Amos v Wiltshire

Case [2014] QCA 218

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Wiltshire [2014] QCA 218

PARTIES:

EDWARD AMOS
(applicant)
v
CHRISTOPHER WILTSHIRE
(respondent)

FILE NO/S:

Appeal No 17 of 2014
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2014

JUDGES:

Muir JA and North and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The order made herein on 12 August 2014 be set aside.

2.   The applicant pay the respondent’s costs thrown away by the applicant’s failure to appear on 12 August 2014 on the indemnity basis.

3.   The applicant pay the respondent’s costs of and incidental to this application on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the applicant appealed against part of the orders of the primary judge – where the applicant contended that the primary judge erred in refusing to recuse herself and that the primary judge’s decision was affected by apprehended bias – where, when the appeal came on for hearing, there was no appearance by or on behalf of the applicant – where the Court ordered that the appeal be dismissed – where the applicant seeks an order to set aside the order dismissing the appeal – where the applicant had the carriage of his own appeal – whether evidence established the existence of an error or omission on the part of the solicitor to which the applicant had not contributed – whether the applicant has raised triable issues – whether the order dismissing the appeal should be set aside

Supreme Court Act 1995 (Qld), s 253
Supreme Court of Queensland Act 1991 (Qld), s 64
Uniform Civil Procedure Rules 1999 (Qld), r 667

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
ASIC v Jorgensen & Ors [2009] QCA 20, considered
Burgoine v Taylor (1878) 9 Ch D 1, considered
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, considered
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered
Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63, followed
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513; [1987] HCA 48, cited
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38, considered

COUNSEL:

B Kidston for the applicant
K F Boulton for the respondent

SOLICITORS:

Keller Nall & Brown for the applicant
Sharma Lawyers for the respondent

  1. MUIR JA:  The applicant appealed against that part of orders of the primary judge made on 4 December 2013 by which her Honour ordered that the applicant pay the respondent’s costs of the…

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Details
AGLC
Amos v Wiltshire [2014] QCA 218
Case
[2014] QCA 218
Decision Date

CaseChat Overview and Summary

The appellant, Amos, filed an appeal against the orders of the primary judge, Wiltshire, in the District Court of Queensland. The initial dispute involved issues of practice and procedure, with Amos asserting that the primary judge had erred by refusing to recuse herself and that her decision was influenced by apprehended bias. The case proceeded to the Court of Appeal, but Amos failed to appear when the appeal was heard on 12 August 2014, resulting in the dismissal of the appeal. Amos then sought to set aside the order dismissing the appeal, arguing that there were errors or omissions on the part of his solicitor that contributed to his failure to appear. The court had to determine whether Amos had raised triable issues and whether the order dismissing the appeal should be set aside.

The primary legal issue before the court was whether Amos had demonstrated that there was an error or omission on the part of his solicitor that led to his failure to appear at the appeal hearing, and if this failure was attributable to the solicitor's conduct. Additionally, the court had to assess whether Amos had raised issues that were sufficiently substantial to warrant setting aside the order dismissing the appeal. The court also needed to consider whether the dismissal of the appeal should be revisited given the circumstances of the case.

The court found that Amos had not provided sufficient evidence to demonstrate that the error or omission was attributable to his solicitor and that he had not contributed to this failure. The court held that Amos's failure to appear was due to his own neglect, and he had the carriage of his own appeal. The court further concluded that Amos had not raised triable issues that would warrant setting aside the order dismissing the appeal. Consequently, the court dismissed Amos's application to set aside the order, and ordered that the original order dismissing the appeal be upheld. Furthermore, Amos was required to pay the respondent's costs thrown away by his failure to appear on the indemnity basis, as well as the respondent's costs of and incidental to this application on the standard basis.

Orders

Orders of the court

1. The order made herein on 12 August 2014 be set aside.

2. The applicant pay the respondent’s costs thrown away by the applicant’s failure to appear on 12 August 2014 on the indemnity basis.

3. The applicant pay the respondent’s costs of and incidental to this application on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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