Wiltshire v Amos

[2016] QCA 280

[2016] QCA 280

COURT OF APPEAL

PHILIP McMURDO JA

Appeal No 4199 of 2010
DC No 1527 of 2009

CHRISTOPHER WILTSHIRE  Applicant

v

EDWARD AMOS  Respondent

BRISBANE

HEARD ON THE PAPERS

PHILIP McMURDO JA: Rule 661 of the Uniform Civil Procedure Rules 1999 (Qld) provides for the filing of orders. Unless an order is filed, it may not be enforced under ch 19 or by another process and no appeal may be brought against the order without the leave of the court to which the appeal would be made: r 661(4). An order must be filed if the court directs it to be filed or a party asks for it to be filed: r 661(3).

Rule 661(2) provides:

“An order of a court is filed in the court if a document embodying the order and the date of the order was made is drawn up by a party and signed by the registrar.”

The practice of the registry for orders made in the Court of Appeal is that the document is prepared within the registry and signed by the registrar.  The question raised by this application is whether that practice results in the filing of the order, or whether it is only a document which is drawn up by a party which will suffice.

The applicant is a party with the benefit of orders made in this court on 28 August 2015.  A document embodying those orders has been signed and sealed in the registry and is on the court’s file.  It was prepared within the registry in accordance with the usual practice.  The applicant is concerned that the enforcement of the order might be affected by a contention by the other party that the order is yet to be filed.  The applicant has prepared an order in identical terms to that which is on the file and has asked for it to be signed by the registrar.  The response from the registry has been that this is unnecessary.

Unambiguously the terms of r 661(2) provide that a document, which is to be signed by the registrar as the order, is to be drawn up by a party, so that the registrar is not obliged to draw up the document.  The current practice has been adopted by the registry for considerations of efficiency and economy.  Clearly it is beneficial to parties in that it relieves them, or one of them, from the task of drawing up the document.  The rule was relevantly amended in 2010.  The previous r 661(2) was as follows:

“An order of a court is filed in the court if a document embodying the order and the date the order was made is drawn up, settled and signed by the registrar and filed in the court.”

The evident purpose of the amendment was to place the burden of the task of drawing up the order upon a party.  It cannot be supposed that this amendment was made in order to enhance the accuracy of the document which becomes the filed order.  Nor was it to ensure that the filed order accorded with the parties’ understanding of what had been ordered, because the document is to be prepared by only one party.

Having regard to the purpose of the rule, it should not be construed as invalidating the current practice under which the registry in matters in the Court of Appeal assumes the burden of the preparation of the document.  The purpose of the rule is not compromised by the filing of orders in accordance with the current practice.  The registrar may insist on the document being drawn up by a party but may also decide to sign and place on the file a document drawn up within the registry.

The present application seeks a direction that the registrar sign and file the order prepared by the applicant in this proceeding.  Because there is already an order which is on the file and, in my view, duly filed, that direction should not be made.  The application will be refused.