FEDERAL COURT OF AUSTRALIA

Tsekouras v Evangelindis
[2009] FCA 615

CON TSEKOURAS v VIVECA EVANGELINDIS, SALLY NASH & CO and PETER OLSEN, PUBLIC TRUSTEE

NSD 353 of 2009

RARES J

20 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  Judgment be entered for the respondents against the applicant in respect of all claims made in the application.

2.                  The notice of motion filed on 24 April 2009 is dismissed.

3.                  The applicant pay the respondents’ costs on a complete indemnity basis, save such costs as may have been unreasonably incurred.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     On 1 May 2009 Bennett J ordered, pursuant to O 21 r 1 of the Federal Court Rules that without the leave of the Court Con Tsekouras both not continue any proceeding and not institute any proceeding.  Her Honour found, for the detailed reasons that she gave, that Mr Tsekouras had repeatedly engaged in relitigating claims.  Those claims were that first, he did not owe any money to Viveca Evangelindis, the first respondent in the present proceedings, who was his former solicitor, secondly, to anyone else to whom payments (despite his assertions) had been made out of his bankrupt estate and that, thirdly, he had paid out amounts of $247,705.24 and $166,469.54 (or sums of that order) and did not owe the debts in respect of which he was made bankrupt:  see Tsekouras v Olsen [2009] FCA 429 at [13], [14], [41].  Mr Tsekouras had been made bankrupt by an order of this Court made by Hely J on 14 June 2000.  The third respondent, Peter Olsen is the assistant official receiver of Insolvency and Trustee Service Australia. 

2                     Her Honour detailed Mr Tsekouras’ litigious history.  Initially he had obtained a verdict in a personal injuries claim in the Supreme Court of New South Wales.  There was an appeal from that decision to the Court of Appeal of the Supreme Court of New South Wales.  After that decision, he commenced proceedings against his then solicitor, Ms Evangelindis, claiming that she had been negligent in her conduct of the personal injuries proceedings.  He lost those proceedings and costs were awarded against him.  His appeal and application for special leave to appeal were both rejected. 

3                     Throughout his litigious history Mr Tsekouras has claimed that he made payments totalling $247,705.24 or sums of that order.  Mr Olsen accepted that Mr Tsekouras had made those payments in relation to his personal injuries proceedings. Bennett J accepted Mr Olsen’s account:  see Tsekouras [2009] FCA 429 at [10] and [41].  Her Honour examined the various claims and assertions about moneys paid by Mr Tsekouras.  She found that payments made by the official trustee upon lodgment of proofs of debt totalling $163,521 were owed by the bankrupt’s estate as a result of the professional negligence proceedings and were not moneys owed in respect of his personal injuries proceedings.  She said that it was clear, beyond doubt, that those matters had been carefully considered by Hely J in making the original sequestration order as explained by his Honour in his reasons:  Tsekouras [2009] FCA 429 at [18].

4                     Her Honour found that Mr Tsekouras’ claim against Mr Olsen, then before her, was hopeless and bound to fail.  She held that Mr Olsen was entitled to summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and under the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

5                     Her Honour then examined Mr Tsekouras’ subsequent history of proceedings, commenced in the Supreme Court of New South Wales and before her Honour.  One set of Supreme Court proceedings culminated in Bryson AJ finding that Mr Tsekouras’ claims made against Mr Olsen were harassing and that he was entitled to be protected by an order from that Court that Mr Tsekouras not bring any further proceedings pursuant, to s 84(2) of the Supreme Court Act 1970 (NSW). 

6                     After attempting, once again, unsuccessfully to challenge Bryson AJ’s findings by filing further proceedings in the Supreme Court, on 8 December 2008 Mr Tsekouras filed the proceedings that came before Bennett J.  Her Honour said in Tsekouras [2009] FCA 429 at [41]-[43]:

“At the hearing Mr Tsekouras, who appeared in person, made it quite clear that what he wished to say about these proceedings was that he did not owe any money to Ms Evangelindis or anyone else to whom payments had been made out of his bankrupt estate and that he had paid out amounts of $247,705.24 and $166,469.54.  These are the very matters that have been litigated repeatedly. 

I do not doubt that this is a clear case for the application of O 21 r 1 of the Federal Court Rules.  I adopt, with respect, what was said by Bryson AJ as to the history of this matter and the balancing of Mr Tsekouras’ right to bring proceedings with the effect on Mr Olsen and his right not to be continually harassed by the requirement to defend a never ending series of futile applications. 

Importantly, the subject matter of these proceedings has been heard and determined on more than one occasion and Mr Tsekouras has availed himself of the avenue of appeal in respect of those decisions.  As Mr Olsen submits, the Official Ttrustee and the public have been prejudiced by Mr Tsekouras’ litigious history.  From that history I conclude that it is inevitable that it will continue.”

7                     I have heard Mr Tsekouras today attempt to explain the continuance of these proceedings.  It is evident that he refuses to accept the authoritative determination of the Courts that have rejected his claims.  These proceedings commenced on 24 April 2009, a week before Bennett J made her orders.  The present application as filed was initially intituled in the proceedings before Bennett J.  Mr Tsekouras attached to that original application, a letter to him from the Court dated 16 April 2009.  It informed him that his application filed on 8 December 2008 had not been heard, although a cross-claim and interim application by Mr Olsen, who was the respondent in those proceedings, had been heard by her Honour and judgment had been reserved.

8                     The present application asserts that it is a “third party claim” and that Mr Olsen, who is the third named respondent, was acting for the Public Trustee.  It seeks restitution for moneys that had been allegedly sought and charged twice, being $166,469.54 and an amount of $244,895.52.  The small differences on the two amounts claimed in the different proceedings are immaterial.  The substance of Mr Tsekouras’ various proceedings has remained that he made payments of sums of the order of $245,000 and $166,000 which have not been recognised in the way Mr Tsekouras regards as appropriate.  It also claims damages of $750,000 as compensation for the reimbursement of Mr Tsekouras’ out-of-pocket expenses, superannuation and interest on the amount of $244,895.52.  The application further claimed that Ms Evangelindis and Sally Nash and Co, her solicitors, who are the second respondents, with Mr Olsen:

“Be made to accept that the applicant has been unjustly treated in the matter at all times and that he has made the cash payments and it was not right to serve the applicant with bankruptcy.”

9                     In a notice of motion filed with his application, Mr Tsekouras sought recognition that he had paid amounts by bank cheque totalling $244,895.52.  He also sought an order recording that Mr Olsen had refused to recognise payments that Mr Tsekouras allegedly had made and wanted to have acknowledged.  Mr Tsekouras’ claim also relied on affidavits that he had filed on 4 July 2000 and 6 April 2009 and sought recognition that he had already made the  reagitated payments directly and that he should not have been charged a second time.  It seeks costs in the sum of $750,000, somehow, under rules of the Supreme Court.

10                  The respondents each filed notices of motion seeking that the proceedings be dismissed, either under O 20 r 5, or s 31A of the Federal Court of Australia Act. Ms Evangelindis and Sally Nash & Co, the second respondent, also sought a declaration that they had been unnecessarily and improperly joined as parties to the proceedings.  Those two motions relied upon, among other things, Bennett J’s order that any proceedings filed by Mr Tsekouras, including these, not continue without the leave of the Court.

11                  The solicitor for Mr Olsen gave evidence comparing the relief sought by Mr Tsekouras in the proceedings dismissed by Bennett J with those sought in these proceedings.    In substance, it is plain that the relief sought in each is substantially identical.  Mr Tsekouras, once again, relied upon the very matters which he has had decided against him, in respect of the payments of about $166,000 and $240,000.  He has litigated repeatedly these matters without success. His unparticularised damages claim for $750,000 is, in my view, unsustainable.  There does not appear to be any proper or legitimate forensic purpose in joining any of the present respondents to these proceedings.

12                  Having invited Mr Tsekouras to explain whether what he was doing was, as it appeared, to relitigate the earlier claims he had made, I am satisfied from his explanation that that is exactly what he is seeking to do and that he will continue to do so in defiance of the authority of the Court.  It is obvious that the relief sought in Mr Tsekouras’ application and notice of motion can have no possible forensic basis. 

13                  I am of opinion that these proceedings are the plainest abuse of the process of the Court and amount, prima facie, to a contempt.  Mr Tsekouras has not been charged with contempt.  But that does not change the essential character of the proceedings.  In Walton v Gardner (1993) 177 CLR 377 at 392-393, Mason CJ, Deane and Dawson JJ identified species of abuse of process.  They said that the power of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.  Their Honours held that the maintenance of proceedings will constitute an abuse of process if they can clearly be seen to be foredoomed to fail, regardless of the propriety of the purpose of the person responsible for their institution. They also said that proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.  They approved a passage from the speech of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, where he held any court of justice must possess an inherent (or implied) power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.

14                  The Court’s powers to protect itself from vexatious proceedings or proceedings amounting to an abuse of its processes, are designed to protect the integrity of the processes of the Court and the Court’s determinations of rights as an institution of government:  see eg Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ, and D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at 16-18 [32]-[36], 20 [43] per Gleeson CJ, Gummow, Hayne and Heydon JJ. 

15                  In my opinion these proceedings are hopeless and foredoomed to fail.  If they are to be continued Mr Tsekouras requires, in any event, the leave of the Court, pursuant to the order made by Bennett J on 1 May 2009.  They are so plainly hopeless and an abuse of the process of the Court that no basis could be made out on which leave could be given.

16                  There is no reasonable prospect that these proceedings could be successfully prosecuted by Mr Tsekouras.  They seek to relitigate proceedings and issues that have already been authoritatively determined against him.  Mr Tsekouras feels aggrieved by the courts’ rejections of his claims but refuses to accept these rejections.  I have warned him today that if he continues to defy the authority of the courts in their role as the ultimate means in our society to decide and resolve litigation by his seeking to keep challenging the courts’ decisions by relitigating them, he will be in danger of being found to be in contempt.  He may, as a result, become subject of the Court’s powers to send him to prison until he learns to accept the lawful authority which the Constitution has provided in our court system for the courts to quell controversies, finally and authoritatively, however much Mr Tsekouras may not agree with the decisions which have been given adversely to him. 

17                  There is no reason why the termination of these vexatious proceedings should not carry with it an order that Mr Tsekouras pay the costs of the proceedings on a complete indemnity basis, save where the costs have been unreasonably incurred. 

Associate:

Dated:         10 June 2009