Smith v Advanced Electrics P/L

[2003] QCA 432

Queensland Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Witnesses
3. › Impeaching and re-establishing credit
4. › Rule in Browne v Dunn
5. › Failure to put matter to witness in cross-examination
6. › Whether breach of rule occurred
7. › Consequences of breach on appeal
1. Evidence
2. › Expert evidence
3. › Uncontradicted expert opinion
4. › Whether court obliged to accept uncontradicted expert evidence
5. › Whether rejection of uncontradicted expert evidence open where no cross-examination on point
1. Limitation of Actions
2. › Disability
3. › Unsoundness of mind
4. › Post-traumatic stress disorder
5. › Whether PTSD constituted unsoundness of mind within meaning of statute
6. › Date of onset of disability
7. › Whether disability must exist from date cause of action accrued
8. › Limitation of Actions Act 1974 (Qld), ss 5(2), 29
1. Appeal
2. › General civil appeal
3. › Appellate remedies for breach of rule in Browne v Dunn
4. › Whether retrial or appellate determination of facts appropriate
5. › Relevant considerations

Quick Take

Where a party fails to cross-examine a witness on a matter and fails to raise the issue until after evidence has closed, in breach of the rule in Browne v Dunn, an appellate court may accept the uncontradicted evidence and make findings accordingly rather than ordering a retrial, particularly where the defaulting party had the opportunity to cross-examine and declined it. The three available appellate remedies for breach of the rule are: (1) ordering a retrial; (2) reconsidering the evidence taking the breach into account; or (3) disregarding the submission based on evidence not tested by cross-examination.