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Conde v Gilfoyle

Conde v Gilfoyle

Case [2010] QCA 109 14 May 2010

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION:

Conde v Gilfoyle & Anor [2010] QCA 109

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:

Applications to Strike Out

ORIGINATING COURTS:

Court of Appeal at Brisbane
Supreme Court at Brisbane

DELIVERED ON:

14 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2010

JUDGES:

McMurdo P and Fraser JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    In Appeal No 1182 of 2010:

Abridge the time for service of the respondents’ application for summary dismissal of the appeal to permit service of that application on 19 February 2010 for the hearing of it on 22 February 2010;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

2.    In Appeal No 11377 of 2009:

Vary the stay ordered by Byrne SJA on 22 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

3.   In Appeal No 11430 of 2009:

Vary the stay ordered by Byrne SJA on 22 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

4.    In Appeal No 14595 of 2009:

Vary the stay ordered by Byrne SJA on 4 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the respondents applied for summary dismissal of four appeals initiated by the appellant – where two appeals were stayed by this Court after the appellant failed to provide security as directed by the Court – where the remaining two appeals were stayed by Supreme Court pursuant to s 6(2)(a) Vexatious Proceedings Act 2005 (Qld) – where the respondents seek a variation of the orders of this Court and the Supreme Court to bring the applications for summary dismissal of the four appeals – where the respondents applied for an abridgment of time to hear the applications for summary dismissal – whether an abridgment of time should be granted in the circumstances – whether the applications for summary dismissal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conde v Gilfoyle

Details

AGLC: Conde v Gilfoyle [2010] QCA 109
Case: [2010] QCA 109
Decision Date: 14 May 2010

CaseChat Overview and Summary

In Conde v Gilfoyle, the respondents applied for the summary dismissal of four appeals initiated by the appellant, Conde, against decisions of the Supreme Court. The appeals were brought against orders that stayed two of the appeals due to the appellant's failure to provide security as directed by the Court, and orders that stayed the other two appeals under the Vexatious Proceedings Act 2005 (Qld). The respondents sought to vary the orders to bring the applications for summary dismissal and requested an abridgment of time to hear these applications. The court was required to determine whether an abridgment of time should be granted and whether the applications for summary dismissal should be upheld.

The central legal issues concerned the scope of the orders that stayed the appeals and the right to appeal against a vexatious proceedings order. Specifically, the court had to decide whether the order prohibiting the appellant from instituting any proceeding without the prior leave of a Judge of the Supreme Court also precluded the appellant from appealing that order without first obtaining the requisite leave. Additionally, the court had to consider whether the Vexatious Proceedings Act 2005 (Qld) precluded the right to appeal against a vexatious proceedings order.

The court held that the orders that stayed the appeals should be varied to permit the respondents to apply for the summary dismissal of the appeals and to dismiss them. The court found that the Vexatious Proceedings Act 2005 (Qld) did not preclude the right to appeal against a vexatious proceedings order, but that the appellant was still required to obtain leave to appeal. The court granted an abridgment of time to allow the respondents to apply for the summary dismissal of the appeals and dismissed each appeal, ordering the appellant to pay the respondents' costs. The court's decision was based on the principle that the right to appeal is a substantive right, and the Vexatious Proceedings Act 2005 (Qld) did not extinguish this right but required the appellant to follow the statutory procedures to appeal.

The court ordered that in Appeal No 1182 of 2010, the time for service of the respondents’ application for summary dismissal of the appeal be abridged to permit service of that application on 19 February 2010 for the hearing of it on 22 February 2010. The appeal was dismissed and the appellant was ordered to pay the respondents’ costs. In Appeal No 11377 of 2009, Appeal No 11430 of 2009, and Appeal No 14595 of 2009, the stays ordered by the Court were varied to allow the respondents to apply for the dismissal of the appeals, which were subsequently dismissed, with the appellant ordered to pay the respondents’ costs in each case.

Orders

Orders of the court

1. In Appeal No 1182 of 2010:

Abridge the time for service of the respondents’ application for summary dismissal of the appeal to permit service of that application on 19 February 2010 for the hearing of it on 22 February 2010;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

2. In Appeal No 11377 of 2009:

Vary the stay ordered by Byrne SJA on 22 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

3. In Appeal No 11430 of 2009:

Vary the stay ordered by Byrne SJA on 22 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

4. In Appeal No 14595 of 2009:

Vary the stay ordered by Byrne SJA on 4 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a)

Dismiss the appeal;(b)

Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Conde v Gilfoyle [2010] QCA 109

Most Recent Citation

Conde v Gilfoyle [2010] QCA 173

Cases citing this decision · 21 of 21 shown

Shoot v Pine Lake Management Services Pty Ltd
[2024] QCAT 268

…ve Tribunal Act 2009 (Qld) s 3, s 4, s 60 Retirement Villages Act 1999 (Qld) s 21, s 22, s 53, s 167, s 169, s 191, s 192 Conde v Guilfoyle [2010] QCA 109 [2009] QCCTRV 2. Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 Filmer & Others Per Schedule A as in Application lodged on 24 November 2008…
Jorgensen v Wilson
[2023] ACTCA 45 Para 1

…In Conde v Gilfoyle & Anor [2010] QCA 109, the primary judge had ordered that certain, identified proceedings be stayed and that, pursuant to s 6(2)(b) of the VPQ, Mr Conde was prohibited from instituting any proceeding (within the meaning of that word in the definition of “proceeding” in the VPQ) in a court or t…
Gilbert v Metro North Health and Hospital Service (No. 2)
[2023] ICQ 20

…r Legislation Amendment Bill 2022 Human Rights Act 2019 (Qld) s 22, s 58 Allingham v Australian Workers Union [1972] Qd R 218 Conde v Gilfoyle & Anor [2010] QCA 109 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255 Gilber…
Bank of Queensland Limited v Y & L Promising Pty Ltd
[2022] QCA 217 Para 13

…ry definition when interpreting Queensland legislation than would be required under some other interpretation provisions.[34] [34] Conde v Gilfoyle [2010] QCA 109 at [20].…
Flori v Carroll
[2022] QIRC 34 Para 13

…ld be offered 'work.' Clearly, the non‑exhaustive definition of 'work' in sch 1 to the ADA has application to that provision. [22] Conde v Gilfoyle [2010] QCA 109, [20] (Fraser JA, McMurdo P at [1] and Peter Lyons J at [44] agreeing) and Acts Interpretation Act 1954 s 32A which provides: Definitions in or applica…
Klewer v Director of Public Prosecutions (NSW) (No 2)
[2020] NSWCA 69 Para 73

…012] NSWCA 307. 13. Patsalis at [9]. 14. Patsalis at [57]. 15. (2015) 89 NSWLR 284; [2015] NSWCA 129. 16. Potier at [20]. 17. Potier at [49]. 18. [2010] QCA 109 at [15]-[30] (Fraser JA, McMurdo P and Peter Lyons J agreeing).…
Crown Solicitor v Bird
[2019] QSC 147 Para 4

…, the Court determined that the 2005 Act did otherwise indicate that the definition of “proceeding” did not apply to such an appeal. [24] [2010] QCA 109. Matters supporting alternative construction…
Re Application by Geoffrey James Bird
[2019] QSC 148 Para 16

…affidavit does not substantially comply with s 11(3): s 12(a). [13] Given that order can be appealed without leave being sought: Conde v Gilfoyle [2010] QCA 109. [14] Kay v Attorney-General (2002) 2 VR 436 at [23], per Chernov JA, referred to by Mullins J in Re Skyring [2013] QSC 197 at [9].…
Baker v Smith (No 1)
[2019] QDC 76

…Gilfoyle [2010] QCA 109 Croft v Blair Unreported No. C.A. 275 of 1989, Queensland Court of Criminal Appeal, 15 December 1989 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 De Bray v Cohen [2008] QDC 275 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 Fletcher Construction Australia Limited v Line MacFarlan…
In the matter of Bexalaw Pty Ltd (in liq)
[2018] QSC 13 Para 32

…used but the reference must be only to a “practising architect”.[82] [81] Acts Interpretation Act 1954 (Qld) s 32A; Conde v Gilfoyle [2010] QCA 109; Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205. [82] Sections 24(2), 35A(2), 35F(2), 35G and 37.…
Reihana v Beenleigh Show Society
[2015] QCATA 170 Para 12

…nterpretation Act 1954 (Qld), s 32A. [2] Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205 at [26]; see further Conde v Gilfoyle & Anor [2010] QCA 109 at [20].…
Potier v Attorney General (NSW)
[2015] NSWCA 129 Para 49

…e Standing Committee of Attorneys General), in respect of which the same conclusion was reached by the Queensland Court of Appeal in Conde v Gilfoyle [2010] QCA 109 at [15]-[30] (Fraser JA, McMurdo P and Peter Lyons J agreeing). Far from being convinced that the decision is plainly wrong (cf Australian Securities…
Westpac Banking Corporation v Body Corporate for the Wave Community Title Scheme 36237
[2014] QCA 73 Para 1

…of a definition that is provided for by s 32A of the Acts Interpretation Act 1954 (Qld) (as discussed in Conde v Gilfoyle & Anor [2010] QCA 109 at [20]-[21]), the context and subject matter of s 143 support giving the expression “body corporate debt” its defined meaning.…
Re Skyring
[2013] QSC 197 Para 1

…e VPA does not require the person who is subject to the vexatious proceedings order to seek leave to bring that application: Conde v Gilfoyle [2010] QCA 109 at [25]. The applicant’s application purportedly made under s 7 of the VPA is not properly characterised, however, as an application to vary, set aside or re…
Wirkus v Wilson Lawyers
[2012] QCA 261

…(Planning and Environment) Act 1990 (Qld), s 5.1, s 8.10 Property Law Act 1974 (Qld), s 180 Conde v Gilfoyle [2010] QCA 109, cited Suffolk County Council v Mason [1979] AC 705, cited Thomas v Marshall [1953] AC 543; [1953] UKHL 2, cited Wirkus & Anor v Wilson Lawyers [2012] QSC 150, cited Bennion FAR Bennion on…
Special Projects (Qld) Pty Ltd v Simmons
[2012] QCA 205 Para 1

…it is required by the context, but also where the context or subject matter merely “otherwise indicates”.[7] [7]See Conde v Gilfoyle & Anor [2010] QCA 109 at [20].…
Westwill v Heath
[2010] SASC 358 Para 19

…unable to meet costs orders made against them, having squandered what assets they possessed in the pursuit of hopeless cases. [25] Conde v Gilfoyle [2010] QCA 109 (Fraser JA with whom McMurdo P and Peter Lyons J agreed).…
High Court Bulletin
[2010] HCAB 9

…Application dismissed. Appealed from Qld SC (CA): [2010] QCA 109.…
Arc Holdings (Aust) P/L v Riana P/L
[2010] QCA 269 Para 1

…map. It is that quite distinct test which must be applied. [14]C.f. Acts Interpretation Act 1954 (Qld), s 32A; Conde v Gilfoyle & Anor [2010] QCA 109 at [20]-[22].…
Klewer v Attorney-General (NSW)
[2010] NSWCA 219 Para 26

…No 2) [2003] SASC 436, at [6]-[11], per Debelle J; Shaw v McGinty (Attorney-General) , at [6]-[17], per Wheeler JA; Conde v Burchell & Horsey Lawyers [2010] QCA 109, at [15]-[30], per Fraser JA, with whom McMurdo P and Peter Lyons J agreed. The effect of each of these decisions is that an appeal against an order…
Conde v Gilfoyle
[2010] QCA 173 Para 1

…ts of the appeals themselves for the reason that the applications for summary dismissal did not seek any such order.[2] [1] Conde v Gilfoyle & Anor [2010] QCA 109. [2] Conde v Gilfoyle & Anor [2010] QCA 109 at [43].…

View all 21 citing cases →

Cases cited in this decision · 13 of 13 shown

Gilfoyle v Conde
[2010] QSC 14 Para 1

…preme Court.[4] On 19 February 2010 Mr Conde filed a notice of appeal (Appeal No 1182 of 2010) against those orders. [4] Gilfoyle and Ors v Conde [2010] QSC 14.…
Conde v Burchill and Horsey Lawyers
[2009] QCA 367 Para 1

…ecember 2009 he filed a notice of appeal (Appeal No 14595 of 2009) against the orders made by Holmes JA. [2] Conde v Burchill & Horsey Lawyers & Anor [2009] QCA 367. [3] Rule 774 of the Uniform Civil Procedure Rules .…
Conde v Burchill and Horsey Lawyers
[2009] QSC 291 Para 1

…ed two notices of appeal (Appeal No 11377 of 2009 and Appeal No 11430 of 2009) against those orders. [1] Conde v Burchill & Horsey Lawyers & Anor [2009] QSC 291.…
Lohe v Mansukhani
[2007] QSC 69

…ghters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48, cited Lohe v Mansukhani [2007] QSC 69, cited National Australia Bank Ltd v Freeman [2006] QSC 86, cited Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907, cited von Risefer & Ors v Permanent Trustee Company Limited [2005] 1 Qd R 681; [2005]…
National Australia Bank Ltd v Freeman
[2006] QSC 86 Para 1

…a Bank Ltd v Freeman .[18] In my respectful opinion that form of order appropriately expressed the proper construction of s 6(2)(b). [18] [2006] QSC 86.…
Von Risefer v Permanent Trustee Company Limited
[2005] QCA 109

…[1999] FCA 907, cited von Risefer & Ors v Permanent Trustee Company Limited [2005] 1 Qd R 681; [2005] QCA 109, cited Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited COUNSEL: The appellant/respondent appeared on his own behalf R Dickson for the respondent/applicants SOLICITORS: The appellant/respondent…
Ramsey v Skyring
[1999] FCA 907

…ational Australia Bank Ltd v Freeman [2006] QSC 86, cited Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907, cited von Risefer & Ors v Permanent Trustee Company Limited [2005] 1 Qd R 681; [2005] QCA 109, cited Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited COUNSEL: The appellant/respondent appeared…
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2

…275; [1971] HCA 30, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited Conde v Burchill & Horsey Lawyers & Anor [2009] QCA 367, cited Conde v Burchill & Horsey Lawyers & Anor [2009] QSC 291, cited Gilfoyle and Ors v Conde [2010] QSC 14, cited K & S Lake City Freighter…
Williams v Spautz
[1992] HCA 34

…Company Limited [2005] 1 Qd R 681; [2005] QCA 109, cited Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited COUNSEL: The appellant/respondent appeared on his own behalf R Dickson for the respondent/applicants SOLICITORS: The appellant/respondent appeared on his own behalf McInnes Wilson Lawyers for the r…
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
[1985] HCA 48

…010] QSC 14, cited K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48, cited Lohe v Mansukhani [2007] QSC 69, cited National Australia Bank Ltd v Freeman [2006] QSC 86, cited Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907, cited von Risefer & Ors v Permanent Trustee Co…
Brown v Brook
[1971] HCA 30

…v Forsdick (No 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113cited Brown v Brook (1971) 125 CLR 275; [1971] HCA 30, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited Conde v Burchill & Horsey Lawyers & Anor [2009] QCA 367, cited Conde v Burchill & Horsey Lawyers & Anor [2009…
[2004] 1 WLR 88
[2004] 1 WLR 88

…s 7, s 10, s 11, s 11(6), s 13 Uniform Civil Procedure Rules, r 774 Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113cited Brown v Brook (1971) 125 CLR 275; [1971] HCA 30, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited Conde v Burchill & Horsey Lawyers…
Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
Para 1

…a right of appeal strongly suggests that s 6(2)(b) does not empower orders which immunise those very orders against appeal [15] K& S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J. See also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, in which Brennan CJ, Dawson, Toohey and Gummow JJ…

Legislation cited in this decision · 7

Supreme Court of Queensland Act 1991 (Qld)
69 2 mentions (from Para 1)
Vexatious Proceedings Act 2005 (Qld)
5 2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
1 mention (from Para 1)
Domestic and Family Violence Act 1989 (Qld)
1 mention
Personal Injuries Proceeding Act 2002 (Qld)
1 mention (from Para 1)
Personal Injuries Proceedings Act 2002 (Qld)
1 mention
Uniform Civil Procedure Rules 1999 (Qld)
1 mention

CITATION:	Conde v Gilfoyle & Anor [2010] QCA 109
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:	Applications to Strike Out
ORIGINATING COURTS:	Court of Appeal at Brisbane Supreme Court at Brisbane
DELIVERED ON:	14 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2010
JUDGES:	McMurdo P and Fraser JA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In Appeal No 1182 of 2010: Abridge the time for service of the respondents’ application for summary dismissal of the appeal to permit service of that application on 19 February 2010 for the hearing of it on 22 February 2010;(a) Dismiss the appeal;(b) Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c) 2. In Appeal No 11377 of 2009: Vary the stay ordered by Byrne SJA on 22 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a) Dismiss the appeal;(b) Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c) 3. In Appeal No 11430 of 2009: Vary the stay ordered by Byrne SJA on 22 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a) Dismiss the appeal;(b) Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c) 4. In Appeal No 14595 of 2009: Vary the stay ordered by Byrne SJA on 4 February 2010 to the extent necessary to allow the respondents to apply for the following orders;(a) Dismiss the appeal;(b) Order that the appellant pay the respondents’ costs of their application to dismiss the appeal.(c)
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the respondents applied for summary dismissal of four appeals initiated by the appellant – where two appeals were stayed by this Court after the appellant failed to provide security as directed by the Court – where the remaining two appeals were stayed by Supreme Court pursuant to s 6(2)(a) Vexatious Proceedings Act 2005 (Qld) – where the respondents seek a variation of the orders of this Court and the Supreme Court to bring the applications for summary dismissal of the four appeals – where the respondents applied for an abridgment of time to hear the applications for summary dismissal – whether an abridgment of time should be granted in the circumstances – whether the applications for summary dismissal…