Conde v Roney [2010] QSC 12

1-1 SUPREME COURT OF QUEENSLAND CITATION: Conde v Roney [2010] QSC 12 PARTIES: MILTON ARNOLDO CONDE (plaintiff/applicant/respondent) v PETER RONEY (defendant/respondent/applicant) FILE NO/S: BS 11945 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 January 2010 DELIVERED AT: Brisbane HEARING DATE: 14 January 2010 JUDGE: Fryberg J ORDERS: 1. Plaintiff’s application dismissed. 2. Judgment entered for the defendant. 3. Plaintiff to pay the defendant’s costs of the proceedings, including both applications, on the indemnity basis. CATCHWORDS: Procedure – Courts and judges generally – Judges – Immunity from proceedings – Scope of protection from civil liability – Alleged misconduct by Tribunal member exercising judicial functions Anti-Discrimination Act 1991 (Qld), s 265, s 266A Uniform Civil Procedure Rules 1999 (Qld), r 292 Conde v Hunter & Karakan Hostels [2009] QADT 11, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Yeldham v Rajski (1989) 18 NSWLR 48, cited COUNSEL: The plaintiff/applicant/respondent appeared on his own behalf -- 1 of 10 -- 1-2 ORDER D D Keane for the defendant/respondent/applicant SOLICITORS: The plaintiff/applicant/respondent appeared on his own behalf Crown Law for the defendant/respondent/applicant -- 2 of 10 -- 1-3 ORDER HIS HONOUR: On the 26th of October last year Mr Conde commenced proceedings in this Court against Mr Peter Roney, a member of the Anti-Discrimination Tribunal as a judicial officer of that Tribunal. Mr Roney is a barrister, and as such I am acquainted with him. I disclosed to Mr Conde at the outset of the present hearing that fact, and that I might meet Mr Roney socially two or perhaps three times a year and occasionally he might appear before me in court. I explained that he was not a close personal friend and that I saw no problem in my sitting in this matter. Mr Conde expressly disclaimed any application for me to recuse. The applications before me today are for summary judgment, both by the plaintiff and by the defendant. It is therefore necessary to refer to the pleadings to set out something of the nature of the action. The statement of claim reveals that Mr Roney in his capacity as a member of the Tribunal heard a matter in the Tribunal numbered HEA07/100 on the 26th to the 28th of November 2008. It appears from the material that in that matter Mr Conde was the complainant and the first respondent was a Mr Hunter who was represented by counsel, Mr Eberhardt. The statement of claim alleges that Mr Roney wrongly allowed Mr Eberhardt to lead evidence through Mrs Mary Agnes Hunter, the mother of the respondent John Hunter. It asserts that the -- 3 of 10 -- 1-4 ORDER three day hearing was converted into a "TV show, a circus, a farce, a charade, a mockery of the legal system and process of the Court or Tribunal." It asserts that Mr Eberhardt in calling a witness, apparently Mrs Hunter, enabled a list of offences to be committed, being offences against the administration of justice. It alleges that Mr Roney's ultimate decision made on the 14th of May 2009 was based on and decided on the evidence and false statements under oath provided by Mrs Hunter and by the first respondent, John Hunter. Those actions, which are the decisions and orders of Mr Roney, are characterised by para 7 of the statement of claim as "a slap in the face of fairness, insults and offences to the democracy, civil and human rights of this country." The statement of claim asserts that Mr Roney was a judge of an inferior court, that there was an invalid or authorised act done by him, that the act was done maliciously, that it was done in the purportive discharge of his judicial or public duties and that the act caused loss or harm to Mr Conde. It further alleges that by the misuse of legal powers of Mr Roney, Mr Conde has been unnecessarily, unjustifiably, unlawfully and premeditatedly harassed, intimidated, abused, threatened, humiliated, denigrated, discriminated, insulted, defamed and prosecuted by Mr Hunter, by Mr Eberhardt, by a solicitor and by that solicitor's firm. It further asserts that this has greatly affected and injured Mr Conde's reputation and caused him pecuniary loss and damage to that reputation. It alleges that the defendant's actions were in bad faith, malicious, oppressive, outrageous, wicked -- 4 of 10 -- 1-5 ORDER and reckless. It seeks compensation by way of general, ordinary, aggravated and punitive damages for loss of reputation, injury to reputation and feelings, loss of dignity, loss of self esteem, loss of enjoyment of life, pain and suffering, distress, stress, emotional trauma, mental suffering, mental anguish, discomfort, loss of time, family breakdown with his new partner, huge pecuniary loss, study loss and job opportunities loss. It claims $8 million in damages. The defence denies most of what is alleged, and I need not trouble with the detail, but it is admitted that Mr Roney heard and decided the matter in the Tribunal in his capacity as a member of the Tribunal. It is further admitted that he dismissed the complaint on the 14th of May and asserted that in hearing and deciding the proceeding Mr Roney had complete protection from civil liability in the exercise of his functions. It denied any malicious act or bad faith. Both parties applied for summary judgment. The plaintiff was the first to apply. In his affidavit in support of his application Mr Conde described the defence as defective, misleading, unnecessary, vexatious, frivolous, contrary to the Uniform Civil Procedure Rules, disclosing no reasonable cause of defence and having a tendency to prejudice or delay the fair trial of the proceedings, an abuse of process of the Court, an abuse of legal process and likely to corrupt the judge to apply misuse of his legal powers. Paragraph 6 was as follows, "Only a corrupt (biased) Judge or -- 5 of 10 -- 1-6 ORDER judicial officer will refuse to give summary judgment against the defendant under rule 292 of the UCPR 1999." There are a number of other paragraphs which are argumentative and do not set out factual material, but no objection was taken to the affidavit, quite understandably in the circumstances. By para 17 Mr Conde deposed that the defendant acted in bad faith in his judgment and orders, is not immune and has not complete protection to be sued for the tort of misuse of legal powers. Most of the rest of the affidavit is argumentative. In the course of the hearing Mr Conde did not exhibit much enthusiasm for his application. He began by proposing that both applications be withdrawn and that the matter proceed to trial, and most of the submissions which he made were directed to resisting the defendant's application. He, Mr Conde, asserted his right to a jury hearing, as he'd asked in the statement of claim, and he submitted that only by acting in a biased way in not accepting his submissions, would I be able to resist allowing the matter to go to a jury. He submitted that I should disqualify myself or allow the matter to go to a jury. Given his unwillingness to apply for me to recuse on any basis that could be seen to justify such an application, that submission must be treated as being completely without foundation. Mr Conde is entitled to summary judgment on his application if he demonstrates under r 292 "that the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim and there is no need for a trial of the -- 6 of 10 -- 1-7 ORDER claim or part of the claim." For reasons which will subsequently appear, I am not satisfied that the defendant has no real prospect of successfully defending all or part of the claim; quite the contrary. That being so, the plaintiff's application for summary judgment cannot succeed and must be dismissed. The defendant is entitled to summary judgment if he shows that "the plaintiff has no real prospect of succeeding on all or part of his claim and there is no need for a trial of the claim." The defendant has submitted that these matters are shown by the material. In particular the defendant relies upon ss 265 and 266A of the Anti-Discrimination Act 1991. Section 265 provides: “265 Protection from civil actions-exercise of functions etc. (1) A person who is or has been- (a) the commissioner; or (b) a member of the former Anti-Discrimination Tribunal; or (c) the registrar of the former Anti-Discrimination Tribunal; or (d) a member of the staff of the commission or the former Anti-Discrimination Tribunal; or (e) a person acting under the direction or authority of the commissioner or a member of the former Anti-Discrimination Tribunal; or (f) a person acting under a delegation under section 244; incurs no civil liability for an honest act or omission in- (g) the performance or purported performance of functions under the Act; or (h) the exercise or purported exercise of powers under the Act. (2) A liability that would, but for this section, attach to a person mentioned in subsection (1) attaches instead to the State.” Section 266A provides: “266A Protection and immunity -- 7 of 10 -- 1-8 ORDER (1) In performing the functions or exercising the powers of member of the tribunal, the member has the same protections and immunity as a Supreme Court Judge performing the Judge's functions or exercising the Judge's powers. (2) In performing the functions or exercising the powers of the tribunal under section 257A, the registrar has the same protection and immunity as a Supreme Court Judge performing the Judge's functions or exercising the Judge's powers. (3) A party appearing before the tribunal has the same protection and immunity as a party has in a proceeding in the Supreme Court. (4) A person appearing as a witness before the tribunal has the same protection and immunity as a witness has in a proceeding in the Supreme Court. (5) In this section- partly includes a party's lawyer or agent.” Turning to the first of those defences, there is no doubt, indeed it is common ground, that Mr Roney was a member of the Tribunal. It is also common ground that he was performing his functions under the Act as a member of the Tribunal when he made his decisions and orders of which Mr Conde complains. Mr Roney gave extensive reasons for his judgment. They are set out in the affidavit of Ms Mott and are available online as entitled Conde v Hunter and Karakan Hostels [2009] QADT 11. They occupy some 74 paragraphs on 18 pages of single spaced typescript. A reading of them shows that Mr Roney carefully considered the evidence that was placed before him, and the submissions. There is nothing in them to suggest in the slightest way the presence of any malice or dishonesty or bad faith. Mr Conde's affidavit is equally deficient in evidence of those matters. -- 8 of 10 -- 1-9 ORDER It is a simple fact that under our law it is necessary for matters to be decided on evidence. I can act only on the basis of evidence which is put before me. Mr Conde, in his quite lengthy submissions, referred to much of what had occurred before the Tribunal. However he declined to tender the transcript of the proceedings before the Tribunal, and although I pointed out to him that I had to act on the evidence before me, persisted simply in submitting that I must find in his favour. The plain fact of the matter is that the evidence before me suggests quite clearly that the conduct of Mr Roney was an honest act performed in performing his functions under the Act. He is therefore protected under s 265. The same is true in relation to s 266A. That section confers upon Mr Roney the same protection and immunity as a Supreme Court judge performing the judge's functions or exercising the judge's powers. It is part of Mr Conde's case that Mr Roney was acting in the performance of his powers; that is to say he was exercising his jurisdiction. It would seem that therefore he was entitled to absolute protection in respect of his decision. See Fingleton v Queen (2005) 227 CLR 166 and Yeldham v Rajski (1989) 18 NSWLR 48. There is no factual material which would enable Mr Conde to succeed against Mr Roney in the light of those statutory provisions. There is nothing in the material to suggest any other reason why the matter should be allowed to trial. (I -- 9 of 10 -- 1-10 ORDER note at this point, having looked up from my documents, that Mr Conde is no longer with us.) The application made by Mr Roney must succeed. ... The plaintiff's application is dismissed. I give judgment in the proceedings for the defendant. I order that the plaintiff pay the defendant's costs of the proceedings including the costs of both applications on the indemnity basis. ----- -- 10 of 10 --