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

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…

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

Case: [2016] QCA 280
Decision Date: 3 November 2016

CaseChat Overview and Summary

In the case of Wiltshire v Amos, the applicant, Christopher Wiltshire, sought to enforce an order made in the Court of Appeal. The respondent, Edward Amos, contested the enforceability of the order, claiming it had not been properly filed. The issue before the court was whether the practice of the registry in the Court of Appeal, which involved the registrar signing a document prepared within the registry, complied with the requirements of Rule 661 of the Uniform Civil Procedure Rules 1999 (Qld) for filing orders.

The court examined the language of Rule 661(2) which states that an order is filed if a document embodying the order is drawn up by a party and signed by the registrar. The court acknowledged that the rule was amended in 2010 to shift the burden of preparing the order document to the parties, but held that the purpose of the rule was not to enhance accuracy or ensure the order reflects the parties’ understanding, as it only requires one party to prepare the document. The court found that the current practice, where the registry assumes the burden of preparing the document, did not compromise the purpose of the rule and should be upheld. Consequently, the court ruled that the practice of the registry in preparing and signing the order document was valid, and the application to have the registrar sign the applicant's prepared order was refused.

Orders