Amos v Wiltshire - [2016] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Wiltshire [2016] QCA 70

PARTIES:

EDWARD AMOS
(applicant)
v
CHRISTOPHER WILTSHIRE
(respondent)

FILE NO/S:

Appeal No 4199 of 2010
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane – [2010] QDC 138

DELIVERED ON:

29 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2016

JUDGE:

Gotterson JA

ORDERS:

1. Application filed on 25 February 2016 is refused.

2. Applicant to pay the respondent’s costs of the application fixed at $8,000.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where the Court of Appeal heard the applications of the applicant on 25 August 2015 – where, on the date of the hearing, orders were made that a paragraph of relief which was no longer being pursued by the applicant be struck out, and another order of an interim nature – where further orders were made on 28 August 2015, dismissing the applications, with consequential orders – where the reasons are to be published at a later date – where the applicant filed an application applying for orders that: (1) the orders made on 25 August 2015 and 28 August 2015 be vacated; (2) that the applications be relisted for a fresh hearing; and (3) that the parties’ costs be allowed under the Appeal Costs Fund Act 1973 (Qld) – where the basis of the application is the alleged existence of evidence of apprehended bias on the part of a judge whom was a member of the Court of Appeal hearing – where the applicant submits the judge ought to have disclosed that, whilst at the Bar, his Honour was briefed to appear for another party in a proposed appeal by the applicant – where the relevant matter was heard in 1998, the applicant was not cross-examined and the Court did not make findings with respect to the applicant’s credit – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge was required to decide in the Court of Appeal hearing

Uniform Civil Procedure Rules 1999 (Qld), r 687(2)(c)

Amos v Amos [2010] QSC 314, considered
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, applied

COUNSEL:

P G Jeffery for the applicant
K Boulton for the respondent

SOLICITORS:

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

GOTTERSON JA: On 25 August 2015, a Court of Appeal of which I was a member, heard applications made by Mr Amos against Mr Christopher Wiltshire. The Court made two orders at the hearing. One of them was to strike out a paragraph of relief which Mr Amos’ counsel no longer pursued. The other, made at the conclusion of the…

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.

Continue reading Amos v Wiltshire

Details

AGLC: Amos v Wiltshire [2016] QCA 70
Case: [2016] QCA 70
Decision Date: 29 March 2016

CaseChat Overview and Summary

The case of Amos v Wiltshire involved an application by the applicant, Amos, to the Court of Appeal of Queensland for orders to vacate certain decisions made by the Court of Appeal on 25 and 28 August 2015. The applicant sought to vacate the decisions on the basis of alleged bias on the part of one of the judges, Wiltshire, who was a member of the Court of Appeal hearing the case. Amos contended that Judge Wiltshire ought to have disclosed his prior involvement as a barrister in a related matter, which he had been briefed to represent another party in a proposed appeal by Amos. The applicant argued that this undisclosed connection gave rise to a reasonable apprehension of bias on the part of the judge.

The central legal issue before the Court of Appeal was whether a fair-minded lay observer might reasonably apprehend that Judge Wiltshire might not bring an impartial and unprejudiced mind to the resolution of the questions he was required to decide. The Court had to assess whether the judge's prior involvement in the related matter, unbeknownst to Amos at the time, created such a reasonable apprehension of bias. The Court examined the nature and extent of Judge Wiltshire's prior involvement and whether it was sufficient to lead a fair-minded observer to question the judge's impartiality.

The Court of Appeal, in dismissing the application, found that there was no reasonable apprehension of bias on the part of Judge Wiltshire. The Court held that the prior involvement of the judge as a barrister in a related matter, which was not pursued and did not involve any findings on Amos's credit, did not give rise to such an apprehension. The Court considered the circumstances under which the prior involvement occurred, the nature of the prior involvement, and the lack of any connection to the current proceedings. The Court concluded that a fair-minded lay observer, fully informed of the facts, would not reasonably apprehend that Judge Wiltshire might not bring an impartial and unprejudiced mind to the case. Consequently, the application for the orders was refused.

The Court ordered that the application filed on 25 February 2016 be refused and that Amos pay the respondent's costs of the application, fixed at $8,000.

Orders

Orders of the court

1. Application filed on 25 February 2016 is refused.

2. Applicant to pay the respondent’s costs of the application fixed at $8,000.

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 [2016] QCA 70
PARTIES:	EDWARD AMOS (applicant) v CHRISTOPHER WILTSHIRE (respondent)
FILE NO/S:	Appeal No 4199 of 2010 DC No 1527 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane – [2010] QDC 138
DELIVERED ON:	29 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2016
JUDGE:	Gotterson JA
ORDERS:	1. Application filed on 25 February 2016 is refused. 2. Applicant to pay the respondent’s costs of the application fixed at $8,000.
CATCHWORDS:	COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – where the Court of Appeal heard the applications of the applicant on 25 August 2015 – where, on the date of the hearing, orders were made that a paragraph of relief which was no longer being pursued by the applicant be struck out, and another order of an interim nature – where further orders were made on 28 August 2015, dismissing the applications, with consequential orders – where the reasons are to be published at a later date – where the applicant filed an application applying for orders that: (1) the orders made on 25 August 2015 and 28 August 2015 be vacated; (2) that the applications be relisted for a fresh hearing; and (3) that the parties’ costs be allowed under the Appeal Costs Fund Act 1973 (Qld) – where the basis of the application is the alleged existence of evidence of apprehended bias on the part of a judge whom was a member of the Court of Appeal hearing – where the applicant submits the judge ought to have disclosed that, whilst at the Bar, his Honour was briefed to appear for another party in a proposed appeal by the applicant – where the relevant matter was heard in 1998, the applicant was not cross-examined and the Court did not make findings with respect to the applicant’s credit – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge was required to decide in the Court of Appeal hearing Uniform Civil Procedure Rules 1999 (Qld), r 687(2)(c) Amos v Amos [2010] QSC 314, considered Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, applied
COUNSEL:	P G Jeffery for the applicant K Boulton for the respondent
SOLICITORS:	Keller Nall & Brown for the applicant Sharma Lawyers for the respondent