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 incorrect.
The trial Judge concluded that, in the period before and after separation, the defendant had not acquired assets which he had failed to disclose. The trial Judge ordered that, pursuant to s 10 of the Act, the defendant pay to the respondent $210,000, inclusive of interest.
The Judge heard argument on the issue of costs. The defendant contended that he should be awarded costs on two issues upon which he had succeeded, being a claim by the plaintiff that the defendant had assaulted and injured her, and the concealed assets issue.
In a judgment delivered on 4 November 2004, the trial Judge rejected the argument and ordered that the plaintiff have her costs of the action against the defendant, to be taxed on a party-and-party basis.
The formal orders of the District Court were:
1.The application by the plaintiff that the costs of action in whole or in part be on a solicitor and client basis is dismissed.
2.The defendant’s application that the defendant have the costs of the issues described as the “hand injury issue” and “concealed assets issue” is dismissed.
3.The plaintiff to have her costs of the action against the defendant to be taxed if not agreed, and for certainty those costs to be on a party/party basis.
4.The defendant to pay the plaintiff the sum of $210,000 inclusive of interest.
Other orders were made which are not relevant to this application.
The defendant appealed against both the judgment on the substantive issues and the judgment on costs. The plaintiff cross-appealed, seeking an increase in the judgment sum and that she have her costs of trial on a solicitor-client basis, having regard to the terms of a filed offer and a Calderbank letter. The plaintiff did not cross-appeal against the decision of the Judge on the concealed assets issue. As we have earlier observed, the Full Court dismissed both the appeal and the cross‑appeal. On 21 October 2005, the Full Court ordered that the defendant pay 75 per cent of the plaintiff’s costs of the appeal and cross-appeal, to be taxed. We observe that, at the hearing of the appeal, both parties were represented by counsel. However, the defendant appeared in person when the issue of costs was argued.
In his application to the Full Court seeking to re-open the appeal, the defendant made a number of complaints. Ultimately, he limited his application to the orders of the District Court in respect of costs on the concealed assets issue. In the event that he was successful in having the Full Court judgment concerning the District Court costs re-opened, the defendant also sought a re-opening of the Full Court’s decision about the costs of the appeal. The defendant contends that Mr Clark’s evidence was false and flawed on the concealed assets issue. He contends that had certain Westpac documents which had been misplaced been available, it would have been obvious to Mr Clark and to the plaintiff that all of his assets had been properly disclosed and the concealed assets issue would not have been an issue at the trial at all.
Alternatively, the defendant asserts that the new evidence is so favourable to his case on the issue of concealed assets that, had it been available at trial and, had the concealed assets issue remained an issue at trial, significantly less time would have been expended on that issue, less expense would have been incurred by both parties in engaging experts to explore the issues, and that the trial Judge would have awarded costs on the issue to the defendant.
Certain of the documents produced on subpoena by Westpac, which appear not to have been available at trial because they had been misplaced, probably in the District Court Registry, have now been located. The defendant relies upon those documents to support his submission that the Full Court review its orders in respect of both the costs of the trial and the costs of the appeal.
We will return to the defendant’s arguments and to the Westpac documents issue shortly but, before we do so, we should refer to the applicable principles in determining whether to re-open an appeal.
The applicable legal principles
The power of a court to reopen an appeal is to be exercised with great caution.[1] There is a strong public interest in the finality of litigation and, once the process of litigation has been completed, it will ordinarily not be revisited.[2] The power can be exercised if some important aspect of law has been overlooked or if there is an apparent misapprehension as to a significant fact.[3] This however, is to be distinguished from enabling a party to attempt to persuade a court that it should change its view on a matter which has already been decided.[4] Generally speaking, the power to reopen an appeal will not be exercised unless the applicant can show that by some accident without fault on his part, he has not been heard.[5] It remains that the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.[6]
[1]    Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; McAdam v Robertson (1999) 73 SASR 360.
[2]    State Railway Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 42 ALR 289; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
[3]    Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
[4]    McAdam v Robertson (1999) 73 SASR 360.
[5]    Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
[6] Ibid.
In order to consider whether the circumstances exist to reopen an appeal, the court must have regard to the three basic criteria, which must be fulfilled to justify the reception of fresh evidence.[7] First, it must be established that the evidence could not have been obtained with reasonable diligence at the trial. Secondly, that the evidence must be such that, if given, it would probably have had an important influence on the result of the trial. And, thirdly, the evidence must be credible.[8]
[7] Ladd v Marshall [1954] 1 WLR 1489, 1491; See also Orchard v Orchard (1972) 3 SASR 89; Ventura v Sustek (1976) 14 SASR 395; Woods v Roberts (1997) 195 LSJS 328.
[8] Ibid.
It follows that, in circumstances in which an applicant seeks to introduce fresh evidence, if the three criteria are not satisfied the court will not permit the reception of the fresh evidence, and the application to re-open will fail.
If an applicant is not relying on fresh evidence then, before a court will re-open an appeal, the applicant must demonstrate that the court acted upon a significant misapprehension of fact or law, resulting in a miscarriage of justice.[9]
[9] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
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.
As we understand the position, the defendant sought to rely on the plaintiff’s filed bill of costs for adjudication to show the same course of events as is disclosed by Ms Mason’s affidavit and, in particular to show more particularly the work which was performed by the plaintiff’s advisers on the concealed asset issue. Accordingly, it is not necessary to refer to it separately.
The defendant asserts that the plaintiff and her advisors carried out an investigation into his financial affairs in an attempt to discover hidden or undisclosed assets. He asserts that their suspicions were baseless and that if they had made them known at an early stage, he and his wife would have made all records available to the plaintiff and her advisors to establish that there were no hidden assets, and, in particular, that he had not transferred money or assets to his wife to hide them from the plaintiff. He asserts that considerable time and costs would have been saved before, and at, the trial.
These matters were the subject of the earlier appeal before us. Layton J, with whom Sulan and White JJ agreed, said:[10]
In relation to the issue of undisclosed assets, the Judge held that the time taken on this issue at trial was partly due to the absence of banking records of the defendant for 1992-1998. His Honour also found that the defendant was “vague about many financial matters including payments of cash he made to the plaintiff”. Therefore, despite finding that the plaintiff failed to make out a claim that the defendant had undisclosed assets, the trial Judge allowed the plaintiff costs on that issue.
[10] H v G [2005] SASC 344, [202].
We accept that the matters to which Ms Mason deposes were not before the District Court and accordingly not before this Court on the appeal. However, the defendant has always asserted that unnecessary time and cost was spent by the plaintiff and her advisors in an attempt to prove that he had not fully disclosed his assets. In that sense, the matters now raised are not new. It is probable that the District Court Judge, like this Court, had a general appreciation of the kind of steps taken by the plaintiff and her advisors in their pursuit of the concealed assets issue.
In any event, much of the material in Ms Mason’s affidavit upon which the defendant now relies could have been ascertained if enquiries had been made at the time of trial and, in particular, at the time the issues of costs were being agitated in the District Court. Indeed, much of the information was, or ought to have been, known by the defendant and his advisors. Finally, we are not satisfied that, had the particular matters of history disclosed by Ms Mason been known, it would have influenced the trial Judge’s decision as to costs.
The Allchurch letter
As already noted, the plaintiff engaged Mr Allchurch, a chartered accountant, to investigate and report upon the financial documents of the defendant. In his letter of 28 January 2003, Mr Allchurch said that he considered that the financial documents provided to him appeared to have been properly prepared and presented and that there did not appear to be any dramatic changes from year to year. In particular, he concluded that there were no transactions which appeared to be out of the ordinary or suspicious. Mr Allchurch stated that the source of the defendant’s income was from his medical practice, either directly or through associated trusts. No other source of income had been revealed. Mr Allchurch did, however, suggest some further investigation could be made.
The defendant claimed that the Allchurch letter had not been disclosed to him or his advisors in sufficient time to allow evidence from Mr Allchurch to be led by him at the trial. That submission cannot be accepted.
The District Court trial was listed to commence on 6 May 2003. About one week before that date, Mr Allchurch told Ms Mason that he did not have the necessary experience to give evidence. He considered a forensic accountant was required. As a result, Ms Mason engaged Mr Clark.
The case was not reached on 6 May 2003. It was adjourned and eventually commenced on 3 November 2003.
The evidence on the application for re‑opening does not indicate when the Allchurch letter was first provided to the defendant’s solicitors. However, in his opening on the first day of trial, counsel for the plaintiff referred to and tendered a report from Mr Clark dated 29 October 2003. Counsel for the defendant made no objection and indicated that Mr Farrow, an expert witness engaged by the defendant, would be providing a report in response to Mr Clark’s report. It is not clear when Mr Clark’s report was provided to the defendant’s then solicitors but it must have been some time after 29 October and before 3 November 2003.
Significantly, in his report of 29 October 2003, Mr Clark attached a schedule of the information provided to him to which he had had regard in preparing his report. The schedule included correspondence between the plaintiff, her legal representatives and Mr Allchurch and, in particular, the Allchurch letter of 28 January 2003 (described in the schedule as “Reply from Allchurch and Co re Analysis of Data Supplied”).
It follows that, at least by the commencement of the trial, the defendant’s legal representatives and Mr Farrow, the expert accountant engaged by the defendant, were, or ought to have been, aware of the existence of the Allchurch letter.
Mr Clark considered that the level of assets disclosed by the defendant should have been considerably higher than that which had been disclosed. He based his opinion in part on the defendant’s income and expenditure as revealed in the accounts.
As noted, the defendant now complains that the plaintiff did not disclose the Allchurch letter at the time it was received by her solicitor. He submits that, if the letter had been disclosed, then it would have been evidence upon which he could have relied to support his contention that there had been complete disclosure of all his financial affairs.
Although there is no direct evidence as to the provision of the Allchurch letter to the defendant’s solicitors, there is nothing to indicate that the plaintiff’s solicitors did not comply with the disclosure obligations contained in r 38 of the District Court Rules 1987. In any event, the defendant and his solicitors should have been alerted to the existence of the Allchurch letter by the schedule to the report of Mr Clark. Although the Clark report and supplementary reports were delivered late, only shortly before the trial commenced, both the defendant’s legal advisers and Mr Farrow had an opportunity to consider the report. No objection was taken to it being tendered during the opening of the plaintiff’s case. No adjournment was sought. The existence of the Allchurch letter was evident. We reject the submission that this was evidence not known or available to the defendant at the trial.

As to the defendant’s claim that, had the Allchurch letter been disclosed earlier it would have confirmed that there were no undisclosed assets, we note that while Mr Allchurch did agree that the net asset position of the defendant and of some of the entities associated with him did appear to be properly disclosed in the financial records examined by him, he also suggested that further inquiries be made and that further documentation be reviewed. In other words, the Allchurch letter did not purport to be conclusive confirmation that the defendant had disclosed all of his assets. Had Mr Allchurch been asked by the defendant to give evidence, it is probable that he would have qualified his opinion in a similar way.
It follows that the defendant’s contention concerning the availability of the Allchurch letter should be rejected.
The Westpac documents
The documents which the defendant submits support his contention consist of six pages of a Westpac file titled “Hammerton/Gleeson Group”. They relate to an annual review carried out by Westpac in June 1996, annual statements and cashflow budget to June 1998, together with a proposal to establish a long-term strategy and restructure of debts.
We referred earlier to Ms Mason’s affidavit in which she deposes to the retention of Mr Clark, the inspection of the subpoenaed Westpac documents, the uplifting and photocopying of some of the documents, and the return of the documents to the District Court. There is no reason to doubt the accuracy of the matters to which Ms Mason deposes.
It appears that, after the documents were returned to the District Court, they were misplaced and could not be found when the trial commenced on 3 November 2003. Some of the Westpac documents have since been located in the District Court in circumstances which have not been explained.
It was after Mr Clark inspected all the documents, including the subpoenaed Westpac documents, that he expressed the opinion that all the assets may not have been disclosed by the defendant. At no stage did either Mr Farrow or the defendant’s then counsel indicate that the missing Westpac documents (which each had also inspected) could provide the answer to the allegation of missing assets. The defendant now asserts that, had the missing Westpac documents been produced at trial, they would have provided a complete answer to Mr Clark’s opinion that not all assets had been disclosed by him. He has not supported that contention with any evidence.
We have considered the Westpac documents located in the District Court since the trial. There is a question about their admissibility as evidence at the trial. However, that can be put to one side. In our opinion, the contents of the documents are not such that they would have foreclosed any debate about missing assets. They demonstrate that the defendant was under some financial pressure in 1996 and 1998, and that Westpac required him to restructure his accounts to enable both it and the defendant to manage debt repayments. But the documents do not relate at all to the period after June 1998 when the plaintiff and the defendant separated. Accordingly, while providing some support for the defendant’s claim in respect of the period to June 1998, the available Westpac documents do not foreclose the concealed assets issue at all. It is not possible to conclude that if the documents had been available at trial, the course of the trial would have been different. We note again that the plaintiff failed on the discrete issue of undisclosed assets, even in the absence of the evidence upon which the defendant now relies.
The defendant has not demonstrated that the recently located Westpac documents are likely to have been influential in the determination by the District Court Judge of the costs issues.
As observed earlier, this was an application based upon fresh evidence. There was no basis put to conclude that the Court had acted on a misapprehension of the law or fact. We conclude that none of the documents upon which the defendant now seeks to rely are properly admissible as fresh evidence. For the reasons which we have given, we decline to admit the documents.
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.