Dunning v Dunning

Supreme Court of NSW|2011-12-02|Before: Harrison J

Judgment 1HIS HONOUR : I published my reasons for judgment in this matter on 11 November 2011: see Dunning v Dunning [2011] NSWSC 1278. By notice of motion filed in Court on 2 December 2011 Ms Dunning now seeks an order that she be given leave "to reopen the evidence to admit further evidence" from her. That evidence is contained in an affidavit sworn 23 November 2011 which, subject to QBE's opposition to the application, was read without objection. 2The genesis of the application would appear to be Ms Dunning's consideration of what I said at [33] of my original judgment. I concluded that paragraph by saying, "[i]t is significant that no formalisation of a change in the childcare arrangements is reflected in the records of the Child Support Agency". I am informed that Ms Dunning became concerned to draw to my attention certain documents contained in the Child Support Agency file that had not been tendered in evidence at the original hearing and which arguably amounted to evidence of a formalisation of a change in the childcare arrangements relating to her. 3Despite the fact that the application is opposed, it is convenient, in order to give some content to Ms Dunning's concerns, to refer to the material that she presumably contends amounts to fresh or new evidence. It seems that the material referred to below is some of the correspondence that passed between the Commonwealth Child Support Agency and Ms Dunning in 2009. 4On 14 January 2009 the Child Support Agency wrote to Ms Dunning in the following relevant terms: "ACCEPTANCE OF YOUR CHILD SUPPORT ASSESSMENT APPLICATION We are writing to advise you that the Child Support Agency has accepted a child support application to assess both parents for the costs of [your children] and have calculated the amount of child support you should receive. We have advised Scott of these details and have requested he make these payments to CSA." 5That letter then proceeded to set out the details of the amounts to which Ms Dunning was entitled with respect to each of her children. The letter said, "[y]our child support amount from 19 December 2008 is $253.21 per fortnight and will continue unless your assessment is changed". 6The Child Support Agency next wrote to Ms Dunning on 2 April 2009 relevantly as follows: "OBJECTION DECISION REACHED We are writing to advise you that the Child Support Agency has disallowed the recent objection to the Child Support Agency decision on 17 February 2009 to the particulars of the assessment relating to the level of care for [your children] being reflected as in the sole care of Melissa from 19 December 2008." 7That letter enclosed a document entitled "OBJECTION DECISION REPORT" which provided Ms Dunning with details of the decision concerning Mr Dunning's objection to her successful application to the Child Support Agency for child support from him from 19 December 2008. The document reveals that Mr Dunning objected to the Agency's "decision on 17 February 2009 to the particulars of the assessment relating to the level of care for [the children] being reflected as in the sole care of Melissa from 19 December 2008". Under the sub-heading "What are the grounds relied upon?" the following appears: "Scott states he objects to the start date of the child support to Melissa Dunning for [the children]. Scott claims that he was in a private agreement of 50% care with Melissa at the time of her lodging the claim. Scott states the children were in my [ sic , his] care up and including 1 January 2009 with the end of our [ sic , their] shared cycle being 14 January 2009." 8Under the further sub-heading "What are the relevant findings of fact?" the following matters are listed: "19 December 2008 Melissa contacted CSA to request to end private collection and resume collection through CSA. 5 January 2009 Melissa contacted CSA to confirm the care levels for all the children as being reflected in her sole care. Melissa advised that the children had spent a week with Scott from Boxing Day but would not be spending any further over night time with him. 8 January 2009 Scott contacted CSA to advise that he had exactly 50/50 care - 1 week on, 1 week off... CSA advised Scott that the case was currently closed with a pending registration in progress. CSA advised Scott that Melissa had notified that she had sole care of the children and that evidence would need to be provided by both parties if care was in dispute. Scott advised that Melissa was withholding access of children because of what happened with Nathan. CSA advised that the actual care that was taking place would need to be recorded and if this was to change Scott could notify. Scott advised that he did have mediation set up at the end of the month. CSA advised Scott that as there was technically an oral agreement as he advised that he did not have care this would be updated to reflect Melissa having sole care of the children.

Submissions 16QBE contended that the Uniform Civil Procedure Rules 2005 do not contain a specific provision dealing with the reopening of a party's case. It referred me to Gaskin v Ollerenshaw [2010] NSWSC 788. However, UCPR 36.16(1) provides that the Court may set aside or vary a judgment or order if an application to do so is made before the judgment or the order is entered. QBE submitted that great caution should be exercised before this rule is utilised. 17Both parties referred me to Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, which adopted an approach summarised in what Dawson J said when citing with approval an earlier decision of the High Court in Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 684: "[3] The applicant, who now appears in person, seeks to argue a number of grounds in support of her application. However, as we had occasion to point out recently in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28, the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard." 18QBE emphasised that the courts will not simply respond to some "undefined feeling that an injustice has occurred which the court must correct": Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 153-155. It also referred to what Kirby P said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538 as follows: "There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed." 19QBE submitted that Ms Dunning was now asking me to consider what was known to her or otherwise within her possession when the matter was first heard. The fact that the significance or even the existence of that material "never occurred" to her is not a sufficient basis for permitting Ms Dunning now to reopen her case on the issue. Moreover, QBE submitted that in the light of my conclusions and finding at [35] of my earlier decision, there was no utility in permitting Ms Dunning to do so. 20Ms Dunning submitted that the evidence upon which she now wished to rely had not been withheld from the Court on the basis of some forensic strategy or tactic, which might ordinarily or at least arguably tell against the late reception of the material. In all of the circumstances, therefore, it was in the interests of justice to permit Ms Dunning to reopen her case in order enable her to rely upon the new material: see, for example, N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561.

Disposition 21In my opinion Ms Dunning's application should be dismissed. First, all of the material that she now wishes to tender could have been utilised when the matter was originally argued. I can see no basis, consistent with authority, upon which it would be fair to permit Ms Dunning to relitigate an issue that has already been decided, particularly in circumstances where the purpose of the application to reopen is to lead evidence that was known to exist and available for use at the time of the original hearing. It was not suggested to me in terms that my earlier judgment had either proceeded upon some misunderstanding of the facts that were in evidence before me or that it involved some misapplication of the law, or that any such misunderstanding, misapprehension or misapplication was not in any event attributable solely to Ms Dunning's own neglect or default. 22Secondly, and more fundamentally, however, none of the material to which my attention is now drawn suggests, if admitted into evidence, that any different result should follow. It is apparent that Ms Dunning contacted the Child Support Agency on 19 December 2008 but its decision to alter the child support collection arrangements on her application is not determinative of the outcome in these proceedings. It is not in my opinion even persuasive. It may have been different if material in the Agency's file contained letters or emails from Mr Dunning in which he acknowledged or admitted that the shared custody arrangement had changed in the way Ms Dunning promotes or which otherwise suggests that he conducted his side of the arrangement in a way that was consistent only with the changes to it for which Ms Dunning contends. 23On the contrary, quite the opposite is true. There is clear evidence that Mr Dunning was objecting to the alterations to the collection of child support payments because he maintained that the shared custody arrangement had not changed. He wrote to the Child Support Agency in clear and unambiguous terms. His written protestations are in conformity with the evidence given by him and Ms Saddington before me at the original hearing. The records of the Agency also confirm that Mr Dunning continued to maintain that the shared care arrangement did not end until 1 January 2009 and that he was disputing the Agency's child support assessment that was calculated from 19 December 2008. It is on one view difficult to understand upon precisely what basis the Agency was able to come to its decision in the face of competing claims presented to it. 24It is also apparent that the arrangement created or evidenced by the emails passing between Ms Dunning and Mr Dunning on 16 and 17 October 2008 is inconsistent with the position as it was apparently explained to the Agency some weeks later. The import of that exchange supports Mr Dunning's explanation to the Agency that the children were in his care until 1 January 2009 in accordance with the arrangement worked out between Ms Dunning and Ms Saddington. The conclusions reached by the Agency may well have been different if that material had been supplied to it, but the Agency's conclusion is not a matter that forecloses my decision in any event. None of the new evidence suggests that Ms Dunning and Mr Dunning agreed to do other than "keep it close to the way [they] agreed". 25The change in the childcare support payments that were accepted and implemented by the Child Support Agency from 19 December 2008, and which are documented within and reflected by its records, do not also indicate or reflect a formalisation of the childcare arrangements from that date in fact. The evidence is heavily persuasive the other way, and the Agency's decision remains curiously enigmatic in the circumstances. As the Agency's own material makes clear, the issue for it in any event related to who was responsible for the children's welfare rather than the accommodation arrangements themselves. My concern, expressed at the end of [33] in my earlier judgment, was directed to the total absence of any material from the Child Support Agency in the evidence before me at that time. Having now been referred to that material I consider that no different result would follow if Ms Dunning were given leave to reopen to permit the tender of so much of the material as she now wishes to rely upon.

Order 26I consider that Ms Dunning's application for leave to reopen should be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2012

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