Amos v Wiltshire - [2017] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Wiltshire [2017] QCA 279

PARTIES:

EDWARD AMOS
(applicant)
v
CHRISTOPHER JAMES RAYMOND WILTSHIRE
(respondent)

FILE NO/S:

Appeal No 408 of 2017
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – Unreported, 16 December 2016 (McGill SC DCJ)

DELIVERED ON:

14 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2017

JUDGES:

Gotterson and Morrison JJA and Flanagan J

ORDERS:

1.   Grant leave to appeal nunc pro tunc.

2.   The appeal is dismissed.

3.   The appellant is to pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – DISMISSAL OF PROCEEDINGS – GENERALLY – where the respondent brought a claim against the applicant in 2009 – where the respondent was successful at first instance but the Court of Appeal ordered a retrial – where the respondent applied for special leave to the High Court of Australia and instituted other proceedings relevant to the appeal judgment – where the respondent has not taken steps to proceed to a retrial as ordered by the Court of Appeal – where seven years have passed since the Court of Appeal ordered a retrial – where the primary judge dismissed the proceedings for want of prosecution because of the respondent’s failure to take steps and the risk of unfairness to the applicant – whether the respondent has taken a step in the proceedings – whether there is a substantial risk of unfairness to the applicant – whether the primary judge erred in dismissing the proceedings

Civil Proceedings Act 2011 (Qld), sch 1, s 22
District Court of Queensland Act 1967 (Qld), s 118(2)
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 771

Amos v Wiltshire[2015] QCA 44, related
Amos v Wiltshire[2016] QCA 77, related
Amos v Wiltshire [2010] QDC 138, related
Amos v Wiltshire [2012] QSC 283, related
Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, considered
Crane v Western Australia [2017] WASCA 31, considered
Elliott v Ajax Insurance Company Limited (1979) 5 Qld Lawyer Reps 319, distinguished
Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484, cited
Harris v Quine (1869) LR 4 QB 653, distinguished
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610; [1992] QCA 59, cited
Johns v Johns [1988] 1 Qd R 138, cited
Johnson v Refuge Assurance Company Limited [1913] 1 KB 259, distinguished
Spincer v Watts (1889) 23 QBD 350, considered
Tyler v Custom Credit Corporation Limited & Ors[2000] QCA 178, considered
Webb v Pursell[2013] QCA 199, cited
Wiltshire v Amos[2010] QCA 294,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCA 279
Decision Date: 14 November 2017

CaseChat Overview and Summary

The case of Amos v Wiltshire involved a dispute between the parties regarding the dismissal of proceedings for want of prosecution. The respondent had initially brought a claim against the applicant in 2009. After the respondent was successful at first instance, the Court of Appeal ordered a retrial, which the respondent failed to proceed with. Instead, the respondent applied for special leave to the High Court of Australia and initiated other proceedings relevant to the appeal judgment. Seven years later, the primary judge dismissed the proceedings due to the respondent's inaction and the risk of unfairness to the applicant. The respondent appealed against the dismissal, arguing that they had taken a step in the proceedings and that there was no substantial risk of unfairness to the applicant.

The primary legal issues in the case were whether the respondent had taken a step in the proceedings and whether there was a substantial risk of unfairness to the applicant. The court had to consider whether the primary judge erred in dismissing the proceedings for want of prosecution, particularly given the respondent's failure to proceed with the retrial as ordered by the Court of Appeal. The respondent contended that their application for special leave to the High Court and the other proceedings they had instituted constituted a step in the proceedings. They also argued that there was no substantial risk of unfairness to the applicant, as the delay had not caused any prejudice to the applicant's ability to defend the claim.

In dismissing the appeal, the court held that the primary judge did not err in concluding that the respondent had not taken a step in the proceedings. The court found that the application for special leave to the High Court and the other proceedings were not sufficient to constitute a step in the proceedings for the purposes of preventing the dismissal for want of prosecution. Furthermore, the court held that there was a substantial risk of unfairness to the applicant due to the significant delay and the respondent's inaction. The risk of prejudice to the applicant's ability to defend the claim was considered sufficient to justify the dismissal of the proceedings. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1. Grant leave to appeal nunc pro tunc.

2. The appeal is dismissed.

3. The appellant is to pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Amos v Wiltshire [2017] QCA 279
PARTIES:	EDWARD AMOS (applicant) v CHRISTOPHER JAMES RAYMOND WILTSHIRE (respondent)
FILE NO/S:	Appeal No 408 of 2017 DC No 1527 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – Unreported, 16 December 2016 (McGill SC DCJ)
DELIVERED ON:	14 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2017
JUDGES:	Gotterson and Morrison JJA and Flanagan J
ORDERS:	*1. Grant leave to appeal nunc pro tunc.* 2. The appeal is dismissed. 3. The appellant is to pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – DISMISSAL OF PROCEEDINGS – GENERALLY – where the respondent brought a claim against the applicant in 2009 – where the respondent was successful at first instance but the Court of Appeal ordered a retrial – where the respondent applied for special leave to the High Court of Australia and instituted other proceedings relevant to the appeal judgment – where the respondent has not taken steps to proceed to a retrial as ordered by the Court of Appeal – where seven years have passed since the Court of Appeal ordered a retrial – where the primary judge dismissed the proceedings for want of prosecution because of the respondent’s failure to take steps and the risk of unfairness to the applicant – whether the respondent has taken a step in the proceedings – whether there is a substantial risk of unfairness to the applicant – whether the primary judge erred in dismissing the proceedings Civil Proceedings Act 2011 (Qld), sch 1, s 22 District Court of Queensland Act 1967 (Qld), s 118(2) Uniform Civil Procedure Rules 1999 (Qld), r 5, r 771 Amos v Wiltshire[2015] QCA 44, related Amos v Wiltshire[2016] QCA 77, related Amos v Wiltshire [2010] QDC 138, related Amos v Wiltshire [2012] QSC 283, related Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, considered Crane v Western Australia [2017] WASCA 31, considered Elliott v Ajax Insurance Company Limited (1979) 5 Qld Lawyer Reps 319, distinguished Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484, cited Harris v Quine (1869) LR 4 QB 653, distinguished House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610; [1992] QCA 59, cited Johns v Johns [1988] 1 Qd R 138, cited Johnson v Refuge Assurance Company Limited [1913] 1 KB 259, distinguished Spincer v Watts (1889) 23 QBD 350, considered Tyler v Custom Credit Corporation Limited & Ors[2000] QCA 178, considered Webb v Pursell[2013] QCA 199, cited Wiltshire v Amos[2010] QCA 294,…