Amos v Wiltshire[2017] QCA 279

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.

2. MORRISON JA:  Mr Amos started proceedings against Mr Wiltshire in the District Court in June 2009.  There was a prompt trial in which Mr Amos succeeded, but in October 2010, the Court of Appeal set the judgment aside and ordered a new trial.  Mr Amos sought special leave to appeal to the High Court, which was refused in March 2011.  More than seven years after the new trial was ordered Mr Amos had not progressed that trial.  Disclosure was not complete and it had not been set down.
3. Instead, Mr Amos had gone to Court of Appeal, Supreme Court and High Court.  In August 2012, he filed an application in the Court of Appeal, seeking to set aside its decision made in October 2010.  Between then and October 2016, he instigated: four applications in the Court of Appeal; two applications in the Supreme Court; a trial of remitted questions in the Supreme Court, with judgment on 29 August 2014; two appeals to the Court of Appeal; and two applications for special leave in the High Court.
4. The long and winding road of the litigation led to the door of the learned primary judge on 16 December 2016.  His Honour dismissed the proceedings for want of prosecution. Mr Amos seeks leave to appeal against that order.
5. The grounds of appeal are that the learned primary judge erred:

1. ground 1: in finding that the District Court had jurisdiction to strike out or dismiss the proceeding in circumstances where the Court of Appeal had ordered a retrial;
2. ground 2: in finding that an appeal was not part of the proceeding and that a step in an appeal was not a step in the proceeding; and
3. ground 3: in finding that there was a substantial risk to the fairness of the retrial warranting the proceeding being struck out or dismissed.

6. For reasons which follow I would grant leave to appeal but dismiss the appeal.
7. The resolution of these grounds requires a detailed knowledge of the history of the litigation, in which each party was at times an applicant, appellant or respondent.  Without meaning any disrespect to either party, and for ease of reference only, in these reasons I intend to adopt the names “Amos” and “Wiltshire” as signifying the parties.

History of the litigation

8. The proceedings commenced in 2009.  Amos sought damages for negligent advice by Wiltshire about the prospects of success in a court application.  It is necessary to understand the many steps of the litigation generally, in order to consider the points raised on the appeal.  The full chronology appears in the schedule attached to these reasons, but a somewhat more focussed summary appears below, in which the phrase “excursion” signifies when proceedings were pursued in courts other than the District Court:

1. 2 June 2009: the proceeding was commenced by Amos in the District Court;
2. 11 March 2010: trial in the District Court;
3. 25 March 2010: judgment in the trial handed down; Amos succeeded;^[1]
4. 22 October 2010: an appeal by Wiltshire was allowed; the judgment was set aside and a retrial was ordered; Amos ordered to pay the costs of the appeal;^[2]
5. 18 November 2010: Amos applied for special leave to appeal to the High Court;
6. 9 March 2011: Amos’ special leave application was refused;
7. 18 May 2012: first excursion, to the Supreme Court, on the question of costs; heard 28 May 2012 and judgment on 19 September 2012;
8. 13 July 2012: Wiltshire filed two applications in the District Court, one to dismiss the proceeding for want of prosecution, and the other for repayment of the money paid under the trial judgment;
9. 2 August 2012 to 12 October 2016: second excursion, to the Court of Appeal, Supreme Court and High Court; Amos filed an application in the Court of Appeal, seeking to set aside its decision made on 22 October 2010; between 2 August 2012 and 12 October 2016: four applications in the Court of Appeal; two applications in the Supreme Court; a trial of remitted questions in the Supreme Court, with judgment on 29 August 2014; two appeals to the Court of Appeal; one application for special leave in the High Court;
10. 8 August 2012: notice pursuant to UCPR r 389(1) given by Amos;
11. 10 August 2012: first hearing of Wiltshire’s District Court applications; adjourned;
12. 27 September 2012: hearing before Kingham DCJ in the District Court, only on the application by Wiltshire for repayment of the judgment and costs; by consent, Amos ordered to repay $133,390.00 (claim) and $32,574.57 (interest); Amos ordered to pay costs of the application; and
13. 16 December 2016: proceedings dismissed for want of prosecution.

Leave to appeal

9. Leave to appeal was not sought by Amos when the notice of appeal was filed.  Eventually, at the door of the hearing of this appeal, it was conceded that leave was required and an application was made, as well as for any necessary extension of time.
10. On the question of leave to appeal, Mr O'Shea QC, for Wiltshire, submitted that the primary decision was on 16 December 2016, and the notice of appeal was filed on 12 January 2017.  No application for leave to appeal was filed until shortly before the appeal was heard.  Relying on Johns v Johns,^[3] Jiminez v Jayform Contracting Pty Ltd,^[4] Webb v Pursell^[5] and Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd^[6] it was submitted that leave had to be sought as early as possible and in any event before the appeal.  Therefore there needed to be an application for an extension of time to seek leave to appeal, and an extension of time to bring the appeal, because there was no competent appeal until leave was granted.  That meant that an affidavit explaining the delay should have been filed, and there was no such affidavit or explanation.
11. Mr Harrison QC submitted that the notice of appeal was filed promptly, even though leave had not been sought. Arguably, leave was not required because the judgment concerned a claim for more than the statutory limit under s 118(2) of the District Court of Queensland Act 1967 (Qld).  However, it was conceded that leave was necessary.  Leave to appeal and an extension of time should be granted because there was a reasonable case of error on the part of the learned primary judge, and substantial prejudice had been suffered because Amos could no longer pursue his action and would now be statute barred from commencing again.  Ground 2 raised issues of public importance because it concerned the rules governing dismissal of proceedings for want of prosecution.

Discussion – leave to appeal

12. The notice of appeal was filed within the time to appeal, albeit without the grant of leave.  Until leave was granted there was no valid appeal on foot.  The absence of leave was something that Wiltshire adverted to in the appeal outline.^[7]  In oral submissions in this Court the question of leave was subsidiary, the appeal being argued on its merits.
13. Though not expressed in terms, arguably the delay in seeking leave was explained by the view that leave was not necessary because the claim concerned an amount that satisfied s 118(2) of the District Court Act.  As the issues involve questions concerning the exercise of the discretion to dismiss proceedings for want of prosecution (unusually, after a trial has been had) and the consequence of the order below is that Amos cannot pursue the action, I would grant leave to appeal nunc pro tunc.

Ground 1 – no jurisdiction

14. Before this Court, Mr Harrison QC, appearing for Amos, pressed ground 2 as the main ground, conceding that ground 1 would not attract a grant of leave to appeal on its own.  Ground 1 was left on the basis that the form of order by the Court of Appeal on 22 October 2010 meant that no order dismissing the proceedings could have been made by the District Court, as it had been ordered that there be a trial.
15. Mr O'Shea QC contended that following the Court of Appeal’s order for a new trial Amos took no steps to prosecute a trial in the District Court.  The District Court had jurisdiction to make the orders dismissing the proceedings, as the Court of Appeal’s order had the effect that the original District Court proceeding was still pending in that court; the Court of Appeal did not direct that a trial occur, only that a trial could be held if Amos pursued it.

Discussion – Ground 1

16. The Court of Appeal order on 22 October 2010, was that “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”.^[8]  That conclusion was reached because Wiltshire demonstrated that there was relevant evidence which had not been disclosed by Amos in the trial proceeding.  The contention that that order deprived the District Court of jurisdiction to bring the proceedings to an end should be rejected.
17. The proceedings in the District Court were finalised by the judgment at the end of the trial.  When that judgment was set aside, the proceedings in the District Court were reinstated.
18. The reasons of the Court of Appeal for setting aside the judgment reveal the importance of the fresh evidence.  It was directly relevant to whether Wiltshire had been instructed to advise on the prospects of success, whether he did so, and whether Amos relied on that advice.^[9]  The evidence had the potential to impugn the evidence of Amos and his other witness, Mr Collinson.^[10]  The evidence cast grave doubt on Amos’ contention that it was Wiltshire who first raised the question of fraud, and inconsistent with Amos’ evidence that another barrister had said nothing about it to him.^[11]  Cross-examination of Amos and Wiltshire took place in the Court of Appeal, and Amos’ evidence was doubtful in terms of its accuracy.^[12]  Wiltshire’s evidence was preferred to that of Amos, who offered unsatisfactory explanations for his failure to disclosure the relevant documents.^[13]  The failure to disclose the evidence deprived Wiltshire of his right to a fair trial.^[14]
19. The Court of Appeal also held that in terms of the documents relied upon at trial by Amos for his damages claim, the fresh evidence had not been placed before the primary judge on the question of damages.^[15]  Muir JA concluded:^[16]

“Nor, I should add, do I intend to state any concluded views on the accuracy of any of the evidence given by the appellant, the respondent or Mr Collinson.  It is both sufficient and appropriate for present purposes to note the existence of evidence which supports one party’s version or the other’s.  In particular, Mr Collinson has not had the opportunity of commenting on the fresh evidence and the respondent has dealt with it only on a quite limited basis.  The final resolution of its probative value and bearing on the competing versions of the appellant and the respondent must be with the Judge who conducts the retrial of this matter.”

20. Since the basis of the order for a new trial was that relevant fresh evidence had come to light, which had been previously held back by a failure on Amos’ part to comply with an order for discovery, it is not surprising that the Court of Appeal directed a new trial be held.  Simply put, the issues between Amos and Wiltshire had not been fairly tried at the first trial because Amos breached his obligations of disclosure.  The only sensible way to have the issues determined on a full factual basis, was by a trial.
21. On no reasonable reading of the order made on 22 October 2010, could it be suggested that the Court of Appeal was issuing some form of mandatory injunction by which the only thing the District Court could do was have a trial.  On the contrary, it was simply saying that a new trial was the mechanism by which the whole of the evidence, including the evidence previously held back, could be assessed.  It was, of course, up to the District Court to manage its processes with a view to conducting that trial.  The order of 22 October 2010 was never intended to circumscribe what might happen in the District Court.
22. In my view, it is plain that the Court of Appeal intended that the District Court would be in a position to deploy any and all of its powers under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to progress the proceedings once again to a trial, so that the issues could be finally determined on a proper basis.  That would include the power to bring the proceedings to a summary end, if the circumstances warranted that course.  How could it be otherwise?  Plainly there would be further orders for disclosure and, perhaps, production of particular documents.  If that disclosure revealed, for example, that Amos’ case was bound to fail, it could not sensibly be suggested that the Court of Appeal intended that the parties would doggedly proceed to a fruitless trial.  Such a course would run counter to the objects of the UCPR, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: r 5(1).
23. This ground was only faintly urged on the hearing before this Court, and rightly so.  It is entirely unmeritorious.

Ground 2 – appeals and applications not part of the District Court proceedings

24. This was the primary ground advanced before this Court.  The learned primary judge found that Amos’s steps by way of appeals were not steps to prosecute the District Court proceedings.^[17]  Central to the reasoning were these propositions:

1. the definition of “proceeding” in schedule 1 of the Civil Proceedings Act 2011 (Qld) provides that “proceeding” means:

“a proceeding in a court (whether or not between parties), and includes –

1. an incidental proceeding in the course of, or in connection with, a proceeding; and

2. an appeal or stated case.”

2. when the word “proceeding” is there used, as a matter of definition it applies to an incidental proceeding in the course of the proceeding such as an interlocutory application, and it also applies to an appeal or a stated case; it does not mean that a proceeding in the Court of Appeal, by way of appeal from a decision of the District Court, is treated as part of the proceeding in the District Court;
3. the Court of Appeal order in October 2010, revived the proceeding which became, again, a proceeding pending in the District Court; and
4. the steps in the other courts (Court of Appeal and the High Court) were not done by way of prosecuting the proceeding in the District Court.

History of the proceedings

25. On 22 October 2010, the Court of Appeal ordered that there be “a new trial of the proceeding”, i.e. in the District Court.^[18]  The application for special leave to appeal that decision did not operate as a stay of that order.  Special leave to appeal to the High Court was refused on 9 March 2011.  The order of the Court of Appeal remained, for a new trial in the District Court.
26. No step was taken by Amos in the District Court between 22 October 2010 and 2 August 2012, when he filed an affidavit to resist an application by Wiltshire to strike out the proceedings for want of prosecution and as an abuse.^[19]  On 8 August 2012, a notice under r 389(1) UCPR was given.^[20]  Instead two excursions were undertaken.

First excursion – May to September 2012

27. The following is taken from the reasons of Dalton J in her Honour’s judgment in Amos v Wiltshire.^[21]
28. The costs ordered by the Court of Appeal on 22 October 2010, were pursued by Wiltshire.  He filed a costs statement in July 2011 and Amos served an objection.  The costs assessor was appointed by a Deputy Registrar on 29 November 2011.  The assessor assessed the costs at an amount over $132,000.  Amos did not pay them.  Instead, he took two steps to attack the assessed costs.
29. First, on 18 May 2012 he filed an originating application in the Supreme Court under UCPR r 791, seeking to attack the appointment of the costs assessor.^[22]  That was heard by Dalton J on 28 May and 14 June 2012.  Dalton J’s judgment was delivered on 19 September 2012.
30. Dalton J found that under then applicable UCPR r 771 the costs should have been assessed by a Registrar, not someone appointed by a Deputy Registrar, and therefore the appointment of the costs assessor was in error.^[23]  However, Dalton J dismissed the application for four reasons: (i) there was “gross delay” by Amos in bringing the application; (ii) he stood by while the costs were assessed; (iii) no contention was advanced that the assessment was faulty; and (iv) there was no contention that her Honour should grant leave to address those matters.^[24]
31. Secondly, on 29 May 2012 (the day after the hearing before Dalton J commenced), Amos filed an application in the Court of Appeal, seeking to have the assessment reviewed on grounds the same or similar to those advanced before Dalton J.^[25]

Second excursion – August 2012 to October 2016

32. On 2 August 2012, Amos filed an application in the Court of Appeal, seeking to set aside the orders of that Court made on 22 October 2010.  The application was under UCPR r 668(1)(b), alleging that there was recently discovered fresh evidence.^[26]
33. On 22 August 2012, the Court of Appeal remitted the determination of eight factual matters to the Trial Division so that the factual questions relevant to the application could be resolved.^[27]
34. It took some considerable time to have those issues brought to a hearing:^[28]

1. the hearing was originally listed for 29 and 30 July 2013;
2. on 3 June 2013, an application was made to have the hearing relisted (to 15 and 16 August, because of a mistake about the availability of Senior Counsel);^[29] Fryberg J heard that application on 21 June 2013;
3. it did not proceed in August;
4. on 20 November 2013, after ascertaining the availability of Counsel and witnesses, Wiltshire requested trial dates in April 2014;
5. on 22 November 2013, Wiltshire’s solicitor asked the hearing to be relisted for 8 and 9 April 2014;
6. Amos did not agree the dates, saying that the availability of Counsel needed to be checked;
7. on 25 November 2015, Wiltshire’s lawyers notified an intention to apply for relisting if a satisfactory response was not received by 29 November;
8. on 29 November, Amos’ response (via his solicitors) was to advise, for the first time, that Wiltshire’s Senior Counsel would be subpoenaed to testify at the hearing; they also said that they had written to Senior Counsel to ask if he was available on the proposed dates; in fact, Amos’ solicitors already knew that he was;
9. on 2 December 2013, Amos was told that the application and affidavit was being prepared; draft copies were sent to Amos;
10. consequently, on 3 December 2013 a second application to relist was filed;^[30]
11. later on 3 December 2013, Amos responded, saying that the affidavit was “false in material facts but also liable to be struck out as scandalous and embarrassing”; he threated that the deponent could be reported to the authorities;
12. the application to relist was heard by Atkinson J on 4 December 2013, by which time there was agreement to set it down for 8 and 9 April 2014; Amos applied to have Atkinson J recuse herself for apprehended bias; that was refused; Amos was ordered to pay indemnity costs, fixed at $6,127.00;^[31] and
13. on 20 December 2013, Amos lodged an appeal against the costs order made by Atkinson J.^[32]

35. The hearing of the remitted matters by Martin J was conducted on 8 and 9 April 2014, and judgment was handed down on 29 August 2014.^[33]
36. On 24 September 2014, Amos lodged an appeal from the findings of Martin J.^[34]  That appeal was dismissed by consent on 13 April 2015.^[35]
37. On 18 November 2014, the appeal from the costs order of Atkinson J was heard by the Court of Appeal.  On 2 April 2015, the appeal was dismissed.^[36]
38. Then on 24 July 2015, Amos sought to amend the application lodged on 2 August 2012, to add paragraph 1A seeking to adduce additional evidence.^[37]
39. On 24 August 2015, Amos filed an application in the Court of Appeal, seeking that there be a further hearing of the issues remitted to the trial division.^[38]
40. On 25 August 2015, the Court of Appeal struck out paragraph 1A of the amended application, and stayed the application filed on 24 August 2015.^[39]
41. On 28 August 2015, the Court of Appeal made various orders, including:^[40]

1. dismissing Amos’ application filed on 2 August 2012;
2. dismissing his application filed on 24 August 2015; and
3. ordering Amos to repay $200,288.90 “being for claim, costs and interest to today, together with interest on the sum of $133,390.28 …calculated from 28 August 2015 until the date of payment”.

42. On 25 February 2016, Amos filed an application in the Court of Appeal, seeking that the orders made on 25 and 28 August 2015 be vacated, and the matters listed for rehearing.^[41]  The basis for the application was said to be apprehended bias on the part of one member of the Court, Gotterson JA.
43. On 24 March 2016, that application was heard by Gotterson JA.  It was dismissed on 29 March 2016.^[42]
44. On 1 April 2016, the Court of Appeal delivered its reasons for the orders made on 28 August 2015.^[43]
45. On 29 April 2016, Amos filed an application for special leave to appeal to the High Court from the orders made on 28 August 2015.^[44]  Special leave was refused on 12 October 2016.^[45]
46. It was after that refusal that Amos started to take steps in the District Court, such as delivery of a supplementary list of documents and a request for trial date.  However, Wiltshire’s application to dismiss for want of prosecution (which had been filed 13 July 2012, and adjourned) was relisted.

Submissions

47. Mr Harrison QC, for Amos, submitted that the definition in sch 1 of the Civil Proceedings Act has a mirror provision in the Supreme Court of Queensland Act 1991 (Qld).  Therefore an appeal is part of the proceeding instituted in a court by a claim.  Hence the specific provision in UCPR r 775 for dismissal of an appeal (as opposed to the entire proceeding) for want of prosecution.
48. It has previously been accepted by the District Court that the filing of a notice of appeal is a proceeding or act in an action in the initiating court: Elliott v Ajax Insurance Company Limited.^[46]  Further, in Harris v Quine, it was held that that an appeal “... was nothing more nor less than a continuation of the original suit”.^[47]  Elliott and Harris support the contention that steps taken by way of appeal were steps in the District Court proceeding.  An appeal is part of the proceeding, not a separate proceeding.  For the purposes of UCPR r 389, any steps taken in the appeal solely affected Amos and Wiltshire.
49. It was submitted that the word “proceeding” is a word of wide import and includes both the principal proceeding and any appeal.  By its ordinary definition, a “proceeding” comprises any step taken in a cause by either party.  “Proceeding” is defined in sch 1 of the Acts Interpretation Act 1954 (Qld) to mean “a legal or other action or proceeding”. There had been no period of inactivity enlivening UCPR r 389(2).
50. Mr Harrison QC submitted that the “proceeding” is the matter between the parties and there are not separate proceedings in the District Court and in the Court of Appeal.  Rather, there is one proceeding between the parties and sub-proceedings within that proceeding.  Thus the application to the Court of Appeal was still part of the same proceedings as the District Court proceeding.
51. Mr O'Shea QC submitted that three sources of jurisdiction were relied upon, s 22 of the Civil Proceedings Act, the implied jurisdiction of the court to control its processes, and UCPR r 5(4).^[48]  Under UCPR r 5(4), the court could impose sanctions if a party did not comply with the rules, and r 5(3) provides that a party is subject to an implied undertaking to proceed in an expeditious way.  The steps taken were in breach of the implied undertaking to proceed expeditiously.
52. The orders were justified because steps taken on appeal or in other courts were not steps which “progress the action towards a conclusion”: Artahs Pty Ltd v Gall Standfield & Smith (A Firm).^[49]  The definition of “proceeding” merely established that an appeal is a proceeding.  It did not stipulate that an appeal was a component part of some other proceeding.  Elliott and Harris were distinguishable.  The relevant part of Elliott was not a decision of a superior court, and was obiter dicta proceeding on a misunderstanding of Johnson v Refuge Assurance Company Limited.^[50]  Harris dealt with whether an appeal was continuation of a suit for the purposes of the solicitor’s retainer to conduct the suit.
53. UCPR r 775, giving power to dismiss an appeal for want of prosecution, supported the fact that an appeal was not part of the proceeding in the court below.  If the appeal was part of the other proceeding there would be no need for r 775.
54. After the Court of Appeal decision in October 2010, the steps were attempts to overturn that decision, not to progress the trial.  The trial before Martin J was not an appeal, nor were the amended applications to the Court of Appeal.

Discussion – ground 2

55. The ground of appeal alleges an error “in finding that an appeal was not part of the proceeding and that a step in an appeal was not a step in the proceeding”.  That focus is maintained in the written submissions for Amos, reference being made to a finding by the primary judge “that the Appellant’s steps taken by way of appeal were not steps in a District Court proceeding”,^[51] and contesting an assertion by Wiltshire “that the appellant has not taken a step in the proceeding in excess of 6 years”.^[52]  Further, referring to Elliott and Harris, it is contended that they support the argument “that steps taken by way of appeal were steps in the District Court proceeding”.^[53]  Those submissions also focussed on UCPR r 389, which provides for notice to be given or leave to be obtained when certain periods of time have elapsed since the last step in the proceeding.
56. There are a number of reasons why I consider that the submissions for Amos should be rejected.
57. First, in my view, those submissions proceed on a misapprehension about the findings by the learned primary judge.  The application before his Honour was to dismiss the proceeding for want of prosecution.  Three alternative sources of jurisdiction were advanced: s 22 of the Civil Proceedings Act, UCPR r 5(4) and the Court’s implied jurisdiction.^[54] Having referred to the history of the litigation, his Honour said:^[55]

“It was essentially those proceedings, and a further application for special leave to appeal to the High Court which have occupied the parties since this application was filed in July 2012.  This raises a technical question of whether pursuit of the matter or matters in the Court of Appeal and in the High Court involve the prosecuting of the proceedings in terms of the proceeding before this court which is the subject of the application to dismiss for want of prosecution.  If pursuing those various matters, by way of appeals, constitutes prosecuting the proceeding – that is, the proceeding in this court – then it could not be said that there had been a want of prosecution during the relevant period.”

58. His Honour then referred to the definition of “proceeding” in schedule 1 of the Civil Proceedings Act, concluding that the definition “does not mean that a proceeding in the Court of Appeal, by way of appeal from a decision of the District Court, is treated as part of the proceeding in the District Court”.^[56]  His Honour continued:^[57]

“What happened in this case was that the proceeding in the District Court essentially came to an end, except for the purposes of enforcement, when the proceeding was heard and determined in March 2010.

However, the order of the Court of Appeal in October 2010 revived the proceeding, and it became, again, a proceeding pending in the District Court, and in my opinion, what has subsequently happened in the Court of Appeal, and for that matter, in the High Court, is not something done by way of prosecuting a proceeding in the District Court.  Those steps in those other courts are not the prosecution of the proceeding.  On the contrary, it was, particularly in this case where the object of the exercise was always to get the revival of the proceeding in the District Court reversed, the very opposite of prosecuting the proceeding.  But I think that is really incidental.  In my view, steps taken by way of appeal do not amount to prosecuting the proceeding.”

59. In my view, those passages demonstrate that the learned primary judge did not determine the matter on the basis of whether a step in the Court of Appeal or the High Court was a step in the District Court proceedings for the purposes of s 22 of the Civil Proceedings Act, nor did his conclusion depend upon whether the proceedings in the Court of Appeal or High Court were part of the proceedings in the District Court.  His Honour’s focus was on whether, regardless of those matters, the steps taken by way of appeal, and in the other courts, amounted to prosecuting the District Court proceeding.  So much is made clear by what his Honour then said:^[58]

“Of course, in the particular case, it may well be that there is a good excuse for failing to pursue a matter in this Court, that there are steps being taken by way of interlocutory appeal in another Court.  That would depend on the circumstances of the particular case.  In the present case, given the terms in which the proceedings in the Court of Appeal were described by Justice Fraser in the passages to which I have referred – the other members of that Court agreed with those passages – it does not seem to me that pursuit of the proceedings in the Court of Appeal provide a particularly compelling excuse for the failure to prosecute the proceeding of this Court.”

60. Secondly, there is another aspect which, in my view, the submissions for Amos do not accommodate.  The Court of Appeal judgment on 22 October 2010,^[59] made a number of findings as to the original District Court trial and resultant judgment.  They were as follows:

1. Amos failed to disclose documents which were plainly directly relevant and highly pertinent to the resolution of the central issues in the trial;^[60]
2. the fresh evidence held back by that failure to make proper disclosure had the potential to impugn the evidence of Amos and Collinson, and had it been disclosed, and used, there would have been “at least a real possibility” that Wiltshire would have succeeded on the trial;^[61]
3. the fresh evidence, on its face, cast grave doubt on Amos’ evidence at the trial,^[62] and also cast doubt on Collinson’s evidence at the trial which “would appear to be wrong, and if not wrong, misleading”;^[63]
4. the explanations offered by Amos for his failure to disclose relevant documents were unsatisfactory;^[64]
5. the failure to disclose the documents deprived Wiltshire of his right to a fair trial, and left Amos with the spoils gained by breaching his obligation of disclosure;^[65] and therefore
6. there should be a new trial to finally resolve the central issues in the case, taking into account the new evidence.^[66]

61. Amos sought special leave to appeal to the High Court to challenge that decision.  Special leave was refused.  Therefore those findings stand and are binding as between Amos and Wiltshire.
62. The significance of the foregoing is that there has been, since October 2010, a binding determination that a new trial was warranted to properly determine the issues in the District Court, taking into account the evidence which Amos had withheld because he breached his duty of disclosure.  That provides the prism within which the question of prosecution of the District Court proceedings had to be considered.  Of particular importance, in my view, is the conclusion that Wiltshire was denied a fair trial because Amos breached his duty of disclosure, the result being that the judgment was unfairly obtained.
63. The Court of Appeal’s conclusion that Amos’ breach of his obligations in respect of disclosure rendered the District Court judgment unfairly obtained, is supported by what was said by the High Court on the special leave application from that decision:^[67]

“The special leave application raises several grounds that are appropriate for consideration in a retrial rather than in an appeal to this Court.  Furthermore, the applicant’s failure to comply with the order for discovery meant that the judgment in the District Court was based on an incomplete factual foundation.  A retrial, as ordered by the Court of Appeal, will allow the District Court to consider the full factual foundation of this matter.”

64. What this means is that there have been since 22 October 2010 and then 9 March 2011, concurrent findings by the Court of Appeal and the High Court^[68] that the District Court judgment was based on an incomplete factual foundation brought about by Amos’ breach of his obligations in respect of disclosure.  All of the steps taken by him since that time, in courts other than the District Court, have been in an effort to sustain the unfairly obtained District Court judgment, rather than to progress the new trial ordered by the Court of Appeal.
65. Thirdly, in my view the lack of any reasonable basis for the steps that were taken by Amos prevents them being characterised as prosecuting the proceeding. It is true to say that Amos challenged the Court of Appeal’s orders of 22 October 2010.  However, there can be no doubt those challenges lacked any merit.  The first came by the application which depended on the evidence dealt with by Martin J in the Supreme Court.  That evidence was principally from a Ms Schiewe, but her evidence was found to be “unreliable and, in some places, unbelievable”, and that the evidence of Amos “was tailored to suit his case and he shifted ground as it became apparent to him that his statements were demonstrably untrue”.^[69]  An appeal against those findings was dismissed by consent.
66. The second challenge was when Amos sought to have a further hearing based on another application to adduce further evidence in order to set aside the orders of October 2010.  That evidence was considered by the Court of Appeal and rejected on 28 August 2015.^[70]  As the reasons for that rejection demonstrate, that application was completely unmeritorious.  Fraser JA^[71] found the suggested fresh evidence equivocal and such that it was discoverable by reasonable diligence.^[72]  He noted that Amos’ latest application was designed to re-open the hearing before Martin J with a view to reversing his findings.  However, no challenge was made to the reasons given by Martin J for his findings about the credibility and reliability of the evidence of Ms Schiewe and Amos.  Therefore the chance of the fresh evidence altering those findings was not at all likely.^[73]  Fraser JA said:^[74]

“I concluded that it was wholly inappropriate to allow the respondent further time for yet another opportunity to challenge the Court’s final orders of 22 October 2010.  I would have reached the same conclusion even if I had thought that the new evidence suggested a reasonable case that the respondent might have obtained a favourable determination had the new evidence been available to him; the appalling history of the litigation in this Court was such that the only appropriate response was to bring that litigation to an end.”

67. Albeit in the context of dealing with the question of indemnity costs, Fraser JA’s characterisation of Amos’ attempts to set aside the orders of 22 October 2010 were expressed in this way:^[75]

“The respondent’s various attempts to set aside the Court’s orders of October 2010 lacked any reasonable basis, and they were premised on evidence which, on the unchallenged findings by Martin J, lacked credibility and was tailored to suit the respondent’s claims.”

68. Amos sought special leave to appeal to the High Court from those findings, but that was refused.
69. The consequence is that there are findings, binding on Amos, that there was never any reasonable basis for him to challenge the orders made by the Court of Appeal on 22 October 2010.  That being so, it is puzzling to see how all of the steps in the Court of Appeal since that time, and in the Supreme Court and the High Court, could be said to be the prosecution of the proceedings in the District Court.
70. Amos’ pursuit of that course deserves censure.  The findings by Martin J and Fraser JA (on the appeal from that decision), make it plain that not only were the applications completely lacking in merit, they were engineered by Amos producing untrue evidence, tailored to suit unmeritorious contentions.  Fraser JA’s reference to the “appalling history of the litigation in this Court” was apt.
71. Fourthly, the authority relied upon by Amos is distinguishable. I do not consider that Harris or Elliott are of assistance.  Harris involved the question of whether a particular statute barred a claim under the retainer of a firm of lawyers.  The lawyers were retained to conduct a particular suit in the courts.  That suit was dismissed and an appeal was then conducted by the lawyers.  The local statute required any action on a contract to be brought within three years of the cause of action.  The lawyers brought an action more than three years after the end of the appeal process.  At first instance, the court held that the action was barred by the Statute of Limitations.  Some five years later the lawyers commenced a suit in England, to which the Statute of Limitations was pleaded.  At issue was whether there was a continuous retainer of the lawyers through to the end of the appeal.  The court held that had the suit terminated once it was dismissed in the primary court, then the contract with the lawyers would have terminated as well.  However, because there was an appeal, and the lawyers acted on the appeal, that was taken to be a continuation of the original suit with the effect that the lawyers continued to conduct the litigation and the contract continued.  In my view, Harris says nothing to assist the resolution of the present case.  It turned on the fact that the lawyers’ retainer was to conduct the court proceedings, and when those proceedings might be taken to have ended for the purpose of that contract.
72. Elliott held that the filing of a notice of appeal was a proceeding or act in an action for the purposes of r 309 of the Magistrates’ Court Rules.  That rule provided that the court had power to enlarge or abridge time “for doing any act or taking any proceeding in an action”.  The contention there was that power was given to enlarge time for doing an act in an action, or for taking a proceeding in an action.  Mylne DCJ rejected that argument, seeing no reason to limit the “doing any act” to “an act in an action”.  That was sufficient to dispose of the case.  However, his Honour went on to express the additional view that “the filing of the notice of appeal was a proceeding or act in an action”.  His Honour said that view was supported by the decision in Johnson v Refuge Assurance Company Limited.^[76]  No further analysis was given beyond citing Johnson.
73. Johnson concerned an application for extension of time for appealing from a judgment of the Divisional Court, itself on appeal from a County Court.  The relevant rule provided that no appeal to the Court of Appeal “from any other order, whether final or interlocutory, in any matter not being an action, shall be brought after … the expiration of 14 days”.  The order of the Divisional Court was a final order dismissing an appeal from the County Court.  Buckley LJ therefore had to consider whether the order was a final order made in a “matter not being an action”.  If it was a final order in an action, then the time for appealing was three months and the appeal was in time.  The question whether it was an “action” depended on the meaning of s 100 of the Judicature Act 1873 (UK), which provided that “action” meant (relevantly) a “civil proceeding commenced … in such manner as may be prescribed by rules of Court”. In turn that raised the question whether the court’s rules referred to in s 100 were those of the court in which the proceedings originated, namely the County Court.
74. Buckley LJ held that the proceeding in the County Court came within the definition of “action” under s 100 of the Judicature Act 1873.  His Lordship drew support from s 126 of the County Courts Act 1888 (UK), which spoke of an “action” commenced in the County Court being removed into the High Court and then that “action” being tried in the High Court.  Upon removal it became an “action” in the High Court and therefore came within the rule providing for a certain time to appeal from a final order in an “action”.  He held that the Divisional Court order was “a final order in an action and not in a matter other than an action”.^[77]  Kennedy LJ agreed, concluding that the word “action” in the phrase “not being an action” in the particular rule, referred to any proceeding in the nature of litigation between a plaintiff and a defendant.
75. Johnson therefore turned upon particular statutory provisions which are inapplicable in the present case.  It did not, in my respectful view, establish any proposition to support the obiter dicta conclusion in Elliott.
76. In any event, it is s 22 of the Civil Proceedings Act which gives power to the District Court to dismiss for want of prosecution “if 2 years have passed since the last step was taken in a proceeding”.  That is the only statutory source of jurisdiction in the present case, and its terms are well removed from those under consideration in Elliott and Johnson.  In any event, Elliott and Harris do not assist on the exercise in respect of the case based upon UCPR r 5(4) or the implied jurisdiction of the District Court.
77. Fifthly, even if it is right to say that an appeal is part of the proceeding in the District Court, what was done cannot be described as a “step” for the purposes of s 22 of the Civil Proceedings Act.  In that respect, this Court’s decision in Artahs Pty Ltd v Gall Standfield & Smith (A Firm)^[78] provides authority.  That case considered whether a step in the proceeding had been taken for the purposes of UCPR r 389.  McMurdo P said:^[79]

“The expression ‘step’ is not defined in the UCPR.  Its ordinary meaning in this context is: ‘a move or proceeding, as toward some end or in the general course of action: the first step towards peace.’  Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case.  It is clear from the authorities discussed by Peter Lyons J that, to be a step under r 389 it must, consistent with that word’s ordinary meaning, progress the action towards a conclusion.”

78. At issue in Artahs was whether an order made by the judge in charge of caseflow management (which order was then not met) could amount to a step in the proceeding.  McMurdo P held that it could not “because in this case the order itself did not progress the action towards finalisation, even though subsequent compliance with the order would have progressed the action”.^[80]
79. One of the authorities referred to by Peter Lyons J in Artahs was Spincer v Watts.^[81]  That case was concerned with the UK rule providing that a plaintiff could discontinue “… before taking any other proceeding in the action”.  Lindley LJ said that a “proceeding in the action” occurs when a party takes “… any proceeding with the view of continuing the litigation with the person against whom the proceeding is taken”.^[82]  Lopes LJ referred to the rule and said:^[83]

“I think the rule intended a proceeding which is to have the effect of continuing the action – not a proceeding which has the effect of putting an end to the action.”

80. A similar view was reached in Crane v Western Australia^[84] where the court said:^[85]

“[22] What constitutes the ‘last proceeding in an action’ (or cognate expressions) within the meaning of comparable rules in other jurisdictions has been the subject of a large number of decisions.  Some of the old English decisions were helpfully collected by Stable J in Kaats v Caelers [1966] Qd R 482 and also by McPherson SPJ in Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592.  In Kaats, Stable J referred (at 489), with evident approval, to Webster v Myer, where a ‘proceeding’ was described as ‘some step taken towards judgment or relief sought in the action’; and to Mundy, to the observation by Maugham J that, not as a definition but a kind of approximation, ‘last proceeding’ in the rule ‘suggests something in the nature of a formal step, at least a step taken by the litigant in the prosecution of the case, being a step required by the rules’.”

81. Applying what was said in Artahs and Crane to the present case, one is forced to ask, how can it be said that the attempts to overturn the Court of Appeal decision of 22 October 2010, all of which were found to have had no reasonable basis and to have been generated by false and tailored evidence, were steps which progressed the action or proceeded towards a conclusion.  All the steps since October 2010 were unreasonable and baseless attempts to overturn the decision.  In my respectful view, they cannot be described as steps taken to progress the proceeding towards a conclusion.
82. Sixthly, the argument to the contrary put on behalf of Amos, proceeds upon an assumption which, in my view, is misconceived.  The assumption is that the so-called fresh evidence which Amos wished to use to set aside the decision of the Court of Appeal of 22 October 2010, would have had that result.  It is only if that decision was set aside, and as a consequence the District Court judgment was reinstated, that it could have been said to have been steps taken to progress the action towards conclusion, that is to say, judgment in favour of Amos.  However, it is not at all clear that even if the so-called fresh evidence had greater probative value than was held to be the case by all of the judges who subsequently dealt with it, that the result would have been reinstatement of the District Court judgment.  A much more likely outcome was that the Court of Appeal would have still ordered a new trial, so that the competing factual matters could have been tested.  Of course, at the new trial ordered by the Court of Appeal on 22 October 2010, Amos was free to advance all of the evidence which he had been agitating subsequently to 22 October 2010.  If he had taken any step to progress the new trial, it would have been long since dealt with.  The six years spent subsequent to the Court of Appeal’s decision for a new trial, were occupied largely by baseless attempts to overturn the Court of Appeal’s decision, in a way that cannot be described as progressing the proceedings.
83. For these reasons it seems to me that ground 2 lacks merit.

Ground 3 – exercise of the discretion

84. This ground contended that the learned trial judge was wrong to conclude that there was a real risk that a fair trial could not be had.

Submissions

85. Mr Harrison QC submitted for Amos that the learned trial judge’s finding about the risk to genuine memory failed to take into account that Amos and Wiltshire had given evidence at the trial, and have had reason to remember it since as the litigation has continued.  However, it was accepted that the delay was the choice of Amos in the pursuit of the steps other than to trial.  It was also submitted that it was relevant to the discretion that Wiltshire could have applied at any time to have the matter reheard.
86. It was further submitted on behalf of Amos that the discretion miscarried in the course of the learned primary judge’s examination of the various factors in Tyler v Custom Credit Corporation Limited & Ors.^[86]  Specifically it was contended that the delay was not inexcusable, and it was not possible or permissible for Amos to have acted sooner while the various appeals were on foot.  It was contended that if Amos was successful on the appeals “it would have been unnecessary to go back to the District Court”.^[87]  It was also contended that there were significant periods of delay caused by Wiltshire, identified in a chronology in the schedule annexed to these Reasons.
87. It was further contended that the delay was not such as to demonstrate that the matter could not be fairly tried.  In this context, Mr Harrison QC submitted that the likely witnesses at a rehearing were likely to be available, and whilst there might be diminished recollections “it would have always been in the minds of the parties that a retrial was possible if not probable”.  Evidence was given at the trial, as well as in the Supreme Court trial on 8 and 9 April 2014, “which will assist in the refreshing of the witnesses respective memories to the extent that they need to be refreshed (if at all)”.^[88]
88. It was also contended that there was no prejudice to Wiltshire as a result of the delay and there was a general failure to balance the various factors from Tyler v Custom Credit Corporation.
89. Mr Harrison QC informed the Court that on 11 August 2017, Amos had “repaid an amount of $153,699.81 … and that amount comprises the principal amount of the judgment and interest, but not the full amount of the interest”.^[89]
90. Mr O'Shea QC submitted that the learned trial judge was right to conclude that there was risk to the fairness of a retrial.  The issues turned on an oral conversation in 2007 between Amos and Wiltshire, and the delay since was significant in terms of fading memories being overlaid by features of reconstruction.  In terms of the exercise of the discretion, other relevant factors were that: Amos had not repaid the money paid under the now overturned judgment; no steps were taken to produce a trial; adverse findings were made against Amos and his witnesses on the application to overturn the October 2010 decision; Amos knew matters had been falsely sworn, but persisted with them; unmeritorious applications were made, including alleging apprehended bias; and the 2016 special leave application was doomed.
91. It was further submitted that the appeal concerned matters of practice and procedure^[90] and there was no identification of an error in the exercise of the discretion such as would enliven the principle in House v The King.^[91]
92. It was further submitted that the failure to repay the money paid under the judgment was a factor to be weighed in the exercise of the discretion, as it meant that Amos was continuing to disobey court orders.

Discussion

93. In my respectful view, there is no merit in this ground, for a number of reasons.
94. First, the delay was inexcusable.  Given the findings of the Court of Appeal and Martin J in respect of the quality of the evidence and the conduct of Amos in tailoring evidence to suit his case, and the fact that the attacks on the Court of Appeal decision of 22 October 2010 were found to have no reasonable basis, there is no reasonable excuse for the delay.  I cannot accept the submission that “it was simply not possible or permissible for [Amos] to have acted sooner while the various appeals were on foot”.  The “various appeals” had no reasonable basis, and sought to restore a judgment which Amos had obtained unfairly by breaching his obligation of disclosure in the first place.  The concurrent findings of the Court of Appeal and the High Court show that his efforts since October 2010, and more specifically since he lodged the application in the Court of Appeal in August 2012, were designed to thwart the order made on 22 October 2010, and to deny Wiltshire the success that he enjoyed in setting aside the judgment.  The irony is that the attempts to adduce evidence to prove one thing (that Wiltshire’s evidence could not be accepted), in fact proved the other, namely that the evidence to support Amos’ case, and Amos’ evidence itself, was unreliable.  The finding that Amos’ evidence “was tailored to suit his case and he shifted ground as it became apparent to him that his statements were demonstrably untrue”^[92] was damning.  The growing realisation of that may well explain his trenchant efforts to continue to resist the new trial.
95. Secondly, for reasons which I have expressed earlier, it is simply incorrect to say that if Amos had been successful on his application to set aside the orders made on 22 October 2010, “it would have been unnecessary to go back to the District Court”.  The more likely result was that a new trial would still have been ordered.
96. Thirdly, in context, any delay on the part of Wiltshire pales into insignificance.
97. Fourthly, in my respectful view, the learned primary judge’s reasoning in respect of the risk from non-genuine recollections is unassailable.  The principal attack before this Court was on the basis that the various witnesses had sworn affidavits and given evidence, some on more than one occasion, and therefore the learned trial judge was wrong to take the view that there was a risk to the fairness of the new trial.  As to that, it is important to understand what it was the learned primary judge said in relation to the delay causing prejudice:^[93]

“As to the question of whether the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial, in the present circumstances, the issue to be tried would depend on the conflict of oral evidence about what was said in a conversation in late 2007.  Given the natural fading of memories with time, one would ordinarily expect that, after this passage of time to this extent, it will be very difficult to have a fair trial of an issue of that, because any real memory would be so overlaid by features of reconstruction as to be essentially undetectable.

There has been a previous trial, but re-reading the transcript of that trial, which no doubt the parties would be free to do before they gave evidence again, would merely serve to ensure that anything they now said would be, essentially, reconstruction rather than anything in the way of genuine memory.  I would have grave doubts as to whether there could be a fair trial of the dispute about who said what in the conversation in late 2007, and I think that the delay is likely to make it very difficult to have a fair [trial] of any issue turning on oral evidence of that age.”

98. It is now 10 years since the relevant conversation that Amos and Wiltshire would be required to recall at the new trial.  Given the finding by the Court of Appeal and Martin J as to Amos’ tailoring of evidence, and the adverse credit findings against him, there can be no great confidence that his account of the new trial will consist of anything but a reconstruction.  The same cannot be said of Wiltshire, but the fact is that such a long period has now elapsed that there must be a risk that genuine memory has gone, and in its place will be the entrenched memory based on previous evidence or previous affidavits.
99. Fifthly, the learned primary judge found that there was real prejudice to Wiltshire as a result of the delay in these proceedings.  In that respect, the learned primary judge adopted what was said by Atkinson J in Tyler v Custom Credit Corporation,^[94] when her Honour said after enumerating various specific factors:

“The court’s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.”

100. The learned primary judge then said:^[95]

“That, I think, is the real prejudice to [Wiltshire] as a result of the delay in these proceedings.  The position is simply that, in circumstances where the original judgment at trial was set aside and an order was made for retrial, [Amos] has pursued all sorts of other avenues without, it seems at times, anything seriously arguable or anything of any substance to base such a pursuit on, for a very extended period of time rather than bringing the retrial on.”

101. It is my respectful view that the learned primary judge was undoubtedly correct.
102. There has been an extraordinary period of delay and interference with Wiltshire’s life, caused by Amos making attempts to overturn a Court of Appeal decision, and all those attempts have been without a reasonable basis.  There cannot be any real question, but that Wiltshire has suffered prejudice by having the vexation of the case for so long.
103. Sixthly, overlaying all of those factors is the extraordinary conduct of Amos in refusing to repay that which he had been twice ordered to repay.  On 27 September 2012, Amos consented to an order that he repay the amount of the judgment and interest.  He did not do so.^[96]  Then on 1 April 2016, the Court of Appeal ordered him to pay the sum of $200,288.90 plus interest.  That order has never been stayed. That order was disobeyed until shortly before the hearing of this appeal, and even then the full sum was not paid.  Amos’ refusal to comply with orders of the District Court and the Court of Appeal add an extra layer to the prejudice suffered by Wiltshire over the period of delay.  Wiltshire paid the District Court judgment and costs in a timely way.  Despite having been ordered to repay those sums, Amos acted in defiance of the courts, presumably because of his attempts to overturn the Court of Appeal order of 22 October 2010.  The fact that those attempts lacked any reasonable basis makes his defiance all the more deplorable.
104. The challenge on ground 3 of the appeal fails.

Disposition of the appeal

105. It will be apparent from the reasons above that all grounds have failed.  I would make the following orders:
     1. Grant leave to appeal nunc pro tunc.
     2. The appeal is dismissed.
     3. The appellant is to pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis.
106. FLANAGAN J:  I agree with the orders proposed by Morrison JA and with his Honour’s reasons.