UCPR r667(2)(a): failure to appear & setting aside order

Amos v Wiltshire [2014] QCA 218

Muir JA delivered the judgment with whom North J and Flanagan JJ concurred. His Honour allowed the appeal based on the neglect of the applicant’s solicitors without irreparable prejudice, but awarded indemnity costs in favour of the respondent and made note of the following:

[16] Mr Collinson’s cross-examination revealed that the deponents had not attempted to give a full and frank account of the circumstances in which the applicant had failed to appear. It emerged that the applicant, who was a long standing friend of Mr Collinson and who had done work for him as a law clerk for many years, had the carriage of his own appeal. Mr Collinson’s role was essentially that of a post box. The applicant, who generally worked from his home in Clayfield, did not have a computer. Consequently, any electronic communications with the Court or the respondent’s solicitors concerning the appeal were with Mr Collinson who transmitted them by fax or post to the applicant.

[17] The explanation concerning the 27 June email is certainly inadequate in the sense that it reveals unsatisfactory practices or procedures in the solicitor’s office. Ultimately, however, the evidence establishes the existence of an error or omission on the part of the solicitor to which the applicant was not shown to have contributed, directly at least.

[18] As the respondent did not allege irretrievable prejudice resulting from the applicant’s failure to appear, provided he was protected by an appropriate costs order, it seems to me that, subject to the respondent’s other arguments, the applicant should have the opportunity of having the matter determined on the merits.

[19] I would not wish, however, to encourage the view that incompetence, inefficiency or neglect must be endured by the innocent party and comes without sanction. There will be many cases in which delay alone, with or without the added burden of costs, may be a decisive factor against relieving a party from the consequences of its own error. Courts are increasingly conscious of the financial and emotional impact on parties of the avoidable prolongation of litigation and are thus more ready than in the past to infer prejudice for which costs cannot provide full compensation.[5]

David Cormack – Brisbane Barrister & Mediator

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