Amos v Wiltshire[2015] QCA 44

SUPREME COURT OF QUEENSLAND

[1] THE CHIEF JUSTICE:  This is an appeal from an indemnity costs order made in interlocutory proceedings based on a finding against the appellant of unreasonable litigation conduct.

[2] The appellant complains that the primary judge made the disputed order despite being disqualified for apprehended bias and, in any case, awarded excessive costs to the wrong party.

[3] These are my reasons for rejecting all those criticisms and dismissing the appeal with costs.

Preliminary matters

[4] The appellant was given permission at the outset of the hearing to amend the filed notice by replacing all the original grounds with six new ones.

[5] The first of those asserts appellable error by the primary judge in dismissing an application to recuse herself (the merits ground).

[6] The other five attack the factual basis and stated rationale for awarding costs to the respondent on the indemnity basis (the subsidiary grounds).

[7] In Queensland an appeal solely in relation to costs lies to the Court of Appeal only by leave of the judge who made it or another trial division judge.[1]

[8] The limitation on the right of appeal acts as a filter against the needless reconsideration of issues about the incidence of costs in interlocutory proceedings.[2]  Leave is not given simply for the asking.  A principle of reticence is applied so that “a tight rein” is kept on dissatisfied parties with “long purses or a litigious disposition” to stop them from, in effect, transferring all discretionary decisions at first instance to this court at whim.[3]

[9] This is consistent with the strong presumption in favour of the prima facie correctness of first instance discretionary judgments and procedural orders, including awarding and fixing the amount of costs.

[10] The question of whether leave is a precondition to jurisdiction to “hear and determine” a costs appeal is an important one.  If leave is required but neither sought nor granted before lodgement the powers of the Court of Appeal to interfere are “extremely limited” and exercisable only in exceptional cases involving a demonstrable error of law such as where a wrong principle was applied, the discretion was not really exercised at all or was influenced by irrelevant considerations, including prejudice.[4]

[11] If leave is granted or not required to institute an appeal from a costs order, the ordinary rules governing discretionary review of matters of practice and procedure confirmed by the High Court in House v The King[5] apply.

[12] Whether there is any real practical difference between appeals where leave is needed but not granted or not needed at all is doubtful but, in this case, because of the apprehended bias allegation the appeal (as distinct from the original order) is not “only in relation to costs” anyway.[6]  Accordingly, it is as of right.  The respondent concedes as much for the purposes of argument.

[13] The merits ground, however, is infelicitously expressed.  Appeals relevantly lie only from “judgments or orders” of the trial division including by a single judge sitting in the applications list.[7]  The weight of authority is that in simply refusing to accede to a disqualification application a judge does not make an appellable order or judgment.[8]  Nonetheless, in light of the fundamental importance of impartiality to procedural fairness and the due administration of justice,[9] I think the merits ground should be construed as if it is a miscarriage of justice contention based on a denial of procedural fairness complaint and, therefore, as competent when the appeal was started.

[14] Logically the merits ground should be dealt with before any of the others.  If it succeeds a re-trial is inevitable because public confidence in the court would be weakened if a successful claim of apprehended bias was left unremedied.[10]  A harder question is whether if it fails the right of appeal itself is lost and the only jurisdiction the court has left is to decide whether leave is warranted.

[15] The decision of this court in Re Golden Casket Art Union Office supports such a proposition.[11]  In that case the court refused to reconsider an order for costs after dismissing an appeal from a declaration because the leave required to review it by s 9 of the Judicature Act 1876 (Qld) had not been obtained from the primary judge before the appeal commenced.

[16] Under s 64(2)(b) of the 1991 Act an appeal cannot be “heard and determined” without this court’s leave if, after it is properly started, it “becomes an appeal only in relation to the costs of the original proceeding”.  Prior to 2011[12] the Court of Appeal did not have any power to re-exercise the discretion without leave of the trial division having been given.[13]

[17] While the operation of s 64(2)(b) is clearly a matter of timing it does not depend, in my opinion, on whether the appellant succeeds or fails on the merits ground; nor does the language support the staged approach taken in Re Golden Casket.

[18] Unlike its predecessors the s 64(2)(b) criterion is not whether the order is “as to costs only” but whether the appeal is “only in relation to the costs of the original proceeding”.  That question, in my view, is properly determined either at the date of filing or any later time prior to the commencement of the hearing.

[19] Thus, for example, leave would be required under s 64(2)(b) where an appeal is initiated on the basis of multiple complaints but after filing (and before the hearing) all grounds – except the one about costs – are abandoned but not otherwise.

[20] I see no legal requirement or practical point in turning this appeal into an application for leave to appeal from the same order at this stage of the proceeding.  The merits and subsidiary grounds have in every real sense already been “heard” and “determined” curia advisari vult.

[21] If s 64(2)(b) is activated the application for leave would be allowed or refused either without reasons or, alternatively, after a full consideration as if it were an appeal proper (as applications for leave to appeal against sentence are).  The first option is not very satisfactory where, as here, findings of fact are challenged and the alternative would appear to undermine if not defeat the intended purpose of the provision.[14]

[22] The better view is that leave is not required by either s 64(1) or (2) of the 1991 Act.  Even if it is, there is much to be said for granting it where, as here, issues of natural justice are involved.[15]

The context

[23] On 22 November 2013 the respondent’s solicitor (SL) asked the registry to relist a civil trial for 8 and 9 April 2014 due to the unavailability of senior counsel of choice (the QC) for the already listed trial dates but the appellant did not agree to the proposed new dates.[16]

[24] On 25 November 2013 SL informed the appellant’s lawyers (KNB) of its intention to apply for court-ordered hearing dates if no satisfactory reason for objection to the suggested trial dates was received by close of business on 29 November 2013.[17]

[25] On 29 November 2013 KNB faxed SL advising, for the first time, an intention to subpoena the QC to testify at the hearing subject to his availability.[18]

[26] SL filed and served the foreshadowed application and supporting material at 5.29 pm on 3 December 2013,[19] blaming KNB’s “lack of cooperation and unreasonable [litigation] conduct” as the reason.[20]

[27] At 5.46 am on 3 December 2013 KNB replied complaining about short notice and other faults with the respondent’s material but agreed to the hearing being listed on 8 and 9 April 2014 on the proviso that the QC would definitely be available to testify on those dates for the appellant.

[28] Self-evidently the QC could not both appear for the respondent and give evidence for the appellant.

[29] The application was called on at 10.39 am on 4 December 2013. A draft consent order was handed up confirming the respondent’s preferred dates and requiring service of any process on the QC no later than 4 pm on 13 December 2013.  The primary judge was told that the only remaining controversy was as to costs but was asked to recuse herself from deciding the question on the basis that a reasonable bystander may apprehend some bias in the nature of “…a preconceived view about [the appellant] and the manner in which he conducts litigation, and perhaps also extending to matters relating to his character”[21] and because “… there is a related question of whether or not [the appellant] has been cooperative in terms of having this matter set down for a hearing”.[22]

[30] The suggested source of the reasonable apprehension of bias was a comment the primary judge apparently made in a case flow review on 19 April 2013  in Amos vPerpetual Trustee Company 11375/10 to the effect of  “…since when does [the appellant] want to settle a matter by [directed] mediation”.[23]  No attempt was made to tender affidavit evidence of the precise terms of the statement said to give rise to an apprehension of bias or to give it any context.

[31] The disqualification application was rejected because “…there has been nothing … said … that would lead me to believe that a reasonable bystander might think that I am biased against [the appellant].”[24]

[32] The parties cross-claimed indemnity costs.  The respondent defended the “necessity” of the application to avoid having to set aside the trial dates yet again because of the need to replace him if he was subpoenaed late.  The appellant claimed that the application was ill-conceived and premature because the substantive issues had been effectively resolved the night before.

[33] The primary judge found that the KNB’s reply of 29 November 2013 was non-responsive to the SL letter of 25 November 2013 and, unsurprisingly, prompted the respondent to go ahead with the chambers application to ensure the hearing dates were set and a realistic time limit was put on the proposed service of any subpoena on the QC.[25]  Her Honour concluded that the respondent had “…used its best endeavours to have the matter set down for hearing without the need to bring an application”[26] and the last minute agreement did not obviate the need for court orders.[27]

The legal test

[34] It is an iron common law principle “that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he [or she] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”[28]

[35] The so-called double might test identified in [34] above denotes the concept of a real chance or realistic possibility short of a probability.[29]  It must be reasonably, not fancifully, entertained and “firmly established”[30] by sufficiently cogent evidence.  As Blackstone wrote:

“[T]he law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends on that presumption and idea.”[31]

[36] For this reason the duty of a judge to disqualify for good cause is matched by an equal duty not to do so without a proper reason.[32]  A causal nexus between the source of the alleged bias and the vitiating effect has to be clearly identified and logically explained.[33]  Whether there was or is a reasonable apprehension of the real possibility of bias is determined according to the view of “the fictitious bystander” who is presumed to know:

“…commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.  The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.  The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality.  Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context.  Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”[34]

[37] As already noted, impartiality is a basic attribute and condition upon which judges are invested with decision-making power.  Fidelity to that value is what gives judicial power its authority and legitimacy.  What is relevantly required is that judges approach their task with an open mind.  Outcomes should be determined solely on the basis of the available material and not because of preconceived views based on prejudice.  Any hint of departure from this pillar of the rule of law[35] and characteristic of equal justice can undermine the institutional integrity of the judicial system.

[38] Prejudice, by contrast, is allowing a mind to be improperly or overly influenced by extraneous considerations such as malice or ill will.  It is a subjective attitude which can operate subconsciously,[36] and can be sufficiently specific or intense to support a reasonable suspicion of bias.[37]

[39] Prejudgment, a species of prejudice, is the opposite of judicial neutrality and impartiality but is not “inevitably displayed merely because a judge holds preconceptions or reveals that he [or she] does”.[38]  Whether prejudgment for or against a particular outcome or a party is discernible depends on the overall context and is a matter of degree.[39]

[40] The fictitious bystander will apprehend the possibility of bias in the form of prejudgment only if there is a clear basis to accept that the judge may apply previously expressed hostile views about an issue or a party to reach an unfavourable outcome without due consideration of the facts and otherwise than solely on merit.[40]

[41] As Hayne J noted in Minister for Immigration and Multicultural Affairs v Jia Legeng:

“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots.  First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.  Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue.  Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.”[41]

[42] A successful claim must identify a solid reason for doubting the probity of the adjudication appealed from.  The question frequently arises when the same parties are involved in a subsequent case before the same judge.  However, holding or expressing adverse definite views about character, conduct or credit of a litigant in previous proceedings does not disqualify a judge from hearing a subsequent case.  Nor does the mere fact that he or she has previously made adverse rulings, findings or criticisms against a party on a prior occasion found a claim of perceived bias.[42]  In Bahai v Rashidian,[43] for instance, a judge was not precluded from deciding the liability for costs of a solicitor he had reported for misconduct. Likewise, in Michael Wilson & Partners Ltd v Nicholls the High Court held that the same judge hearing a series of ex parte applications did not give rise to pre-judgment of any relevant questions of fact or credibility arising in the later litigation because the factual questions determined in the interlocutory stages were quite separate.[44]

[43] Judicial statements can create an appearance of pre-judgment in some instances[45] and not in others.[46]  In Vakauta v Kelly a majority of the High Court held that in making disparaging comments about the lack of objectivity of an insurer’s proposed panel personal injuries experts, the trial Judge had crossed “an ill-defined line” between permissible and impermissible preconceived views and remarks.[47]

[44] In the more recent decision of Milsom v R the sentencing judge, among other things, engaged in private communications with both litigants which extensively canvassed the details and the outcome of the case, and sought to pressure the prosecutor not to appeal any non-custodial sentence which might be imposed.  The New South Wales Court of Criminal Appeal expressed condign disapproval[48] of the sentencing judge’s conduct, and concluded that:

“the fair minded lay observer might reasonably apprehend that the trial judge might be prejudiced or not acting impartially… [and that] his Honour might not decide the case “on its legal and factual merits””.[49]

[45] In Concrete Pty Ltd v Parramatta Design, by contrast, a degree of candid outspokenness during a civil trial did not manifest bias, even when considered in conjunction with the reasons for judgment.[50]  Open hostility or antipathy between a judge and a litigant can indicate pre-judgment or a mind closed to persuasion no matter what,[51] but mere sarcasm will rarely be enough.[52]

[46] Once an apprehension of bias or prejudgement is established, however, it is unnecessary to demonstrate any “practical disadvantage” or “practical unfairness” for the appeal to be successful.[53]  As held in Milsom v R:

“Apprehension of bias does not require “practical disadvantage” in order to succeed as an appeal ground.

Sentencing is an intuitive process.  This Court, on appeal, intervenes only when identifiable or manifest error is disclosed.  The fact, if it were the fact, that a sentencing judge, who has engaged in conduct from which apprehended bias has been disclosed, ultimately reaches a conclusion that was open to him or her is not the point.  Otherwise, apprehended bias would not exist as a separate ground from actual bias.  An applicant would, otherwise, be required to show error in the judgment on account of bias and in doing so would be required to show actual bias or forego the argument.

[Once] there is an apprehension of pre-judgment, there is a denial of procedural fairness and all that follows is both irregular and must be redone.”[54]

[47] There is simply no rational basis in this case for the appellant’s contention that the primary judge impermissibly prejudged the costs issue or underlying facts.There was nothing in what her Honour said in the caseflow review in April 2013 (eight months before the subject proceeding) to indicate that she would approach an unrelated issue in November 2014 with a preconceived view due to bias or pre-judgment or that she was predisposed against the appellant’s costs case for reasons unconnected with its merits.  The parties and the controversy to be resolved were different.

[48] Viewed in its proper context the disputed remark clearly reflected scepticism about the appellant’s willingness to genuinely participate in alternative dispute resolution, but it did not disparage his character, trustworthiness, cooperativeness or credibility as either a witness or litigant.  Nor did it relate to any common fact concerning the question of which, if either, party would pay the costs and how much.[55]

[49] The appearance of impartiality was not compromised here.  A fair minded lay observer would not have apprehended that the primary judge might not have bought an impartial mind to resolving that question.  Even if it were otherwise the primary judge was right in the circumstances to continue to preside as a matter of necessity to prevent a failure of justice because there was no other judge able to hear the matter[56] and the appellant advisedly chose the consequence of pressing on with the only available judge on the day rather than seeking an adjournment.

The validity of factual findings

[50] Grounds 2 to 4 challenge findings of fact and the process of reasoning that led to the conclusion that the parties’ last minute agreement on the terms of a consent order about trial and service dates did not obviate the need for an appearance or for incurring related professional costs.  The appellant’s position is that indemnity costs should have been awarded to him because the KNB fax to SL on 3 December 2013 unequivocally resolved the dispute[57] and avoided the need for any court intervention.  Her Honour found otherwise,[58] “given the history”.[59]

[51] Three specific factual findings are criticised in the amended notice.  They are that: (a) the application and court orders were necessary;[60] (b) the appellant’s solicitors had written letters to the respondent’s lawyers in inflammatory terms inconsistent with a professional relationship;[61] and (c) the appellant had been uncooperative.  A fourth finding, namely that the appellant already knew that the QC was available, was challenged at [64] of the appellant’s written outline and in argument.  Leave to add it as a ground of appeal should be granted.

[52] The appellant also sought leave to supplement the appeal book with additional material which, save for paragraph 3 of the appellant’s affidavit filed on 13 November 2014, was refused for lack of relevance.[62]

[53] Finding facts is a basic task of courts. The legal sustainability of a conclusion ultimately depends on whether it was reasonably open on the totality of the facts.  It will be if the evidence is sufficiently and rationally capable of supporting it as a matter of logical inference or deduction.  Otherwise, an appellate court is loathe to disturb findings of fact or interfere with inferences drawn from them where their existence or non-existence is a matter of judgment entrusted to an experienced decision-maker,[63] even if it would have reached a contrary view on the same material.  This is because the same body of evidence is capable of giving rise to opposite but equally reasonable conclusions with neither being demonstrably right nor manifestly wrong.

[54] The degree of cogency required to prove a relevant fact in civil proceedings is a probability or reasonable satisfaction.  The quantum of evidence to attain that level of confidence about the existence or nonexistence of any particular fact will vary.  The evidence base must not be too weak to support the finding or fly in the face of other established facts on findings.

[55] The guiding principle regulating and restraining the factual discretion of a judge in choosing between rival inferences is reasonableness.[64]  An unreasonable decision lacks evident and intelligible justification.[65]  Irrationality is not required but unreasonableness may be inferred in some cases even where a specific error in reasoning cannot be clearly identified.[66]

[56] The primary judge’s findings depended solely on inferences from or interpretations of non-contentious documentary materials tendered by the parties.  I have already described the circumstances that led to her Honour’s finding.  There is no need to repeat them here.  It suffices to say that, in my opinion, her Honour’s findings of fact were fairly open on the evidence and she was legally entitled to reach them.

Discretionary error in awarding and assessing costs

[57] The remaining issue is whether the costs order is adequately supported by the facts as found and is otherwise reasonable in all the instances. Costs generally follow the event but remain in the discretion of the court.  They may be awarded on either the standard or indemnity basis.[67]  The primary judge ordered the appellant to pay indemnity costs because of his bad attitude and behaviour making needless court intervention practically unavoidable.[68]

[58] Naturally, the discretionary power to award costs should only be exercised by a judge for proper reasons connected with the case and not based on extraneous considerations. The discretion must be applied in a principled and reasonable way based on proper considerations. That is, it must be exercised according to law or, and which amounts to the same thing, “the rules of reason and justice”.[69]  It clearly cannot be exercised arbitrarily or capriciously.  The relationship between the liberal construction of powers vested in courts and the constraint that such powers must be exercised judicially was discussed by Gaudron J in Knight v FP Special Assets Ltd:

“The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.”[70]

[59] However, within the bounds of the relevant concept of reasonableness and judicial constraint, and subject to any applicable statutory limitations, a judge has free rein in exercising the discretionary power to award costs.

[60] Appeal courts are more reluctant to encourage appeals from unfettered discretion on a final matter of practice or procedure than from one determining substantive legal rights.[71]  To succeed, an appellant must demonstrate a departure from legal principle or misunderstanding of the facts.[72]  Otherwise, the conclusion must be explicable solely on the basis of some misconception or defective reasoning.[73]

[61] In Australian Coal and Shale Employees’ Federation v The Commonwealth[74] Kitto J explained that:

“[T]he true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[75]

[62] There is nothing to suggest that the costs power was exercised inconsistently with applicable legal principles or the overarching requirement of reasonableness.[76]  The circumstances of the proceeding satisfy the special or unusual features test in Colgate-Palmolive Company v Cussons Pty Ltd.[77]

[63] The primary judge was entitled to take a dim view of the appellant’s litigation antics which had the intent or effect of needlessly generating significant legal costs and consternation contrary to the stated purpose and philosophy of the Uniform Civil Procedure Rules 1999 (Qld).  The unreasonable refusal to unambiguously cooperate until the last minute warranted the exercise of the discretion to award indemnity costs.  The order is sound.

[64] Accordingly, I would dismiss the appeal with costs.

Orders

[65] I would make orders in the following terms:

1.Appeal dismissed.

2.The appellant pay the respondent’s costs of the appeal on the standard basis.

[66] GOTTERSON JA:  I agree with the orders proposed by the Chief Justice.  The observation relied on by the appellant was made at a case flow review on 19 April 2013.  It expressed an opinion that the appellant is a person who is not disposed to settle disputes by court-ordered mediation.  That expression of opinion cannot in my view, give rise to a reasonable apprehension of bias on her Honour’s part against the appellant in deciding a costs application heard some eight months later in litigation between different parties and in which the costs dispute did not concern a mediation and, in particular, did not put in question, the genuineness of the appellant’s participation in a mediation.

[67] I also agree with the reasons of Morrison JA for dismissing the appeal so far as it challenges the exercise of the discretion to award indemnity costs.

[68] MORRISON JA:  On 19 April 2013 the learned primary judge conducted a case flow review of proceedings to which Mr Amos is a party.[78]  In the course of that review counsel for Mr Amos asked for a direction for mediation, apparently prompting her Honour to say: “ …since when does Mr Amos want to settle a matter by mediation.”  This Court was not otherwise given the context in which that comment was made.

[69] Nearly eight months later, on 4 December 2013, in different proceedings to which Mr Amos is a party,[79] an issue arose as to which party should bear the costs of an application to set the matter down for trial.

[70] Mr Amos asked the learned primary judge to recuse herself from hearing the costs application, on the basis that the comment made in April gave rise to apprehended bias on her part.  Mr Amos says that the April comment would reveal, to an innocent bystander, a preconceived view about Mr Amos, the way he litigates and (perhaps) about his character.

[71] At the hearing on 4 December there was no question of a mediation.  The learned primary judge made a costs order against Mr Amos, on the indemnity basis.  Mr Amos seeks to challenge that order.

[72] At issue is whether the learned primary judge:

(1) should have recused herself on the basis of apprehended bias; and

(2) should have ordered costs against Mr Amos, and on the indemnity basis.

Recusal for apprehended bias

[73] I agree with Gotterson JA that the learned primary judge’s comment cannot give rise to a reasonable apprehension of bias.  The issues in the December 2013 hearing were different from those 8 months earlier, the proceedings involved different parties, and no issue arose about mediation or the attitude of Mr Amos to mediation.

The indemnity costs order

[74] The costs issue fell to be determined by inferences drawn from written correspondence between the parties’ solicitors.  Some of that involved the stance of Mr Amos, that a subpoena issue to the opposite party’s Senior Counsel to give evidence at the trial.

[75] The relevant chronology of events appears from the reasons of the learned primary judge:

(1) the matter was listed for trial on 29 and 30 July 2013, but delisted when Mr Wiltshire’s solicitors realised that they had made an error about counsel’s availability, and agreement on replacement dates could not be reached;

(2) on 20 November 2013, after ascertaining the availability of counsel and witnesses, Mr Wiltshire asked for trial dates in April 2014;

(3) no dates were allocated because Mr Amos did not agree to them, saying that the availability of counsel need to be checked;

(4) on 25 November 2013 Mr Wiltshire said that if dates were not agreed by 29 November, an application would be made to set the trial;

(5) on 29 November Mr Amos revealed that he wished to subpoena Mr Wiltshire’s Senior Counsel, and had written to see if the proposed dates were suitable to him;

(6) the learned primary judge found that Mr Amos already knew that Senior Counsel for Mr Wiltshire was available for the proposed dates;[80]

(7) On 2 December 2013 Mr Wiltshire advised that the application and supporting affidavit was being prepared, and draft copies was sent to Mr Amos;[81]

(8) the application and affidavit were filed and served on 3 December; and

(9) later on 3 December Mr Amos responded by saying that: the deponent had sworn an affidavit “not only false in material facts but also liable to be struck out as scandalous and embarrassing”; that the deponent might be reported to the relevant authorities; and that if Senior Counsel was truly available for the proposed dates “then our client agrees to the hearing proceeding on 8 and 9 April 2014.”.[82]

[76] In my view the learned primary judge was right to characterize the correspondence from Mr Amos as inflammatory and inconsistent with a professional relation between the solicitors.  There is no reason to conclude that the correspondence was not sent on instructions from Mr Amos.

[77] The finding that Mr Amos’ advisers already knew, when they said they needed to subpoena the opposing Senior Counsel and ascertain his availability, that Senior Counsel was available for the proposed dates, is telling.  Leaving aside the improbable nature of what evidence might be adduced under subpoena that was not covered by legal professional privilege, it reveals conduct of the litigation that would warrant the orders made.[83]

[78] The evidence supporting that finding[84] was not challenged below.  The finding itself was not challenged in the Notice of Appeal.  A belated application was made, orally, to amend the Notice of Appeal to challenge the finding, but that was doomed to failure as there was no contradictory evidence before the learned primary judge.

[79] Mr Amos submitted that the application was unnecessary, and costs should not have been ordered against him, because there was an agreement to the trial dates signified on 3 December: see paragraph 75(9) above.  That letter did not give unqualified agreement, and was made in the circumstances referred to above.  This submission cannot succeed.

[80] In my view no error on the part of the learned primary judge has been shown.

Conclusion and disposition

[81] I agree with the orders proposed by the Chief Justice.