Michael Edward Hammerton v Elizabeth Jane Gleeson
[2011] HCASL 189
MICHAEL EDWARD HAMMERTON
v
ELIZABETH JANE GLEESON & ANOR
[2011] HCASL 189
A20/2011
On 16 November 2001, the first respondent commenced proceedings seeking, relevantly, an order for a division of property pursuant to s 10(1) of the De Facto Relationships Act 1996 (SA). On 30 September 2004 in the District Court of South Australia, Kitchen DCJ quantified the combined assets of the parties and made detailed findings as to the parties' respective incomes, contributions, asset holdings, and payments by the applicant to the first respondent. His Honour held that it was just and equitable that the applicant pay the respondent $210,000 (inclusive of interest). On 4 November 2004, his Honour ordered that the applicant pay the first respondent's costs on a party-party basis.
The first respondent appealed and the applicant cross-appealed to the Full Court of Supreme Court of South Australia. The appeal and the cross-appeal together identified over 30 appeal particulars and the documentation provided to the Court by the applicant was "voluminous and excessive". On 14 September 2005, Layton J (with whom Sulan and White JJ agreed) dismissed both the appeal and the cross-appeal. Her Honour found that none of the grounds raised in either the appeal or cross-appeal disclosed any error in the approach taken by Kitchen DCJ to the various matters raised on appeal.
The applicant applied to the Full Court to re-open the appeal on the basis of fresh evidence. The application was limited to the District Court orders in respect of costs in relation to an issue concerning "concealed assets" whereby the first respondent sought to show that the applicant had not disclosed all of his assets. The fresh evidence was said to be relevant to falsify certain evidence led by the first respondent in proof of that issue and that the trial would have been shorter, but for that evidence on which the first respondent sought to rely. The Full Court did not accept that the applicant demonstrated the existence of evidence which was not available at the hearing and did not accept that had the documents been available, that the trial would have been shortened. Accordingly, the Full Court held that the exercise of the Court's power to reopen the appeal was not warranted.
The applicant's application to this Court is brought out of time. An extension of time should be granted, however, the application has insufficient prospects of success to warrant a grant of special leave to appeal.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
W.M.C. Gummow S.M. Kiefel 1 December 2011
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