Pickering v McArthur

[2010] QCA 341

SUPREME COURT OF QUEENSLAND

CITATION:

Pickering & Anor v McArthur [2010] QCA 341

PARTIES:

CARLYLE PICKERING &
MAILY PICKERING
(plaintiffs/appellants)
v
JOHN McARTHUR,
(defendant/respondent)

FILE NO/S:

Appeal No 3943 of 2010
DC No 1533 of 2001
DC No 1938 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2010

JUDGES:

Margaret McMurdo P, Chesterman JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application to adduce further evidence is refused.1.      

The appeal is dismissed with costs, including the costs of the application to adduce further evidence.2.      

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where the appellants seek leave to adduce further evidence in the form of affidavits – where the respondents oppose the adducing of this evidence under r 766(1)(c) of the UCPR – where appellants argue that the further evidence is necessary to redress the omission of evidence of their efforts to progress the proceedings – whether the further affidavits are relevant – whether the affidavits contained further evidence not discoverable before the hearing – whether the further affidavits are admissible

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where the originating claim was filed in 2001 – where the claim by the appellants alleged that the respondent, in his capacity as a masseuse and ‘spiritual healer’ had caused psychological injury, and in the case of one appellant, had performed unwanted sexual touching – where there is a significant delay between the events and the applications – where there is a delay as a result of the appellants conduct – whether the learned primary judge erred in finding that the appellants delay was not the result of a medical condition – whether solicitors were responsible for delay

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 389(2), r 766

Brisbane City Council v Mainsell InvestmentsPty Ltd [1989] 2 Qd R 204, cited
Mulholland v Mitchell [1971] AC 666, cited
Thomson v Smith [2005] QCA 446, cited

COUNSEL:

M J Byrne for the appellants
A P J Collins for the respondent

SOLICITORS:

Hatzis Lawyers for the appellants
HWL Ebsworth for the respondent

[1]      MARGARET McMURDO P: Each appellant filed an application for leave to appeal from an order of the same District Court judge dismissing each appellant's application for leave to proceed and, on the respondent's applications, dismissing each appellant's action for want of prosecution with costs, including costs of the application. The appellants filed an application for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld) from those orders. It was agreed at the hearing that this Court…