application seeking an order prohibiting Dr Hammerton from instituting further proceedings in certain circumstances. No order was made under s 39 of the Supreme Court Act 1935.

The final orders made by the court were to set aside the order striking out Dr Hammerton's interlocutory application, declare summary judgment in favour of Ms Gleeson on the April 2010 application, and dismiss the application seeking an order prohibiting Dr Hammerton from instituting further proceedings in certain circumstances. No order was made under s 39 of the Supreme Court Act 1935.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 84.12 of the Supreme Court Rules 1987 provides:Rule 84.12 Court may vary or set aside a judgment or orderThe court may vary or set aside a judgment or order at any time if the justice of the case so requires. Dr Hammerton and Dr Marmanidis filed affidavits on 29 October 2010 personally deposing to their non-attendance at the hearings on 7 and 14 May 2010. They claim that they were not made aware of the hearings and that had they been aware of them they would have attended. Dr Hammerton claimed that the first time he was made aware of the dismissal was when his solicitor, Mr Campbell, told him and Dr Marmanidis on 23 July 2010. In her affidavit, Dr Marmanidis, said that when she lodged the Hammerton April 2010 application at the Court Registry, she was informed that it could not be filed until it was approved by the Registrar. She said that when she received the application, it did not bear any endorsement which specified a hearing date. She also claimed that she did not receive any subsequent notification from the Registry of the hearing dates. She states that after Mr Campbell told the two of them that the Hammerton April 2010 application had been dismissed, she searched for and located a recorded telephone message on an answering machine from the Court Registry advising of a hearing “tomorrow” and states that she had not previously been aware of that message. Under Rule 84.12, I may set aside the order made by David J if the justice of the case so requires. I must consider the circumstances of the case as to what is fair and reasonable having due regard for the practical need for finality in litigation: Cavanagh-Lang v O'Callaghan [2000] SASC 187 (Full Court). At the time of the Hammerton April 2010 application being filed and set down for hearing in May, Dr Hammerton and Dr Marmanidis were both unrepresented. There is no material upon which I can reject their version of fact in their sworn affidavits. Although his Honour’s orders do not expressly so state, David J does not appear to have set aside the Hammerton April 2010 application for any other reason than non-attendance at both the 7 and 14 May 2010 hearings. In all of the circumstances I consider that I should set aside the order of David J made on 14 May 2010 and I formally do so.Dr Hammerton’s April 2010 application As stated above, I previously indicated to the parties that I considered Dr Hammerton’s April 2010 application to be defective in response to his then counsel’s statement that it was and I ordered that he should file a new application to replace it. On 2 November 2010 I ordered that that new application be filed by 23 November 2010. This did not occur. On 2 November 2010 I also ordered that Dr Hammerton file any supporting material or evidence by 23 November 2010. This also did not occur. Mr Campbell in his supporting affidavit to the notice for specific directions which he filed on 26 November 2010, states that he has not been able to obtain relevant instructions from the appellant sufficient to permit him to prepare and file an amended application. Mr Campbell stated in his affidavit:(a)I am instructed that the appellant and his wife wish to file an amended application which raises serious allegations with respect to the conduct of third parties. Based upon my instructions and the material provided to me to date, I have been unable to satisfy myself that there is a sufficient basis for any such allegations and I am therefore unable to prepare or file an amended application.(b)Based upon my instructions and the material provided to me to date, I have been unable to identify any other basis for an amended application.Ms Gleeson’s 29 April 2010 application – the second order sought

Ratio Decidendi

Legal Principle Established

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