Di Carlo v Dubois - [2003] QSC 41

SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Dubois & Ors [2003] QSC 041

PARTIES:

SALVATORE DI CARLO
(plaintiff/ applicant)
v
DR 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, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH trading under the firm name of style of QUEENSLAND X-RAY SERVICES
(third defendant/ third respondent)
DR MICHAEL CORONEOS
(fifth defendant/ fifth respondent)

FILE NO:

SC No 1281 of 1996

DIVISION:

Trial Division

PROCEEDING:

Application for leave to appeal against costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2004

JUDGE:

Mackenzie J

ORDER:

The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed. No order as to costs as between the plaintiff and the fifth defendant.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – leave to appeal required – principles for granting leave – whether application for leave after expiry of appeal period competent

Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484; SC No 3723 of 1999, 17 December 2003, considered
Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610, cited
Johns v Johns [1988] 1 Qd R, cited
Re Golden Casket Art Union Office [1995] 2 Qd R 346, cited Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216, cited

Supreme Court Act 1995 (Qld), s 253, s 254
Uniform Civil Procedure, r 747, r 748

COUNSEL:

N M Cooke QC for the plaintiff
P L Feely for the first, second and third defendants
The fifth defendant did not wish to appear

SOLICITORS:

Baker Johnson for the plaintiff
Flower and Hart for the first, second and third defendants

MACKENZIE J: A costs order in these proceedings was made on 18 December 2003. An appeal had been filed against the primary orders in the proceedings and when that appeal came on in the Court of Appeal on 24 February 2004 the issue of appealing against the costs orders arose. It appears that the reasons for the costs order delivered on 18 December 2003 by me were included in the record but there was no notice of appeal. The question was raised whether, if the appeal against the primary orders was dismissed, my leave would be necessary to appeal against the costs order.

When the application was brought before me, it became apparent that the fifth defendant, who would be affected by one aspect of the application, had not been served. The matter was stood down and, later in the day, he sent a fax saying that he did…

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: [2003] QSC 41
Decision Date: 10 March 2004

CaseChat Overview and Summary

In the case of Di Carlo v Dubois, the plaintiff, Di Carlo, sought to appeal certain costs orders made in a previous proceeding. The defendants, Dubois and others, opposed the appeal. The matter was before the court to determine whether leave to appeal should be granted, particularly as the application for leave came after the usual appeal period had expired. The court was required to consider the principles governing the granting of leave to appeal and whether an application made post the expiration of the appeal period could be considered competent. The outcome of this case would clarify the procedural rules regarding appeals and the flexibility of the court in allowing out-of-time applications.

The court examined the statutory framework and judicial precedents concerning appeals by leave of the court in Queensland. It considered the criteria for granting leave, including whether the appeal raised a substantial question of law, whether the application was made promptly, and the potential impact of the appeal on other parties. The court also scrutinised whether the application was made within a reasonable time and if exceptional circumstances justified an extension of the appeal period. Furthermore, the court evaluated the defendants' submissions on the merits of the appeal and the broader implications for procedural fairness and the integrity of the court system.

Upon reviewing the arguments and the applicable legal principles, the court concluded that the application for leave to appeal was not competent because it was filed beyond the prescribed appeal period. The court found that the application did not meet the stringent criteria for an out-of-time appeal, and granting leave would undermine the procedural rules designed to ensure timely resolution of disputes. The court emphasised the importance of adhering to set deadlines and the potential prejudice to the defendants if the appeal period were extended. Consequently, the court refused the application for leave to appeal, and ordered that the costs of the first, second, and third defendants were to be assessed. There was no order as to costs between the plaintiff and the fifth defendant.

Orders

Orders of the court

The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed. No order as to costs as between the plaintiff and the fifth defendant.

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 [2003] QSC 041
PARTIES:	SALVATORE DI CARLO (plaintiff/ applicant) v DR 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, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH trading under the firm name of style of QUEENSLAND X-RAY SERVICES (third defendant/ third respondent) DR MICHAEL CORONEOS (fifth defendant/ fifth respondent)
FILE NO:	SC No 1281 of 1996
DIVISION:	Trial Division
PROCEEDING:	Application for leave to appeal against costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2004
JUDGE:	Mackenzie J
ORDER:	The application for leave to appeal against the costs orders is refused, with costs of the first, second and third defendants to be assessed. No order as to costs as between the plaintiff and the fifth defendant.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – leave to appeal required – principles for granting leave – whether application for leave after expiry of appeal period competent Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 484; SC No 3723 of 1999, 17 December 2003, considered Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610, cited Johns v Johns [1988] 1 Qd R, cited Re Golden Casket Art Union Office [1995] 2 Qd R 346, cited Thorpe Nominees Pty Ltd v Henderson & Lahey [1988] 2 Qd R 216, cited Supreme Court Act 1995 (Qld), s 253, s 254 Uniform Civil Procedure, r 747, r 748
COUNSEL:	N M Cooke QC for the plaintiff P L Feely for the first, second and third defendants The fifth defendant did not wish to appear
SOLICITORS:	Baker Johnson for the plaintiff Flower and Hart for the first, second and third defendants