A miscarriage of justice occasioned by the incompetence of counsel is a legitimate, albeit exceptional, basis of appellate interference in the civil jurisdiction in Queensland. The test requires, as a pre-requisite, that objectively considered there could be no reasonable explanation for the impugned conduct; if met, the question is whether there is a significant possibility that but for the conduct the appellant would have succeeded below. The jurisdiction is to be exercised even more cautiously than in the criminal jurisdiction. Section 79 of the Evidence Act 1977 (Qld) deems a conviction to be evidence only of the constituent elements of the offence, not of the truth of the whole of the factual information placed before the sentencing court.
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