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Di Carlo v Dubois

Di Carlo v Dubois

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Case Copied 25 June 2002 22 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Dubois & Ors [2002] QCA 225

PARTIES:

SALVATORE DI CARLO
(plaintiff / appellant)
v
PHILIP JAMES DUBOIS
(first defendant / first respondent)
PHILIP DUBOIS (MEDICAL) PTY LIMITED           ACN 010 673 864
(second defendant / second respondent)
DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O’ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWITZ, PETER CHARLES LUSH, MICHAEL DAUNT, DAVID ALEXANDER NOBLE and PETER FERGUS LEIGH Trading as QUEENSLAND X-RAY SERVICES
(third defendants / third respondents)
MATER PRIVATE HOSPITAL
(fourth defendant)
MICHAEL CORONEOS
(fifth defendant / fourth respondent)

FILE NO/S:

Appeal No 9805 of 2001
SC No 1281 of 1996

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2002

JUDGES:

Williams JA, White and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDERS:

1.   Allow the appeal;

2.   The orders as to costs made below be set aside and in lieu thereof order that:
(a)   the appellant pay the defendants’ costs incurred in consequence of the amendment to the statement of claim, being Exhibit “K”;
(b) the costs of the four days of trial be reserved to the judge who hears the new trial of the action.

3.   The respondents pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – ADJOURNMENT AND AMENDMENT - where trial judge granted appellant leave to amend statement of claim at trial and ordered the appellant pay the costs thrown away by the amendment to be assessed on an indemnity basis – whether amended pleading set up an alternative case which raised the prospect of conflict between two of the defendants who were represented by the same counsel and solicitors and with the same professional indemnity insurer – where on the fourth day of trial the trial judge granted an adjournment of the trial, discharged the jury and ordered the appellant to pay the costs of the four days of trial thrown away to be assessed on an indemnity basis – whether trial judge erred in not reserving those costs to the judge who hears the second trial

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – COSTS ON INDEMNITY BASIS – whether trial judge erred in ordering that the costs be assessed on an indemnity basis – consideration of Rules 703 and 704 of the Uniform Civil Procedure Rules – consideration of the authorities including Colgate-Palmolive Company v Cussons Pty Ltd and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd

Uniform Civil Procedure Rules 1999 (Qld), rules 703 & 704

Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412, considered
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QCA 225
Decision Date: 25 June 2002

CaseChat Overview and Summary

The case of Di Carlo v Dubois involved a dispute where the appellant sought leave to amend the statement of claim at trial. The respondents argued that the amendment set up an alternative case, creating a conflict of interest between two of the defendants who were represented by the same counsel and solicitors and insured by the same professional indemnity insurer. The trial judge granted the amendment and ordered the appellant to pay the costs thrown away by the amendment on an indemnity basis. Subsequently, the trial judge granted an adjournment, discharged the jury, and ordered the appellant to pay the costs of the four days of trial thrown away, also on an indemnity basis. The appellant challenged these orders on the basis that the trial judge erred in not reserving the costs to the judge who would hear the second trial and in ordering that the costs be assessed on an indemnity basis.

The legal issues before the court were whether the trial judge erred in ordering the appellant to pay the costs thrown away by the amendment on an indemnity basis and in ordering the appellant to pay the costs of the four days of trial thrown away on an indemnity basis. The court considered the relevant rules of the Uniform Civil Procedure Rules and relevant authorities, including Colgate-Palmolive Company v Cussons Pty Ltd and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd. The court found that the trial judge erred in ordering that the costs be assessed on an indemnity basis and in not reserving those costs to the judge who hears the second trial.

The court allowed the appeal and set aside the orders as to costs made below. In lieu thereof, the court ordered that the appellant pay the defendants’ costs incurred in consequence of the amendment to the statement of claim and that the costs of the four days of trial be reserved to the judge who hears the new trial of the action. The respondents were ordered to pay the appellant’s costs of and incidental to the appeal on the standard basis.

Orders

Orders of the court

1. Allow the appeal;

2. The orders as to costs made below be set aside and in lieu thereof order that:

(a) the appellant pay the defendants’ costs incurred in consequence of the amendment to the statement of claim, being Exhibit “K”;

(b) the costs of the four days of trial be reserved to the judge who hears the new trial of the action.

3. The respondents pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Di Carlo v Dubois & Ors [2002] QCA 225
PARTIES:	SALVATORE DI CARLO (plaintiff / appellant) v PHILIP JAMES DUBOIS (first defendant / first respondent) PHILIP DUBOIS (MEDICAL) PTY LIMITED ACN 010 673 864 (second defendant / second respondent) DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O’ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWITZ, PETER CHARLES LUSH, MICHAEL DAUNT, DAVID ALEXANDER NOBLE and PETER FERGUS LEIGH Trading as QUEENSLAND X-RAY SERVICES (third defendants / third respondents) MATER PRIVATE HOSPITAL (fourth defendant) MICHAEL CORONEOS (fifth defendant / fourth respondent)
FILE NO/S:	Appeal No 9805 of 2001 SC No 1281 of 1996
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 June 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2002
JUDGES:	Williams JA, White and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS:	1. Allow the appeal; 2. The orders as to costs made below be set aside and in lieu thereof order that: (a) the appellant pay the defendants’ costs incurred in consequence of the amendment to the statement of claim, being Exhibit “K”; (b) the costs of the four days of trial be reserved to the judge who hears the new trial of the action. 3. The respondents pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – ADJOURNMENT AND AMENDMENT - where trial judge granted appellant leave to amend statement of claim at trial and ordered the appellant pay the costs thrown away by the amendment to be assessed on an indemnity basis – whether amended pleading set up an alternative case which raised the prospect of conflict between two of the defendants who were represented by the same counsel and solicitors and with the same professional indemnity insurer – where on the fourth day of trial the trial judge granted an adjournment of the trial, discharged the jury and ordered the appellant to pay the costs of the four days of trial thrown away to be assessed on an indemnity basis – whether trial judge erred in not reserving those costs to the judge who hears the second trial PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – COSTS ON INDEMNITY BASIS – whether trial judge erred in ordering that the costs be assessed on an indemnity basis – consideration of Rules 703 and 704 of the Uniform Civil Procedure Rules – consideration of the authorities including Colgate-Palmolive Company v Cussons Pty Ltd and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd Uniform Civil Procedure Rules 1999 (Qld), rules 703 & 704 Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412, considered Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225,…