Wiltshire v Amos

Case [2010] QCA 294


SUPREME COURT OF QUEENSLAND

CITATION:

Wiltshire v Amos [2010] QCA 294

PARTIES:

CHRISTOPHER WILTSHIRE
(defendant/appellant)
v
EDWARD AMOS
(plaintiff/respondent)

FILE NO/S:

Appeal No 4199 of 2010
DC No 1527 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2010

JUDGES:

Muir JA and Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The Court receive the evidence in the affidavits of the appellant filed on 6 July and 6 October 2010.1.   

The appeal be allowed.2.   

The judgment and order of the District Court made on 25 March 2010 be set aside and that there be a new trial of the proceeding.3.   

The costs of the District Court trial be the appellant’s costs in the cause.4.   

The respondent pay the appellant's costs of the appeal.5.   

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – primary judge found appellant barrister breached his duty to exercise reasonable care and skill in the provision of professional advice and respondent suffered loss and damage – appellant retained directly by respondent – respondent claimed appellant retained to advise whether there were grounds to have a judgment set aside – respondent claimed appellant stated there were good prospects of having judgment set aside on the basis of fraud – respondent claimed this was the first time fraud was raised – respondent’s evidence supported by evidence of respondent’s solicitor – appellant sought to adduce fresh evidence indicating respondent had raised and received advice on the issue of fraud prior to retaining appellant – respondent argued fresh evidence not directly relevant to any issue in the proceeding – respondent failed to disclose documents – respondent argued appellant did not use reasonable diligence to obtain the documents – whether fresh evidence should be admitted

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – NATURE AND PROBABLE EFFECT OF EVIDENCE – GENERALLY – appellant successfully adduced fresh evidence on appeal – whether new trial should be ordered

Uniform Civil Procedure Rules 1999 (Qld), r 5(2)

Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582, [1975] HCA 33, cited
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, [1991] HCA 61, cited
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [2005] HCA 12, cited
Quade v Commonwealth Bank of Australia (1991) 27 FCR 569; [1991] FCA 26, cited
Yevad Products Pty Ltd v Brookfield [2005] FCAFC 177, cited

COUNSEL:

P O’Shea, with S Moody, for the appellant
M Steele for the respondent

SOLICITORS:

Smith & Stanton for the appellant
Keller, Nall & Brown for the respondent

[1]      MUIR JA:  The history of the litigation

The respondent sued a company which…

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Wiltshire v Amos [2010] QCA 294
Case
[2010] QCA 294
Decision Date

CaseChat Overview and Summary

The appeal in Wiltshire v Amos involved the appellant, a barrister, and the respondent, who retained the appellant for professional advice. The respondent alleged that the appellant had breached his duty by not exercising reasonable care and skill, resulting in the respondent suffering loss and damage. The primary dispute was whether the appellant had advised the respondent on the prospects of setting aside a judgment on the grounds of fraud, and if this advice was incorrect. The matter was brought before the court following a decision in the District Court of New South Wales.

The primary legal issue before the court was whether fresh evidence, which the appellant sought to introduce, should be admitted. This evidence suggested that the respondent had previously raised the issue of fraud and received advice on it before retaining the appellant. The respondent argued that this evidence was not relevant to the issues in the proceeding and that the appellant had failed to use reasonable diligence to obtain the necessary documents. The court had to determine whether the fresh evidence was admissible and, if so, whether it warranted a new trial.

The court found that the fresh evidence provided by the appellant was relevant and should be admitted. It considered that the evidence had a significant impact on the issues at hand and could potentially alter the outcome of the case. Consequently, the court held that the judgment and order of the District Court should be set aside, and a new trial should be ordered. The court also ordered that the costs of the District Court trial would be borne by the appellant, while the respondent was to pay the appellant's costs for the appeal.

In summary, the court allowed the appeal, set aside the previous judgment, and ordered a new trial to address the fresh evidence. The costs associated with the District Court trial and the appeal were allocated between the parties in a manner that reflected the court's findings regarding the admissibility of the fresh evidence and the overall conduct of the case.

Orders

Orders of the court

The Court receive the evidence in the affidavits of the appellant filed on 6 July and 6 October 2010.1.

The appeal be allowed.2.

The judgment and order of the District Court made on 25 March 2010 be set aside and that there be a new trial of the proceeding.3.

The costs of the District Court trial be the appellant’s costs in the cause.4.

The respondent pay the appellant's costs of the appeal.5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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