Di Carlo v Dubois - [2007] QCA 316

SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Dubois & Ors [2007] QCA 316

PARTIES:

SALVATORE DI CARLO
(plaintiff/applicant)
v
PHILIP JAMES DUBOIS
(first defendant/first respondent)
PHILIP DUBOIS (MEDICAL) PTY LTD 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 LEIBOWIZ , PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE, PETER FERGUS LEGH trading under the firm name or style of QUEENSLAND X-RAY SERVICES
(third defendant/third respondent)
MICHAEL CORONEOS
(fifth defendant/not party to appeal)

SALVATORE DI CARLO
(respondent/applicant)
v
PHILIP JAMES DUBOIS
(first applicant/first respondent)
DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O'ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWIZ , PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE, PETER FERGUS LEGH trading under the firm name or style of QUEENSLAND X-RAY SERVICES
(second applicant/second respondent)
MICHAEL CORONEOS
(not party to appeal)

FILE NO/S:

Appeal No 1388 of 2006
Appeal No 3622 of 2007
SC No 1281 of 1996
SC No 412 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2007

JUDGES:

Keane and Muir JJA and Cullinane J
Judgment of the Court

ORDER:

1. Application for extension of time in Appeal No 1388 of 2006 refused

2. Application for extension of time in Appeal No 3622 of 2007 refused

3. Applicant to pay costs of the respondents in each application on the indemnity basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant's action against respondents was dismissed – where applicant's appeals to Court of Appeal and High Court were dismissed – where applicant seeks further appeal in reliance upon fresh evidence – whether extension of time should be granted

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant brought new action to set aside judgment on basis of fraud – where claim and statement of claim struck out – whether extension of time should be granted to allow applicant to appeal

Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, applied

Boughen v Abel [1987] 1 Qd R 138, applied
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, applied

COUNSEL:

The applicant appeared on his own behalf
G A Thompson SC, with P L Feely, for the respondents

SOLICITORS:

The applicant appeared on his own behalf
Flower & Hart Lawyers for the respondents

THE COURT: The applicant was the plaintiff in an action for damages for personal injury allegedly inflicted by the negligence of the present respondents on 29 May 1993. While the applicant was undergoing a CT scan administered by the respondents, he suffered an…

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: [2007] QCA 316
Decision Date: 28 September 2007

CaseChat Overview and Summary

In the matter of Di Carlo v Dubois, the applicant, Mr Di Carlo, sought an extension of time to appeal against two separate judgments that had been made against him. The first appeal, numbered 1388 of 2006, concerned a dismissal of Mr Di Carlo's action against the respondents, while the second appeal, numbered 3622 of 2007, pertained to the dismissal of a subsequent action brought by Mr Di Carlo to set aside the judgment on the basis of fraud. Both appeals were dismissed, and the High Court declined to grant special leave to appeal. Now, Mr Di Carlo sought a further appeal, relying on fresh evidence.

The primary legal issue before the court was whether to grant Mr Di Carlo an extension of time to appeal against the judgments. The court considered whether Mr Di Carlo's application for an extension was made within a reasonable time and whether the fresh evidence he presented was sufficient to warrant an extension. Additionally, the court needed to determine whether Mr Di Carlo's claim in the second appeal, which was based on an allegation of fraud, was viable and if it warranted an extension of time.

The court concluded that Mr Di Carlo's applications for an extension of time were not made within a reasonable time, as the applications were filed several years after the respective judgments were made. The court also found that the fresh evidence presented by Mr Di Carlo did not warrant an extension, as it did not provide a compelling reason for the delay. Furthermore, the court held that the claim in the second appeal was not viable, as the allegations of fraud were not substantiated. Therefore, the court refused both applications for an extension of time and ordered Mr Di Carlo to pay the respondents' costs on the indemnity basis.

Orders

Orders of the court

1. Application for extension of time in Appeal No 1388 of 2006 refused

2. Application for extension of time in Appeal No 3622 of 2007 refused

3. Applicant to pay costs of the respondents in each application on the indemnity 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 [2007] QCA 316
PARTIES:	SALVATORE DI CARLO (plaintiff/applicant) v PHILIP JAMES DUBOIS (first defendant/first respondent) PHILIP DUBOIS (MEDICAL) PTY LTD 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 LEIBOWIZ , PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE, PETER FERGUS LEGH trading under the firm name or style of QUEENSLAND X-RAY SERVICES (third defendant/third respondent) MICHAEL CORONEOS (fifth defendant/not party to appeal) SALVATORE DI CARLO (respondent/applicant) v PHILIP JAMES DUBOIS (first applicant/first respondent) DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O'ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWIZ , PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE, PETER FERGUS LEGH trading under the firm name or style of QUEENSLAND X-RAY SERVICES (second applicant/second respondent) MICHAEL CORONEOS (not party to appeal)
FILE NO/S:	Appeal No 1388 of 2006 Appeal No 3622 of 2007 SC No 1281 of 1996 SC No 412 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2007
JUDGES:	Keane and Muir JJA and Cullinane J Judgment of the Court
ORDER:	1. Application for extension of time in Appeal No 1388 of 2006 refused 2. Application for extension of time in Appeal No 3622 of 2007 refused 3. Applicant to pay costs of the respondents in each application on the indemnity basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant's action against respondents was dismissed – where applicant's appeals to Court of Appeal and High Court were dismissed – where applicant seeks further appeal in reliance upon fresh evidence – whether extension of time should be granted APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant brought new action to set aside judgment on basis of fraud – where claim and statement of claim struck out – whether extension of time should be granted to allow applicant to appeal Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, applied Boughen v Abel [1987] 1 Qd R 138, applied Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, applied
COUNSEL:	The applicant appeared on his own behalf G A Thompson SC, with P L Feely, for the respondents
SOLICITORS:	The applicant appeared on his own behalf Flower & Hart Lawyers for the respondents