Gilfoyle v Conde - [2010] QSC 14

SUPREME COURT OF QUEENSLAND

CITATION:

Gilfoyle and Ors v Conde [2010] QSC 14

PARTIES:

JULIE GILFOYLE

(first applicant)

BURCHILL & HORSEY LAWYERS

(second applicant)

MYLTON BURNS

(third applicant)

McINNES WILSON LAWYERS

(fourth applicant)

v

MILTON ARNOLDO CONDE

(respondent)

FILE NO/S:

BS No 13341 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 January 2010

JUDGE:

Byrne SJA

ORDER:

1.   The applicants have leave pursuant to s. 5 (2) of the Vexatious Proceedings Act2005 to bring this application.

2.   The following proceedings instituted by Milton Arnoldo Conde be stayed pursuant to s. 6 (2)(a) of the Vexatious Proceedings Act2005:

(a)   Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers (BS 13341 of 2009);

(b) Milton Arnoldo Conde v Ross Dickson (BS 13445 of 2009);

(c)   Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers (BS 17 of 2010);

(d) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers and Ross Dickson (BS 18 of 2010);

(e)   Milton Arnoldo Conde v Ross Dickson (BS 165 of 2010);

(f)    Milton Arnoldo Conde v Burchill & Horsey Lawyers and Julie Gilfoyle (CA 14595 of 2009).

3.   Pursuant to s. 6 (2)(b) of the Vexatious Proceedings Act2005 (“the Act”), Milton Arnoldo Conde be and is hereby prohibited from instituting any proceeding (within the meaning of that word in the definition of “proceeding” in the dictionary in the schedule to the Act) in a court or tribunal of the State of Queensland without prior leave of a Judge of the Supreme Court of Queensland granted pursuant to Part 3 of the Act.

4.   Milton Arnoldo Conde pay the applicants’ costs of and incidental to the application to be assessed on an indemnity basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – Vexatious Proceedings Act2005 (Qld) – where person instituted numerous proceedings against lawyers and the Chief Justice – where claims have no reasonable prospect of success – whether orders should be made pursuant to s. 6 (2) staying proceedings and prohibiting a person from instituting proceedings in a Queensland court or tribunal

Vexatious Proceedings Act 2005 (Qld) ss. 5, 6

Bhamjee v Forsdick [2004] 1 WLR 88, considered
Brisbane City Council v Mathews [2006] QSC 025; No 729 of 2006, 9 February 2006, considered
Von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681, considered

COUNSEL:

R B Dickson for the first, second, third and fourth applicants

The respondent appeared on his own behalf

J M Horton for the Attorney-General as amicus curiae

SOLICITORS:

McInnes Wilson Lawyers for the applicants

The respondent appeared on his own behalf

G R Cooper, Crown Solicitor for the Attorney-General as amicus curiae

Nature of the Application

The applicants seek orders pursuant to…

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 Gilfoyle v Conde

Details

AGLC: Gilfoyle v Conde [2010] QSC 14
Case: [2010] QSC 14
Decision Date: 4 February 2010

CaseChat Overview and Summary

Milton Arnoldo Conde was the applicant in the Supreme Court of Queensland, bringing an application against Julie Gilfoyle, Burchill & Horsey Lawyers, Mylton Burns, McInness Wilson Lawyers, and Ross Dickson. Conde had instituted numerous proceedings against these parties, which the applicants considered to be without reasonable prospect of success and vexatious in nature. The applicants sought orders under the Vexatious Proceedings Act 2005 (Qld) to stay the proceedings and prohibit Conde from instituting any further proceedings without leave from a Judge of the Supreme Court.

The legal issues for the court to decide included whether the Vexatious Proceedings Act applied to the proceedings and whether the applicants were entitled to the orders sought. The court considered the provisions of the Vexatious Proceedings Act, including sections 5 and 6, which allow for applications to stay proceedings and prohibit further litigation where it is considered vexatious. The court also examined the nature and history of Conde’s proceedings to determine if they met the criteria for being vexatious.

The court found that the Vexatious Proceedings Act applied to the proceedings, as they were numerous and had little or no prospect of success. The court considered that Conde’s conduct amounted to abuse of the judicial process, as his claims lacked any reasonable basis and were repetitive. Therefore, the court made orders under section 6 (2) of the Act to stay the proceedings and prohibit Conde from instituting any further proceedings without leave. The court also ordered Conde to pay the applicants’ costs on an indemnity basis.

The court’s orders included granting leave for the application, staying specific proceedings, prohibiting Conde from instituting further proceedings without leave, and ordering Conde to pay the applicants’ costs.

Orders

Orders of the court

1. The applicants have leave pursuant to s. 5 (2) of the Vexatious Proceedings Act 2005 to bring this application.

2. The following proceedings instituted by Milton Arnoldo Conde be stayed pursuant to s. 6 (2)(a) of the Vexatious Proceedings Act 2005:

(a) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers (BS 13341 of 2009);

(b) Milton Arnoldo Conde v Ross Dickson (BS 13445 of 2009);

(c) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers (BS 17 of 2010);

(d) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers and Ross Dickson (BS 18 of 2010);

(e) Milton Arnoldo Conde v Ross Dickson (BS 165 of 2010);

(f) Milton Arnoldo Conde v Burchill & Horsey Lawyers and Julie Gilfoyle (CA 14595 of 2009).

3. Pursuant to s. 6 (2)(b) of the Vexatious Proceedings Act 2005 (“the Act”), Milton Arnoldo Conde be and is hereby prohibited from instituting any proceeding (within the meaning of that word in the definition of “proceeding” in the dictionary in the schedule to the Act) in a court or tribunal of the State of Queensland without prior leave of a Judge of the Supreme Court of Queensland granted pursuant to Part 3 of the Act.

4. Milton Arnoldo Conde pay the applicants’ costs of and incidental to the application to be assessed on an indemnity basis.

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.

CITATION:	Gilfoyle and Ors v Conde [2010] QSC 14
PARTIES:	JULIE GILFOYLE (first applicant) BURCHILL & HORSEY LAWYERS (second applicant) MYLTON BURNS (third applicant) McINNES WILSON LAWYERS (fourth applicant) v MILTON ARNOLDO CONDE (respondent)
FILE NO/S:	BS No 13341 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 January 2010
JUDGE:	Byrne SJA
ORDER:	1. *The applicants have leave pursuant to s. 5 (2) of the Vexatious Proceedings Act2005* to bring this application. 2. The following proceedings instituted by Milton Arnoldo Conde be stayed pursuant to s. 6 (2)(a) of the Vexatious Proceedings Act2005: (a) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers (BS 13341 of 2009); (b) Milton Arnoldo Conde v Ross Dickson (BS 13445 of 2009); (c) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers (BS 17 of 2010); (d) Milton Arnoldo Conde v Julie Gilfoyle and Burchill & Horsey Lawyers and Mylton Burns and McInness Wilson Lawyers and Ross Dickson (BS 18 of 2010); (e) Milton Arnoldo Conde v Ross Dickson (BS 165 of 2010); (f) Milton Arnoldo Conde v Burchill & Horsey Lawyers and Julie Gilfoyle (CA 14595 of 2009).** 3. Pursuant to s. 6 (2)(b) of the Vexatious Proceedings Act2005 (“the Act”), Milton Arnoldo Conde be and is hereby prohibited from instituting any proceeding (within the meaning of that word in the definition of “proceeding” in the dictionary in the schedule to the Act) in a court or tribunal of the State of Queensland without prior leave of a Judge of the Supreme Court of Queensland granted pursuant to Part 3 of the Act. 4. Milton Arnoldo Conde pay the applicants’ costs of and incidental to the application to be assessed on an indemnity basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – Vexatious Proceedings Act2005 (Qld) – where person instituted numerous proceedings against lawyers and the Chief Justice – where claims have no reasonable prospect of success – whether orders should be made pursuant to s. 6 (2) staying proceedings and prohibiting a person from instituting proceedings in a Queensland court or tribunal Vexatious Proceedings Act 2005 (Qld) ss. 5, 6 Bhamjee v Forsdick [2004] 1 WLR 88, considered Brisbane City Council v Mathews [2006] QSC 025; No 729 of 2006, 9 February 2006, considered Von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681, considered
COUNSEL:	R B Dickson for the first, second, third and fourth applicants The respondent appeared on his own behalf J M Horton for the Attorney-General as amicus curiae
SOLICITORS:	McInnes Wilson Lawyers for the applicants The respondent appeared on his own behalf G R Cooper, Crown Solicitor for the Attorney-General as amicus curiae