Pickering & Anor v McArthur

[2010] QCA 341

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Admission of fresh evidence
3. › Special grounds required
4. › Whether evidence could have been obtained with reasonable diligence
5. › Whether evidence would probably have important influence on result
6. › Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(c)
1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Discretion to dismiss
4. › Relevant factors
5. › Explanation for delay
6. › Whether psychiatric condition explained delay
7. › Whether solicitor dilatoriness explained delay
8. › Whether fair trial still possible
9. › Uniform Civil Procedure Rules 1999 (Qld), r 389(2)
1. Appeal
2. › Interference with discretion of court below
3. › Whether discretion miscarried
4. › Whether primary judge's oversight of evidence constituted material error

Quick Take

Where negligence claims depend on resolution of oral testimony about conversations occurring many years earlier and there are no contemporaneous records, delay of 10-15 years will strongly support dismissal for want of prosecution on the basis that a fair trial is no longer possible. A psychiatric condition will not explain delay where the evidence does not establish that the condition prevented the plaintiff from giving instructions over the prolonged period of inactivity. Solicitor dilatoriness cannot be raised for the first time on appeal where it was not put to the primary judge.