Valassis v M D Nikolaidis & Co. [2000] NSWSC 388

New South Wales Supreme Court

CITATION : Valassis v M D Nikolaidis & Co. [2000] NSWSC 388 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13998/88 HEARING DATE(S) : 6 December 1999 JUDGMENT DATE : 12 May 2000

Mr Dennis VALASSIS (Respondent) (in person) PARTIES : M D NIKOLAIDIS & CO. (Applicant) . . JUDGMENT OF : Simpson J at 1

COUNSEL : SOLICITORS : Mr I J Jones, Solicitor, M D Nikolaidis & Co. LEGISLATION CITED : Supreme Court Act 1970 CASES CITED : Hunters Hill Municipal Council v Pegler [1976] 1 NSWLR 478 DECISION : 1. The plaintiff, Dennis Valassis, shall not, without leave of the Court, institute any legal proceedings against M D Nikolaidis and Co. in any Court and shall not continue any legal proceedings already instituted against M D Nikolaidis and Co. in any Court without the leave of the Court; 2. I order Dennis Valassis to pay the costs of this application, and that the costs be assessed on an indemnity basis.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J Friday, 12 May 2000

13998/88 VALASSIS v M D NIKOLAIDIS & CO. Judgment HER HONOUR : 1 By notice of motion filed on 19 October 1999, the applicant, identified as M D Nikolaidis & Co., (a firm of solicitors) seeks an order, pursuant to s 84(2) of the Supreme Court Act 1970: "That the plaintiff [Dennis Valassis] obtains the ex parte leave of a Master or Judge prior to filing any further document in this Court in relation to these proceedings, the related proceedings to the Court of Appeal being No.40089 of 1996, or in any fresh proceedings brought by the plaintiff in relation to the subject matter of these and the said Court of Appeal proceedings." 2 The applicant also seeks orders that the respondent/plaintiff pay the applicant's costs of the notice of motion on an indemnity basis or alternatively on a party/party basis and that such costs be paid within fourteen days after agreement or assessment. 3 The source of the power to make the first order sought is s 84(2) of the Supreme Court Act, 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." 4 It is to be observed that the power to make the order sought exists only where it is found that a person "habitually and persistently and without any reasonable ground institutes vexatious legal proceedings …" The precise ambit of this clause is critical to the outcome of the application. 5 On the application Mr Jones appeared for the applicant. Mr Valassis represented himself. 6 These proceedings have a very long and rather involved history, which, even after extensive analysis, is not entirely clear. It has been necessary to attempt a chronology of relevant events and Identification of the numerous applications that have been made. The narrative which follows has been drawn in part from various judgments that were placed before me, and from the court file, which now stands many centimetres high, as well as from the affidavit and oral evidence specifically referable to the application. 7 The initial proceedings were commenced on 12 August 1988, when the plaintiff, Mr Dennis Valassis, filed in this Division a summons which was given the number 13998/1988, in which he sought taxation of six bills of costs rendered by the applicant (to whom I will refer compendiously as Nikolaidis) in respect of legal work performed by Nikolaidis on Mr Valassis' behalf. The total of the sixteen bills was $12,478.90. This amount had been paid by Mr Valassis prior to the filing of the summons. 8 It appears that the summons was out of time and not in proper form. It was listed for the first time in 28 February 1990 when, notwithstanding the apparent time bar, Nikolaidis agreed to participate in the taxation. Thereafter, a variety of interlocutory applications were made by Mr Valassis. Included in these was a 1992 preceding alleging contempt against Nikolaidis for failing to produce files in accordance with orders made by the Prothonotary. (The source of this information is a judgment of Deputy Registrar Howe dated 24 August 1995, part of Ex A. I have found no further detail of the contempt proceeding, or its fate.) 9 The hearing of the taxation commenced before Deputy Registrar Sanderson on 25 May 1993, that is, almost five years after the summons was filed. On 13 July 1993 Mr Sanderson delivered a decision in relation to a costs agreement between the parties. Pursuant to SCR Pt 61 r 3 Nikolaidis sought review of the decision. On 2 November 1993 Master Malpass reviewed the decision and ordered that it be discharged and the taxation proceed. 10 On 7 June 1994 the application came before Senior Taxing Officer Williams who made certain rulings and gave directions as to the future progress of the matter. According to the judgment of Deputy Registrar Howe, Mr Valassis then, on 20 October 1994, filed a further notice of motion. The orders sought, as recounted in the judgment are somewhat puzzling. Mr Valassis sought a stay of proceedings, based upon non compliance by Nikolaidis with directions given on 7 June. This is puzzling because the proceedings sought to be stayed were Mr Valassis' own proceedings against Nikolaidis. However, he also sought an order that Nikolaidis repay the entirety of the costs that had been paid and that were the subject of the proceedings. The motion came on for hearing before Deputy Registrar Howe on 5 December 1994. The parties then agreed to proceed to taxation, for which three days were set aside, commencing either in December 1994 or in January 1995. On the first day Mr Valassis declined further to participate and withdrew. He then filed another notice of motion in terms similar to that filed on 20 October 1994. That notice of motion also came on for hearing before Master Malpass who stood it over generally and referred the file to Deputy Registrar Howe to continue the taxation. That proceeded on 27 July 1995. Deputy Registrar Howe completed the hearing and delivered a determination. He ordered that $1,888.42 be taxed off the total of the six bills of costs. In accordance with the then operative legislation and because the amount taxed off was less than one sixth of the total of the bills rendered, he ordered Mr Valassis to pay the costs of the taxation. 11 On 7 August 1995 Mr Valassis filed a request for reconsideration. On 24 August, having reconsidered the matter, Deputy Registrar Howe decided to maintain his earlier decision and ordered that a certificate in accordance with that decision issue. 12 Pursuant to SCR Pt 52 r 62 Mr Valassis sought review of the reconsideration and this application came before Master Greenwood. Mr Valassis was unsuccessful, no alteration was made to the certificate issued by Deputy Registrar Howe, and Mr Valassis was ordered to pay Nikolaidis' costs of the review. 13 In March 1996 Mr Valassis issued a summons for leave to appeal to the Court of Appeal from the decision of Master Greenwood. On 29 March 1996 that Court, constituted by Handley and Cole JJA dismissed the application. On or about 3 April 1996 Mr Valassis applied to the High Court of Australia for special leave to appeal against the dismissal of the summons. No evidence of the outcome of that application was placed before me. I am prepared to assume that special leave has not been granted. 14 On 11 April 1996 Mr Valassis filed a notice of motion in the Court of Appeal in which he sought, inter alia, the following orders: "1. That the decision of the proceedings No CA40089 of 1996, CLD 13998 of 1998 heard in this Honourable Court on 25 March 1996 before their Honours Messrs Justice Handley JA and Cole JA, judgment released on 29th March, 1996, be reconsidered on the following grounds: …"