Wiltshire v Amos - [2014] QSC 210

SUPREME COURT OF QUEENSLAND

CITATION:

Wiltshire v Amos [2014] QSC 210

PARTIES:

EDWARD AMOS
(Applicant)
v
CHRISTOPHER WILTSHIRE
(Respondent)

FILE NO/S:

Appeal No 4199 of 2010
DC No 1527 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

8 & 9 April 2014

JUDGE:

Martin J

ORDER:

The questions are answered as follows:

1.    Neither affidavit was in Mr Wiltshire’s possession at the time referred to in the question.

2.    Neither affidavit had been perused by Mr Wiltshire at the time referred to in the question.

3.    Unnecessary to answer.

4.    Unnecessary to answer.

5.    No.

6.    No.

7.    No.

8.    Not every detail of the facts asserted in that affidavit was the subject of evidence. Those matters which are the subject of consideration above are accurate. If there is any inaccuracy, then there is no evidence that he was aware of it at the time referred to in the question.

The costs of this hearing are costs reserved in the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FURTHER EVIDENCE – OTHER MATTERS – EVIDENCE OF FRAUD OR DECEPTION – where the applicant succeeded against the respondent in a claim for damages in the District Court – where the Court of Appeal allowed the respondent to adduce fresh evidence, and allowed an appeal against the judgment of the District Court – where the applicant sought to have the Court of Appeal’s decision re-opened, alleging that the “fresh” evidence adduced in the Court of appeal was not in fact fresh, and was known to, or had been in the custody of, the respondent all along – where the applicant’s allegations were, to a considerable extent, fabrications – whether questions remitted to the trial division by the Court of Appeal should be answered consistently with the applicant’s concocted version of events

Uniform Civil Procedure Rules 1999, r 668

Amos v Wiltshire [2010] QDC 138, referred to
Wiltshire v Amos [2010] QCA 294, referred to

COUNSEL:

M T de Waard for the applicant
P O’Shea QC and K Boulton for the respondent

SOLICITORS:

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

This matter had its genesis in 2004 in a claim in the Magistrates Court for damages by the applicant (Mr Amos). It has, since then, seen a number of hearings in both the District Court and the Court of Appeal.

In order to understand this matter it will be necessary to outline some of its history. That is best done by repeating what Muir JA said in the Court of Appeal’s decision in Wiltshire v Amos:[1]
[1][2010] QCA 294

[1]The respondent sued a company which carried on business as a legal costs assessor ("Monsour") and two of its directors in the Magistrates Court for damages for negligence in relation to a costs assessment provided by Monsour in proceedings 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 Wiltshire v Amos

Details

AGLC: Wiltshire v Amos [2014] QSC 210
Case: [2014] QSC 210
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the matter of Wiltshire v Amos, the dispute between the parties involved a claim for damages that was initially adjudicated in the District Court. The respondent, Amos, sought to appeal the decision and adduce fresh evidence in the Court of Appeal, which was allowed. Wiltshire subsequently sought to have the Court of Appeal's decision re-opened, alleging that the so-called "fresh" evidence was actually known to or had been in the custody of Amos all along. Wiltshire further alleged that the evidence presented by Amos was the result of fraud or deception.

The legal issues before the court centred on whether the fresh evidence presented by Amos in the Court of Appeal was truly new and not previously known to him, and if not, whether this constituted grounds for reopening the decision. Additionally, the court had to determine if Wiltshire's allegations were fabrications, and if so, whether the questions remitted to the trial division should be answered in line with Wiltshire's version of events.

The court examined the evidence and found that Wiltshire's allegations were, to a considerable extent, fabrications. The court answered the questions posed regarding the evidence, finding that neither affidavit was in Wiltshire’s possession or had been perused by him at the relevant time. The court concluded that it was unnecessary to answer certain questions as they did not pertain to the core issues at hand. Ultimately, the court ruled that the fresh evidence presented by Amos was indeed new and had not been in his custody all along. The court did not find it necessary to answer every detail of the facts asserted in the affidavit, and if there were any inaccuracies, there was no evidence that Wiltshire was aware of them at the time referred to in the questions.

The final orders of the court were that the questions posed were answered in a manner favourable to Amos. The costs of the hearing were reserved in the appeal.

Orders

Orders of the court

The questions are answered as follows:

1. Neither affidavit was in Mr Wiltshire’s possession at the time referred to in the question.

2. Neither affidavit had been perused by Mr Wiltshire at the time referred to in the question.

3. Unnecessary to answer.

4. Unnecessary to answer.

5. No.

6. No.

7. No.

8. Not every detail of the facts asserted in that affidavit was the subject of evidence. Those matters which are the subject of consideration above are accurate. If there is any inaccuracy, then there is no evidence that he was aware of it at the time referred to in the question.

The costs of this hearing are costs reserved in the appeal.

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:	Wiltshire v Amos [2014] QSC 210
PARTIES:	EDWARD AMOS (Applicant) v CHRISTOPHER WILTSHIRE (Respondent)
FILE NO/S:	Appeal No 4199 of 2010 DC No 1527 of 2009
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	8 & 9 April 2014
JUDGE:	Martin J
ORDER:	The questions are answered as follows: 1. Neither affidavit was in Mr Wiltshire’s possession at the time referred to in the question. 2. Neither affidavit had been perused by Mr Wiltshire at the time referred to in the question. 3. Unnecessary to answer. 4. Unnecessary to answer. 5. No. 6. No. 7. No. 8. Not every detail of the facts asserted in that affidavit was the subject of evidence. Those matters which are the subject of consideration above are accurate. If there is any inaccuracy, then there is no evidence that he was aware of it at the time referred to in the question. The costs of this hearing are costs reserved in the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FURTHER EVIDENCE – OTHER MATTERS – EVIDENCE OF FRAUD OR DECEPTION – where the applicant succeeded against the respondent in a claim for damages in the District Court – where the Court of Appeal allowed the respondent to adduce fresh evidence, and allowed an appeal against the judgment of the District Court – where the applicant sought to have the Court of Appeal’s decision re-opened, alleging that the “fresh” evidence adduced in the Court of appeal was not in fact fresh, and was known to, or had been in the custody of, the respondent all along – where the applicant’s allegations were, to a considerable extent, fabrications – whether questions remitted to the trial division by the Court of Appeal should be answered consistently with the applicant’s concocted version of events Uniform Civil Procedure Rules 1999, r 668 Amos v Wiltshire [2010] QDC 138, referred to Wiltshire v Amos [2010] QCA 294, referred to
COUNSEL:	M T de Waard for the applicant P O’Shea QC and K Boulton for the respondent
SOLICITORS:	Keller Nall & Brown for the applicant Sharma Lawyers for the respondent