FEDERAL COURT OF AUSTRALIA Tsecouras v Price [2008] FCA 845 PETER TSECOURAS v ANNE PRICE NSD 655 OF 2008 COWDROY J 4 JUNE 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 655 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: PETER TSECOURAS Appellant AND: ANNE PRICE Respondent JUDGE: COWDROY J DATE OF ORDER: 4 JUNE 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Appeal and proceedings NSD 655/2008 be struck out pursuant to O 20 r 5(2) of the Federal Court Rules (Cth). 2. The Appellant pay the costs of the Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 655 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: PETER TSECOURAS Appellant AND: ANNE PRICE Respondent JUDGE: COWDROY J DATE: 4 JUNE 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court is a notice of appeal filed on 9 May 2008 appealing from the decision of Federal Magistrate Lloyd-Jones delivered on 6 May 2008. On that day Lloyd-Jones FM made various orders including an order of sequestration against the estate of the appellant. Also before the Court is an oral motion made by the respondent to strike out the appellant's appeal as an abuse of process pursuant to O 20 r 5 of the Federal Court Rules (Cth) ('the Rules'). The appellant is unrepresented but is assisted by a Greek interpreter. He wishes to proceed with the matter today and accordingly the Court has heard the submissions of both parties and will proceed to give its decision forthwith. 2 The relevant history of these proceedings was contained in the decision of Tsecouras v Price [2008] FCA 106. 3 The appellant's notice of appeal raises five grounds. The first ground states: I Peter Tsecouras am still awaiting a determination from the High Court on an appeal (S99 of 2007), so any decision on s 41(6C) should have been deferred until after then. 4 In relation to this ground of appeal it is an acknowledged fact that there are no High Court proceedings current. An application previously made by Mr Tsecouras had already been dismissed by the High Court of Australia on 15 November 2007 from an issue arising out of the same proceedings but not related to the sequestration order. 5 The second ground of appeal states: I Peter Tsecouras believed that solicitor Norman Hunter, Hunt Partners, Level, 99, Elizabeth Street, Sydney had applied for an extension on my behalf. 6 Lloyd-Jones FM dealt with this claim at paragraph 16 of his judgment. His Honour read a letter which had been written by Hunt Partners to Mr Tsecouras which stated inter alia: We refer to the notice of appearance that you filed in this matter on 14 April 2008. I note that you have made a mistake by including my name in the name of my firm Hunt Partners on the notice of appearance. As previously advised, I am not representing you at the hearing which understands [sic] as being held on 21 April 2008. It appears from the letter that Mr Hunt had no part to play in these proceedings. 7 The third ground of appeal states: It is believed some procedural unfairness was shown towards the Appellant, because he was an unrepresented litigant who speaks English poorly as a second language, and the consequences of bankruptcy are significant. 8 The Court is unable to discern that such a claim has any merit. The evidence previously given in the Supreme Court of New South Wales proceedings show that Mr Tsecouras has been a resident in Australia for some 45 years and has knowledge of the English language: see Tsecouras v Price [2006] NSWSC 701 at [70]. The Court also notes that Mr Tsecouras appeared with the assistance of an interpreter before the Federal Magistrate. 9 The fourth ground of appeal states: Any prejudice to the respondent could have been fixed by additional interest on the judgment. 10 Such a claim has no bearing upon the making of the sequestration order by his Honour. 11 The fifth ground of appeal states: The appellant believes that such case as Thomas Richard Wenkart v Gennaro Abignano & Anor [1998] 1035 FCA (28 August 1998) could be referred to. 12 The Court has had regard to such decision but finds that the facts are entirely different to the circumstances prevailing in the present appeal. 13 Mr Tsecouras has been invited to provide oral submissions this morning in support of his appeal. He has readily conceded that the purpose of his appeal is to bring before this Court the beneficiaries of the will of the late Diane Rosemary Keefe ('the deceased') so that he can prove 'that they lied'. He repeatedly indicated that he wished to bring those witnesses to Court on the basis that they had provided false evidence before Macready AJ on the hearing of a claim by Mr Tsecouras against the estate of the deceased. From the answers provided it is clear that Mr Tsecouras only seeks to pursue the beneficiaries to prove that they had given false testimony. He said to this Court: I just want the beneficiaries to come back to court. If they don't come I will continue to battle until they come. 14 The grounds of appeal contain no merit. The points which are raised do not constitute grounds of appeal which this Court could seriously entertain. The respondent's motion seeks to strike the proceedings out as an abuse of process pursuant to O 20 r 5 of the Rules. Such rule relevantly provides that: (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. 15 As was observed in Sea Culture International Pty Ltd v Scoles and Others (1991) 32 FCR 275 at 279: The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. 16 The Court is also mindful that the power to strike out proceedings as an abuse of process should only be used in exceptional cases where the facts disclose a clear abuse: see Sea Culture at 279. 17 Before the Federal Magistrate, Mr Tsecouras raised the same oral claim as he did before this Court, namely his desire to cross-examine the witnesses. Lloyd-Jones FM at [12] said: I attempted to explain to Mr Tsecouras that the challenge to the contents of the will and the evidence given at that hearing are issues to be resolved by the Supreme Court and are not matters usually ventilated in this jurisdiction. I also indicated that he was faced with some difficulty because Macready AJ's decision has been appealed to the Court of Appeal and a special leave application has been made to the High Court. 18 His Honour continued at [13] in relation to a large folder which Mr Tsecouras had attempted to tender: He seemed to be suggesting that I should receive this document and instruct the Supreme Court to undertake a further review. I informed Mr Tsecouras that he faced considerable difficulty as the Supreme Court proceedings had been finalised and exhausted its avenues of review. Despite my efforts to convey the issues to him, he did not appear to comprehend or accept this information despite the best efforts of the interpreter. 19 The Court is satisfied that the proposed appeal has been instituted for a purpose which this Court will not permit, namely to revisit the Supreme Court proceedings. This Court is not concerned with the evidence given before that Court. Mr Tsecouras had the benefit of an interpreter before Lloyd-Jones FM and it appears that the Federal Magistrate's attempts to convey to Mr Tsecouras the limitations of the jurisdiction of this Court were not accepted by him. 20 The Court is satisfied that this is a case which constitutes an abuse of process. There is no merit displayed in the grounds of appeal and there is no error indicated in the decision of Lloyd-Jones FM. In so far as Mr Tsecouras does not wish to understand that this Court cannot deal with any matter involving the Supreme Court proceedings, he should be made aware that repeated applications to this Court will serve no purpose. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 10 June 2008 Solicitor for the Appellant: Appellant appeared in person Solicitor for the Respondent: Hogan Geikie Pool Date of Hearing: 4 June 2008 Date of Judgment: 4 June 2008