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[2010] QCA 341
respondent. The applications to adduce further evidence were refused. The appeals were dismissed with costs, including the costs of the applications to adduce further evidence.
The appellants' claims had been on foot for years but were not brought to trial. They tried to explain the delay and add further evidence on appeal. The Court considered that the proposed evidence was mostly available earlier, argumentative, irrelevant, or insufficient to explain the long periods of inaction. It also considered that the age of the events and the reliance on disputed conversations made a fair trial difficult. The original orders stood, and the appellants were ordered to pay the costs of the appeals and evidence applications.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,015 words · generated 02/10/2026
Carlyle Pickering and his daughter, Maily Pickering, brought separate claims against John McArthur arising from services he provided as a masseuse and, on some occasions, as a “spiritual healer”. The pleaded events occurred between 1996 and 1999. The appellants alleged that McArthur’s counselling caused psychological injury. Maily Pickering also alleged unwanted sexual touching. McArthur denied the allegations and disputed that he owed a duty of care, that his counselling influenced the appellants, or that it caused the alleged injuries.
1 cited instrument linked from this judgment.
The claims began in 2001. The proceedings then took years to move towards trial. The judgment identifies delayed provision of particulars, a lack of progress from 2006 to mid-2007, and an incomplete statement of loss and damage. The trial-date request had been sent in May 2007, but after criminal proceedings against McArthur ended in June 2007, the appellants did not pursue him for a response to that request. The District Court later found that the subsequent disclosure material relied on by the appellants did not count as a procedural step for the purpose of UCPR r 389(2).
In August 2009, the appellants applied for leave to proceed. The respondent applied to strike out the proceedings for want of prosecution. The District Court refused leave and dismissed both claims. The appellants appealed and sought to introduce further affidavits. The Court of Appeal refused those applications and dismissed the appeals with costs.
The appellate reasons are separate, but all three judges agreed on the orders. Jones J gives the most detailed explanation. Chesterman JA expressly agreed with Jones J’s reasons and added emphasis to the difficulty of fairly trying allegations based on old conversations. Margaret McMurdo P agreed with the orders proposed by Jones J.
The applications to introduce further evidence failed because the affidavits did not meet the threshold for receiving evidence on appeal. UCPR r 766(1)(c) provides for further evidence on “special grounds”. Because the appeals concerned final orders dismissing the actions, Jones J considered that special grounds had to be shown. He also referred to the established considerations discussed in Thomson v Smith [2005] QCA 446, Mulholland v Mitchell [1971] AC 666 and Brisbane City Council v Mainsell Investments Pty Ltd [1989] 2 Qd R 204.
The proposed affidavits attempted to address the appellants’ efforts to progress their cases, their understanding of the two-year rule, and the alleged responsibility of their former solicitors for delay. The Court considered that these matters were known and available at the District Court hearing. Some material re-agitated arguments already made, while some focused on other disputes and conduct the District Court had treated as irrelevant. Jones J concluded that the proposed evidence did not provide an illuminating explanation for the delay during the relevant period.
The Court also considered the appellants’ argument about Carlyle Pickering’s psychiatric condition. The District Court judge had said that the psychiatrist’s report did not refer to diminished concentration or indecisiveness. On appeal, Jones J identified an appendix entry listing diminished ability to think or concentrate, or indecisiveness, as a reported symptom. But the fact that the symptom appeared in the appendix did not establish when it occurred, how long it lasted, or how it affected the appellant’s ability to provide information to his solicitors. The report did not record a specific complaint that he could not gather or produce information. Jones J therefore held that the oversight did not cause the discretion to miscarry.
The evidence also had to be considered against the whole history. Jones J concluded that the symptom did not explain the extended periods of inactivity, particularly after 2007. The judgment notes that the psychiatrist’s report referred to a statement made by the appellant in December 2008, which indicated an ability to provide detailed information up to that time. The appellate court did not find that the psychiatric evidence accounted for the length and pattern of delay.
The solicitor-delay argument also did not establish appellate error. Jones J recognised that delay by solicitors can be relevant, while noting that its weight depends on the client’s sophistication or education, the complexity of the issues, and the professional relationship. The materials before the District Court already permitted consideration of the solicitor’s role. The primary judge had been critical of the solicitors’ efforts to prepare the matter for trial, and the appellants had frequent contact with them. The Court was not persuaded that the primary judge failed to appreciate that role.
Finally, the age and nature of the evidence mattered. The claims depended on disputes about what was said during counselling sessions over a period of years. The appellants could not particularise when the counselling occurred, and the respondent’s clinical records had been damaged by flood and destroyed. Chesterman JA considered that a fair trial was not possible in circumstances where the case depended on recollection of conversations many years earlier. The Court of Appeal therefore left the dismissal orders undisturbed.
The judgment does not announce a new test for admitting fresh evidence or a new general rule about dismissing proceedings for delay. Instead, it applies the language of UCPR r 766(1)(c) and discusses earlier authority on further evidence. It describes the issue as one of discretion and degree, citing Mulholland v Mitchell through Thomson v Smith. It also refers to the considerations from Brisbane City Council v Mainsell Investments: whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the result, and whether it appears credible.
The decision’s contribution is primarily its application of those principles to the facts. Evidence that was already known and available at the original hearing, or that merely re-argued matters considered below, was not enough to establish special grounds. The Court also treated the further-evidence question as distinct from the merits of the delay decision: the appellants needed to show both why the new material should be received and why the orders should be disturbed.
On want of prosecution, the judgment does not set out a new exhaustive list of factors. It records that the primary judge assessed the competing considerations, including delay, the ability to conduct a fair trial, readiness for trial, prospects, prejudice and the explanation for delay. The Court of Appeal focused on whether the specific alleged errors undermined that discretionary assessment. It found they did not.
The text supplied does not establish how later courts have applied or limited this decision. Any account of subsequent treatment would require later judgments not included in the source material.
Jones J explained the fresh-evidence outcome: “I would not, therefore, exercise my discretion to receive the further evidence.” In plain English, the affidavits did not satisfy the applicable threshold. Their contents were largely available before, argumentative, irrelevant, or insufficiently connected to the period of delay.
Jones J addressed the psychiatric-report omission: “The oversight by the learned primary judge did not, in my view, constitute an error such as has caused his discretion to miscarry.” The report’s appendix did list a possible symptom involving concentration or indecisiveness. But the appellate court did not regard that entry, without evidence about duration and practical impact, as enough to explain the long periods when the proceedings did not progress.
Chesterman JA highlighted the trial-fairness concern: “It is not possible to have a fair trial in such circumstances.” This was a conclusion about the particular difficulties described in the judgment: the claims turned on disputed conversations from many years earlier, while the relevant clinical records were no longer available. It should not be read as a general rule that any old claim cannot be tried fairly.
The District Court’s list of factors is reproduced in the appellate reasons at [117], but that passage is the primary judge’s reasoning, not a numbered paragraph of the Court of Appeal’s own reasons. Jones J’s analysis considered those factors and concluded that the challenges on appeal did not establish that the discretion had miscarried.
The decision is particularly relevant where a party seeks to introduce evidence on appeal that could have been produced at the original hearing. It shows the importance of identifying what is genuinely new, why it was not reasonably available earlier, and how it could materially affect the outcome. Evidence that merely repeats submissions or adds argumentative detail may not meet the applicable threshold.
It may also be relevant where a party challenges a discretionary dismissal for want of prosecution by relying on an overlooked item of evidence. The case illustrates that identifying an oversight is not necessarily enough. The appellate question includes whether the oversight mattered to the overall exercise of discretion. Here, the symptom was not clearly tied to the length or practical effects of the delay, and the delay decision rested on several considerations.
The fair-trial issue is significant where proceedings depend heavily on recollections of conversations from many years earlier, particularly where dates are difficult to establish and contemporaneous records are unavailable. The judgment demonstrates that such circumstances may be relevant to the assessment of prejudice and whether a delayed proceeding can fairly continue.
The decision also provides a factual example of a solicitor-delay argument. It does not say that a client is always responsible for delay caused by a solicitor. It says the significance of solicitor delay depends on context, and that the court will consider what evidence and submissions were before the primary judge. The appellate argument was weakened because the further affidavit was not admitted and the issue had not been advanced in the way later asserted.
The supplied judgment contains no later judicial treatment of Pickering v McArthur. It therefore cannot support a claim that later courts have followed, distinguished, confined or expanded the decision.
The authorities that the Court itself referred to were earlier decisions. Thomson v Smith and Mulholland v Mitchell were cited in the discussion of further evidence. Brisbane City Council v Mainsell Investments Pty Ltd was cited for the considerations applied to proposed fresh evidence. The judgment also refers to HWC v The Corporation of the Synod of the Diocese for Brisbane [2009] QCA 168 in relation to trial fairness and the difficulty posed by old conversations. Those references explain the legal setting of the 2010 decision, not how later courts treated it.
A reliable account of subsequent treatment would require checking later decisions that cite Pickering v McArthur. None are supplied here, so no statement about its current precedential status beyond the judgment itself can be made on this record.
The judgment leaves case-specific questions rather than resolving every possible issue. It does not establish how much delay, by itself, will justify refusing leave to proceed. The result depended on the combined circumstances, including the duration and pattern of inactivity, the incomplete preparation for trial, the nature of the disputed evidence and the prejudice identified.
It also does not set a precise threshold for when psychiatric symptoms will adequately explain procedural delay. The Court’s concern was that the evidence did not connect the listed symptom to the relevant periods of inactivity or show its practical effect. Other evidence, on different facts, might provide a clearer connection; the judgment does not decide that hypothetical question.
The treatment of solicitor delay is similarly contextual. Jones J identified factors that may affect its weight but did not provide a formula for allocating responsibility between client and solicitor. The reasons instead assess the material available in these proceedings and the way the issue was raised.
Finally, the decision does not decide the merits of the underlying negligence and touching allegations. The appeals concerned the procedural orders, not a trial of those allegations. The outcome should therefore be understood as a decision about further evidence and delay, not a finding that the pleaded allegations were true or false.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
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.The appeal is dismissed with costs, including the costs of the application to adduce further evidence.
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 Investments Pty 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
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 should treat those applications as appeals against the orders dismissing each appellant's action. Each appellant also sought leave to adduce further evidence under Uniform Civil Procedure Rules r 766.
I agree with the orders proposed by Jones J.
CHESTERMAN JA: I agree with Jones J that the appeals should be dismissed with costs, and with his Honour’s reasons for proposing those orders.
In particular I agree that the appellant’s applications to adduce further evidence on the hearing of the appeals should be refused. I would reach that conclusion whether or not special grounds had to be shown for the reception of the recent affidavits. The subject matter of the affidavits amounted to no more than a re-agitation of arguments advanced at first instance, and to the extent that the affidavits deposed to facts those facts could have been proved before the primary judge.
His Honour having exhaustively examined the material identified1 all the factors, pro and con relevant to the exercise of the discretion to allow the actions to proceed, or to be struck out. As Jones J points out the factors were identical in both applications save for an additional factor in Maily Pickering’s proceedings. Counsel for the appellants did not criticise his Honour’s identification of the relevant factors. He did not submit that any relevant factor had been omitted or that an irrelevant one had been included. Nor was it said that the learned primary judge mistook the relevant law. The appeals can succeed, therefore, only if the results are so unreasonable as to indicate egregious error.
That conclusion is not open. The factors identified by the primary judge indicate, strongly in my opinion, that the correct orders were made.
Of particular importance is the fact that the determination of negligence alleged against the respondent depends (ignoring all other difficulties) upon what was said between the appellants and respondent on many occasions, some as long as 15 years ago. It is not possible to have a fair trial in such circumstances.2 It is beyond the reasonable capacity of human memory to recall with accuracy, unaffected by self interest, the terms of such old conversations.
The appeals should be dismissed with costs.
JONES J: The appellants seek to set aside orders made in the District Court dismissing for want of prosecution their respective claims for negligence and the complementary orders refusing their respective applications for leave to proceed pursuant to R 389(2) of the Uniform Civil Procedure Rules (UCPR). Their Notice of Appeal (lodged by the appellants personally) is framed as an application for leave to appeal the decision pursuant to s 118(3) of the District Court of Queensland Act. The “decision” in fact determined six applications in three separate proceedings. Two of the proceedings were instituted by the respective appellants. The third proceeding instituted by another plaintiff raised identical issues but is not the subject of an appeal. The orders dismissing the proceedings for want of prosecution are final orders in respect of which leave is not required. The respondent raises no objection to the matter continuing as separate appeals against each of the decisions below. I shall for convenience refer to the claimants as “the appellants”.
The grounds of appeal as stated in the Notice are:-
“Provision of fresh evidence:
Refuting the Defendant’s Affidavit
Steps taken refuting the two-year time delay.”
On the appeal, the principal ground argued was that the learned primary judge failed to give appropriate weight to the appellants’ explanations for delay. The learned primary judge, quite properly, dealt separately with each application. The appeal ground is the same for both proceedings and the considerations are identical. In the circumstances the appeals were heard together making separate reference to the facts as necessary.
The appellants also seek leave to adduce further evidence in the form of separate affidavits sworn by each of them and filed on 16 June 2010. This application is opposed by the respondent on the basis that “special grounds”, as required by R 766(1)(c) of UCPR, have not been shown such as to allow the admission of such evidence. I should deal firstly with the application to admit further evidence.
Further evidence
Rule 766 relevantly provides:-
“766 General powers
(1) The Court of Appeal –
…
(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and
…
(2) For subrule (1)(c), further evidence may be given without special leave, unless the appeal is from a final judgment, and in any case as to matters that have happened after the date of the decision appealed against.” (my emphasis)
The respondent points to the curiosity that the rule gives rise to in this case. If further evidence is sought to be led on the appeal against the dismissal of the proceedings for want of prosecution, then “special grounds” will need to be shown. If, on the other hand, the evidence is sought to be led only on the refusal of leave to proceed, special grounds need not be established. The resolution of the appeal will turn on the Court’s attitude to the orders dismissing the proceedings. Consequently, special grounds will need to be shown.
The appellants argue that the further evidence is necessary to redress the omission of evidence of their efforts to progress the proceedings, to show that delay was caused by their then solicitors,3 to assert that they did not know of the two year rule and that they were advised that they would not be prejudiced by delay.4 Put on those bases, the appellants’ request faces the initial hurdle that the material was well known and available at the time of the hearing.
The Court received the appellants’ separate affidavits on the hearing of the appeal but reserved for further consideration the question of whether their contents were admissible under the rule. A perusal of the affidavits show that their contents do not refer to matters occurring after the date of the decision.
In his affidavit, the appellant Carlyle Pickering asserts that on 9 November 2009, that is, one day before the hearing, he instructed his solicitor to file an affidavit in response to the respondent’s affidavit filed some five days earlier. The issues he sought to raise were identified in an email sent on his behalf by a Mr Doug Pope and intended to be conveyed to counsel5. Those issues included a reference to the organisation known as the Inner Energy Centre (IEC) of which the parties were members and to a corporation Justice Through Integrity Pty Ltd which was formed to redress perceived wrongs inflicted on members of the IEC by the respondent. The affidavit dealt with the respondent’s subsequent employment, his conduct with respect to former members of the IEC, the cancellation of his membership in other organisations and his allegations of harassment by the appellants and others. The issues of this kind were canvassed in the materials considered by the learned primary judge and were found by him to be irrelevant to the question which he had to decide. He said:-
“[62] The significance of much of this material was not apparent. If these proceedings were being pursued for a collateral purpose, namely as an act of revenge on the part of the supporters of the defendant’s former wife for his treatment of her, then it was not necessary to be concerned about dismissing the actions for want of prosecution, as that would mean that the proceedings were an abuse of process of the court, having been brought for a collateral purpose, and should be struck out or stayed no matter how expeditiously they were being pursued. Ultimately counsel for the defendant did not put the matter in those terms.
[63] That this particular plaintiff may have been involved in other proceedings against the defendant may in theory be of some relevance in relation to the progress of this matter, since sometimes when there are multiple legal proceedings on foot one is advanced at the expense of others. But no argument was advanced on either side that that was a relevant consideration here. That the defendant feels that the proceedings are motivated by a desire to persecute and harass him is not I think a relevant consideration. Insofar as the defendant complains of stress, concern and hardship associated with the continuation of these proceedings, that is understandable and a relevant consideration in relation to applications of this nature, but otherwise what has happened in relation to other proceedings brought by these plaintiffs and other people against him, or other matters which he seeks to characterise as harassment, are really irrelevant to anything I have to decide.”6
From my review of the material before the learned primary judge, I respectfully agree with his ruling as to irrelevance. The same conclusion applies to the proposed further evidence on this topic. It is simply not relevant. The suggestion that the decision making process may have been tainted by having one set, rather than two sets, of irrelevant evidence does not deserve further comment.7
The other aspects of the further affidavit to which the court’s attention was drawn was a fact that the appellant Carlyle Pickering attended on his then solicitor on six occasions between February – December 2008,8 that he was unaware of the two year requirement of Rule 389(2) and that his then solicitor removed from her supporting affidavit this detail of his state of knowledge.
Since both appellants were represented by solicitors throughout the course of this proceeding, their personal knowledge of the rule was not of any significance in making an explanation for the delay. Until June 2007, the delay was largely explained. The learned primary judge properly focussed on the period of delay thereafter. The supporting affidavit by the solicitor did make reference to the appellants’ attendances on her9 but the only tangible result of those attendances was the taking of another statement and the decision in January 2009 to obtain a fresh report from Dr Quadrio who referred to that statement. The further evidence attempts to show that the appellants’ former solicitors bore some responsibility for the delay. Such a suggestion is contrary to the manner in which the case below was conducted. The learned primary judge in respect of each of the applications before him noted that “It was not submitted that the delay was caused by the plaintiffs’ lawyers being dilatory”.10 If there had been any basis for attributing blame to former solicitors one would have expected such a prospect would have been explored by experienced counsel representing the appellants and if appropriate to have been raised in submissions.
The further affidavit of the appellant, Maily Pickering, did not detail any new significant fact that was not available at the time of the hearing. Much of its terms descended into argument attempting to re-litigate the issues determined below. In short, there was nothing in the further affidavits which provided any illuminating explanation for delay during the relevant period. In similar vein, the appellants’ separate affidavits sworn on 15 April 2010 couched, mainly in argumentative terms, do not advance any special grounds for its admission.
The principles upon which further evidence will be received was discussed by the Court of Appeal in Thomson v Smith11 where Muir JA cited the reasons of Lord Wilberforce in Mulholland v Mitchell12:-
“I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”
Guidance on the exercise of discretion to admit further evidence can also be found by consideration of decisions on preceding rules of court which require firstly that the further evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive: third, the evidence must be such as to be apparently credible.13 The evidence proffered as further evidence by the appellants does not satisfy the first two of those requirements and no comment is necessary about the third. Such of the evidence that had any relevance, could only bear upon the primary judge’s assessment of the explanation. In the main, the evidence touched upon matters that he had properly considered. I would not, therefore, exercise my discretion to receive the further evidence.
Background facts
The appellant Carlyle Pickering is the father of the appellant Maily Pickering. The appellants filed their respective initial Statements of Claim on 30 March 2001 and 26 April 2001. Notices of Defence to the respective claims were filed on 28 May 2001.
The pleadings show that the respondent carried on the business of a massage therapist and that he provided “spiritual healing” services on occasions. He had no formal qualifications or expertise as a counsellor. Such services as he provided were sought by the appellants between the years 1996 and 1999. In 1999 there was a falling out between the respondent and the appellants and other members of the Inner Energy Centre following allegations against him of improper conduct.
The appellant, Carlyle Pickering, alleges that the respondent’s counselling of him included persistent advice that he should leave his de facto partner. The appellant accepted the advice and acted upon it by terminating the relationship. As a result the appellant claims he suffered a psychological injury.14
Maily Pickering alleges that the respondent’s counselling of her included persistent and sometimes contrary advice that she should move out of a residence she shared with a flatmate and that her relationship with her father was inadequate. This counselling caused her to become alienated from her father. She further alleges that the respondent engaged in inappropriate behaviour including unwelcome sexual touching. As a consequence she suffered a chronic adjustment disorder and chronic low grade depression.15
The respondent denies each of the allegations. He denies also that he owed a duty of care or that his counselling was such as to exercise any influence over the appellants or that any psychological injury resulted from his counselling or conduct.
The appellants describe the “spiritual healing” in Particulars dated 8 April 2006 as being constituted by:-
attempting to heal damage in or improve the emotions, personality or psyche of the person;
attempting to assist a person;
assisting a person to obtain a fuller understanding of themselves, their attitudes, and approaches to life;
…
to aid or enable a person to sustain relationships of substance and longevity.16
The appellants are unable to particularise the dates on which such counselling/spiritual healing occurred.17 The respondent claims that he did keep clinical records but these were damaged by flood and were subsequently destroyed.
The resolution of issues of this kind, obviously give rise to questions of credit based upon what was said at various counselling sessions. There are no clinical records now available to permit even the accurate fixing of the dates of any consultation. Resolution of the factual issues are always difficult in a case of this kind, even when there is no delay. His Honour drew attention to this difficulty in his reasons at paragraph [66].18
The learned primary judge makes findings as to the history of the progress of both proceedings. The detail can be observed in the following chronology as it relates to the appellant Carlyle Pickering. The history for the proceeding by Maily Pickering is not materially different.
200130 Mar/26 AprStatements of Claim filed
8 May 2001Defences filed
28 MayReplies
2 NovParticulars sought
200217 DecParticulars delivered (after delay of 13 months)
200326 JunList of documents served
14 NovStatement of Loss and Damage served
17 DecAmended Statement of Claim filed
200416 JanStay of proceedings until psychiatric examination undertaken
11 MayAmended Statement of Claim struck out
11 JunApplication to strike out further amended Statement of Claim
200520 AprDecision on application – 1 paragraph struck out
18 MayFurther amended Statement of Claim
16 AugAppeal against refusal to strike out whole claim dismissed by Court of Appeal
23 NovDefence to further amended Statement of Claim
7 DecReply filed
2006Jan-FebParticulars sought and delivered
May-JulDiscussions on mediation
3 AugDraft statement of loss and damage to appellant
20079 JanRevised statement of loss and damage sent to appellant
5 AprSigned statement of loss and damage returned (delivered to Respondent’s solicitors on 16 Apr)
9 MayRequest for trial date sent to respondent’s solicitors
25/26 JunTrial on charges against respondent ends with nolle prosequi
Jul-AugUnsuccessful settlement negotiations
22 OctSolicitors confer with psychiatrist (Dr Schoener)
200821 FebApplicant confers with solicitors
1 MayApplicant confers with solicitors (Mrs Neil) who advised
Commenced preparations to brief counsel
22 MayApplicant confers with solicitors
2 JunApplicant confers with solicitors
30 AugApplicant confers with solicitors
16 DecApplicant confers with solicitors for an unsuccessful attempt to Reopen negotiations
2009JanApplicant request examination by psychiatrist (Dr Quadrio)
12 MarExamination by Dr Quadrio
22 JunDr Quadrio’s report received
18 AugApplication for leave to proceed
23 OctApplication to strike out for want of prosecution
This history has to be considered as being a response to events occurring between 1996 and 1999, some 10-13 years prior to the applications. Having commenced the proceeding only shortly before the expiration of the limitation period, the Statement of Claim did not reach its final form until May 2005 and the Statement of Loss and Damage is still not compliant.19 The delay in providing particulars in 2002 and the lack of progress between 2006 and mid 2007, are significant. Much of the delays resulted from the appellants’ failure to attend to particulars or to his statement of loss and damage. The fact that criminal proceedings were on foot, justified the respondent in not signing a Request for Trial but this was no barrier to the appellants preparing for trial.
The hearing below
The applications for leave to proceed were filed on 18 August 2009. The appellants argued that the applications were strictly speaking unnecessary because two separate steps in the proceeding had been taken within the preceding two years. The conduct relied upon as constituting such steps were the disclosure of tax returns on 18 May 2009 and the provision by way of further disclosure of copies of notices of non-party disclosure on 28 October 2008. The learned primary judge found that neither was a step in the action for the purpose of R 389(2) of the UCPR and that the last step taken as required by the Rules was the appellants’ delivery of a request for a trial date. The respondent refused to sign this request whilst criminal proceedings against him were still on foot. The criminal proceedings ceased on or about 25 June 2007 but the appellants did not thereafter pursue the respondent for a response to the request for a trial date.
Accepting this as the starting point for the respondent to comply with the request, the learned primary judge found that no step had been taken after that day and consequently the applications for leave to proceed were necessary.
The conclusion reached by the learned primary judge is stated in the following terms:-
“[117] Broadly speaking the factors favouring allowing the matter to proceed are as follows:
If leave is refused, the plaintiff will lose any prospect of recovering damages in respect of the matters claimed. I acknowledge that this is a factor of some importance.
There have been no breaches of court orders or directions.
Some, though not very much, of the delay has been attributable to factors beyond the plaintiff’s control.
On the other hand, there are a number of factors weighing against allowing the matter to proceed:
The delay overall has been quite substantial, that is to say, there has been a long time elapsed since the events giving rise to the litigation.
The proceeding depends on the resolution of conflicts of oral testimony, about a number of matters extending over a significant period of time. In such circumstances, a delay of this length has made it difficult to conduct a fair trial.
There are a number of significant difficulties facing the plaintiff in relation to liability, and if he were successful it appears unlikely that more than a moderate award of damages would be made.
There have been lengthy periods when nothing has been done by or on behalf of the plaintiff to carry the proceeding forward, most of this delay being unexplained.
For most of the period since the action was commenced the things the plaintiff did were in response to steps taken, requests from or prompting by the defendant.
There is no indication that there has ever been any serious attempt properly to prepare the matter for trial or to bring it on for trial. The plaintiff appears willing to wound but reluctant to strike.
There has been a clear and prolonged breach of the implied undertaking in r 5(3).
It is unreasonable that the defendant has had the continuing threat of this litigation hanging over his head for so long, and he should be entitled to get on with his life and plan his affairs without it.”20
In his separate consideration of Maily Pickering’s application, the learned primary judge reached the same conclusions but relied on a further matter, namely, that the plaintiff’s “rehabilitation has been impeded by the delay in the action and would probably be further affected by allowing it to continue”.21
The learned primary judge was guided in the exercise of his discretion by a number of well known authorities.22 What underpins these conclusions is his Honour’s detailed analysis of relevant considerations which, apart from delay, included:-
The appellants’ prospects of success;23
The lack of readiness for trial having regard to the inadequate statement of loss and damage;24 and
The prejudice to the defendant.25
No challenge has been made to his Honour’s conclusions in relation to the prospects of success and the prejudice. In my view, they are not open to challenge on the material relied upon. The question of readiness for trial is challenged on the basis that it would not take much to complete the work necessary to prepare the case. His Honour was entitled to conclude to the contrary having found “the most remarkable deficiency is that there has been a complete failure to satisfy the requirements of r 547(3)(g)”.26
Explanation for delay
On the question of delay, his Honour considered the impact of the psychiatric condition of the appellant Carlyle Pickering on the delay. Carlyle Pickering in his affidavit supporting the application, deposed that –
“6. Since the commencement of my claim, my diminished ability to think and concentrate has made it very difficult for me to gather and produce the information required by my solicitors in order to progress my claim.
In particular, my personal involvement in gathering information required by my solicitors has caused me a substantial amount of distress due to the fact that doing so results in my having to relive my experience with the Defendant, which ultimately exacerbates the abovementioned symptoms of my injury.
Any involvement I am required to have with respect to my legal proceedings also brings about intense feelings of guilt over having introduced my daughter, Maily Pickering, to the Defendant, and the repercussions of their subsequent relationship.”27
The appellants’ then solicitor in her affidavit confirmed that he gave instructions to her to this effect28 but she does not depose that she personally observed any such reduced capacity to concentrate or to gather information.
In his reasons, the learned primary judge said:-
“[30] … the report noted that the plaintiff does not have much energy (p 4) and that he presents as humourless and intense with a grim and brooding quality, withdrawn interpersonally and with a pervasive sense of pessimism: p 7. Reference was also made to his despairing attitude, and his ongoing depression, despair and bitterness: p 9. Both the plaintiff in his affidavit and Ms Neil in her affidavit speak of his symptoms as including a reduced capacity to concentrate and ongoing indecisiveness, but I cannot find reference to either of these matters in the psychiatrist’s report.
[31] The plaintiff in his affidavit said that his diminished ability to think and concentrate have made it very difficult to gather and produce the information required in order to progress the claim. He also complained about suffering distress from having to relive his experiences with the defendant for the purpose of gathering information required by the solicitors, and that this provoked intense feelings of guilt over having introduced his daughter to the defendant. He said that as a result he has often been unable to respond to requests for information from the solicitors as promptly as he could have but for this condition. It is difficult to reconcile what was said in this affidavit with the psychiatrist’s statement that he is intensely preoccupied with his dispute with the defendant. However, the plaintiff was not cross-examined on his affidavit.
…
[118] With regard to the plaintiff’s psychiatric problems, accepting at face value what is said in his affidavit, those problems do not explain the great bulk of the delay that has occurred, unless it is because those problems also led him to be reluctant actually to bring the matter on for trial. I suppose that if he finds it distressing to think about the matter for the purpose of gathering information for, or even just putting his signature on, a statement of loss and damage, it is going to be very difficult for him actually to go into the witness box and expose himself to cross-examination. Perhaps his hope was that if the matter dragged on long enough, the defendant would in effect pay him some money to go away. In any event, I do not accept that this is a case where the plaintiff’s psychiatric state has meant that the very slow pace of the litigation so far has been the best he could reasonably achieve. On the contrary, I regard the conclusion as irresistible that over an extended period of time there has been no serious attempt to bring the matter to trial or to prepare it properly for trial.29 (my emphasis)
Issues on appeal
The appellants identified two points in contending that the learned primary judge erred in drawing his conclusions about the lack of explanation for the appellants’ delay -
That his Honour erred in holding that there was no reference in the report of Dr Quadrio to the plaintiff’s claim of symptoms of reduced capacity to concentrate and ongoing indecisiveness; and
That the failure to get the matter ready for trial was due to the dilatoriness of the appellant’s then solicitors rather than the appellant himself.
As to the first of these, reliance is placed on the contents of Dr Quadrio’s report30. His Honour noted the opinion of Dr Quadrio as set out in the body of her report and contrasted that with the claims of the appellant referred to in para [29] above. What his Honour overlooked was Dr Quadrio’s reference, in the Appendix to her report, to the DSM IV criteria for Major Depressive Episode. What, on its face, appears to be a simple list of standard criteria was, by the use of asterisks, identified as symptoms complained of by the appellant. Included in the list is:-
“(8) Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).”
For the diagnosis of major depressive episode to be made, that symptom, together with four others, are required to be present every day over a two week period.
There is no evidence of when, or for what period, the episode existed nor how that symptom impacted on the appellant’s daily life nor whether he sought treatment for it having regard to the obvious inconvenience it is said to have caused. Dr Quadrio did not record any complaint by the appellant of any difficulty in gathering or producing information.
It is easy to understand how the learned primary judge would overlook evidence presented in such an oblique manner. But the question is, whether such an oversight has resulted in any error. It is difficult to know what weight is to be given to symptoms which are identified only in the precise terms of a specific criterion without any detail as to how the symptom impacted on the appellant’s daily life. Moreover, though the symptom may have existed for a short period, or periods, it is difficult to conceive that such a symptom would be present over the whole of the extended periods of inaction which characterise the delay in this matter.
In the part of the report dealing with the appellant’s actual complaints, there is no reference to diminished capacity to think or to indecisiveness. The only equivalent reference is by the words “Mr Pickering is less focussed on work and is not as effective as he used to be”. It is difficult to get any clear picture as to the extent to which the appellant’s mental state impaired his capacity to provide his solicitor with information. The report, in the list of the documents referred to by Dr Quadrio, mentions a statement by Mr Pickering in December 2008 which indicates that the appellant did have the capacity to give detailed information up to that time. It seems clear from the terms of Dr Quadrio’s report that the appellant was still able to engage in work despite significant physical limitations and the fact that he suffered a stroke in 2006. One is left with the impression that whatever impairment the appellant had in his ability to concentrate, it was not so disabling as to prevent his giving appropriate instructions to his solicitors for such a lengthy period of time as is manifested by the delay in this case. His Honour found, correctly in my view, that “There is nothing to suggest that any part of the subsequent delay (after 2007) was attributable to any difficulty in obtaining instructions from the plaintiff”.31 His other findings highlighted above are quite consistent with the evidence and not at odds with the appellant suffering the symptom of diminished ability to think or concentrate for short periods.
The oversight by the learned primary judge did not, in my view, constitute an error such as has caused his discretion to miscarry. The discretion is based on a number of considerations of which the explanation for delay is but one part. Those considerations have been clearly articulated in his Honour’s Reasons and do not require repetition here. Of most significance, is the conclusion that the delay “has made it difficult to conduct a fair trial”.32
The second issue is the contention that the delay was in the main, or in part, due to the dilatoriness of the appellant’s then solicitor. This contention is difficult to maintain. It is, to a large extent, based upon the acceptance of the further evidence which I have determined should not be received but the evidence led below did at least invite a consideration of the solicitors’ role in the history of the delay. His Honour found that “the material before me strongly suggests that the plaintiff’s solicitors have not ever made any serious attempt to get this matter ready for trial and were not doing so at the time when the issue about delay was pointed out by the defendant’s solicitors”.33 It is clear from this statement that his Honour was critical of the conduct of the solicitors, despite the fact that no submissions were made of “the plaintiffs’ lawyers being dilatory”.
Delay on the part of solicitors is often a relevant consideration in applications of this kind. The weight of such a consideration, amongst other competing considerations, varies considerably depending upon the client’s level of sophistication or education, the complexity of the issues and the professional relationship. What is clear in this case is the frequency of contact between the appellants and their then solicitor. Despite that contact the matter did not progress, thus justifying his Honour’s finding referred to in the preceding paragraph. I am not persuaded that his Honour’s discretion has miscarried by reason of any failure to appreciate the role of the appellant’s former solicitors in the progress of their claims.
I would, therefore, make the following orders in respect of each appeal:
The application to adduce further evidence is refused.
The appeal is dismissed with costs, including the costs of the application to adduce further evidence.
[2010] QDC 90 at [117]. ↩
See HWC v The Corporation of the Synod of the Diocese for Brisbane [2009] QCA 168 at [70] per Fraser JA and [88] to [91] in my reasons for judgment. ↩
Para 13 Affidavit of Carlyle Pickering – supplementary Appeal book at p 13. ↩
Ibid at p 20 paras [45] and [47]. ↩
Ex “CP3” to the affidavit of Carlyle Pickering filed 15 June 2010. ↩
Appeal book p 574. ↩
Transcript p 1-12/40. ↩
Affidavit Carlyle Pickering sworn 15 June 2010 para [15]. ↩
Para [61] Affidavit of Laura Neil sworn 13 October 2009. ↩
Reasons at [111]. See also at paras [81] and [96]. ↩
[2005] QCA 446. ↩
[1971] AC 666. ↩
Brisbane City Council v Mainsell Investments Pty Ltd [1989] 2 Qd R 204. ↩
Pickering & Anor
McArthur [2010] QCA 341
(1996) 186 CLR 541
The applications to adduce further evidence were refused. The appeals were dismissed with costs, including the costs of the applications to adduce further evidence.
Further Amended State of Claim – Appeal book pp 477-483. ↩
Further Amended Statement of Claim – Appeal book pp 485-490. ↩
Appeal book p 516. ↩
Appeal book p 115. ↩
Appeal book p 575. ↩
Reasons paras [37]-[38] Appeal book p 567. ↩
Appeal book pp 589-590. ↩
Appeal book p 592. ↩
Reasons paras [113]–[116] - Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178; Quinlan v Rothwell [2002] 1 Qd R 647; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hall v RH & CE McColl P/L [2007] QCA 182. ↩
Reasons paras [68]-[72] Appeal book p 577. ↩
Reasons paras [37]-[38] Appeal book p 567. ↩
Reasons para [82] Appeal book p 579. ↩
Reasons [37] Appeal book p 567. ↩
Appeal book p 62. ↩
Para [7] to affidavit sworn 13 October 2009. ↩
Appeal book p 565 and p 590 ↩
Ex “LAN1” to affidavit of Laura Neil sworn 13 October 2009 (not included in the Appeal book). ↩
Reasons [32] Appeal book 565. ↩
Reasons paras [117] and [122] Appeal book p 589 and 592. ↩
Reasons [79] Appeal book p 579. ↩