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Amos v Wiltshire

Amos v Wiltshire

Case [2016] QCA 77 28 August 2015

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Wiltshire [2016] QCA 77

PARTIES:

EDWARD AMOS
(applicant/respondent)
v
CHRISTOPHER WILTSHIRE
(respondent/appellant)

FILE NO/S:

Appeal No 4199 of 2010
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application to Reopen (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2010] QDC 138

DELIVERED ON:

Orders delivered ex tempore 28 August 2015
Reasons delivered 1 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2015

JUDGES:

Fraser and Gotterson and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 28 August 2015:

The application filed by the applicant on 2 August 2012 is dismissed.1.

The application filed by the applicant on 24 August 2015 is dismissed.2.

The applicant is to pay the respondent’s costs of each of those applications, including costs reserved by orders of this Court and by order of Martin J made on 29 August 2014, on the indemnity basis.3.

The applicant is to pay to the respondent the sum of $200,288.90, being the claim, costs and interest to today, Act 2011 (Qld), such interest to be calculated from 28 August 2015 until the date of payment. to s 59(3) of the Civil Proceedingstogether with interest on the sum of $133,390.28 pursuant4.

The applicant is to pay the respondent’s costs including application filed in District Court action 1527 of 2009 on 13 July 2012 for repayment of monies paid by the respondent pursuant to the order of Samios DCJ in that action, on the standard basis.reserved costs, if any, of and incidental to the respondent’s5.

The orders made on 16 May 2013 by Muir JA, save for paragraph 1(c) of those orders, are vacated.6.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the applicant was unsuccessful on appeal and a retrial was ordered – where prior to the retrial the applicant filed an application pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court ordered that issues arising in that application be remitted to the Trial Division – where a judge of the Trial Division made findings against the applicant – where the applicant subsequently sought a further hearing in relation to the issues determined in the Trial Division – where the applicant alleged that facts had been discovered which would have entitled him to an order in his favour – where the ‘fresh evidence’ was unpersuasive and equivocal – where the ‘fresh evidence’ could have been discovered earlier through reasonable diligence – where the considerable delay between the determination in the Trial Division and the present application was a consequence of the applicant bringing and abandoning a number of other applications – where the Court considered it wholly inappropriate to allow the applicant further time to…

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 77
Case: [2016] QCA 77
Decision Date: 28 August 2015

CaseChat Overview and Summary

In Amos v Wiltshire, the applicant sought to have a judgment set aside and to appeal various orders made by the court. The respondent opposed the applications, arguing that the applications were not properly before the court. The dispute came before the court, which was required to determine whether the applicant's applications were valid and should be considered. The court was also required to determine whether the applicant's claims of new evidence were sufficient to warrant setting aside the judgment and whether the delay in bringing the applications was justified.

The court found that the applicant's applications were not valid and should not be considered. The court held that the applicant had failed to provide sufficient evidence to support his claims of new evidence and that the delay in bringing the applications was unjustified. The court found that the applicant could have discovered the new evidence through reasonable diligence and that the delay was a consequence of the applicant bringing and abandoning other applications. The court held that it was wholly inappropriate to allow the applicant further time to challenge the court's final orders and the determination in the Trial Division.

The court dismissed the applicant's applications and ordered that the applicant pay the respondent's costs. The court also ordered that certain orders made by another judge be vacated, save for one specific paragraph. The court held that the respondent was entitled to recover the sum of the claim, costs, and interest, together with interest on the sum of $133,390.28. The court further ordered that the applicant pay the respondent's costs of an earlier application, on the standard basis.

Orders

Orders of the court

Delivered ex tempore on 28 August 2015:

The application filed by the applicant on 2 August 2012 is dismissed.1.

The application filed by the applicant on 24 August 2015 is dismissed.2.

The applicant is to pay the respondent’s costs of each of those applications, including costs reserved by orders of this Court and by order of Martin J made on 29 August 2014, on the indemnity basis.3.

The applicant is to pay to the respondent the sum of $200,288.90, being the claim, costs and interest to today, Act 2011 (Qld), such interest to be calculated from 28 August 2015 until the date of payment. to s 59(3) of the Civil Proceedingstogether with interest on the sum of $133,390.28 pursuant4.

The applicant is to pay the respondent’s costs including application filed in District Court action 1527 of 2009 on 13 July 2012 for repayment of monies paid by the respondent pursuant to the order of Samios DCJ in that action, on the standard basis.reserved costs, if any, of and incidental to the respondent’s5.

The orders made on 16 May 2013 by Muir JA, save for paragraph 1(c) of those orders, are vacated.6.

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.

Citations

AGLC Citation

Amos v Wiltshire [2016] QCA 77

Most Recent Citation

Upton v Westpac Banking Corporation [2017] QCA 171

Cases citing this decision · 4 of 4 shown

Crowley v Crowley (No. 2)
[2020] QDC 256

…t 1981 (Qld) s 41 Trusts Act 1973 (Qld) s 96 Uniform Civil Procedure Rules 1999 (Qld) r 667, r 668 Cases Amos v Wiltshire [2016] QCA 77 Australia & New Zealand Banking Group Ltd v Hubner (unreported) Supreme Court of Queensland, Jones J, 6 November 1997 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 C…
Amos v Wiltshire
[2017] QCA 279 Para 15

…On 1 April 2016, the Court of Appeal delivered its reasons for the orders made on 28 August 2015.[43] [43] Amos v Wiltshire [2016] QCA 77.…
Upton v Westpac Banking Corporation
[2017] QCA 171 Para 10

…ree of proof would not establish that the applicant was “entitled” to relief from, or to a different, order”. See also Amos v Wiltshire [2016] QCA 77 at [27]-[28], per Fraser JA (with whom Gotterson and Philippides JJA agreed).…
Amos v Wiltshire
[2017] QDC 209 Para 1

…The unfortunate background to these proceedings is set out in the Court of Appeal judgment of Amos v Wiltshire [2016] QCA 77, at paragraphs 2 through to 7. At the risk of understating things, the history reveals a reluctance on the part of the applicant to part with his money, even if so ordered to do so by the…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

Wiltshire v Amos
[2014] QSC 210 Para 1

…parent to him that his statements were demonstrably untrue.”[6] Martin J gave detailed and compelling reasons for those findings.[7] [6][2014] QSC 210 at [29]. [7][2014] QSC 210 at [10] – [28].…
Wiltshire v Amos
[2010] QCA 294 Para 1

…uir JA’s reasons (with which Cullinane and Jones JJ agreed) for the decision made in 2010 to allow Mr Wiltshire’s appeal[1]: [1] Wiltshire v Amos [2010] QCA 294.…
Amos v Wiltshire
[2010] QDC 138

…4199 of 2010 DC No 1527 of 2009 DIVISION: Court of Appeal PROCEEDING: Application to Reopen (Civil) ORIGINATING COURT: District Court at Brisbane – [2010] QDC 138 DELIVERED ON: Orders delivered ex tempore 28 August 2015 Reasons delivered 1 April 2016 DELIVERED AT: Brisbane HEARING DATE: 25 August 2015 JUDGES: Fra…
IVI Pty Ltd v Baycrown Pty Ltd
[2006] QCA 461

…on Uniform Civil Procedure Rules 1999 (Qld), r 668(1) IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428; [2006] QCA 461, followed Wiltshire v Amos [2010] QCA 294, related Wiltshire v Amos [2014] QSC 210, related COUNSEL: B W J Kidson for the applicant/respondent P L O’Shea QC, with K Boulton, for the respondent/ap…
IVI Pty Ltd v Baycrown Pty Ltd
[2005] QSC 330 Para 21

…[25] IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330 at [21] (citations removed).…
Harrison v Schipp
[2002] NSWCA 213

…t it was appropriate for the learned trial judge to consider those principles. Doing so is supported by the decision of Handley JA in Harrison v Schipp (2002) 54 NSWLR 612, [13] where that court considered the availability of a Bill of Review and its nature. That action for review was the source of the power described by G…
Harrison v Schipp
[2002] NSWCA 78

…te for the learned trial judge to consider those principles. Doing so is supported by the decision of Handley JA in Harrison v Schipp (2002) 54 NSWLR 612, [13] where that court considered the availability of a Bill of Review and its nature. That action for review was the source of the power described by Griffith CJ in…
Rankin v Agen Biomedical Ltd
[1998] QCA 282

…[15][1998] QCA 282; Appeal No 234 of 1998, 18 September 1998.…
Commonwealth Bank of Australia v Quade
[1991] HCATrans 227

…reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.’[12] [16]In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140, the joint judgment repeated that passage with apparent approval, while remarking that it was unnecessary to consider whether the somewh…
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd
[1986] FCA 284

…[23](1986) 65 ALR 683 at 691.…
Wollongong Corporation v Cowan
[1955] HCA 16

…iples applicable when a party appealed and relied on fresh evidence. In the latter case the appropriate approach was described by the High Court in Wollongong Corporation v Cowan (1955) 93 CLR 435 in these terms: ‘The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain wel…
Commonwealth Bank of Australia v Quade
[1991] HCA 61

…rcised to procure the evidence which the defeated party failed to adduce at the first trial.’[12] [16]In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140, the joint judgment repeated that passage with apparent approval, while remarking that it was unnecessary to consider whether the somewhat obscure q…

Legislation cited in this decision · 3

Uniform Civil Procedure Rules 1999 (Qld)
668(1) 2 mentions (from Para 1)
Civil Proceedings Act 2011 (Qld)
1 mention
Judicature Act 1876 (Qld)
1 mention

CITATION:	Amos v Wiltshire [2016] QCA 77
PARTIES:	EDWARD AMOS (applicant/respondent) v CHRISTOPHER WILTSHIRE (respondent/appellant)
FILE NO/S:	Appeal No 4199 of 2010 DC No 1527 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application to Reopen (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2010] QDC 138
DELIVERED ON:	Orders delivered ex tempore 28 August 2015 Reasons delivered 1 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2015
JUDGES:	Fraser and Gotterson and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 28 August 2015: The application filed by the applicant on 2 August 2012 is dismissed.1. The application filed by the applicant on 24 August 2015 is dismissed.2. The applicant is to pay the respondent’s costs of each of those applications, including costs reserved by orders of this Court and by order of Martin J made on 29 August 2014, on the indemnity basis.3. The applicant is to pay to the respondent the sum of $200,288.90, being the claim, costs and interest to today, Act 2011 (Qld), such interest to be calculated from 28 August 2015 until the date of payment. to s 59(3) of the Civil Proceedingstogether with interest on the sum of $133,390.28 pursuant4. The applicant is to pay the respondent’s costs including application filed in District Court action 1527 of 2009 on 13 July 2012 for repayment of monies paid by the respondent pursuant to the order of Samios DCJ in that action, on the standard basis.reserved costs, if any, of and incidental to the respondent’s5. The orders made on 16 May 2013 by Muir JA, save for paragraph 1(c) of those orders, are vacated.6.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where the applicant was unsuccessful on appeal and a retrial was ordered – where prior to the retrial the applicant filed an application pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court ordered that issues arising in that application be remitted to the Trial Division – where a judge of the Trial Division made findings against the applicant – where the applicant subsequently sought a further hearing in relation to the issues determined in the Trial Division – where the applicant alleged that facts had been discovered which would have entitled him to an order in his favour – where the ‘fresh evidence’ was unpersuasive and equivocal – where the ‘fresh evidence’ could have been discovered earlier through reasonable diligence – where the considerable delay between the determination in the Trial Division and the present application was a consequence of the applicant bringing and abandoning a number of other applications – where the Court considered it wholly inappropriate to allow the applicant further time to…