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 ordered that Dr Hammerton pay Ms Gleeson her costs of the action to be taxed, if not agreed, on a party-party basis.[1]
[1] Gleeson v Hammerton (No 2) [2004] SADC 153.
Dr Hammerton, appealed from the decision of Judge Kitchen on both the substantive issues and also the cost order made by Kitchen J. Ms Gleeson cross-appealed. The Full Court dismissed both the appeal and the cross-appeal on 14 September 2005.[2] On 21 October 2005, the Full Court ordered that the Appellant pay 75% of the Respondent’s costs of the appeal and the cross-appeal.
[2] H v G [2005] SASC 344.
Dr Hammerton subsequently brought an application to re-open the appeal. The gravamen of Dr Hammerton’s argument was that had certain banking records of Westpac Banking Corporation Limited been available at trial in the District Court, Dr Clark, an accountant called by Ms Gleeson, would not have alleged that Dr Hammerton was hiding assets. He asserted that had these documents been available at trial, less expense would have been incurred by both parties in engaging experts to explore such issues and costs would have been awarded on a different basis. That application was dismissed by the Full Court on 11 September 2009.[3]
[3] Hammerton v Gleeson [2009] SASC 283.
Since then there have been numerous interlocutory hearings dealing with issues relating to costs and attempts made by Ms Gleeson to enforce costs orders.
Finally, on 23 March 2010, Judge Lunn ordered that Dr Hammerton and Dr Marmanidis were to file and serve all and any further interlocutory applications they wished to make in relation to the above matters within 14 days thereof. Judge Lunn ordered that any such applications be heard by a Justice of the Court.
An application dated 6 April 2010 (hereafter referred to as the Hammerton April 2010 application) was filed personally by Dr Hammerton and by Dr Marmanidis as an interested party. The application made various accusations of a vague and general nature, including allegations that the judgment in the matter was arrived at by perjury by Ms Gleeson and fraud by her accountant and by the legal practitioners acting for both Ms Gleeson and Dr Hammerton, and that barristers had provided untrue information to the Court in an agreed statement of facts. It requested that the Court give consideration to various provisions of the Criminal Law Consolidation Act 1935 (SA).
The Hammerton April 2010 application was scheduled to be heard by Vanstone J on 7 May 2010. Dr Hammerton and Dr Marmanidis did not attend on that date and so her Honour adjourned the matter to 14 May 2010. Dr Hammerton and Dr Marmanidis also failed to attend on that subsequent date before David J and his Honour struck out the application.
Dr Hammerton’s present applications
In September 2010 Dr Hammerton sought an order (the Hammerton September 2010 application), to set aside the order of David J made on 14 May 2010 dismissing the Hammerton April 2010 application. The Hammerton September 2010 application purports to be made pursuant to Rule 242 of the Supreme Court Civil Rules 2006, but Dr Hammerton’s then counsel, Mr Doyle, conceded that it should have stated that it was made pursuant to Rule 84.12 of the Supreme Court Rules 1987.
Ms Gleeson’s present applications
Ms Gleeson by interlocutory application dated 29 April 2010 (the Gleeson April 2010 application), seeks two orders.
Order 2 is that she have summary judgment in respect of the Hammerton April 2010 application, and/or alternatively an order that the court dismiss the Hammerton April 2010 application on the basis that the application discloses no reasonable cause of action and/or is otherwise frivolous, vexatious and/or an abuse or process of the court.
Order 1 is an order prohibiting Dr Hammerton from instituting further proceedings against the respondent or any legal adviser who has acted for her in respect of any matter relating to or arising from proceedings initiated by the respondent in the District Court of South Australia pursuant to the De Facto Relationships Act 1996 for such period as the court thinks fit without permission of the Court.
History of the appearances before me
The matter first came before me on 8 October 2010 for hearing of all of the present applications.
As Dr Hammerton and Dr Marmanidis had not filed any affidavits personally deposing to the circumstances surrounding the failure to attend the scheduled hearings on 7 and 14 May 2010, I ordered that he and Dr Marmanidis do so.
Counsel then appearing for Dr Hammerton, Mr S Doyle, stated that the application the subject of the scheduled hearings before Vanstone J and David J was defective and sought leave to file an amended application. I also considered it defective and indicated that view to the parties. Accordingly I ordered Dr Hammerton to file and serve an amended application in substitution for the Hammerton April 2010 application. I further ordered that Ms Gleeson file any answering material upon which she wished to rely. The parties were ordered to file the above material by Friday, 29 October 2010. I adjourned the matter for argument on 2 November 2010.
On 25 October 2010, Mr Campbell, solicitor for Dr Hammerton, wrote to my Associate indicating that although he would be able to file affidavits of Dr Hammerton and Dr Marmanidis personally deposing to the non-attendance issue by 29 October 2010, he would not be in a position to file any amended application in relation to the Hammerton April 2010 application by that date. He requested that the 2 November 2010 hearing date be delayed by two weeks.
On 26 October 2010, Mr Cogan, solicitor for the Respondent, wrote to my Associate opposing Dr Hammerton’s request for a delay of the hearing.
The matter was called on before me on 29 October 2010. At that hearing, I ordered that Dr Hammerton and Dr Marmanidis have until 5pm on that day 29 October 2010 to give an undertaking to the Court that, as a condition of an adjournment of the hearing then scheduled for 2 November 2010, each of them would withdraw an application for a stay of costs then scheduled to be heard by Master Norman on Friday, 5 November 2010. Dr Hammerton duly gave such an undertaking later that day. Dr Marmanidis did not give such an undertaking because, as Mr Campbell explained in an email to my chambers dated 29 October 2010, she was not a party to the stay of costs application as he had previously thought. I therefore excused her from doing so.
On 2 November 2010, the matter was called on before me and Mr Doyle asked for an adjournment of the argument, which had previously been scheduled to be heard that day. I ordered that all applications be further adjourned to today, 14 December 2010, with the whole day reserved for any cross-examination and full argument. I ordered that Dr Hammerton and Dr Marmanidis file and serve all evidence and affidavit material upon which they proposed to rely by 5.00pm on 23 November 2010. I also ordered that Ms Gleeson do the same by 10 December 2010.
On 26 November 2010 by application for specific directions Mr Peter Campbell of Kelly & Co, sought a declaration that Kelly & Co have ceased to be the solicitors for Dr Hammerton due to his failure to pay fees.
On 26 November 2010, Mr Campbell filed an affidavit in support of that application. During the course of the hearing of the various applications on 14 December 2010, and in the presence of Mr Kennett of Kelly & Co who was then still acting for Dr Hammerton and Dr Marmanidis, I asked Dr Marmanidis whether there was any objection to me receiving that affidavit. There being no objection, I received it as evidence and marked it “PAC1”. In that affidavit, Mr Campbell states that on 22 November 2010 he offered to provide the Appellant and his wife with a notice of acting in Dr Hammerton’s own name for Dr Hammerton to sign.
As at the time of the hearing on the morning of 14 December 2010, no such notice of acting had been filed with the Court and nor had Dr Hammerton filed any amended application in substitution for the Hammerton April 2010 application.
Dr Hammerton’s September 2010 application to set aside the order made by David J on 14 May 2010
Rule 84.12 of the Supreme Court Rules 1987 provides:
Rule 84.12 Court may vary or set aside a judgment or order
The 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
Order 2 sought is as follows:
2.An order pursuant to Rule 232 and/or alternatively Rule 193 of the Supreme Court Rules 2006 that the respondent do have summary judgment in respect of a proceeding described an interlocutory application filed herein by the applicant on 6 April 2010 and/or alternatively an order pursuant to Rule 193 that the court dismiss the said proceedings on the basis that the application discloses no reasonable cause of action and/or is otherwise frivolous, vexatious and/or an abuse of process of the court.
Although purportedly made pursuant to Rule 232 and/or alternatively Rule 193 of the Supreme Court Civil Rules 2006, counsel for Ms Gleeson agreed that the application for summary judgment should have been made pursuant to Rule 25.04 of the Supreme Court Rules 1987. Likewise, although the “frivolous, vexatious etc” order was sought pursuant to Rule 193 of the Supreme Court Civil Rules 2006, counsel agreed that it should have been made pursuant to Rule 3.01 of the Supreme Court Rules 1987.
I consider that in the circumstances and for the reasons referred to above, Ms Gleeson is entitled to summary judgment on the Hammerton April 2010 application and pursuant to Rule 25.04 and Rule 3.01 of the Supreme Court Rules 1987 I now formally dismiss that application by Dr Hammerton on the basis that I am satisfied that it discloses no reasonable cause of action and is also frivolous and also vexatious and also an abuse of process of the Court. I base my order on each of those categories singly, since I consider that each is made out, and also and alternatively on the basis of the cumulative effect of two or more of such categories that are established.
Ms Gleeson’s 29 April 2010 application – the first order sought
Order 1 sought is as follows:
1.An order prohibiting the appellant from instituting further proceedings against the respondent or any legal adviser who has acted for her in respect of any matter relating to or arising from proceedings initiated by the respondent in the District Court of South Australia pursuant of the De Facto Relationships Act 1996 for such period as the court thinks fit without permission of the court.
Presumably this order is sought pursuant to s 39(1) of the Supreme Court Act 1935 (SA) which provides:
39––Vexatious proceedings
(1)If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b) an order staying proceedings already instituted by that person.
The Act defines the word “vexatious” in sub-s (5), which provides:
(5)     For the purposes of this section, proceedings are vexatious—
(a)     if instituted to harass or annoy, to cause delay, or for any other ulterior purpose;
or
(b)     if instituted without reasonable ground.
On 14 December 2010 Mr Heywood-Smith QC, senior counsel, for Ms Gleeson, indicated that he did not press for that order. Accordingly I do not need to discuss it further.
Orders
I make the following orders:
1.Pursuant to Rule 84.12, the order made by David J on 14 May 2010 striking out Dr Hammerton’s interlocutory application of 6 April 2010 is hereby set aside.
2.Pursuant to Rule 25.04 and Rule 3.01 I hereby pronounce summary judgment in favour of Ms Gleeson on Dr Hammerton’s interlocutory application of 6 April 2010 and order that the application be dismissed on the basis that it discloses no reasonable cause of action and is also frivolous and also vexatious and also an abuse of process of the Court.
I confirm that I have previously today made an order declaring that Kelly & Co no longer act as solicitors for Dr Hammerton or Dr Marmanidis.
I will hear the parties as to costs.