Conde v Gilfoyle

Case [2010] QCA 109


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…

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Details
AGLC
Conde v Gilfoyle [2010] QCA 109
Case
[2010] QCA 109
Decision Date

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

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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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