Tsekouras v Evangelinidis

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11541/2001 - CON TSEKOURAS v VIVECA EVANGELINIDIS

1 MASTER: By notice of motion filed 6 June 2001 the defendant seeks an order that the proceedings be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR) and that the plaintiff not be entitled to file any further statement of claim in these proceedings without further order of a judge of this court. The defendant also seeks an order that the plaintiff pay her costs on an indemnity basis. The defendant relied on the affidavit of Natasha Banfield sworn 5 June 2001. The plaintiff relied on his booklet called "Special Fixture". The plaintiff represented himself with the aid of an interpreter. 2 The statement of claim is very simply pleaded. The substantive parts are reproduced in full below.

"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" 3 The plaintiff has requested a trial by jury.

The law on summary judgment 4 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed;

(c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

5 In a Court of Appeal decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 6 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 7 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 9 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 10 The defendant submitted that the cause of action is a cause of action in its entirety that: firstly, has vested in the Official Trustee in Bankruptcy as trustee if the property of the plaintiff, provided it is not a cause of action based upon a tort; secondly, is barred from recovery by operation of the orders in the District Court of New South Wales in the original proceedings commenced by the plaintiff against the defendants which were dismissed; and thirdly, has been the subject of the proceedings in the Supreme court in respect of which Graham AJ has ordered that no fresh pleading be filed without an order of a judge of the court. A copy of the order of Graham J was not put into evidence so this submission fails. It is difficult to ascertain whether the plaintiff has sought to plead a cause of action based on tort, but as I am taking his case at its highest, I will assume this to be the case. 11 The history of the plaintiff and defendant's legal proceedings have been discussed in the judgment of the Full Court in the Federal Court of Australia dated 15 August 2000. In these proceedings the appellant is Con Tsekouras (the plaintiff in these proceedings). The respondent is Viveca Evangelinidis (the defendant in these proceedings). Goldberg J states that the appellant, represented by the respondent, had instituted proceedings in the Supreme Court of New South Wales for damages for personal injuries which he suffered in a motor vehicle accident. T he appellant recovered damages in the proceedings in 1987. The appellant was dissatisfied with the amount of the award and appealed to the Court of Appeal. The primary judge found that the appeal was substantially unsuccessful because the Court of Appeal only slightly increased the judgment sum. 12 The appellant commenced a proceeding against the respondent in the Supreme Court of New South Wales for negligence in the conduct of his damages claim. The proceeding was transferred to the District Court and on 15 February 1999 the court entered a judgment in favour of the respondent on the basis that she had not been guilty of any negligence in the conduct of the Supreme Court proceeding. Leave to appeal to the Court of Appeal against that judgment was refused on 11 October 1999. 13 On 14 October 1999 the respondent obtained a judgment in the District Court against the appellant for $73,251.84 representing the legal costs of the negligence proceeding in the District Court. On 1 November 1999 the respondent issued a bankruptcy notice based upon that judgment which was served on the appellant. A Registrar refused to set aside the bankruptcy notice. The Registrar's decision was confirmed by Gyles J on 8 February 2000. The sequestration order was made against the estate of the appellant. The appellant unsuccessfully sought special leave in the High Court on 6 April 2001. 14 The court asked the plaintiff to explain the nature of the claim he sought to bring in this court. The plaintiff explained that there was an error in the amount owing. According to the plaintiff he owed only $10,000 and not $73,000. He told the court that he is currently obtaining bank statements to prove that he had paid sums of money and that he wanted Ms Evangelinidis to attend upon a subpoena to give evidence. The plaintiff referred me to the transcript of proceedings before the Full Court of the Federal Court. At pp 25-27 (Ex 3) the following exchanges took place. 'MR TSEKOURAS: It's not correct. Your Honour, I pay I don't receive anything out of my superannuation, first thing. Second thing, I pay all the money twice, bank cheques, and they're not covered. All the money I been received I been paying Ms Evangelinidis and I receive notice like I explained to you before and all this money be paid by me and no one cover me.

MERKEL J: Why do you say that you've paid the same bills twice? You got a final notice and you [paid them by bank cheque and you produced the details of that before Hely J, yes, but why do you say the same bill has been paid twice? That's what I don't understand. MR TSEKOURAS: I paid them 23,000 to pay the bills, the bills not be paid so I pay the final notice and the 23,000. This money all this go, come out of my bank account. MERKEL J: Why do you say the 23,000 was for bills paid by you? It was a different bill, it is suggested. MR TSEKOURAS: No, the same bill, the same bill it's over here, the bank cheque. MERKEL J: See, your solicitors, Carrol & O'Dea paid that money to Ms Evangelinidis, $23,000. THE INTERPRETER: I paid that to Carrol & O'Dea. MERKEL J: You paid that to Carrol & O'Dea, they paid it to Ms Evangelinidis. MR TSEKOURAS: That's correct, yes. MERKEL J: Yes, well, the question I asked you before is, why do you say the same money has been paid twice? THE INTERPRETER: I paid that money and I paid the bills. GOLDBERG J: Which bills? THE INTERPRETER: No, it's the bills that were coming for the doctors. MR TSEKOURAS: For private investigators. THE INTERPRETER: For private investigators and whatever else was needed it was coming to me, final notice and I pay it. MERKEL J: The money that was paid to Ms Evangelinidis was for a different amount owing to her for her work in the Supreme Court proceedings. THE INTERPRETER: No. It was the money I gave it to Ms Evangelinidis to pay the bills. MERKEL J: Was there any document in the court book that shows that you paid the same bill twice? You paid it once to Ms Evangelinidis and once directly to the people who were owed the money. Is there anything in the court book that shows that that happened? THE INTERPRETER: In the book? MERKEL J: Yes. THE INTERPRETER: Yes. MERKEL J: Show me which page in the court book that that appears, just any one payment. THE INTERPRETER: I paid all this money that I show there, I indicated page 51 and the cheques are there that I pay. That indicating page 151 and that indicating the cheque butt. MERKEL J: Yes, but that show that the 23,000 was to be paid to Carrol & O'Dea and Carrol & O'Dea paid that same amount to the solicitor. How does Mr Tsekouras show that he paid $23,000 to her on another occasion or there's a double payment, that's what I don't understand. THE INTERPRETER: She keep the money and I pay this on top. MERKEL J: Yes, thank you."

15 It is my view that the plaintiff has already litigated the issue as to how much he owed the solicitor and as such falls within the doctrine of res judicata. The pleadings in the statement of claim are hopeless. It is doomed to failure. The deficiencies cannot be cured by amendment. 16 For the plaintiff's benefit the rule as to res judicata is where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. It is a broad rule of public policy based on the principles expressed in the maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro eadem causa". The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which as merged into judgment in a prior proceedings - see Jackson v Goldsmith [1964] AC at 1010 and Port Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. The rule has come into operation in these proceedings. The statement of claim is doomed to failure and should be dismissed. 17 The defendant has sought that the plaintiff not be entitled to file any further statement of claim in these proceedings without further order of a judge of this court. As I have dismissed the statement of claim and have declined to grant leave to replead the claim, there is no utility in making such an order. 18 The defendant has sought payment of her costs on an indemnity basis. In relation to the indemnity costs, a court awarding costs has an "absolute and unfettered" discretion. The normal order for costs is that costs follow the event on a party/party basis (Part 52A r 11). There is inherent jurisdiction of the court to award payment of costs on an indemnity basis (see s 76 of SCA 1970). 19 In Colgate Palmolive Pty Limited v Cussons (1993) 46 FCR 225 Sheppard J reviewed the relevant common law principles and said: "In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course." 20 While it is a borderline case, I am not prepared to order the plaintiff to pay the defendant's costs on an indemnity basis. Costs follow the event. The plaintiff is to pay the defendant's costs on a party/party basis. 21 The court orders:

(2) The plaintiff is to pay the defendant's costs. **********

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