Wiltshire v Amos

Case [2018] QSC 224

SUPREME COURT OF QUEENSLAND

CITATION:

Wiltshire v Amos & Anor [2018] QSC 224

PARTIES:

CHRISTOPHER WILTSHIRE

(appellant/first respondent)

v
EDWARD AMOS

(respondent/applicant)
And
EDWARD SKUSE
(not a party to the appeal/second respondent)

FILE NO/S:

BS No 4199 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane – [2010] QDC 138 (Samios DCJ)

DELIVERED ON:

 4 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2018

JUDGE:

Crow J

ORDER:

1.       Application for review allowed to the extent of reducing the costs assessed at $132,463.80 by $9,600 to a sum of $122,863.80.

2.       The appellant/first respondent is to email to associate.crowj@courts.qld.gov.au and to the respondent/applicant other written cost submissions within five days hereof.

3.       The respondent/applicant is to email to associate.crowj@courts.qld.gov.au and to the appellant/first respondent written costs submissions within 10 days hereof.

4.       The appellant/first respondent is to email to associate.crowj@courts.qld.gov.au and to the respondent/applicant any submission in reply on the issue of costs within 12 days hereof.

CATCHWORDS:

PROCEDURE – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – PRINCIPLES OF TAXATION OF ASSESSMENT – GENERALLY – where the respondent to the subject appeal sued his barrister for negligence in the District Court – where the respondent was successful in the trial before the District Court – where the Court of Appeal overturned the decision of the District Court – where the Court of Appeal ordered that the respondent was to pay the applicant’s costs of the appeal – where the respondent applied for a review of the costs as assessed by the second respondent – where there are seven grounds of review – whether the costs were incorrectly assessed by the costs assessor

Barristers’ Conduct Rules 2011 (Qld) r 25, r 26, r 27, r 116
Legal Profession Act 2007 (Qld) s 308, s 309, s 310, s 311, s 316, s 319, s 326, s 341
Uniform Civil Procedure Rules 1999 (Qld) r 723, r 742, r 743J, r 743L,

Chiropractic Board of Australia v Jamieson [2013] QSC 77, cited
ChongHerr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278, cited
Giannarelli v Wraith (1988) 165 CLR 543, cited
Hennessey Glass & Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57, cited
Kroehn v Kroehn (1912) 15 CLR 137, cited
Medlicott v Emery (1933) 149 LT 303, cited
Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122, considered
Remely v Vandenberg [2009] QCA 17, cited
Stanley v Phillips (1966) 115 CLR 470, cited
Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151, cited
TNT Bulkships Ltd v Hopkins (1989) 65 NTR 1, cited
W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, considered
Wiltshire v Amos [2010] QCA 294, related

COUNSEL:

K F Boulton for the appellant

F L Harrison QC with P G Jeffery for the respondent

SOLICITORS:

Keller Nall & Brown for the appellant

Sharma Lawyers for…

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AGLC
Wiltshire v Amos [2018] QSC 224
Case
[2018] QSC 224
Decision Date

CaseChat Overview and Summary

In Wiltshire v Amos, the respondent, who had previously sued his barrister for negligence, applied for a review of the costs assessed by the costs assessor. The matter was heard in the Queensland Court of Appeal. The primary issue before the Court was whether the costs were incorrectly assessed by the costs assessor. The respondent raised seven grounds for review, one of which was that the costs assessor allowed professional costs of $6,145 contrary to preliminary objections made by the respondent.

The Court considered the principles applicable to the taxation of costs and held that a wide discretion must be left to the taxing officer, who must exercise it after careful consideration of the particular circumstances of each case. The Court held that the applicant carries the onus to satisfy the Court that the taxing officer is wrong. The Court found that the costs assessor had erred in allowing professional costs of $6,145 contrary to the respondent's preliminary objections. The Court also found that the costs assessor had failed to properly consider the matter and that the costs had not been correctly assessed. As a result, the Court allowed the application for review to the extent of reducing the costs assessed by $9,600 to a sum of $122,863.80. The Court ordered that the appellant/first respondent email written cost submissions within five days, and the respondent/applicant email written cost submissions within 10 days. The appellant/first respondent was also ordered to email any submissions in reply on the issue of costs within 12 days.

Orders

Orders of the court

1. Application for review allowed to the extent of reducing the costs assessed at $132,463.80 by $9,600 to a sum of $122,863.80.

2. The appellant/first respondent is to email to associate.crowj@courts.qld.gov.au and to the respondent/applicant other written cost submissions within five days hereof.

3. The respondent/applicant is to email to associate.crowj@courts.qld.gov.au and to the appellant/first respondent written costs submissions within 10 days hereof.

4. The appellant/first respondent is to email to associate.crowj@courts.qld.gov.au and to the respondent/applicant any submission in reply on the issue of costs within 12 days hereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd,[3] Martin J succinctly summarised the relevant law as follows:[3] [2015] QSC 122 at [8] – [10]. Citations omitted. “The ambit of this rule was considered by Jones J in Nashvying Pty Ltd v Giacomi where his Honour said:‘[4] The discretion conferred by the sub-rule is a wide one. But it is to be exercised with a consciousness that it is effectively an appeal against the exercise by the cost assessor of a discretion. In general, the Court will interfere only where the discretion appears not to have been exercised at all or to have been exercised in a manner which is manifestly wrong.’In Australian Coal & Shale Employees’ Federation v The Commonwealth[4] Kitto J reviewed a number of authorities concerning the review of decisions of taxing officers. He concluded his analysis by adopting the summary of the law on this matter which was made by Jordan CJ (with the concurrence of the other members of the court) in Schweppes’ Ltd v Archer where Jordan CJ said:‘In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer’s decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances … but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case.’ (citations omitted)On an application such as this, the applicant carries the onus. In Australian Coal & Shale Employees’ Federation v The Commonwealth, Kitto J adopted the following expression of principle:‘A very wide discretion must necessarily be left to the taxing officer, which must be exercised by him after a careful consideration of the particular circumstances of each case; and where, after properly considering the matter, the master has arrived at a decision, it lies upon those who impeach his decision to satisfy the Court that he is wrong.’ (emphasis added)”Ground 1:Allowing professional costs of $6,145 contrary to Mr Amos’ preliminary objections[4] (1953) 94 CLR 621. The amended grounds for review in ground 1 are in full as follows:“The costs assessor erred in allowing professional costs of $6,145.00 contrary to Mr Amos’ preliminary objections, and in particular, in the absence of proof that those costs had been paid by Mr Wiltshire.”

Ratio Decidendi

Legal Principle Established

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