Stergiou, Stan v Tsirimokos, Archie trading as Vandenberg Reid

[1996] FCA 566

CATCHWORDS

PRACTICE AND PROCEDURE - summary disposal of actions under O.17 of the Supreme Court Rules - small claims proceedings before Special Magistrate - ascertain that person determining claim at first instance was not in fact the appointed Magistrate - claims "on their face absurd" - appeal dismissed.

PRACTICE AND PROCEDURE - frivolous or vexatious claims - applicant restrained from commencing further action against respondent without leave of the Court - leave required to appeal against order - no error in the exercise of discretion demonstrated - leave to appeal refused.

Supreme Court Rules (A.C.T.), O.17.

Stergiou & Anor v A Tsirimokos trading as Vandenberg Reid
No. ACT G 54 of 1995)

Coram:    Beaumont, Heerey & Finn JJ
Date:     19 June 1996
Place:    Canberra

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )       No ACT G54 OF 1995
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

On appeal from a judge of the Supreme Court of
the Australian Capital Territory

B E T W E E N:

STAN STERGIOU
  Appellant
  - and -

ARCHIE TSIRIMOKOS
  Respondent

CORAM:    Beaumont, Heerey and Finn JJ

DATE:     19 June 1996

PLACE:    Canberra

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. Appeal dismissed with costs.

1. Leave to appeal refused against the order restraining the appellant from commencing any further action against the respondent without first obtaining leave.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )       No ACT G54 OF 1995
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

On appeal from a judge of the Supreme Court of
the Australian Capital Territory

B E T W E E N:

STAN STERGIOU
  Appellant
  - and -

ARCHIE TSIRIMOKOS
  Respondent

CORAM:    Beaumont, Heerey and Finn JJ

DATE:     19 June 1996

PLACE:    Canberra

REASONS FOR JUDGMENT

BEAUMONT J:  I will ask Heerey J to give the first judgment.
HEEREY J: This is an appeal from a judgment of Higgins J, sitting in the Supreme Court of the Australian Capital Territory, given on 11 August 1995, whereby his Honour gave judgment for the respondent under O 17 of the Supreme Court rules.  This rule enables a judge to dispose of an action summarily if the judge is satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily.  His Honour ordered that the appellant pay the respondent's costs of and incidental to the proceedings, and that order is also the subject of an appeal.
His Honour also ordered that the appellant, or any company of which the appellant is a director, be restrained from commencing any further action against the respondent, without first obtaining leave of the court.  That order is not attacked in the appellant's notice of appeal.

The proceedings have their genesis in a claim which was brought under the Small Claims Act 1974 (ACT) by a company called ACT General Cleaning Co Pty Ltd against a Mr Con Naoum. I note that the appellant was a director of ACT General Cleaning Pty Ltd, but that company has not been a party to these proceedings, either at first instance or on this appeal. As counsel for the respondent pointed out, that in itself is a substantial defect. However, I think it is appropriate to say something further about the patent lack of merit in the proceedings, which led the learned judge to apply the summary power conferred by O 17.

The small claims proceedings were commenced by a complaint dated 30 March 1993 which claimed $2161.90 being for "labour, material, equipment and consultation" on the defendant's behalf as detailed in certain accounts, together with interest.  The claim was heard before a Special Magistrate, Mr A Hardiman, on 25 August 1993.  The present respondent, a solicitor, appeared for the defendant Mr Naoum.  The appellant was given leave to appear for the claimant ACT General Cleaning Co Pty Ltd.  After the appellant completed giving his evidence in chief, Mr Naoum cross-examined him.  At the conclusion of the appellant's evidence, the Magistrate gave judgment for Mr Naoum without requiring him to
give evidence.

On 16 November 1993 pursuant to s 37(1) of the Small Claims Act, Mr Hardiman gave written reasons for his decision.  In essence those reasons disclosed that the appellant and Mr Naoum had reached agreement to do cleaning work in a form of partnership which lasted from 16 November to 2 December 1992.  Mr Naoum paid the appellant $1300.  The appellant's claim was for a further $2161.90 made up of materials, hire of equipment, travelling expenses and labour.  Mr Hardiman reviewed the evidence and found that the claim was not made out.

The present proceedings were then commenced by the appellant on 19 July 1995.  In his statement of claim the appellant alleged that the respondent was "involved with members of the legal profession and senior members of the Magistrate's Court who were purportedly performing their relevant duties".  The statement of claim refers to the conduct of the small claims hearing and asserts

While there I became aware and concerned with the manner of which the proceedings were conducted by the Magistrate in the Small Claims Court.

The surprising allegation is then made that the respondent knew that the person who conducted the proceedings on 25 August 1993 was not the appointed magistrate, Mr Hardiman, but, "in fact the person who conducted those proceedings was a colleague of the (respondent) and a member of the ACT Law Society".  It is then alleged the respondent

was involved in an attempt to obtain a summary judgment by false representation on the grounds that the (respondent) was [sic] rely on the previous Small Claims Court Documents in the proceedings No. PSC 93/0973 but, nonetheless in the circumstances

(a)Deny the (appellant) the course of natural justice.

(b)Recklessly and wrongfully denied the (appellant) of a fair hearing in these proceedings on 25 August 1993.

(c)Recklessly and wrongfully denied the (appellant) the right to cross examine the defendant on these proceedings on 25 August 1993.

There then follow allegations of negligence.  Under the heading "Particulars of Negligence and/or Breach of Duty of the (Respondent's) Servants or Agents and/or Senior Members of the Magistrates' Court" there are complaints that the respondent failed to disclose his client "known to be guilty of perjury", failed to disclose conflict of interest, failed to disclose that he owed a duty of care to the appellant and owed a "duty to the Court to conduct litigation with due propriety making all necessary disclosures".  There then follow a number of complaints against the Registrar of the Small Claims Court.  The appellant alleges he suffered, as a consequence, various disabilities of a psychological nature.

The respondent swore an affidavit in support of his application for summary judgment.  He gave an account of the course of proceedings to the effect already mentioned.  The respondent confirmed that Mr Hardiman was in fact the presiding magistrate at the proceedings on 25 August 1993 and points out that his client did not give evidence at all and therefore could not have been guilty of perjury.  The respondent points out, obviously correctly, that he did not owe any duty of care to the appellant because he was acting as solicitor for the other litigant against
whom the appellant had brought the small claims proceedings.

In my opinion, it was patently correct for the learned trial judge to make the orders summarily dismissing these proceedings.  They were on their face absurd.  The appeal should be dismissed with costs.

As I have noted, the appellant's notice of appeal did not, on its face, deal with the third order made by his Honour, that is to say the order restraining the appellant from commencing any further action against the respondent without first obtaining leave.  This is an interlocutory matter and therefore a matter in which leave is required.  I see no ground for granting leave, no error in the exercise of discretion has been shown.  Indeed, in the light of the history of this proceeding the order which his Honour made was plainly one which was appropriate.  So in relation to that order I would propose that the notice of appeal in that respect be treated as an application for leave to appeal.  I would refuse leave, with costs.

BEAUMONT J:   I agree with Heerey J

FINN J:I agree  

Icertify that this and the preceding four (4) pages are a true copy of the reasons for judgment of the Court. 

Dated:

Associate

Appearances

The appellant appeared in person     

Counsel and Solicitor for        Mr. G. Blank instructed

the respondent:                  by Vandenberg Reid Pappas

& MacDonald

Date of hearing:                 19 June 1996