Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased)

[2010] QCA 260

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Non-compliance with court orders
4. › Discretionary power to dismiss
5. › History of non-compliance without proper justification
6. › Whether inability or unwillingness to co-operate with court
7. › Whether continuing default occasioning unnecessary delay and expense
8. › Uniform Civil Procedure Rules 1999 (Qld), r 374
1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Relevant considerations
4. › Whether prejudice to respondent must be proved
5. › Whether psychiatric disorder and financial difficulties excuse non-compliance
6. › Whether preparedness to file request for trial date relevant where matter not ready for trial
1. Appeal
2. › General principles
3. › Appellate review of discretionary decisions
4. › Whether primary judge overlooked material considerations
5. › Whether discretion miscarried

Quick Take

A proceeding may be dismissed under UCPR r 374 where the applicant's history of non-compliance indicates inability or unwillingness to co-operate with the court in having the matter ready for trial, or where continuing default occasions unnecessary delay and expense, without the respondent being required to prove specific prejudice. Psychiatric and financial difficulties will not excuse non-compliance where the applicant has been able to attend to other business and litigation during the same period and gives no indication of when compliance will occur.