EDWARD AMOS (appellant) v CHRISTOPHER WILTSHIRE (respondent)
FILE NO/S:
Appeal No 17 of 2014 SC No 4199 of 2010
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
2 April 2015
DELIVERED AT:
Brisbane
HEARING DATE:
18 November 2014
JUDGES:
Carmody CJ and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Appeal dismissed.
2. Appellant pay the respondent’s costs of the appeal on the standard basis.
CATCHWORDS:
PROCEDURE – APPEAL AGAINST INDEMNITY COSTS ORDER – DENIAL OF PROCEDURAL FAIRNESS – APPREHENSION OF BIAS – NEED FOR LEAVE TO APPEAL – where the appellant filed an appeal against indemnity costs order – appellant asserted apprehended bias of primary judge in dismissing application for recusal – where reasonable apprehension of bias would require order for re-trial – whether assertion of apprehended bias should be treated as appeal against decision on the ground of denial of procedural fairness – whether the appeal against indemnity costs order with claim of denial of procedural fairness requires leave to appeal – whether leave should nonetheless be granted
PROCEDURE – APPEAL AGAINST INDEMNITY COSTS ORDER – DENIAL OF PROCEDURAL FAIRNESS – APPREHENSION OF BIAS – appellant requested recusal of primary judge for reasonable apprehension of bias – primary judge expressed doubt regarding appellant’s willingness to participate in mediation – whether expression of doubt gave rise to reasonable apprehension of bias
PROCEDURE – APPEAL AGAINST INDEMNITY COSTS ORDER – DISCRETIONARY AUTHORITY TO AWARD AND ASSESS COSTS – primary judge ordered indemnity costs against the appellant – appellant claimed indemnity costs order unreasonable and unsupported by facts – broad discretion of primary judge to award and assess costs – reluctance of appellate courts to interfere with exercise of discretion of trial judges – whether indemnity costs order reasonable and consistent with applicable principles
B K Kidston with R W Haddrick for the appellant K Boulton for the respondent
SOLICITORS:
Keller, Nall & Brown for the appellant Sharma Lawyers for the respondent
THE CHIEF JUSTICE: This is an appeal from an indemnity costs order made in interlocutory proceedings based on a finding against the appellant of unreasonable litigation conduct.
The appellant complains that the primary judge made the disputed order despite being disqualified for apprehended bias and,…
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
AGLC
Amos v Wiltshire [2015] QCA 44
Case
[2015] QCA 44
Decision Date
CaseChat Overview and Summary
The appeal in Amos v Wiltshire involved the appellant challenging an indemnity costs order made by the primary judge. The primary judge had denied the appellant's application for recusal, which was based on an apprehension of bias. The appellant argued that the primary judge's denial of the recusal application, coupled with the imposition of indemnity costs, constituted a denial of procedural fairness. The court was tasked with determining whether the appeal against the indemnity costs order, based on the claim of denial of procedural fairness, required leave to appeal and if leave should be granted despite this requirement.
The key legal issues before the court were whether the assertion of apprehended bias in the context of the appeal against the indemnity costs order should be treated as an appeal against the decision on the grounds of denial of procedural fairness, and whether such an appeal necessitated leave to appeal. Additionally, the court had to assess whether the primary judge's order for indemnity costs was reasonable and consistent with applicable principles, given the broad discretion afforded to trial judges in awarding and assessing costs.
The court found no error in the primary judge's handling of the recusal application and the imposition of the indemnity costs order. The court held that the primary judge's expression of doubt about the appellant's willingness to participate in mediation did not give rise to a reasonable apprehension of bias. Furthermore, the court emphasised the reluctance of appellate courts to interfere with the exercise of discretion by trial judges in cost assessments. Therefore, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal on the standard basis.
Orders
Orders of the court
1. Appeal dismissed.
2. Appellant pay the respondent’s costs of the appeal 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
In my view no error on the part of the learned primary judge has been shown.Conclusion and disposition I agree with the orders proposed by the Chief Justice.