Underwood v Sheppard

Case [2010] QCA 76


SUPREME COURT OF QUEENSLAND

CITATION:

Conde v Attorney-General for the State of Queensland [2010] QCA 66

PARTIES:

MILTON ARNOLDO CONDE
(respondent/applicant)
v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant/respondent)

FILE NO/S:

Appeal No 2487 of 2010
SC No 627 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application (Civil)

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:


25 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2010

JUDGES:

Fraser JA

ORDER:

Application dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where applicant sought to appeal against orders made pursuant to the Vexatious Proceedings Act 2005 (Qld) staying the applicant’s proceedings or requiring him to obtain leave to proceed – where the applicant applied under s 11 of the Act for leave to institute an appeal against the orders – whether the Court is required to dismiss the application pursuant to s 12 of the Act – whether there is a reasonable ground for the proposed appeal and whether it is vexatious

Vexatious Proceedings Act 2005 (Qld), s 6(2)(a), s 6(2)(b), s 6 (2)(c), s 10, s 11, s 11(3), s 12(1)(b)

Gilfoyle and Ors v Conde[2010] QSC 14, cited

COUNSEL:

The applicant appeared his own behalf
No appearance for the respondent

SOLICITORS:

The applicant appeared on his own behalf
No appearance for the respondent

FRASER JA: On 17 February 2010, the primary judge, Justice Byrne, made orders pursuant to s 6(2)(a) of the Vexatious Proceedings Act 2005 (Qld), staying three separate proceedings commenced by Mr Conde in the Trial Division of the Supreme Court, four separate appeals commenced by Mr Conde in this Court, and one proceeding in the District Court. The primary judge also made orders pursuant to s 6(2)(c) of the Act, prohibiting Mr Conde from taking a step in seven separate proceedings he had commenced in the District Court without the prior leave of a judge of that court.

Mr Conde wishes to appeal from those orders. He faces the obstacle that on 4 February 2010 Justice Byrne had made an order pursuant to s 6(2)(b) of the Act prohibiting Mr Conde 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 the Act. That vexatious proceeding order remains in effect, though Mr Conde has appealed against it. That appeal has not yet been determined. Under s 10 of the Act the vexatious proceedings order, which remains in force, prohibits Mr Conde from instituting his proposed appeal against the subsequent orders of 17 February 2010 without the leave of the Court.

Mr Conde has now applied under s 11 of the Act for leave to institute his proposed appeal against those orders.  As required by s 11(4) the applicant apparently has not served a copy of his application or supporting affidavit on any person.  Section 12…

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AGLC
Underwood v Sheppard [2010] QCA 66
Case
[2010] QCA 76
Decision Date

CaseChat Overview and Summary

The appeal by Underwood against orders made under the Vexatious Proceedings Act 2005 (Qld) was dismissed by the court. The orders in question had stayed Underwood's proceedings or required him to obtain leave to proceed, which he sought to challenge. The court was required to decide whether the application for leave to appeal could be dismissed under section 12 of the Act, and whether there were reasonable grounds for the proposed appeal that were not vexatious. The applicant sought to argue that the orders were flawed and that the court should allow an appeal against the stay of proceedings.

The court found that the provisions of the Vexatious Proceedings Act 2005 (Qld) were clear and required the court to dismiss the application for leave to appeal if there were no reasonable grounds for the appeal or if the appeal was vexatious. The court examined the criteria for granting leave to appeal, including the existence of reasonable grounds and the absence of vexatiousness. The applicant's arguments did not meet these criteria, and the court held that the application was properly dismissed.

The court concluded that the Vexatious Proceedings Act 2005 (Qld) provided a clear framework for dealing with vexatious litigation, and the application for leave to appeal did not meet the statutory requirements. The applicant's arguments were not sufficient to demonstrate reasonable grounds for the appeal or to rebut the presumption of vexatiousness. The application for leave to appeal was dismissed, and the orders of the lower court were upheld.

ORDERS:
Application dismissed.

Orders

Orders of the court

Application dismissed.

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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