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Di Carlo v Dubois


[2003] QCA 476






Appeal No 7141 of 2003


SALVATORE DI CARLO   Respondent/Plaintiff




DR PHILIP JAMES DUBOIS   Respondent/First Defendant





PTY LIMITEDRespondent/Second Defendant




DENNIS RICHARD OSBORNE Respondent/Third Defendant




PHILIP JAMES DUBOIS   Respondent/Third Defendant




STEPHEN BENNETT KELLER   Respondent/Third Defendant




PIYOOSH KOTECHA   Respondent/Third Defendant



GARY EDWARD O'ROURKE   Respondent/Third Defendant




MARK JAMES READY   Respondent/Third Defendant




PETER STOREY  Respondent/Third Defendant




CHARLES BRUCE LEIBOWIZ   Respondent/Third Defendant




PETER CHARLES LUSH   Respondent/Third Defendant




NICHOLAS DAUNT   Respondent/Third Defendant




DAVID ALEXANDER NOBLE&  Respondent/Third Defendant




PETER FERGUS LEGH   Respondent/Third Defendant




QUEENSLAND X-RAY SERVICES  Respondent/Third Defendant




DR MICHAEL CORONEOS   Appellant/Fifth Defendant



DATE 31/10/2003



MR COOK for the appellant


MR SIVIA for the defendants


THE PRESIDENT:  The position is this.  The Notice of Appeal in this matter was filed on the 14th of August 2003 and to date the appellant has not completed any stages of the case management of the appeal.  His outline was due to be filed on the 4th of September 2003.  It has not been filed despite three reminder letters being sent to him by the Court. 


On the 2nd of October 2003 he advised that he did not intend to continue with the appeal.  He was provided with the form of a Notice of Agreement to Dismissal of the Appeal and, whilst he completed and returned that form, it was only signed by him and not by the other parties.


On the 8th of October 2003 he was advised that the signature of the respondents would also be required.  He has made no further contact with the registry until the 29th of October, this week, when he again advised that he did not wish to continue with the appeal.  The registry advised him that it was usual, where an appellant discontinues an appeal, for an audit for costs to be made in favour of the respondents and that if he wished to contest the making of a costs order against him then he should attend the mention of the matter.


He has been advised that the matter would be mentioned today at 9.30 a.m.  He has not appeared.  In the circumstances, I propose to strike out the appeal for want of prosecution with costs to be assessed.




THE PRESIDENT:  In the circumstances it is unfortunate that the appellant did not simply obtain the written consent of the other parties which would have saved the respondents from appearing today.  But, although this was clearly explained to him by the registry and apparently by the respondent Dr Dubois and the related respondents' solicitors, he did not do so, so, in the circumstances, a costs order must be made against him.


I order that this appeal be struck out for want of prosecution and that the appellant pay the costs of and incidental to the appeal, including the costs of today's mention, to be assessed.


Editorial Notes

  • Published Case Name:

    Di Carlo v Dubois & Ors

  • Shortened Case Name:

    Di Carlo v Dubois

  • MNC:

    [2003] QCA 476

  • Court:


  • Judge(s):

    McMurdo P

  • Date:

    31 Oct 2003

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2003] QSC 20416 Jul 2003Trial of personal injury claim following CT scan; plaintiff has not discharged the onus of proving that he would not have undergone the procedure had he been directly warned; judgment for plaintiff against one of the defendants for $80,000 which was governed by pleadings: Mackenzie J.
Primary Judgment[2003] QSC 43518 Dec 2003Costs of adjournment of trial and trial proper where reasons given in [2003] QSC 204; no order as to costs on adjournment and standard event costs for trial: Mackenzie J.
Primary Judgment[2004] QSC 4110 Mar 2004Application for leave to appeal cost order made in [2003] QSC 435; application dismissed: Mackenzie J.
Primary Judgment[2007] QSC 9528 Mar 2007Application be respondents to strike out claim and statement of claim; claim seeks to set aside judgment on 16 July 2003 dismissing personal injury claim; claim based speculatively on unparticularised fraud; claim and statement of claim struck out with costs on the indemnity basis: de Jersey CJ.
QCA Interlocutory Judgment[2003] QCA 41518 Sep 2003Application for stay of costs orders made in [2002] QCA 225; application adjourned: Jerrard JA.
QCA Interlocutory Judgment[2003] QCA 51417 Nov 2003Application for security for costs brought by respondents refused; appeal against trial judgment on 16 July 2003; application refused: McMurdo P, Davies JA and Mullins J.
QCA Interlocutory Judgment[2004] QCA 3820 Feb 2004Mention of appeal CA7132/03 against trial judgment on 16 July 2003; appellant pay costs of mention: Williams JA.
QCA Interlocutory Judgment[2006] QCA 40418 Oct 2006Application in Court of Appeal without filing substantive appeal; application for order relieving any requirement to disclose CT scan documents; incorrectly instituted; application dismissed with costs: Williams and Keane JJA and McMurdo J.
QCA Interlocutory Judgment[2007] QCA 19608 Jun 2007Directions hearing; order that CA1388/06 and CA3622/07 be heard together; applicant delay in prosecuting appeal: McMurdo P.
Appeal Discontinued (QCA)-24 Feb 2004See [2004] QCA 46: parties agreed to dismiss appeal against fourth respondent to appeal CA7132/03 and CA2504/04; substantive appeal judgment is [2004] QCA 150: Davies and Williams JJA and McMurdo J.
Appeal Discontinued (QCA)-23 Mar 2006See [2006] QCA 94; formal pronouncement of orders by consent in application in CA9805/01; discharge temporary stay (made on adjournment on earlier stay application), and cost orders: Jerrard JA.
Appeal Determined (QCA)[2002] QCA 22525 Jun 2002Appeal against cost order following adjournment of jury civil trial (with leave to do so from trial judge); allowing the appeal and amending the cost order so that the plaintiff pay costs incurred as consequence of pleading amendments; trial costs otherwise reserved: Williams JA, White and Wilson JJ.
Appeal Determined (QCA)[2004] QCA 15007 May 2004Dismissing appeal against 16 July 2003 judgment; primary judge erred in finding there was no duty to warn, but no error in finding that the appellant would have proceeded with the procedure; application for extension of time to appeal refusal of leave to appeal (10 March 2004) cost orders made 18 Dec 2003 dismissed: Davies and Williams JJA and McMurdo J (Williams JA dissenting on duty to warn).
Appeal Determined (QCA)[2007] QCA 31628 Sep 2007Application for extension of time to file further notice of appeal against 16 July 2003 decision following recovery of new evidence of CT scan images (CA1388/06) seeking new trial; application for extension of time to appeal against decision to strike out claim and statement of claim made on 28 March 2007 seeking to set aside 16 July 2003 judgment (CA3622/07); applications dismissed; insufficient merit of prejudice warranting grant of leave in either app: Keane and Muir JA and Cullinane J.
Appeal Determined (QCA)[2003] QCA 47631 Oct 2003Appeal filed 14 August 2003 never prosecuted; notice of appeal struck out for want of prosecution: McMurdo P.
Application for Special Leave (HCA)[2007] HCATrans 81819 Dec 2007Application for reinstatement of special leave application (B55/07); application is reinstated on condition that the applicant pay the costs of the first and second respondents on an indemnity basis: Kiefel J.
Special Leave Refused[2005] HCATrans 16621 Mar 2005Special leave against 7 May 2004 decision refused with costs; no prospects of reversing findings of primary judge; any complaint of apprehended bias in Court of Appeal waived: Kirby and Hayne JJ.
Special Leave Refused[2008] HCASL 53717 Oct 2008Special leave application against decision on 28 September 2007 refused with costs; insufficient prospects of success in this Court to warrant a grant of special leave to appeal: Gummow and Kiefel JJ.

Appeal Status

Appeal Determined - {hollow-slash} Special Leave Refused (HCA)

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