Notwithstanding the irregularity of doing so in the Notice of Motion, making these claims constituted the institution of legal proceedings.
39 This Notice of Motion came before Registrar Walton on 25 August 2006. After hearing the Notice of Motion Registrar Walton observed:
The Motion is dismissed. The substantive proceedings have already been dismissed. It's not the relief that you are invited to seek from the judge. The motion is incompetent as it stands. I have no other choice but to dismiss it. You are well aware of what your rights are in relation to that. That's the end of the matter.
40 On 14 September 2006 Mr Tsekouras filed another Notice of Motion in proceedings 2741 of 2006 making claims which are difficult to follow but which appear to renew the claims in the Notice of Motion dated 17 August 2006 which Registrar Walton dismissed on 25 August 2006. These claims have the character of the institution of claims for principal relief. Mr Tsekouras filed an affidavit on 14 September 2006, apparently in support of this claim. He did not seek leave to file an amended Statement of Claim. On 19 October 2006, Mr Olsen's solicitors wrote to Mr Tsekouras putting the view that the proceedings had been finally determined and explaining the position in what was, in the circumstances, moderate language; they again stated their view that the Supreme Court was not the appropriate court for such a claim. The Notice of Motion came before Registrar Walton on 24 October 2006 and was dismissed. The commencement of proceedings 5641 of 2006 followed on 3 November 2006.
41 In my opinion the manner in which Mr Tsekouras conducted proceedings 2471 of 2006 strongly supports a conclusion that the proceedings were vexatious. The strength of the support for this conclusion increases progressively with the order of Brereton J, the failure to take the opportunity which it offered, the disregard of the careful explanation given to him on 28 June 2006 by Mr Olsen's solicitors, and the dismissal of his Notice of Motion on 25 August 2006.
42 Mr Tsekouras read, at the hearing before me, his affidavit in proceedings 5641 of 2006 sworn on 12 February 2007. The affidavit is quite difficult to follow but it says to this effect: Mr Olsen, in an affidavit made in earlier proceedings, admitted that payments had been made out of the plaintiff's sequestrated estate but Mr Tsekouras asserted that all the list of payments and more had already been paid by Mr Tsekouras himself; and that Mr Olsen could have found this by checking. The affidavit also spoke of Mr Tsekouras' distress, and contended that he owed no money to two solicitors who were creditors and that they had been negligent to claim moneys already paid. This affidavit does nothing to show that there is any reasonable basis for arguing the claims in the Summons.
43 The vexatious character of the proceedings instituted by Mr Tsekouras is in my finding altogether clear: I refer to the proceedings in the Common Law Division, the two proceedings in the Equity Division; and also the Notices of Motion which irregularly claimed substantive relief. The vexatious character of the proceedings appears clearly from the terms in which they have been cast, the manner in which Mr Tsekouras has conducted them, and his pattern of behaviour in,after the shortcomings of proceedings have been fully shown, instituting further proceedings with much the same shortcomings, and without any endeavour to overcome those shortcomings earlier revealed. The institution of proceedings against Mr Olsen has been both habitual and persistent; Mr Tsekouras has not been discouraged or deterred by repeated dismissals and strike-outs of principal relief and Notices of Motion, or by cost orders. The intervals between the disposition of principal proceedings or Notices of Motion and the commencement of some further application are always short, never more than a few weeks. The behaviour is habitual in that it occurs repeatedly, and notwithstanding failures; Mr Tsekouras does not, and I infer cannot stop himself from commencing more proceedings. The institution of proceedings is persistent in that each failure is followed in a short time by fresh proceedings.
44 At the heart of the difficulties with Statement of Claim 20436 of 2004 was that it did not make any clear statement of the facts on which the claim against Mr Olsen was based, did not show why the claim was made against Mr Olsen as distinct from, say, the Official Trustee or the persons who were alleged to have received double payment and gave no indication of what cause of action was relied on. On the face of what is found in Statement of Claim 20436 of 2004, and with the benefit of what has been learnt in the course of all the applications, Mr Olsen was not an appropriate person to sue. Mr Tsekouras did not take the opportunity to file an Amended Statement of Claim offered by Brereton J. In all its many turns, the later litigation has done nothing to clear away or even address the difficulties in Statement of Claim 20436 of 2004 . The persistent making of applications, without addressing these difficulties, is the strongest indication, among many strong indications, that the conduct of proceedings against Mr Olsen is vexatious. That is to say, there are subjective grounds for the conclusion that the whole series of proceedings, including the first, was vexatious. An objective view of the overall proceedings, the terms in which allegations were made and the manner in which they were conducted, also produces a firm conclusion that the proceedings were vexatious.
45 The dismissal of the common law proceedings was not a final order and did not determine the merits of the common law proceedings or find any facts in them. It does not give rise to any issue estoppel or res judicata. All the later decisions to which I have referred have the same character and none of them dispose of the merits of Mr Tsekouras' position. However it is not possible to understand from the process filed what Mr Tsekouras' position is in terms of the facts and legal principles on which he reliesor what the remedies might be. What was established clearly in the common law proceedings was that Mr Tsekouras could not go on with his claim as his pleadings were hopelessly inadequate; the proceedings he has since instituted have never overcome this difficulty and he has continued to make the same kind of errors again and again. This case is not like cases where further proceedings are instituted, and are held to be an abuse of process, after the merits of a claim have been disposed of.
46 I regard it as altogether clear, from reading the terms of the Summons and looking at the context of facts that I have referred to, that the Summons should be summarily dismissed under r 13.4(1)(b) as no reasonable cause of action is disclosed. A wider view of the facts shows that other bases exist for acting under r 13.4(1)(a), relating to the proceedings being vexatious and r 13.4(1)(c), relating to the proceedings' being an abuse of the process of the Court. Putting forward the same claim a second and a third time, in terms which are poorly stated but recognisably related, when the first proceedings had been dismissed and exhaustive attempts to challenge the dismissal on appeal had failed and when the Statement of Claim in the second proceedings had been struck out and repeated later applications not dealing with the opportunity left open of filing an Amended Statement of Claim, makes the vexatious nature of the third proceedings on the same subject matter, and their character as an abuse of the process of the Court, altogether clear. The grounds for summary disposal under r 13.4 are altogether overwhelming.
47 The discretion conferred by s 84(2) should be exercised with care, having regard to the importance of the right to approach the Court and obtain adjudication. In Mr Tsekouras' case, he has used that right repeatedly though never appropriately. The opportunity to approach the Court, which my order will take away from him, is not therefore an opportunity of any value. There is a strong claim for the exercise of the discretion to make an order, for which s 84(2) provides, in favour of Mr Olsen. Mr Olsen has been badgered for years with useless proceedings, involving expense and attendances by his legal advisers, and has never been left in any peace. He has never been able, on any reasonable basis, to take the risk of disregarding proceedings and not attending to them. Unless an order under s 84(2) is made, this unjust treatment is likely to continue. Three years is a long time for Mr Olsen to have been engaged in futile proceedings. I should stop this by making an order under s 84(2). Mr Tsekouras' conduct in commencing these proceedings has been delinquent and costs should be ordered on the indemnity basis.
48 My Orders are: