Wiltshire v Amos

[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…