Tsekouras v Evangelinidis [2003] NSWSC 139

New South Wales Supreme Court

CITATION : Tsekouras v Evangelinidis [2003] NSWSC 139 HEARING DATE(S) : 5 March, 2003 JUDGMENT DATE : 5 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Summons dismissed under Pt 13 r5(1); Plaintiff ordered not to institute any legal proceedings against the Defendant in any court without leave of the Court.

CATCHWORDS : PRACTICE AND PROCEDURE - VEXATIOUS LITIGANT - ABUSE OF PROCESS - Plaintiff had commenced proceedings in District Court against Defendant - judgment for Defendant - Plaintiff brings same claim in Common Law Division of Supreme Court - claim struck out by Master on ground of res judicata - Plaintiff appeals to single judge of Supreme Court - appeal dismissed - Plaintiff appeals to Court of Appeal - appeal dismissed - Plaintiff seeks special leave to appeal to High Court - leave refused - Plaintiff commences proceedings in Equity Division for same claim. HELD: Proceedings dismissed as vexatious and abuse of process. LEGISLATION CITED : Supreme Court Act 1970 (NSW) - s.84(2) Supreme Court Rules - Pt 13 r5(1) CASES CITED : - Attorney-General v Wentworth (1988) 14 NSWLR 481 PARTIES : Con Tsekouras - Plaintiff Vivieca Evangelinidis - Defendant FILE NUMBER(S) : SC 1039/03 COUNSEL : Plaintiff in person J.T. Johnson - Defendant SOLICITORS : Plaintiff in person Sally Nash & Co - Defendant

Ex tempore

1 On 9 January 2003 the Plaintiff, Mr Tsekouras, who is a litigant in person, filed in the Equity Division of this Court a Summons which claimed simply: "1. That Vivieca Evangelinidis pay me costs to the amount of $247,705.24 plus interest; And 2. Therefore I claim $750,000 in damages, interests and costs, and the superannuation income lost." 2 Mr Tsekouras has filed a number of affidavits in these proceedings, in none of which does it appear with any clarity whatsoever what is the cause of action which Mr Tsekouras relies upon in order to seek the relief which he claims in his Summons. 3 By Notice of Motion filed on 4 February 2003, the Defendant seeks orders that these proceedings be summarily dismissed or, alternatively, that they be struck out, and orders that the Plaintiff not file or commence any proceedings against the Defendant without prior leave of a Judge of this Court. Further orders are sought that the Plaintiff be declared a vexatious litigant and that the Plaintiff pay the Defendant's costs on an indemnity basis. 4 The Defendant's application is supported by affidavit evidence which shows that Mr Tsekouras has a long history of proceedings against the Defendant, all of which have been unsuccessful. 5 It seems that Mr Tsekouras' original grievance giving rise to the history of litigation arose from a motor accident in which he was involved some years ago and in which the Defendant acted on his behalf as his solicitor. He was successful in recovering damages in respect of that accident, but was apparently dissatisfied with the way in which his case had been conducted by the Defendant as his solicitor. It seems he was also dissatisfied with the costs which he had been charged for the Defendant's services as his solicitor in those proceedings. 6 The Plaintiff commenced proceedings in the District Court against the Defendant. The case was heard by Cripps DCJ and, on 15 February 1999, his Honour gave judgment in favour of the Defendant together with costs. His Honour found that the Defendant had not been guilty of any negligence in her conduct of the personal injury case which had been previously brought by the Plaintiff. 7 The Plaintiff appealed from that judgment to the Court of Appeal. On 11 October 1999 the Court of Appeal refused leave to appeal from the judgment of Cripps DCJ and dismissed the appeal as incompetent. 8 On 14 October 1999, judgment was entered by the Defendant against the Plaintiff in the District Court proceedings in respect of the Defendant's costs in the amount of $73,251.84. 9 On 1 November 1999 the Defendant caused to be issued a Bankruptcy Notice against the Plaintiff seeking to recover the amount of the judgment debt. The Plaintiff failed to pay the amount stipulated in the Bankruptcy Notice. On 8 February 2000, Gyles J in the Federal Court refused an application by the Plaintiff to set aside the Bankruptcy Notice. On 10 February 2000, the Defendant presented a creditor's petition against the Plaintiff, founded on the Plaintiff's act of bankruptcy constituted by failure to comply with the Bankruptcy Notice. 10 On 14 June 2000, Hely J in the Federal Court made a sequestration order against the Plaintiff. His Honour reviewed the complaints which the Plaintiff made against the Defendant in respect of the Defendant's conduct of his personal injury action and the costs said to be incurred by the Defendant in those proceedings in respect of which the Defendant had obtained judgment against the Plaintiff. His Honour found that there was no substance in any of the complaints made by the Plaintiff, save possibly for an amount of $17,000. All other amounts of which the Plaintiff complained, whether by way of overpayment to the Defendant or by way of a Cross Claim and set-off against the amount claimed in the Bankruptcy Notice, were found by his Honour to have been barred by the judgment given in the District Court. 11 The Plaintiff appealed against that decision to the Full Court of the Federal Court. Again in that Court all of the claims made by the Plaintiff against the Defendant in relation either to the payment or non-payment of amounts said to be costs of the personal injury proceedings were canvassed. The appeal was dismissed by the Full Court on 15 August 2000. 12 On 22 May 2001, the Plaintiff commenced proceedings by way of Statement of Claim against the Defendant in the Common Law Division of this Court, proceedings number 11541 of 2001. All that the Statement of Claim contained was the following: " Particulars of claim The applicant has paid the costs to the amount of $247,705.24 plus interest

CLAIM $750,000.00 – DAMAGES – INTEREST UNDER SECTION 94 – COSTS

SUPERANNUATION INCOME LOST" 13 The sum of $247,705.24 claimed in the Statement of Claim consisted of monies allegedly paid to the Defendant in relation to the personal injury proceedings which the Defendant had conducted on the Plaintiff's behalf. On 25 July 2001, the Defendant applied by Notice of Motion for the summary dismissal of that Statement of Claim. The Motion was heard by Master Harrison who delivered judgment on 27 July 2001. After an exhaustive analysis of the particular complaints made by the Plaintiff and a consideration of the relevant authorities, the Master concluded that the Plaintiff had already litigated in the District Court the issues sought to be raised by the Statement of Claim and all those issues were concluded against the Plaintiff by the doctrine of res judicata. 14 The Master concluded that the pleading in the Statement of Claim was without any hope of success and that the claim was doomed to failure. She was of the view that the deficiencies could not be cured by amendment. Accordingly, the Master dismissed the Statement of Claim and declined to grant leave to re-plead it. The Plaintiff was ordered to pay the Defendant's costs of the proceedings on a party/party basis. 15 On 10 August 2001 the Plaintiff lodged a Notice of Appeal in respect of the Master's judgment and on 31 August 2001 Sperling J dismissed the appeal. His Honour, after reviewing the grounds of appeal, concluded that none of them were sustainable and that the appeal should be dismissed, with costs awarded against the Plaintiff on an indemnity basis as the appeal was utterly without merit, there being no reasonably arguable support for any of the grounds of the appeal. 16 From that judgment the Plaintiff sought leave to appeal to the Court of Appeal. The application was heard on 7 December 2001. The Court of Appeal, having reviewed the judgment of Sperling J and the grounds of appeal, was of the view that his Honour could not have come to any other conclusion but to dismiss the Plaintiff's appeal from the Master. The Court said that the Judge had given reasons why each of the grounds of appeal could not succeed and each of those reasons was correct. Accordingly, the Court dismissed the application for leave to appeal with costs against the Plaintiff. 17 From that decision the Plaintiff sought to appeal to the High Court. On 17 May 2002 the Plaintiff filed an amended Application for Special Leave to Appeal to the High Court and that application came on for hearing on 13 December 2002. There were two essential grounds for the application for leave. The first was that the Court of Appeal was said to have refused to give the Plaintiff, who had appeared for himself in the proceedings, such assistance in conducting his case as justice required. The second ground was that the Court of Appeal, Sperling J and Master Harrison had all been in error in concluding that the Plaintiff had no arguable case. 18 The High Court refused leave to appeal on the basis, first, that there was no substance in the complaint that the Plaintiff had not been given such assistance in the Court of Appeal as he was entitled to and, second, that there was no substance in the other matters that the appellant sought to raise – that is, that there was no substance in the contentions that the Courts below had erred in dismissing the Plaintiff's claim. 19 The Plaintiff's reaction to refusal of special leave, which disposed of Common Law proceedings 11541 of 2001, was to commence proceedings in the Equity Division of this Court by the Summons filed on 9 January 2003 to which I have referred. It will be seen that the relief claimed in the Summons filed in the Equity Division is in respect of exactly the same amounts for costs and for general damages as were claimed in the Common Law proceedings. The Plaintiff has confirmed that the amount of $247,705.24 is indeed the amount in respect of which he had commenced the Common Law proceedings. It is abundantly clear that the claim which the Plaintiff seeks to raise in these proceedings, whatever be the cause of action and whatever be its factual basis, is exactly the same claim as was brought in the Common Law proceedings. 20 It is abundantly clear that the judgment of the Court in the Common Law proceedings dismissing that claim as unarguable and without substance and as disclosing no cause of action bars the Plaintiff from re-litigating the identical claim in these proceedings in the Equity Division. These proceedings are accordingly vexatious and an abuse of process. They must be dismissed under Pt 13 r5(1) of the Supreme Court Rules. 21 There remains the question whether an order should be made as sought by the Defendant that the Plaintiff not commence any further proceedings against the Defendant without prior leave of a Judge of the Court. The Defendant seeks that order under s.84(2) of the Supreme Court Act 1970 (NSW), which is in the following terms: "(2) Where any person (in this subsection called the "vexatious litigant") habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the "person aggrieved"), whether in the Court or in any inferior court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court." 22 The Defendant relies on the decision of Roden J in Attorney--General v Wentworth (1988) 14 NSWLR 481. That case, which has been applied by this Court on a number of occasions, is authority for the proposition that the test for determining whether proceedings are vexatious for the purposes of s.84(2) includes whether the proceedings, irrespective of the motive of the litigant in commencing them, are so obviously untenable or manifestly groundless as to be utterly hopeless. 23 Pausing at this point, I am quite satisfied that the proceedings which were commenced in the Common Law Division of this Court and which have been commenced in the Equity Division of this Court are obviously untenable and so manifestly groundless as to be utterly hopeless. 24 It is also necessary for the Court to be satisfied, before making an order under s.84(2), that the litigant is habitually and persistently and without reasonable ground instituting vexatious legal proceedings against the person aggrieved, in this case the Defendant, either in the Supreme Court or in an inferior Court. 25 The Plaintiff has made it clear in the course of his responses to the Court today that he intends to persist with the claim against the Defendant which is embodied in the Statement of Claim filed in the Common Law Division and in the Summons filed in this Division. He seems to take the attitude that he will not be satisfied until he vindicates that claim and until the Defendant is compelled to appear personally in Court to answer his allegations. It is quite evident from his persistence in litigating in the Federal Court all the way to the Full Court and bringing proceedings in this Court all the way up to the High Court that the Plaintiff will not be deterred by adverse judgments and costs orders from commencing and prosecuting litigation against the Defendant for as long as his desires remain unsatisfied. 26 I am satisfied that, quite apart from prosecuting a groundless claim to a set-off in the Federal Court and prosecuting an equally groundless appeal to the Full Federal Court, in commencing and prosecuting his Common Law proceedings through all stages and hierarchies of the Court up to the High Court and in commencing these proceedings in the Equity Division, the Plaintiff has demonstrated that he is habitually and persistently and without reasonable grounds instituting proceedings in this Court which are vexatious in the sense that they are utterly hopeless. 27 I am satisfied that unless an order is made pursuant to s.84(2), the Plaintiff will continue to institute and prosecute litigation against the Defendant. I am further satisfied that the Defendant falls within the category of a person aggrieved within the meaning of s.84(2). It is quite clear that not only is the Defendant required to expend time and effort in dealing with this litigation, but the Defendant also incurs considerable costs in dealing with it, none of the costs orders against the Plaintiff being capable of satisfaction because the Plaintiff is, and has for some time been, an undischarged bankrupt. Costs orders against him, therefore, are fruitless. 28 For those reasons I will make the orders sought in the Defendant's Notice of Motion. The orders of the Court are:

(1) The Plaintiff's Summons is dismissed.

(2) Order pursuant to s.84(2) of the Supreme Court Act that the Plaintiff shall not, without leave of the Court, institute any legal proceedings against the Defendant in any court.

(3) Order that any legal proceedings instituted by the Plaintiff against the Defendant in any court before the making of this order shall not be continued by the Plaintiff without leave of the Court. 29 The Defendant seeks an order that the Plaintiff pay the costs of these proceedings on an indemnity basis. I am satisfied that there was no conceivable basis upon which these proceedings could properly have been commenced by the Plaintiff. Accordingly, I order that the Defendant's costs of these proceedings be paid by the Plaintiff on an indemnity basis. 30 I should note for the record that the Plaintiff has considerable difficulty with English and that he has throughout these proceedings been ably assisted by a Court accredited interpreter who has translated not only submissions but the questions and answers asked of and given by the Plaintiff. 31 The exhibits will be retained for 28 days. – oOo –

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