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