Thomson v Smith

Case [2005] QCA 446

SUPREME COURT OF QUEENSLAND

CITATION:

Thomson v Smith [2005] QCA 446

PARTIES:

LORRAINE LUCIA THOMSON  (plaintiff/appellant)  v  BRADLEY THOMAS SMITH         (defendant/respondent)

FILE NO/S:

Appeal No 5643 of 2005  Appeal No 5644 of 2005  Appeal No 5645 of 2005  SC No 10532 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2005

JUDGES:

McPherson and Jerrard JJA and Muir J  Separate reasons for judgment of each member of the Court, McPherson JA and Muir J concurring as to the orders made, Jerrard JA dissenting

ORDERS:

1. In Appeal No 5643 of 2005: Appeal dismissed with costs                   2. In Appeal No 5644 of 2005: Appeal dismissed with costs                   3. In Appeal No 5645 of 2005: Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – INJUSTICE – REFUSAL OF ADJOURNMENT – appellant commenced proceedings 29 March 1990 – history of extreme delay and failure to comply with directions of the Court – on morning of trial appellant’s solicitors requested an adjournment of six weeks submitting refusal would be denial of natural justice as plaintiff unfit to give instructions or stand trial – appellant’s solicitors submitted no prejudice would be suffered by respondent as consequence of delay considering length of proceedings thus far – concern that plaintiff unable to meet costs order –adjournment refused – whether primary judge erred in refusing the adjournment – whether a guillotine order in relation to costs would have been appropriate in the circumstances – whether primary judge placed too much weight on history of proceedings in reaching his decision

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – appellant asserts she is unfit to stand trial and unable to give instructions due to mental illness – psychiatric report submitted to primary judge by appellant’s solicitors supporting appellant’s contention – on primary judge’s assessment of appellant’s competence, observing appellant’s involvement in proceedings over two days, primary judge found appellant competent to stand trial and give instructions – whether primary judge placed undue weight on his own assessment of the appellant’s competence – whether primary judge should have appointed a guardian ad litem – whether proposed guardian ad litem appropriate – whether appellant a person with “impaired capacity” as defined in Schedule 2 of the Supreme Court of Queensland Act 1991 (Qld)

APPEAL AND NEW TRIAL – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – WHEN NOT ADMISSIBLE – on appeal appellant sought to tender a further psychiatric report in accordance with r 766 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) – whether report goes to appellant’s mental state at time of hearing at first instance – whether report “directly addresses the question of the appellant’s capacity at the critical time”

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – DEFAULT OF…

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Thomson v Smith [2005] QCA 446
Case
[2005] QCA 446
Decision Date

CaseChat Overview and Summary

The case of Thomson v Smith involved an appeal against the refusal of an adjournment and the subsequent findings made by the primary judge. The appellant, Thomson, had commenced proceedings against Smith on 29 March 1990. The case had a history of extreme delays and non-compliance with court directions. On the morning of the trial, Thomson's solicitors requested a six-week adjournment on the grounds that their client was unfit to give instructions or stand trial, and that denying the adjournment would be a denial of natural justice. Thomson's solicitors argued that no prejudice would be suffered by Smith as a result of the delay given the length of the proceedings thus far. However, the adjournment was refused, leading to Thomson's appeal.

The court was required to decide whether the primary judge erred in refusing the adjournment, whether a guillotine order in relation to costs would have been appropriate, and whether the primary judge had placed undue weight on his own assessment of Thomson's competence to stand trial. The court also needed to determine whether a guardian ad litem should have been appointed and if the proposed guardian ad litem was appropriate. Additionally, the court had to consider whether Thomson was a person with "impaired capacity" as defined in the Supreme Court of Queensland Act 1991 (Qld). Furthermore, the court had to decide whether a further psychiatric report, which was sought to be tendered on appeal, was admissible.

The court found that the primary judge did not err in refusing the adjournment, and that no injustice had been caused. The court held that the primary judge had properly assessed Thomson's competence and that the proposed guardian ad litem was not appropriate. The court also held that Thomson was not a person with "impaired capacity" under the Supreme Court of Queensland Act 1991 (Qld). Finally, the court found that the further psychiatric report was not admissible as it did not directly address the question of Thomson's capacity at the critical time.

The appeals were dismissed with costs.

Orders

Orders of the court

1. In Appeal No 5643 of 2005: Appeal dismissed with costs 2. In Appeal No 5644 of 2005: Appeal dismissed with costs 3. In Appeal No 5645 of 2005: Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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