Conde v Dodo Australia Pty Ltd

[2011] QSC 213

SUPREME COURT OF QUEENSLAND

CITATION:

Conde v Dodo Australia Pty Ltd [2011] QSC 213

PARTIES:

MILTON ARNOLDO CONDE
(applicant)
v
DODO AUSTRALIA PTY LTD
ABN 74 680 877 366

(respondent)

FILE NO/S:

SC No 6135 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Delivered ex tempore 18 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2011

JUDGE:

Atkinson J

ORDER:

The application is dismissed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where the applicant applied to institute proceedings against the respondent in the Magistrates Court – where the applicant required leave of the court because he had been declared a vexatious litigant pursuant to the Vexatious Proceedings Act 2005 (Qld) – whether the applicant should be given leave to commence proceedings

Vexatious Proceedings Act 2005 (Qld), s 8, s 9, s 11, s 12

COUNSEL:

The applicant appeared on his own behalf

The respondent did not appear

SOLICITORS:

The applicant appeared on his own behalf

The respondent did not appear

HER HONOUR: Milton Arnoldo Conde has applied for leave to commence proceedings pursuant to section 11 of the Vexatious Proceedings Act 2005 (Qld) (“Vexatious Proceedings Act”).  Leave to institute proceedings is required, as he says in his originating application, because he is the subject of an order made on 4 February 2010, which was the subject of an unsuccessful appeal, that he be declared a vexatious litigant under the Vexatious Proceedings Act.

Pursuant to paragraph 3 of that order, he was prohibited from instituting any proceeding in a Court or Tribunal in the State of Queensland without prior leave of a Judge of the Supreme Court of Queensland granted pursuant to part 3 of that Act.

Mr Conde wishes to commence proceedings in the Magistrates Court with regard to a dispute with Dodo Australia Pty Ltd, ABN 74680877366.  That dispute concerns his dissatisfaction with the service provided to him by Dodo Australia Pty Ltd in respect of a landline and internet service.

I do not propose to go into the merits or otherwise of that dispute. I must first determine whether or not he should have leave under part 3 of the Vexatious Proceedings Act to commence proceedings.

The Vexatious Proceedings Act is very clear in its requirements with regard to an application for leave to institute proceedings.  It provides, first of all, that the applicant may apply to this Court for leave to institute a proceeding and that Mr Conde has done.  Secondly, it provides that the applicant must file an affidavit with the application.  That affidavit must set out certain matters. Section 12 of the Vexatious Proceedings Act provides that the Court must dismiss an application made under section 11 for leave to institute a proceeding if it considers the affidavit does not substantially comply with section 11(3).

There are three requirements of subsection 3, each of which must be complied with, at least substantially.  The first is that the applicant must list all the occasions on which he has applied for leave under this section, or before the commencement of this section, under the Vexatious Litigants Act 1981, section 8 or 9. This is the first occasion on which Mr Conde has applied for leave and so that requirement is satisfied.

The second matter is that Mr Conde must list all other proceedings that he has instituted in Australia, including proceedings instituted before the commencement of section 11. Mr Conde does not list any proceedings he has instituted other than those in this Court. On asking him whether there were other proceedings instituted by him in Australia other than in this Court, it transpires that there appear to be a number, perhaps a large number. Not one of those is listed. As a result, there is no compliance with that requirement, let alone substantial compliance.

The third requirement is that the applicant disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. Prima facie, Mr Conde appears to have done this. However, I cannot be satisfied that there has been substantial compliance in the affidavit with the requirements of section 11(3) of the Vexatious Proceedings Act.

In those circumstances, I am obliged to dismiss the application.  So I dismiss the application.

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