QLDQSC

Di Carlo v Dubois & Ors [2004] QSC 41

[2004] QSC 41

Supreme Court of Queensland|2004-03-10|Before: Mackenzie J

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Source facts

Court

Supreme Court of Queensland

Decision date

2004-03-10

Before

Mackenzie J

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

Source

Original judgment source is linked above.

Catchwords

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE –QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT– COSTSORDERS – leave to appeal required – principles for granting leave– whether application for leaveafter expiry of appeal periodcompetentEmanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd[2003] QSC 484SC No 3723 of 1999, 17 December 2003, consideredJiminez v Jayform Contracting Pty Ltd [1992] QCA 59[1993] 1 Qd R 610,cited Johns v Johns [1988] 1 Qd R, citedRe Golden Casket ArtUnion Office [1994] QCA 480[1995] 2 Qd R 346, cited Thorpe Nominees Pty Ltd v Henderson& Lahey [1988] 2 Qd R 216, citedSupreme Court Act 1995 (Qld), s 253, s 254Uniform CivilProcedure, r 747, r 748

Judgment (1 paragraphs)

[1]

[8] He referred to Johns v Johns [1988] 1 Qd R 138 where an appeal from the District Court could only be brought by leave. The relevant rule of the Supreme Court then operative prescribed that an appellant, by leave or by right, should institute the appeal within the time prescribed by the District Court rule. Williams J giving what was effectively the judgment of the court, said that leave had to be obtained before institution of the appeal. Otherwise it was not an appeal by leave. Chesterman J pointed out that Jiminez v Jayform Contracting Pty Ltd [1992] QCA 59; [1993] 1 Qd R 610 expressly adopted that view. Chesterman J said that because, in the case of a costs order, leave could only be given by the judge who made the order, the expedient of the Court of Appeal giving both an extension of time and leave to appeal was not operative. Since an application for leave to appeal must occur first, if it was not made within 28 days of making the costs order any appeal instituted pursuant to the leave would be incompetent. He inferred that the appeal contemplated by s 253 was one which was competent, that is to say, one that could be brought within the prescribed time.

Di Carlo v Dubois & Ors [2004] QSC 41

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Judgment (1 paragraphs)

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Cases Cited (3)