Di Carlo v. Dubois & Ors

[2007] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Dubois & Ors [2007] QCA 196

PARTIES:

SALVATORE DI CARLO
(plaintiff/appellant)
v
PHILIP JAMES DUBOIS
(first defendant/first respondent)
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 AS QUEENSLAND X-RAY SERVICES
(third defendant/third respondent)
DR MICHAEL CORONEOS

(fifth defendant/forth respondent)

FILE NO/S:

Appeal No 1388 of 2006
SC No 1281 of 1996

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

8 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2007

JUDGES:

McMurdo P

ORDER:

The orders are:
1.  CA 1388 of 2006 is to be heard together with CA
     3622 of 2007
2.  The parties are to follow the directions for the
     progression of both these matters given by the
     deputy registrar appeals, or his nominee
3.  The applicant, Mr Di Carlo, is to pay the
     respondent's costs of and incidental to today's
     hearing

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – OTHER MATTERS – where matter has progressed little since being filed – where matter closely linked with another application – whether applications should be heard together

COUNSEL:

The appellant appeared on his own behalf
P L Freely for the respondents

SOLICITORS:

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

THE PRESIDENT:  Well, I have considered whether this
application for an extension of time in CA 1388 of 2006 should be struck out for want of prosecution.

It has not been progressed in any way by the applicant since its filing on the 20th of February 2006.  It does, however, seem to be linked closely with another matter which is to proceed in the Court of Appeal later this year in CA 3622 of
2007.  For the time being I am persuaded that the interests of justice are best served by dealing with both these applications together.  They will be heard by the Court later this year.

But the applicant, Mr Di Carlo, is certainly on notice that if he does not follow carefully the directions given for the progression of this matter and also for the associated matter in CA 3622 of 2007, the matters will be listed for further directions and he will be at risk of having cost orders made against him, or even having either or both matters struck out for want of prosecution.

I order that CA 1388 of 2006 is to be heard together with
CA 3622 of 2007, and that the parties are to follow the directions for the progression of both these matters given by the Deputy Registrar Appeals, or his nominee.

...

THE PRESIDENT:  I have considered carefully the matter of
whether a costs order should be made in this case.  I am satisfied on the material that the necessity for today's mention is entirely the fault of Mr Di Carlo's failure to progress the hearing of this matter in any way.  It is entirely appropriate in those circumstances that he pays the respondent's costs of and incidental to today's hearing, and that is my order.  I direct that a transcript of today's hearing be made.

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