Conde v Gilfoyle

Case [2010] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

Conde v Gilfoyle & Anor [2010] QCA 173

PARTIES:

MILTON ARNOLDO CONDE
(appellant/respondent)
v
BURCHILL & HORSEY LAWYERS
(first respondent/first applicant)
JULIE GILFOYLE
(second respondent/second applicant)
MYLTON BURNS
(third respondent/not party to the application)
McINNES WILSON LAWYERS
(fourth respondent/not party to the application)

FILE NO/S:

Appeal No 1182 of 2010
Appeal No 11377 of 2009
Appeal No 11430 of 2009
Appeal No 14595 of 2009
SC No 13341 of 2009
SC No 8610 of 2009
SC No 8609 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out – Further Orders

ORIGINATING COURTS:


Court of Appeal at Brisbane
Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 14 May 2010
Further Orders delivered on 2 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2010

JUDGES:

McMurdo P and Fraser JA and Peter Lyons J
Judgment of the Court

ORDERS:

The appellant pay the costs of the first and second respondents of and incidental to Appeal No 1182 of 2010; Appeal No 11377 of 2009; Appeal No 11430 of 2009; and Appeal No 14595 of 2009;(a)     

The costs ordered to be paid in (a) hereof and in paragraphs 1(c), 2(c), 3(c) and 4(c) of the Orders of 14 May 2010 be assessed upon the indemnity basis.(b)     

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the Court ordered that the appellant pay the respondents’ costs of their applications dismissing appeals brought by the appellant – where no order was made as to the costs of the appeals as the applications did not seek any such orders – where the respondents were given leave to make submissions as to costs in accordance with the Practice Direction – where the respondents applied for orders that the appellant pay their costs of, and incidental to, the appeals and their costs of the applications to dismiss the appeals on the indemnity basis – whether the Court’s discretion should be exercised to award costs on the indemnity basis

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER THE SLIP RULE – whether the Court has the discretionary power to make an order which it failed to make resulting from an accidental slip or omission of counsel pursuant to r 388 Uniform Civil Procedure Rules 1999 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 338, r 661

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited
Conde v Gilfoyle & Anor[2010] QCA 109, cited
Gould v Vaggelas (1984) 157 CLR 215; [1985] HCA 85, cited
L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1983) 151 CLR 590; [1982] HCA 59, cited
R v Cripps; Ex parte Muldoon [1984] QB 686, cited
Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337, cited
Storey & Keers Pty Ltd v Johnstone (1987) 9…

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AGLC
Conde v Gilfoyle [2010] QCA 173
Case
[2010] QCA 173
Decision Date

CaseChat Overview and Summary

The case of Conde v Gilfoyle involved the appellant, Conde, appealing against orders made by the trial judge and subsequent orders of the intermediate appellate court dismissing Conde's appeals. The first and second respondents, Gilfoyle, applied to dismiss Conde's appeals and sought an order for costs on an indemnity basis. The primary issue before the court was whether the discretion under the Uniform Civil Procedure Rules should be exercised to award costs on an indemnity basis. An additional issue was whether the court has the discretionary power to make an order that it failed to make due to an accidental slip or omission of counsel.

The court determined that the discretion to award costs on an indemnity basis should be exercised in the present case due to the frivolous and vexatious nature of Conde's appeals. The court found that Conde's appeals were without merit and were brought for an improper purpose. The court also found that the respondents were not at fault for the failure to make an order for costs as the applications did not seek any such orders. Regarding the second issue, the court held that it has the discretionary power to make an order that it failed to make due to an accidental slip or omission of counsel under r 388 of the Uniform Civil Procedure Rules.

The court ordered that Conde pay the costs of the first and second respondents of and incidental to the appeals and their costs of the applications to dismiss the appeals on the indemnity basis. The court further ordered that the costs be assessed upon the indemnity basis.

Orders

Orders of the court

(a) The appellant pay the costs of the first and second respondents of and incidental to Appeal No 1182 of 2010; Appeal No 11377 of 2009; Appeal No 11430 of 2009; and Appeal No 14595 of 2009;

(b) The costs ordered to be paid in (a) hereof and in paragraphs 1(c), 2(c), 3(c) and 4(c) of the Orders of 14 May 2010 be assessed upon the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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