Thomson v Smith

[2005] QCA 446

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Interference with discretion of court below
4. › Refusal of adjournment
5. › Whether refusal resulted in serious injustice
6. › Whether only way justice could be done to other party
7. › History of extreme delay and non-compliance
1. Practice and Procedure
2. › Adjournment
3. › Refusal of adjournment
4. › Principles governing adjournment applications
5. › Whether guillotine order appropriate alternative to refusal
6. › Whether court obliged to fashion alternative orders not sought by parties
1. Practice and Procedure
2. › Litigation guardian
3. › Appointment of litigation guardian
4. › Person under legal incapacity
5. › Whether person with 'impaired capacity'
6. › Whether imprudence or defective judgment constitutes impaired capacity
7. › Supreme Court of Queensland Act 1991 (Qld), Sch 2
8. › Uniform Civil Procedure Rules 1999 (Qld), rr 93(1), 95(1)
1. Appeal
2. › Admission of fresh evidence
3. › Evidence not available at hearing
4. › Whether fresh evidence directly addresses capacity at critical time
5. › Whether subsequent hospitalisation falsifies findings at trial
6. › Uniform Civil Procedure Rules 1999 (Qld), r 766(2)

Quick Take

Imprudence or defective judgment, even if resulting from an obsession about litigation, does not normally constitute 'impaired capacity' under Schedule 2 of the Supreme Court of Queensland Act 1991 (Qld). A trial judge who has observed a litigant's competent participation in proceedings is entitled to discount a psychiatric opinion that the litigant lacks capacity, particularly where the opinion was based on unreliable self-reported information and was obtained for the purpose of procuring an adjournment. A court is not obliged to fashion guillotine orders as an alternative to refusing an adjournment where no such orders were sought and the evidence suggests they would not ensure future compliance.