//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] QCA 294
Court of Appeal (Qld)
2010-10-22
Muir JA and Cullinane and Jones JJSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Wiltshire v Amos [2010] QCA 294
PARTIES: CHRISTOPHER WILTSHIRE (defendant/appellant) v EDWARD AMOS (plaintiff/respondent)
FILE NO/S: Appeal No 4199 of 2010 / DC No 1527 of 2009
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal / Miscellaneous Application – Civil
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 22 October 2010
DELIVERED AT: Brisbane
HEARING DATE: 8 October 2010
JUDGES: Muir JA and Cullinane and Jones JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: **1.**The Court receive the evidence in the affidavits of the appellant filed on 6 July and 6 October 2010. / **2.**The appeal be allowed. / **3.**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. / **4.**The costs of the District Court trial be the appellant’s costs in the cause. / **5.**The respondent pay the appellant's costs of the appeal.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – primary judge found appellant barrister breached his duty to exercise reasonable care and skill in the provision of professional advice and respondent suffered loss and damage – appellant retained directly by respondent – respondent claimed appellant retained to advise whether there were grounds to have a judgment set aside – respondent claimed appellant stated there were good prospects of having judgment set aside on the basis of fraud – respondent claimed this was the first time fraud was raised – respondent’s evidence supported by evidence of respondent’s solicitor – appellant sought to adduce fresh evidence indicating respondent had raised and received advice on the issue of fraud prior to retaining appellant – respondent argued fresh evidence not directly relevant to any issue in the proceeding – respondent failed to disclose documents – respondent argued appellant did not use reasonable diligence to obtain the documents – whether fresh evidence should be admitted / APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – NATURE AND PROBABLE EFFECT OF EVIDENCE – GENERALLY – appellant successfully adduced fresh evidence on appeal – whether new trial should be ordered / Uniform Civil Procedure Rules 1999 (Qld), r 5(2) / Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582, [1975] HCA 33, cited / Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, [1991] HCA 61, cited / D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [2005] HCA 12, cited / Quade v Commonwealth Bank of Australia (1991) 27 FCR 569; [1991] FCA 26, cited / Yevad Products Pty Ltd v Brookfield [2005] FCAFC 177, cited
COUNSEL: P O'Shea, with S Moody, for the appellant / M Steele for the respondent
SOLICITORS: Smith & Stanton for the appellant / Keller, Nall & Brown for the respondent
The respondent sued a company which carried on business as a legal costs assessor ("Monsour") and two of its directors in the Magistrates Court for damages for negligence in relation to a costs assessment provided by Monsour in proceedings to which the respondent was a party. The claim was dismissed on 31 August 2004 and the respondent was ordered to pay the defendants' costs on an indemnity basis assessed at $49,996. An appeal to the District Court against the Magistrate's decision, other than in relation to costs, was dismissed with costs on 17 May 2005. An appeal to the District Court against the costs order was allowed on 2 November 2006 but only to the extent that the costs award was reduced by $4,490. The respondent was ordered to pay the other parties' costs of the appeal on the standard basis ("the Costs Order").
An appeal against the Costs Order was dismissed with costs by the Court of Appeal on 24 July 2007. The respondent was not ready to leave Monsour in peace. By 1 November 2007 he was alleging that the Costs Order had been procured by fraud: a somewhat unlikely fraud said to have been constituted by an erroneous statement made by Monsour's counsel to the judge who made the Costs Order in the presence of the respondent's own counsel and was not corrected by him.
On 2 January 2008 the respondent commenced District Court proceeding BD 2 of 2008 by filing a claim and statement of claim claiming that the Costs Order be set aside and that the defendants pay the respondent's costs of the appeal and damages in the amount of $250,000. The claim and statement of claim were drafted by the appellant, a barrister, and provided to the respondent by the appellant in a meeting on about 6 December 2007. The respondent rendered an account dated 6 December 2007 in the sum of $1,000 for "Fee on brief-drawing and settling claim and statement of claim".
The respondent met the appellant for the first time in the appellant's chambers on about 23 November 2007. The appellant was then given a bundle of documents which included the District Court judge's decision of 2 November 2006 and a letter from the respondent to the appellant dated 22 November 2007. The letter commenced:
"As discussed briefed herewith please find the following documents for your examination and to advise if any grounds exist to overturn [the] judgment and, if so, then what are the prospects of success. Also what is the correct procedure if there are any grounds to overturn the judgment."
These proceedings
(a)The appellant was retained directly by the respondent;
(b)The respondent briefed the appellant to advise if there were grounds available to have the Costs Order set aside;
(c)The appellant advised the respondent that the Costs Order had been procured by fraud of the respondent's counsel "by having made submissions which falsely asserted that the costs hearing lasted a single day but the hearing was extended and time actually engaged in court was … a total of 7 hours and 30 minutes …";
(d)The appellant failed to exercise due skill and diligence by not ascertaining and informing the respondent that the facts were insufficient to support an allegation of fraud, that the action had no prospects of success and was likely to be summarily struck out with an award of indemnity costs against the respondent;
(e)Had the appellant advised the respondent of the matters referred to above, the respondent would have instructed that the claim and statement of claim not be prepared;
(f)The respondent suffered loss and damage in the sum of $114,302.17.
The respondent's evidence at first instance
"… that he'd been through the papers. The barrister for Monsour, who prepared submissions, had committed a fraud, that I had good prospects of having [the] judgment set aside on that basis and that he'd go ahead and prepare the material."
He claimed that this was the first occasion on which he had heard of the issue or question of fraud.
According to the respondent, the appellant assured him on two or three occasions that he had good prospects of succeeding on a claim to have the Costs Order set aside on the grounds of fraud. His evidence was that if he had been told that there were "no prospects of success and the likelihood of indemnity costs" he would not have commenced the proceedings.
In the cross-examination of the respondent by the appellant the following exchange occurred:
"You said that Mr Tait SC had given you informal advice that that's what you should do?-- Originally I saw Mr Tait. He didn't see any documents. He just expressed the view that there may be something in it and to seek advice from – or consult a junior counsel, and if it was a likelihood of getting Judge Nase's decision over turned, get that counsel to prepare the documents and he, Tait, would come into it later to argue the matter in Court if necessary."
Mr Collinson's evidence
Mr Collinson, a principal of Keller, Nall & Brown, gave evidence, without objection, of having been told by Mr Amos in his (Mr Collinson's) office in December 2007 that he was thinking of getting an opinion on his prospects of success in relation to the Monsour matter from the appellant. He said that this was his first "involvement" in the matter.1 Mr Collinson said that he suggested to the respondent that the respondent "could take that course of action", i.e. get the appellant's advice on prospects. Asked what happened next, he said that in early December 2007 the respondent told him that he'd seen the appellant who had advised that the respondent had good prospects of success in the action and that the appellant would be drawing the pleadings. Mr Collinson gave evidence of a later conversation with the appellant in which the appellant had said that the respondent's prospects of success were good.
Initially, the appellant did not intend to challenge Mr Collinson's evidence. After being prompted by the primary judge, the appellant said:
"… Certainly. Well, I'm cognisant of the fact that the rule in Browne v Dunn no longer applies. I was simply seeking to save time to avoid unnecessary puttage, your Honour, but I take your Honour's point. So I - so, Mr Collinson, the telephone conversation between us as to which you've given evidence never occurred? …"
The appellant's evidence
(a)Fraud was a very serious matter to allege and prove and that it had to be strictly proved;
(b)He wanted to have another look at the law on setting aside fraudulently obtained judgments;
(c)He was prepared to draw and settle a claim and statement of claim.
The primary judge's findings
Application for leave to adduce further evidence – the appellant's submissions
(a)Letters from Keller, Nall & Brown to McInnes Wilson Lawyers dated 22 October 2007, 25 October 2007 and 26 October 2007 in which it was alleged that the District Court judge, and in the case of the 25 and 26 October letters, the Court of Appeal, had been misled by the submissions as to the duration of the costs hearing before the Magistrate;
(b)A written submission dated 1 November 2007 made by the respondent in the District Court in BD 2347/05 to the effect that the Costs Order was made as a result of the fraudulent conduct of Monsour and its solicitors;
(c)Letter dated 5 November 2007 from Keller, Nall & Brown to McInnes Wilson Lawyers in which it was stated inter alia:
"Our client has now been advised by Senior Counsel that the judgment of Nase DCJ is tainted by fraud. Our instructions are to apply to the Court to have the judgment of Nase DCJ set aside with indemnity costs and for the Magistrates Court's costs to be stayed."
(d)Letter dated 8 November 2007 from Keller, Nall & Brown to McInnes Wilson Lawyers stating again that senior counsel had advised the respondent that the judgment of Nase DCJ was tainted by fraud;
(e)Letter from Keller, Nall & Brown to McInnes Wilson Lawyers dated 21 December 2007 stating, inter alia, that the foreshadowed fraud proceeding was not an abuse of process as "the fresh proceeding is a remedy which is available to our client on the advice of Senior Counsel and the pleading has been settled by Counsel";
(f)Written submission by senior counsel for the respondent provided to Brabazon DCJ in the course of a hearing on about 19 June 2008 in which the senior counsel stated, "I am instructed that [the respondent] instituted the proceeding after he head (sic) taken advice from Senior Counsel".
(g)Affidavits sworn by Mr Collinson in which he swore to the contents of the 5 and 8 November 2007 letters and in which he swore that he wrote to Monsour's solicitors on 18 December 2007 enclosing "a copy of a fresh Claim and Statement of Claim which my client intended to file and serve … on the advice of Senior Counsel". The letters of 5 and 8 November 2007 were signed by Mr Collinson. In one of the affidavits he swore to enclosing with a letter to Monsour's solicitors a claim and statement of claim which he "intended to file and serve in the District Court on the advice of Senior Counsel".
"It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, 'either particularly in relation to the parties or generally in relation to the administration of justice'. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so." (footnotes omitted)
Application to adduce further evidence – the respondent's submissions
It was submitted on behalf of the respondent that the appellant did not use "reasonable diligence" to obtain the material now sought to be relied on; the bulk of the material was available on the court file in BD 2 of 2008 and was exhibited to affidavits which the appellant settled. Mr Collinson's affidavit sworn on 22 February 2008 [to which were exhibited Keller, Nall & Brown's letters of 22, 25 and 26 October 2007 and of 5 and 8 November 2007] was referred to in draft submissions prepared by the appellant and disclosed in the proceeding. Of the 10 documents sought by the appellant, only two (the respondent's submissions dated 1 November 2007 and the submissions of 19 June 2008) are not documents which the appellant himself settled or which were exhibited to documents which the appellant settled. Thus the unavailability of at least eight of the 10 documents sought did not result from any failure to disclose by the respondent, as the appellant was aware of the existence of such material and it was readily available. No misconduct on the part of the respondent sufficient to justify a departure from the usual rule about the admission of new evidence has been shown.
Counsel for the respondent submitted that the appellant failed to show that the new evidence, if admitted, probably would have had an important influence on the result of the case. In that regard it was contended that the evidence did not address the critical issue in the case: whether the appellant advised the respondent that he had good prospects of success and whether he advised the respondent of the dangers of pleading fraud.
The submissions continued as follows. The new evidence falls into two broad categories: evidence that the respondent had raised the issue of fraud before retaining the appellant and evidence that the respondent received advice from "senior counsel" about fraud. Whether the respondent considered the possibility of fraud, either on his own initiative or after discussing the matter with senior counsel, is irrelevant. It was not the respondent's case on the trial that the question of fraud had never been considered by the respondent before his meeting with the appellant. Rather, it was the respondent's case that, having been advised by the appellant that he should plead fraud, he did so, without being made aware of the risks of doing so by the appellant. In this context it is irrelevant whether the respondent may have earlier independently considered that fraud "tainted" the decision.
A related submission was that the fresh evidence was not disclosable under the Uniform Civil Procedure Rules 1999 (Qld), as it was not directly relevant to any issue in the proceeding. The crux of the argument was that the respondent's case was that the appellant had been asked to provide advice about the prospects of success of particular proceedings, namely, the proceedings for which the appellant had been instructed to settle the claim and statement of claim. It was contended that because of this narrow focus, it was irrelevant whether senior counsel had previously given advice, whether the appellant had previously alleged fraud and whether Keller, Nall & Brown had earlier made allegations of fraud on the respondent's instructions.
Application to adduce further evidence – consideration
The statement of claim alleges that the respondent briefed the appellant to advise him if "there were any grounds available to him to have the …" Costs Order set aside. The letter of instructions also requested the appellant to advise "if any grounds exist to overturn [the] judgment and, if so, then what are the prospects of success". The primary judge identified as "the issue" in the proceeding, "whether the [appellant] was retained by the [respondent] to advise him on prospects of success of the Monsour proceedings and if in doing so, was the [appellant] negligent?" As the primary judge recognised elsewhere in his reasons, causation and reliance were also in issue.
The fresh evidence, recording as it does, the history and timing of allegations of fraud by the respondent and his solicitor, as well as the advice of senior counsel in relation to the alleged fraud, and the actions taken in response to senior counsel's advice are plainly directly relevant to: whether the appellant was instructed to advise on prospects of success; whether the appellant did in fact advise on prospects of success; if the appellant did advise on prospects of success, whether the respondent relied on that advice. The direct relevance of the fresh evidence will become even more obvious as the fresh evidence is discussed in more detail.
I am unable to accept the submissions that the fresh evidence could not have had an important influence on the result of the case and that it did not address the critical issues in the case. It is plain that the fresh evidence had the potential to impugn the evidence of Mr Collinson and of the respondent. As the case turned on credibility, there is no difficulty in concluding that if the further evidence had been disclosed and made use of by the appellant there would have been "at least a real possibility" that the appellant would have succeeded on the trial.
The fresh evidence, on its face, casts grave doubt on the respondent's contention that it was the appellant who first raised the question of fraud and that it was the appellant's advice on prospects of success that caused him to institute the proceedings. The fresh evidence is thus directly relevant to the issues of reliance and causation. The respondent's evidence that Mr Tait SC said nothing to him about fraud and did not advise on prospects of success is inconsistent with a number of assertions by Mr Collinson in correspondence and, for that matter, with the submission, said to be on instructions, made by his senior counsel in written submissions on 19 June 2008. The respondent's evidence also does not sit well with the reference in correspondence and submissions to senior counsel's advice and with an absence of reference to junior counsel's advice.
The recital in the client agreement and the respondent's assertion to Mr Collinson about what he had been told by the appellant concerning the prospects of success of the proposed proceeding are capable of being explained by the respondent's understanding, admitted in cross-examination, that it was an important consideration for Mr Collinson in deciding whether his firm would act in a proceeding, that the proceeding have "good prospects of success". It was relevant also that the respondent had a close relationship with Mr Collinson's firm to the extent that it had acted for him from time to time; he had done work for the firm from time to time and that he reduced the costs of litigation by working himself on matters on which he was being represented by the firm.
"… it is central to our conception of the administration of justice that documents relevant and material to the issues arising in litigation should not be withheld from the parties and that each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case. …"
Mason J went on to remark on the undermining of public confidence in the administration of justice and in the judicial process which may result from the withholding of relevant and material documents from parties to litigation. It is also of importance in maintaining the integrity of the judicial process and public confidence in it that the Court not be perceived as lax in its insistence that parties to litigation observe their obligations under the rules of court, particularly where non-observance might have a material bearing on the outcome of the litigation. The purpose of the rules "is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense".8
In Quade,9 the Court referred with approval to observations of Burchett J in that case in the Full Court of the Federal Court10 to the effect that the principle of public interest in the finality of litigation and the principle "that a party should not be permitted to mock the orders of the court" were of equal importance. In circumstances such as those under consideration there is little distinction between a discovery obligation arising under a court order and one arising under the Uniform Civil Procedure Rules 1999 (Qld).
Where, as is the case here, there was a failure to disclose documents which were plainly directly relevant and highly pertinent to the resolution of the central issues in the case, there are strong reasons why the failure to disclose should not be overlooked. To excuse the breach would be to condone, in effect, a party's misconduct and tend to impact adversely on the reputation of the Court and lessen public confidence in it and its processes. It would also be unjust to the innocent party which has been deprived of its right to a fair trial and leave the party in breach with the spoils of its wrongdoing.
For these reasons it is appropriate that the fresh evidence be received. I now turn to the question of damages.
Damages
"(a)Costs of instituting the Fraud Proceeding (total: $1,482)
(i)Filing fee - $482.00;
(ii)Appellant's fee to draw and settle pleadings - $1,000;
(b)Costs of unsuccessfully defending Monsour's summary judgment application in the Fraud Proceeding (Total: $65,396):
(i)Keller Nall & Brown - $5,000;
(ii)Senior Counsel (David Tait, SC) - $15,180;
(iii)Junior counsel (Ms Heyworth-Smith) - $4,950;
(iv)Monsour's indemnity costs - $39,784.00;
(c)Costs of arguing the indemnity cost assessment before Brabazon J (total: $27,783.67):
(i)Tucker & Cowen - $26,283.67;
(ii)Travelling expenses - $1,500; and
(d)Costs of the Respondent's unsuccessful appeal to the Court of Appeal against the decision of Brabazon J dated 12 August 2008 (Total: $18,622.50):
(i)Junior counsel (Mr Scheaffe) - $5,000;
(ii)Monsour's standard costs - $12,800;
(iii)Transcript - $810;
(iv)Appeal book binding - $12.50." (footnotes omitted)
In relation to travelling expenses, the respondent's evidence was that he had to have conferences and attendances with Tucker & Cowen and to appear on a three day assessment before Judge Brabazon. In relation to the latter, his expenses were said by him to be about $40 a day. He estimated these costs as probably about $1,500 over the entire period. He said he had receipts in "a container at home". Counsel for the appellant point out that the respondent resided at 116 Oriel Road, Clayfield at all material times and his travelling expenses would have been expenses incurred in travelling to and from the City from Clayfield and parking in the City. The further evidence discloses that the respondent first contacted Mr Tucker by telephone on 17 July 2008, that he had a one hour meeting with Mr Tucker on 18 July and a five minute meeting with Mr Tucker on 23 July. The respondent's own evidence is that the assessment before Brabazon DCJ took place over three days. It is thus apparent on the respondent's own evidence that, at most, his travelling and parking expenses could not have exceeded about $300.
The respondent gave evidence at first instance that on a hearing before Brabazon DCJ on 11 March 2010, Tucker & Cowen had rendered three invoices totalling $26,283.67, that he had paid only $10,000 of that amount and was liable to pay the remainder. The fresh evidence showed that only $5,000 of the $10,000 paid to Tucker & Cowen related to a relevant proceeding: the remainder related to an unrelated proceeding in the Federal Magistrates Court. The evidence further revealed that other Tucker & Cowen invoices related to irrelevant Federal Magistrates Court proceedings and that at the time of the trial before the primary judge, the respondent was disputing liability to pay Tucker & Cowen's invoices because, inter alia, he claimed that Tucker & Cowen had agreed to act for a fixed fee of $5,000. Also, the respondent had filed an originating application in the Supreme Court to have his Cost Agreement with Tucker & Cowen set aside.
Counsel for the respondent submitted that, under the Uniform Civil Procedure Rules 1999 (Qld), the respondent was under no obligation to disclose documents relating only to damages. That may be so, but the respondent did, in fact, disclose some documents relating to damages which assisted his claims. In those circumstances, and even without having filed some documents relating to damages, it would appear that false or misleading evidence had been placed before the primary judge. Having regard to my earlier findings, it is unnecessary to pursue this matter any further and I make no finding in relation to it. It is unnecessary to further consider the question of damages which was dealt with by the primary judge in a rather perfunctory way.
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.
1.The Court receive the evidence in the affidavits of the appellant filed on 6 July and 6 October 2010.
2.The appeal be allowed.
3.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.
4.The appellant's costs of the District Court trial be the appellant's costs in the cause.
5.The respondent pay the appellant's costs of the appeal.
CULLINANE J: I have had the opportunity to read the draft reasons of Muir JA in this matter. I agree with the reasons and the orders proposed.
JONES J: For the reasons expressed by Muir JA, I agree that the judgment below should be set aside and a new trial ordered. I agree also with the other orders disposing of the appeal.
BD 2 of 2008. ↩
(1991) 178 CLR 134. ↩
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 142-143. ↩
Yevad Products Pty Ltd v Brookfield [2005] FCAFC 177 at para 91. ↩
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17-18. ↩
(1975) 132 CLR 582. ↩
At 593. ↩
Uniform Civil Procedure Rules 1999 (Qld), r 5(1). ↩
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 143. ↩
Quade v Commonwealth Bank of Australia (1991) 27 FCR 569 at 581. ↩
Wiltshire
Amos [2010] QCA 294
(1975) 132 CLR 582
(1991) 178 CLR 134
(2005) 223 CLR 1
(1991) 27 FCR 569
The respondent said in examination-in-chief and cross-examination that he did not raise with the appellant the question of fraud but that is not equivalent to asserting that the respondent had never considered the question of fraud. Even if senior counsel had given advice to the respondent that the Costs Order was tainted by fraud, and even if that advice gave the respondent some comfort in approaching the appellant, it remains the case that it was the appellant who was asked to settle (and who did settle) the proceedings, and who was asked to (and according to the respondent) did provide advice about the prospects of those proceedings.
The fresh evidence also casts doubt on Mr Collinson's evidence. None of his correspondence mentions advice on prospects being given by the appellant. It does refer to senior counsel's advice. Senior counsel's instructions were that the proceedings were instituted after senior counsel's advice had been obtained. Mr Collinson was actively engaged in seeking to have the respondent avoid the consequences of costs orders made in the District Court and the Court of Appeal on the basis that such orders had been obtained through misleading conduct. That was before the respondent first spoke to the appellant about the matter. Mr Collinson's evidence about the way in which and the time at which he came into the matter would appear to be wrong, and if not wrong, misleading. I do not suggest that it was deliberately so.
Also, it may be thought improbable that Mr Collinson could believe that the respondent proposed obtaining the appellant's opinion on prospects before commencing proceedings to set aside the Costs Order if, as he was asserting in correspondence before the appellant came on the scene, senior counsel had advised that the Costs Order was tainted by fraud. The evidence that the respondent's senior counsel informed the Court of his instructions that the proceedings were instituted after the respondent had taken advice from senior counsel would make it surprising that Mr Collinson, as he said in cross-examination, would have agreed that his firm would act for the respondent in reliance on the appellant's advice. It was implicit in Mr Collinson's evidence that no other advice had been obtained by him or by the respondent.
If matters stood there, the appellant's case would be overwhelming. The appellant swore that he knew that "the respondent had considerable experience with litigation, although initially self represented"; that Keller, Nall & Brown were the solicitors on the record at, and immediately before, the trial, and that he assumed that the respondent would potentially comply with his disclosure obligations.
However, the respondent contends that his failure to comply with his disclosure obligations did not cause any disadvantage to the appellant. Any disadvantage, it was argued, resulted from the appellant's own conduct. I do not find that response compelling. Disclosure plays the important role in litigation of ensuring that the resolution of the issues between the parties is made by reference to evidence and submissions placed before the Court by parties who are fully informed of the material facts. The ability of a party to be aware of all directly relevant material documents in the possession or custody of the other party enables the outcome of the litigation to be more accurately assessed and is conducive to the early settlement of claims.
Both the appellant and the respondent swore affidavits on which they relied in the appellant's application to adduce fresh evidence. The respondent swore, in effect, that in late December 2007 he briefed the appellant to prepare an application to set aside a warrant of execution filed in the Magistrates Court in the Monsour proceedings and also to prepare the supporting affidavit of Mr Collinson. He also swore to the following. On or about 20 December 2007, the appellant dictated to him the grounds to be included in the application and also "the contents and exhibits to be included" in Mr Collinson's affidavit. On or about 22 February 2008 the appellant, in the respondent's presence, prepared and settled a further affidavit to be sworn by Mr Collinson in BD 2 of 2008. The appellant on that occasion used the earlier affidavit of Mr Collinson as a precedent.
In an affidavit responding to allegations in the respondent's affidavit, the appellant denied: being briefed as alleged by the respondent; conferring at a meeting with the respondent on or about 20 December 2007 and dictating to him grounds to be included in an application to set aside the warrant of execution or dictating the contents of any affidavit for that purpose. He denied having had any part in preparing or settling Mr Collinson's affidavit of 22 February 2008 and pointed out that the affidavit appears to have been hand-typed on a manual typewriter which was the respondent's method of preparing such documents. He denied having seen or been given the disputed affidavits or copies of them. He explained that in preparing a draft submission to the District Court in BD 2 of 2008, he was able to refer to affidavits of Mr Collinson, not because he had seen them, but because he had been informed of their existence by the respondent.
In an affidavit filed on the morning of the hearing of the appeal, the respondent swore that the appellant was aware of Mr Collinson's affidavit of 24 December 2007 as on or about 22 February 2008, the appellant had settled and witnessed an affidavit by the respondent in BD 2 of 2008 which referred to Mr Collinson's affidavit of 24 December 2007.
The parties were cross-examined on their various affidavits. It is unnecessary to go into the evidence in that regard in any detail. It is not critical to the outcome of this case and I will content myself with a few brief observations. No doubt was cast on the appellant's evidence in cross-examination and, in particular, his evidence that he was not instructed to prepare the application to set aside the warrant of execution or any material in support of it and that he had never seen copies of the affidavits of Mr Collinson which the respondent swore had been provided to him.
There were a number of aspects of the respondent's evidence which cast doubt on its accuracy. He admitted that the appellant had not rendered an account for work in relation to the warrant of execution matter but speculated that the appellant may have included his charges for this work in later accounts rendered for other matters. He did not produce any such accounts. Had they existed, it is highly likely that they would have been produced as corroboration for the respondent's account. If the respondent's evidence in relation to the appellant's involvement in the warrant of execution matter is accurate, the appellant would have spent a great deal of time on it, much more than the respondent's evidence originally indicated, and it would have been unlikely that he would have failed to render an account.
The respondent swore that he did not disclose Mr Collinson's affidavits because he "did not think they were directly relevant" and because the appellant did not return to him "the briefs containing copies of the said affidavits of Mr Collinson". He said he thought "the [appellant] continued to have that material". If the respondent, a very seasoned litigator, concluded that Mr Collinson's affidavits were not directly relevant, he must have given scant attention to the issues between the parties and to his disclosure obligations. And, if he thought that the appellant had retained briefs containing the affidavits and that this relieved him from his disclosure obligations, he was also inexcusably mistaken. He had no reasonable basis for any belief that the appellant had adverted to the relevance of material in any briefs, as they were not identified in the appellant's affidavit of documents. Also, it was not suggested that the briefs contained the 1 November 2007 and 19 June 2008 submissions, both of which were directly relevant and potentially very damaging to the respondent's case.
In my view the appellant's evidence is to be preferred to the respondent's. It is difficult to accept that any person with the background of the respondent could have turned his mind to the question of whether the affidavits were directly relevant and concluded that they were not. It is also difficult to accept that a barrister of some 10 years experience would have failed to have recalled something of the content of the affidavits or to advert to their significance if he had drafted them and been briefed with them.
The explanations offered by the respondent for his failure to disclose relevant documents were unsatisfactory and it was not the obligation of the appellant to monitor the performance by his opponent of his disclosure obligations.4
There is a strongly entrenched principle that the interests of the public and individual litigants alike are best served by finality and expedition in judicial determinations.5 But as appears from Quade, there are other competing considerations.
For the reasons given earlier, the appellant should have a new trial.
Counsel for the appellant submitted that judgment should be entered for the appellant on the basis that there could, in effect, be no answer to the fresh evidence and that it supported the appellant's version of events. It would be inappropriate to take that course for the reasons just given.
I would order that: