Hammerton v Gleeson - [2009] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
HAMMERTON v GLEESON
[2009] SASC 283
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)
11 September 2009
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Defendant appealed to Full Court of the Supreme Court from a judgment of the District Court - the Full Court dismissed the appeal including an appeal against an order that the defendant pay the plaintiff's costs of the trial - the defendant sought to have the appeal reopened in respect of judgment on costs - whether the Court could be satisfied of the existence of fresh evidence - whether defendant had demonstrated that the Court had acted on a significant misapprehension of fact or law which had resulted in a miscarriage of justice - application to reopen appeal dismissed.
De Facto Relationships Act 1996 (SA); District Court Rules 1987 r 38, referred to.
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; McAdam v Robertson (1999) 73 SASR 360; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; State Railway Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 42 ALR 289; Ladd v Marshall [1954] 1 WLR 1489; Orchard v Orchard (1972) 2 SASR 89; Ventura v Sustek (1976) 14 SASR 395; Woods v Roberts (1997) 195 LSJS 328, considered.

HAMMERTON v GLEESON
[2009] SASC 283
Full Court: Sulan, White and Layton JJ

THE COURT: This is an application to re-open the hearing of an appeal to the Full Court. The appellant, Dr Hammerton, who we shall refer to as the defendant, had appealed against a judgment of a Judge of the District Court. The Full Court delivered judgment on 14 September 2005 dismissing the appeal. The respondent, Ms Gleeson, who we shall refer to as the plaintiff, had cross‑appealed. The Full Court also dismissed the plaintiff’s cross-appeal.
The trial involved a dispute under the De Facto Relationships Act 1996 (SA) (“the Act”), in which the plaintiff sought orders for a division of property following the break up of her relationship with the defendant. At trial, the plaintiff alleged, amongst other things, that the defendant had failed to disclose all his assets (the “concealed assets issue”). An accountant, Mr Clark, was called by the plaintiff. Mr Clark gave evidence that he had examined various records, including certain banking records produced on subpoena by Westpac Banking Corporation Limited (“Westpac”). Mr Clark gave evidence that, in his opinion, assets must have been accumulated at a higher rate than had been disclosed by the defendant.
Mr Farrow, an accountant who gave evidence for the defendant, criticised Mr Clark’s opinion and concluded that, based on his examination, the proposition that the defendant had surplus income and had not disclosed all his assets, was…

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 [2009] SASC 283
Case: [2009] SASC 283
Decision Date: 11 September 2009

CaseChat Overview and Summary

The case of Hammerton v Gleeson involved an appeal by the defendant to the Full Court of the Supreme Court of South Australia against a judgment of the District Court. The appeal included a challenge to an order that the defendant pay the plaintiff's costs of the trial. The defendant subsequently sought to have the appeal reopened in respect of the judgment on costs, arguing that there was fresh evidence that was not available at the time of the trial or the original appeal. The central legal issues before the court were whether the court could be satisfied of the existence of this fresh evidence, and whether the defendant had demonstrated that the court had acted on a significant misapprehension of fact or law which had resulted in a miscarriage of justice.

The Full Court of the Supreme Court considered the defendant's contentions regarding the fresh evidence, including an affidavit by the plaintiff's solicitor, a filed bill of costs, subpoenaed Westpac documents, and a letter from the plaintiff's accountant. The court found that the existence of the evidence had been disclosed and that it was available to the defendant at trial. The court concluded that the defendant had not demonstrated the existence of fresh evidence and had failed to establish sufficient grounds for reopening consideration of the appeal. The application to reopen the appeal was dismissed.

The Full Court held that the defendant had not shown that the fresh evidence would have resulted in a different conclusion by the court. Even if the Westpac documents had been available at trial, the court was not satisfied that they would have changed the course of events, as the concealed assets issue would likely have remained contentious. The matters disclosed by the plaintiff's solicitor were known or could have been known by the defendant at the time the costs issues were agitated in the District Court, and at the time of the appeal.

The final orders of the court dismissed the defendant's application to have the appeal reopened, confirming the original judgment and the order for the defendant to pay the plaintiff's costs of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The present application depends upon the Court being satisfied that evidence which was not available at trial, or at the hearing of the appeal, would have resulted in the Court coming to a different conclusion.The defendant’s contentions – fresh evidence We turn to the defendant’s submission as to the evidence which he contends was not available at the date of the trial or at the time of the appeal. In his written outline of submissions, the defendant relied on four documents, being the affidavit of Janine Mason dated 5 May 2009, the plaintiff’s filed bill of costs, a number of Westpac documents subpoenaed by the plaintiff’s solicitors in April 2003, and a report of an accountant, Mr Allchurch, dated 28 January 2003. In regards to the latter, it became evident that the “report” of Mr Allchurch was actually a letter (“the Allchurch letter”). In his oral submissions before us, the defendant referred only to the Allchurch letter and the Westpac documents to support his argument.The Mason affidavit and the filed bill of costs In her affidavit of 5 May 2009, Ms Mason, solicitor for the plaintiff, deposes to a number of the circumstances relating to the retainer of accountants for the purposes of the trial, the obtaining and inspection of documents, and to the course of events in the litigation. In particular, Ms Mason deposes that she engaged Mr Stephen Allchurch, the plaintiff’s accountant, to report on the defendant’s financial affairs. On 28 October 2002, Mr Allchurch informed Ms Mason that he could only report in respect of material contained in the accounts. He was able to report on the preparation of the accounts, but he informed her that if the report was to deal with “hidden money”, the plaintiff should engage an accountant who specialised in that type of investigative accounting. Mr Allchurch requested various documents which were provided by the defendant’s solicitors. On 28 January 2003, Mr Allchurch reported. We will refer to the content of the Allchurch letter in more detail shortly, but for present purposes note that Mr Allchurch suggested that further documents be obtained from the defendant. Following a request by Ms Mason, further accounting records of the partnership, of which the defendant was a partner, were provided by the defendant’s solicitor. On 29 April 2003, after consulting with senior counsel, Ms Mason engaged Mr Clark to provide a report and informed the defendant’s solicitors that she had done so. On 2 May 2003, Mr Farrow, the defendant’s accountant, attended a conference with Mr Clark, Ms Mason and the defendant’s solicitors, at which Mr Farrow provided certain information. On 6 May 2003, with the permission of a District Court Judge, Mr Farrow inspected the subpoenaed Westpac documents with Mr Clark and legal counsel. By agreement with counsel for the defendant and with the permission of the District Court Judge, Ms Mason took the Westpac documents from the precincts of the District Court and photocopied those which had been flagged by Mr Clark. She then returned the documents to the District Court Registry. Ms Mason then requested further documents from the defendant, which Mr Farrow provided on 11 June 2003.

Decision

Reasons for decision

It is understandable that the defendant should have a sense of grievance about being required to pay the costs incurred in defending an issue raised by the plaintiff and on which she failed. However, a decision about costs involves more than just a consideration of success or loss on identified issues. As the costs decision by the District Court Judge in this case[11] illustrates, it also involves a consideration of whether the issue was raised improperly or unreasonably, the plaintiff’s conduct in pursuing the issue, the defendant’s conduct in resisting the claim, and the conduct of both parties generally in the trial. A trial judge is best placed to make an assessment of all these issues. The submission which the defendant wishes to raise on a re-opening really rests on only one of the matters just identified and tends to overlook the significant advantage of the trial Judge, when compared with this Court, in relation to issues of costs.[11] Gleeson v Hammerton (No 2) [2004] SADC 153.Conclusion In summary, as to the Allchurch letter, we conclude that its existence had been disclosed and that it was available to the defendant at trial. The contention that the appeal should be reconsidered because of the plaintiff’s failure to disclose that letter should be rejected. Furthermore, if the Westpac documents now located had been available at trial, we are not satisfied that they would have changed the course of events. It is likely that the concealed assets issue would have continued to be a contentious issue to be decided by the trial Judge in any event. We are not satisfied that, had the Westpac documents been available, the trial would have been shortened. The matters disclosed by the Mason affidavit were, or could have been, known by the defendant at the time the costs issues were agitated in the District Court, and at the time of the appeal. The appellant has not demonstrated the existence of fresh evidence. He has failed to establish sufficient grounds for re-opening consideration of the appeal. The application is dismissed.

Ratio Decidendi

Legal Principle Established

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