N, A-B v v, AM (No 2) - [2017] SASCFC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
N, A-B v V, AM (No 2)
[2017] SASCFC 174
Judgment of The Full Court
(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Hinton)
22 December 2017
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Application for costs following successful appeal which reversed in part trial Judge's orders.
Application to re-open appeal.
Held:
1.       Ms V’s application to re-open the appeal is dismissed.
2.       Ms V is to pay Mr N’s costs of the appeal to be taxed by a Supreme Court Master on a lump sum basis if not agreed.
3.       There is to be no order as to costs with respect to the trial, that is, each party is to bear their own costs of and incidental to the trial of this matter.
4.       Order 4 of the principal reasons is to be amended so as to read “The matter is remitted to a Master of the Supreme Court to make such further orders as are necessary so as to conform to these reasons”.
5.       Order 5 of the principal reasons is to be amended to read “Liberty to either party to apply to a Master of the Supreme Court on short but reasonable notice to the other side”.
Domestic Partners Property Act 1996 (SA), referred to.
Ventura v Sustek (1976) 14 SASR 395; Orr v Holmes (1948) 76 CLR 632; Orchard v Orchard (1972) 3 SASR 89, considered.

N, A-B v V, AM (No 2)
[2017] SASCFC 174
Full Court: Nicholson, Bampton and Hinton JJ
NICHOLSON J.

These reasons should be read in conjunction with the judgment and principal reasons earlier delivered in this matter.[1] By its principal reasons, this Court allowed an appeal by Mr N from a District Court judgment and in particular against the order made by the Judge that there be no adjustment of either party’s one-half share interest in a residential property described as the Greenhill property. On appeal, this Court set aside that order and ordered instead that Mr N was to receive 60 per cent and Ms V 40 per cent of the net proceeds of sale after discharge of the ANZ mortgage on the title and costs of sale. Various other consequential orders were made.
[1] N, A-B v V, AM [2017] SASCFC 147.
The fundamental issue between the parties both at the trial and on appeal was as to whether the parties’ joint and equal legal interest in the Greenhill property should be adjusted in some way following the termination of their domestic partnership. After the delivery of the judgment on appeal, the parties were invited to make submissions as to the questions of the costs of the appeal and the costs of the trial. In this latter respect, the Judge had deferred making costs orders until the disposition of the appeal and, as such, there are no extant costs orders with respect to the trial.
In addition, Ms V has brought an informal application for the appeal to be re-opened on the basis that she wishes to adduce further evidence and make further submissions over and above that dealt with at the trial or on appeal.
The matter was called on last week to enable the parties who, at this point, are self-represented, to make submissions on both these issues. It is convenient to deal with Ms V’s application to re-open the appeal first and before considering and reaching a final view on the questions of costs.
The Full Court has a discretionary power to re-open an appeal. It is closely confined in accordance with the principle of finality of litigation. On any analysis of the breadth of that power it is not enlivened in the circumstances of this case. Ordinarily it will be necessary although not necessarily sufficient to demonstrate a real risk of miscarriage of justice if the appeal were not to be re-opened. Further, to the extent that Ms V wishes to adduce further evidence it is necessary but not necessarily sufficient that she satisfy the test for fresh evidence. As a general rule, it must be shown that the proposed new evidence could not with reasonable diligence have been obtained for use at the trial and that the evidence is such that it would have had an important influence on the result of the trial although it need not necessarily have been decisive. Further, the evidence must be credible although not necessarily beyond controversy.[2]
[2] See, for example, Ventura v Sustek (1976) 14 SASR 395 at 399, Orr v Holmes (1948) 76 CLR 632, Orchard v Orchard (1972) 3 SASR 89.
When considering whether or not to re-open an appeal, the Court must pay due regard to the principle of finality of litigation.
By way of background, it is to be noted that both parties in this matter were legally represented from time to time throughout the interlocutory proceedings leading to the trial although each ceased to have legal representation well before the trial and each conducted their own case at trial. As far as the appeal is concerned, Mr N represented himself although he did have access to the advice of a legal practitioner during his preparation of the appeal (and, indeed, seeks costs with respect to this legal practitioner’s involvement). Ms V was represented at the hearing of the appeal by pro bono counsel and solicitor. Ms V has sought to agitate or re-agitate upon a re-opening of the appeal, a number of issues.
Ms V complains that various matters raised by her in her “Statement of Claim and Orders Sought” as included in the Trial Book before the Judge were not dealt with in the trial. She has not articulated these matters in any detail. The major difficulty for Ms V in this respect is that she had the opportunity to raise any such matters, insofar as they may have been material to the trial judgment (and I express no view on this) by way of either a cross-appeal or a notice of contention at the time that Mr N filed his appeal on 15 March 2016. In the alternative, Ms V might have brought an application before the trial Judge for the judgment to be re-opened, if circumstances warranted such an application.
As I have indicated, Ms V was represented on the appeal. She told the Full Court that she had raised this matter with her representation and received certain advice. As it happens, neither this issue nor any of the others discussed below, was raised or sought to be addressed on by counsel during the appeal.
The proceedings have had an extremely long and protracted history as is set out in the principal reasons. To the extent that matters were not dealt with at trial that might have been, they should have been raised much earlier and in my view it is now too late to do so. I am not satisfied that to reject this as a ground to re-open the appeal would give rise to a real risk of a miscarriage of justice.
Ms V complains that the trial Judge did not have before him complete information about Mr N’s income and assets. There are at least two considerations militating against this complaint. First, to the extent that there is any accuracy to this assertion, evidence of such would have been readily available as at the time of the trial (and the appeal) and could have been ascertained and adduced by Ms V with the exercise of reasonable diligence. As such it is not fresh evidence. Second, and in any event, bearing in mind the confined nature of the issues as determined at trial and on appeal and the basis upon which those issues were determined, I am not satisfied that further information concerning Mr N’s other assets and income would have a material bearing on the Full Court’s decision to adjust the parties’ interests in the Greenhill property.
Ms V complains that she was not given an opportunity on appeal to give evidence contesting Mr N’s claim that she had denied him any enjoyment of the Greenhill property during the lengthy period after the end of the domestic partnership and during which Ms V remained in sole possession of the Greenhill property. The difficulty with this issue is that Ms V did give evidence before the Judge and had an opportunity to contest such issues. Further, neither party gave evidence before the Full Court and neither party sought to do so. In this respect, it is noted that Ms V was legally represented at the Full Court hearing. Again, any such evidence as she might wish to rely on referable to this topic cannot be said to be fresh nor, in my view, would it have a material bearing on the Full Court decision as made.
A fourth issue raised by Ms V was a desire to tender updated bank statement information concerning the ANZ bank loan the subject of the mortgage over the Greenhill property. This further financial information lacks relevance to the issues between the parties. The Greenhill property adjustment order made by the Judge and reviewed on appeal was made having regard to the evidence available to the Judge at the time of trial. Judgment was reserved in the matter by the Judge in early 2014.
In her correspondence with the Court, by way of informal written submission, Ms V has identified a number of payments she said that she has made in relation to the Greenhill property since 2014. They include some mortgage payments and a number of payments that might loosely be described as relating to the maintenance of the property. Again, these are matters that Ms V Had an opportunity to raise or seek to raise either before the Judge while judgment was reserved or during the appeal. It is too late to do so now. In any event, and bearing in mind the broad axe evaluative judgment on appeal which resulted in a variation of the interests in the Greenhill property from equality to 60 per cent in favour of Mr N and 40 per cent in favour of Ms V, I am not satisfied that this evidence of payments made by Ms V, if established, would have a material bearing on the outcome of the appeal.
Ms V has also referred to a number of other evidentiary matters, in her correspondence with the Court, that she now wishes to rely on. None of these satisfy the requirement for fresh evidence and none, in my view, would have a material bearing on the outcome of the appeal.
I am not satisfied that the matters upon which Ms V now seeks to rely, either considered alone or in combination would have a material bearing on the outcome of the appeal. None of the matters of “new” evidence satisfy the requirement that it could not with reasonable diligence have been obtained for use at the trial or the appeal. This relatively straightforward matter has been in progress since October 2004. Further, the difference between an equal division and a 60/40 split of the modestly valued Greenhill property is relatively small. In these circumstances, the principle of finality must be given very significant weight. Ms V has not demonstrated that there is a real risk of a miscarriage of justice. I would refuse the application by Ms V to re-open the appeal.
I turn to the question of costs. Mr N succeeded on the only issue ventilated on appeal, that is, whether the Judge erred in not making an adjustment order with respect to the Greenhill property in his favour and, if so, as to the adjustment that should have been made. There is no reason why the ordinary approach of costs following the event should not be applied.
As I have indicated, Mr N was not represented at the appeal and, ordinarily, in such a case his costs would be limited to various disbursements properly incurred in conducting the appeal. If this were the case, I would consider ordering a lump sum by way of costs. However, Mr N has provided evidence to the Court to the effect that throughout the preparation period for the appeal, he received a significant amount of advice and assistance from a legal practitioner with respect to which he has incurred and paid fees. This Court is not in a position to engage in a taxation with respect to these claimed amounts. In the circumstances, I would order that Ms V pay Mr N’s costs of the appeal on a party and party basis and, if not agreed, to be taxed on a lump sum basis by a Master of this Court.
As far as the trial is concerned, and as earlier indicated, there is no doubt that both parties incurred legal costs throughout the preparation of the matter between October 2004 when proceedings were issued and the trial in early 2014 and notwithstanding that by the time the trial was heard both were self-represented.
The trial itself dealt with two primary issues – had the parties been in a domestic partnership such as to give rise to jurisdiction in the court to make property adjustment order in accordance with the terms of the Domestic Partners Property Act 1996 and, if so, how should the property in contest, essentially the Greenhill property, be divided. The evidence adduced by each party was relevant to both issues. Each issue was strongly contested at trial and comprised a major consideration for the Judge.
Mr N disputed the existence of a domestic partnership but the Judge found against him on this issue. Both parties argued for a different form of property adjustment on the assumption that there had been a domestic partnership. As a result of the appeal, Mr N succeeded in having the Judge’s order with respect to property adjustment varied.
It can be seen that, of the two substantial issues ventilated at trial, Mr N failed and Ms V succeeded with respect to one (the domestic partnership issue) and Mr N succeeded, ultimately, with respect to the other, that is, he obtained a property adjustment order in his favour.
In all the circumstances, it would not be appropriate to further prolong the disputation between the parties by remitting the matter to the Judge in order to make a costs order with respect to the trial. I am satisfied that the proper order to be made is that there be no order as to the costs of and incidental to the trial and that is the order I would make.
During the submissions on costs, Mr N raised the matter of legal costs he had incurred arising from other litigation between the parties. This Court is not in a position to consider the question of costs in these other respects. I emphasise that the order I would make, that there be no order as to costs, relates only to the costs of and incidental to the trial before the District Court Judge.
There is another matter to be referred to by way of clarification of the principal reasons. In paragraph [94] of the principal reasons, a reference was made to a charge endorsed on the Certificate of Title for the Greenhill property which charge related to Ms V’s interest in the property and was in favour of the Legal Services Commission of South Australia in support of certain legal costs owed to it by Ms V. In paragraph [95] of the principal reasons, the Court noted that Ms V was to bear sole responsibility for the legal fees incurred by her the subject of that charge endorsed on the Certificate of Title.
The parties have now provided to the Court an updated Certificate of Title which discloses that this charge has been removed on the apparent basis that Ms V has discharged her obligation to the Legal Services Commission. No formal order was made by the Full Court concerning this charge because the matter was to be remitted to a Master to make such further orders as are necessary to conform to the reasons of the Full Court. In the event that those orders are to include orders for the sale of the Greenhill Property, an order requiring Ms V to remove the Legal Services Commission charge from the title at her cost, in order to facilitate sale, will no longer be needed.
One further matter concerns orders 4 and 5 in the principal reasons. By order 4 it was directed that the matter be remitted to a Master of the District Court to make such further orders as are necessary so as to conform with these reasons. By order 5 liberty was granted to either party to apply to a Master of the District Court on short but reasonable notice to the other side. Given that Mr N’s costs of the appeal are to go to a Supreme Court Master for taxation in the absence of agreement as to those costs and given the desirability of limiting, as far as possible, further expense and inconvenience to the parties in attempting to resolve outstanding matters as expeditiously as possible, I would amend orders 4 and 5 in the principal reasons to provide that the matter be remitted to a Master of the Supreme Court rather than a Master of the District Court.
Conclusion
I would make the following orders:
1.Ms V’s application to re-open the appeal is dismissed.
2.Ms V is to pay Mr N’s costs of the appeal to be taxed by a Supreme Court Master on a lump sum basis if not agreed.
3.There is to be no order as to costs with respect to the trial, that is, each party is to bear their own costs of and incidental to the trial of this matter.
4.Order 4 of the principal reasons is to be amended so as to read “The matter is remitted to a Master of the Supreme Court to make such further orders as are necessary so as to conform to these reasons”.
5.Order 5 of the principal reasons is to be amended to read “Liberty to either party to apply to a Master of the Supreme Court on short but reasonable notice to the other side.
BAMPTON J.
I agree with the orders proposed by Nicholson J.
HINTON J.
I agree.