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Queensland Judgments

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Amos v Wiltshire  
Unreported Citation: [2018] QCA 208
EDITOR'S NOTE

In this decision, the Court of Appeal concluded that a court has power to amend an enforcement warrant under r 371 and r 375 of the UCPR, notwithstanding that judgment in the proceeding has already been given. The decision also contains a useful discussion of the requirement for leave to appeal in s 118 of the District Court of Queensland Act 1967.

Sofronoff P and Flanagan and Brown JJ

4 September 2018

Mr Wiltshire commenced negligence proceedings against Mr Amos in 2009. On 28 August 2015, the Court of Appeal made an order that Mr Amos pay Mr Wiltshire the sum of $200,288.90 together with interest of $133,390.28. Mr Amos did not pay the sum, and on 12 February 2016, Mr Wiltshire took out an enforcement warrant against Mr Amos to recover those amounts. The warrant miscalculated daily interest at $28.00 per day, rather than $27.40 per day. Mr Wiltshire applied to the District Court to amend the warrant. By cross-application, Mr Amos sought to have the warrant set aside or stayed.

The primary judge found that the irregularity identified did not justify the warrant being set aside and instead ordered that the warrant be amended. He refused the cross-application to set aside or stay the warrant. Mr Amos applied to appeal that decision to the Court of Appeal.

Leave to appeal

A preliminary issue was whether leave to appeal the primary judge’s decision was required. Section 118(2) and (3) of the District Court of Queensland Act 1967 (DCA) currently provides:

“(2) A party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment —

  1. (a) is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or
  2. (b) given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(3) Subject to sections 118A and 118B, a party who is dissatisfied with any other judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.”

The words ‘or interlocutory’ in s 118(2) were inserted by an amending Act in 2010, but that amendment only applied to ‘actions, matters or proceedings’, which were instituted after the commencement of the amending Act. [24].

Brown J, with whom Sofronoff P and Flanagan J agreed, considered that the relevant ‘proceeding’ was the principal proceeding (in negligence) to which the enforcement proceeding was incidental. [28]. As that proceeding had commenced in 2009, the amendment did not apply and Mr Amos required leave to appeal unless the primary judge’s decision on the amendment of the warrant was ‘final’. [31].

Brown J considered that the primary judgment was not ‘final’ for the purposes of s 118(2) because nothing prevented Mr Amos from bringing a fresh application to set aside the warrant. [32]. That was so even though the practical effect of the orders was that any further application would inevitably fail. [32].

His Honour also rejected Mr Amos’ argument that the enforcement proceeding ‘relates to a claim for, or relating to, property’ within s 118(2)(b) because the warrant could be enforced against his real property. The court considered that it is the principal proceeding, not the enforcement proceeding, which must be characterised as relating to property. [35]. Leave to appeal was therefore required.

Proposed grounds of appeal

Having concluded that leave to appeal was required, Brown J examined Mr Amos’ proposed grounds of appeal in order to determine whether Mr Amos had reasonable prospects of success and whether substantial injustice would be suffered by Mr Amos if leave was refused.

No power to amend enforcement warrant

Rule 817 provides a list of items which ‘must’ be filed with the application for an enforcement warrant. Rule 371(1) provides that a failure to comply with the UCPR is an irregularity and does not render a proceeding, document, step taken or order a nullity. Rule 371(2) provides that if there has been a failure to comply with the UCPR, the court has power to make a wide range of orders. Rule 375 provides, inter alia, that at any stage of the proceeding, the court may allow or direct a party to amend any document in a proceeding in the way and on the conditions the court considers appropriate.

Mr Amos contended that the primary judge had no power to amend the enforcement warrant because rr 371 and 375 applied only up until judgment. However, the court held that there was no reason to limit the operation of rr 371 and 375 to the period prior to judgment. The text, context and purpose of the rules supported their operation extending to enforcement warrants. [44]. The primary judge therefore had power, pursuant to ss 371 or 375, to order an amendment of the warrant.

Notwithstanding the amendment, the warrant did not comply with r 817 UCPR

Mr Amos also submitted that the word ‘must’ in r 817 signified that it contained mandatory overriding requirements that could not be dispensed with by amendment of the warrant. The court refused to accept that contention. As is the position with other instances of the term ‘must’ in the UCPR, r 371 renders any breach of r 817 an irregularity and the warrant is not a nullity. [44]-[45].

Departure from the judgment

Mr Amos’s final contention was that the warrant was defective because, in improperly calculating interest, it failed to comply with or follow the judgment. The court considered that the proper characterisation of the error was as a failure to apply properly the rules governing interest, not a failure to follow the judgment. [46].

Conclusion

The court refused leave to appeal as Mr Amos had failed to demonstrate a reasonably arguable ground of appeal, or that he would suffer any real injustice if leave were refused. [57]-[60].

M Maynard