Tsekouras v Olsen; Olsen v Tsekouras

[2007] NSWSC 556

CITATION:	Tsekouras v Olsen; Olsen v Tsekouras [2007] NSWSC 556
HEARING DATE(S):	25/5/07
JUDGMENT DATE :	5 June 2007
JUDGMENT OF:	Bryson AJ at 1
DECISION:	5641/06 Con Tsekouras v Peter Olsen; 1. Order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 that the proceedings be dismissed with costs; 2. The plaintiff’s costs are to include the costs of the Notice of Motion of 17 January 2007; 6274/06 Peter Olsen v Con Tsekouras; 1. Order pursuant to s 84(2) of the Supreme Court Act 1970 that Con Tsekouras, herein called the “vexatious litigant”, shall not, without leave of this Court institute any legal proceedings against Peter Olsen, herein called the “person aggrieved”, in the Supreme Court of New South Wales or in any inferior court of New South Wales and further order that any legal proceedings, instituted by the vexatious litigant against the person aggrieved, in the Supreme Court of New South Wales or in any inferior court of New South Wales, before the making of this order shall not be continued by the vexatious litigant without leave of this Court; 2. Order that the defendant pay the plaintiff’s costs of these proceedings on the indemnity basis
CATCHWORDS:	PRACTICE and PROCEDURE - vexatious litigant - order under s 84(2) Supreme Court Act 1970 based on defendant's conduct of series of proceedings - summary disposal of his latest claim - indemnity costs.
LEGISLATION CITED:	Bankruptcy Act 1966 s 153A Supreme Court Act 1970
CASES CITED:	Attorney-General v Wentworth (1988) 14 NSWLR 481 Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 Municipal Council v Pedler [1976] 1 NSWLR 478 Public Trustee v Gittoes [2005] NSWSC 373 Ramsey v Skyring 164 ALR 378
PARTIES:	5641/06 Con Tsekouras - Plaintiff Peter Olsen - Defendant 6274/06 Peter Olsen - Plaintiff Con Tsekouras - Defendant
FILE NUMBER(S):	SC 5641/06 and 6274/06
COUNSEL:	5641/06 C. Tsekouras - Plaintiff in Person S. Golledge - Defendant 6274/06 S. Golledge - Plaintiff C. Tsekouras - Defendant in Person
SOLICITORS:	The Argyle Partnership for P. Olsen

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

TUESDAY 5 JUNE 2007

5641/06 CON TSEKOURAS v PETER OLSEN
6274/06 PETER OLSEN v CON TSEKOURAS

JUDGMENT

1 BRYSON AJ: Mr Tsekouras, acting in person, sued Mr Olsen by Summons 5641 of 2006 filed on 3 November 2006 in the Equity Division (“the Summons”). The relief claimed in the Summons is as follows:

1. The Plaintiff seeks recognition that he had paid bank cheques as shown and confirmed by his bank in payment of costs as shown and assessed by an independent cost Assesssor for an amount of $244,895.52 (Pickfords).
2. That his claim be recognised and he be reimbursed the amounts he has paid out directly as per details in his Affidavit dated 14th September 2006 and Judgement – Third Party Claim (Rule 49.20) Application Generally (cf SCR Part 60, rule 11).
3. The Plaintiff seeks costs be awarded in the sum of $750,000 which includes the amounts as set out in Third Party Claim as mentioned above plus superannuation, interest, damages and out of pocket expenses.

2 Mr Olsen filed an Appearance to the Summons on 10 January 2007 and, by Notice of Motion filed on 17 January 2007, applied for orders that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules2005 with costs.

3 In proceedings 6274 of 2006 Mr Olsen sues Mr Tsekouras for remedies under s 84(2) of the Supreme Court Act1970 (“the Act”) which states:

(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 The workings of s 84 were considered and expounded by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481, a judgment which has often been referred to since. Several matters about s 84 should be noted. To show that he has standing under s 84(2), Mr Olsen can point only to legal proceedings habitually and persistently and without any reasonable ground instituted against him. Further, the order which he can seek relates only to the instituting of future legal proceedings against him alone. This considerably narrows the grounds, relevant facts and result in comparison to actions taken by, or open to, the Attorney-General under s 84(1).

5 Section 84 relates to instituting vexatious legal proceedings; generally speaking, instituting an interlocutory application is not instituting legal proceedings. There are exceptions, which depend on what is claimed in the interlocutory application. The references at several places in s 84 to instituting proceedings do not relate only to instituting original proceedings by making a claim for substantive relief in the regular manner; in the Supreme Court by filing a Summons or a Statement of Claim. Sometimes it is appropriate to apply by Notice of Motion when commencing a new claim for substantive relief; but inappropriate use of a Notice of Motion to claim substantive relief does not mean that the application is not an institution of proceedings for the purposes of s 84; see Public Trustee v Gittoes aka Caldar [2005] NSWSC 373 at [6]-[7] per White J.

6 If the claim made is a claim for substantive relief, the irregularity of making the claim by Notice of Motion does not mean that filing the Notice of Motion is any the less instituting proceedings. In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488, Yeldham J stated to this effect in a passage which concluded ’It is to the substance of the matter that regard must be had and not to its form’. The passages immediately preceding this sentence suggest that Yeldham J's attention was directed only to a claim which, in substance, was an attempt to re-litigate something which had already been the subject of a final decision. However regard is paid to substance and not form on a broader basis, as appears by observations of Roden J in Attorney-General v Wentworth at 492. The Federal Court has taken this broad view in the application of Federal Court Rule O 21, r 1; see Ramsey v Skyring (1999) 164 ALR 378 at [58] - [59]. In the present case there has not been a final judgment on the merits of the claims which Mr Tsekouras wishes to make against Mr Olsen (whatever they are, and they have never been clearly defined).

7 The motive or intention of a litigant may be relevant to the issue of whether the legal proceedings are vexatious. Roden J, for reasons stated at length and, in my respectful opinion, persuasivelyin Attorney-General v Wentworth at 487– 491, expressed views on the test as to whether litigation is vexatious which included subjective as well as objective grounds for so deciding. A different view was taken by the Federal Court of Australia in the application of Federal Court Rule O 21, r 1(c) in Ramsey v Skyring at [56] per Sackville J and Jones Lang Lasalle(Qld) Pty Ltd v Dart [2005] FCA 1614 at [30] per Kiefel J. While I do not depart from the views expressed by Roden J in Attorney-General v Wentworth, the conclusion for which Mr Olsen contends is fully justified on the facts of the present case whichever view is taken.

8 The institution of proceedings which is referred to in the passage about the standing of the person aggrieved, and the the institution of proceedings, without leave, which may be restrained by the Court should be understood to be proceedings in the Supreme Court and inferior courts of New South Wales. There could, I think, be a Constitutional difficulty about the imposition under State legislation of orders restraining or otherwise burdening litigation in Federal courts. Nonetheless, a person aggrieved is, in my view, entitled to rely on events and conduct in legal proceedings in other courts in support of an allegation that proceedings in this Court or any inferior court are vexatious. In the same way, interlocutory applications and the manner in which they are conductedmay be referred to, even though interlocutory applications do not fall within the references to instituting vexatious legal proceedings in s 84(2) of the Act.

9 The right of access to courts has been spoken of in lofty terms; in Ramsey v Skyring , Sackville J said at [51]:

[51] FCR O 21, r 1 must be applied having regard to a fundamental principle of the legal system. It is that every person has a right of access to a court to seek remedies in consequence of an alleged infringement of his or her rights: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977, per Lord Diplock. Because an order made under a provision such as O 21, r 1 denies a litigant this right, it has been treated as an “extreme” remedy: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 484, per Roden J. As Kirby J has pointed out in one of the many cases involving the respondent, “it is regarded as a serious thing in this country to keep a person out of the courts”: Re Attorney-General (Cth); Ex parte Skyring (at 323).

10 While it should, as citations from judgments of Roden J and Kirby J show, be regarded as an extreme remedy and a serious thing to prevent a person from instituting legal proceedings, I respectfully say that I do not see it as an infraction of fundamental principle to restrain a person from instituting legal proceedings in the circumstances provided for by s 84(2). Where those circumstances exist, the claim to be free of further proceedings which are habitual, persistent and vexatious is a very strong one, and s 84 gives effect to the view that that claim is stronger than a claim to institute vexatious proceedings habitually and persistently. It is an extreme and a serious thing to invoke the power of the State to compel a person to defend vexatious proceedings, and to do so habitually and persistently. Section 84(4) should be applied with a consciousness of the seriousness of the rights involved on both sides: I do not find the invocation of fundamentality useful.

11 I heard these two closely related matters together on Friday 25 May 2007. Mr Tsekouras was made bankrupt by an order of Hely J in the Federal Court of Australia on 14 June 2000 on the petition of Ms Evangelinidis, a solicitor who had earlier acted for him in a successful claim for personal injury damages: he sued her alleging negligence, lost the action and was ordered to pay costs. The Official Trustee in Bankruptcy (“the Official Trustee”) was appointed trustee. Mr Peter Olsen was and is an officer employed by the Insolvency & Trustee Service Australia (ITSA), a Commonwealth Government agency in the office of the Official Trustee. In his capacity as so employed, Mr Olsen managed some or perhaps most of the business of the Official Trustee relating to the bankruptcy of Mr Tsekouras (“the bankruptcy”) Mr Olsen was not himself the trustee. The bankruptcy was annulled on 21 August 2003 under s 153A of the Bankruptcy Act1966 on payment in full of debts, brought about by realisation by the Official Trustee of assets of Mr Tsekouras and payment of proved debts. Mr Tsekouras has brought a number of proceedings relating to his bankruptcy; the matters before me are proceedings against Mr Olsen.

12 As I heard these matters together, a large body of evidence was admitted, but in support of the application for summary disposal it is sufficient to refer to a relatively small part of that evidence. The terms of the claims in the Summons themselves show their inconsequential character: in a way which is unclear they indicate that Mr Tsekouras is dissatisfied with the way his bankruptcy was administered, seeks recognition that he had paid some claims which were treated as debts in the bankruptcy and reimbursement of those amounts (reimbursement of amounts paid directly by him). There is no indication whatever why he makes these claims against a person employed in the office of the Official Trustee, rather than, for instance, making them in proceedings in bankruptcy in the Federal Court of Australia in some way which involves the Official Trustee as a party. Nor is there any basis which can be understood for seeking an order, referred to as costs, against Mr Olsen for $750,000, related in some way to Mr Tsekouras’ third party claim. It can be understood from other material that the third party claim referred to is the claim for damages for personal injuries resulting from a motor accident which occurred in 1987, many years ago, and the litigation in which Ms Evangelinidis, the solicitor who obtained the sequestration order against Mr Tsekouras, acted for Mr Tsekouras. Mr Olsen has the difficulty of showing that the proceedings should be dismissed when there can be no clear understanding of what is claimed against him.

13 Mr Tsekouras brought claims which were poorly expressed but which are recognisable as an attempt to raise, in substance, much the same claims against Mr Olsen as in two earlier proceedings in this Court. He commenced proceedings 20436 of 2004 by a Statement of Claim filed on 6 December 2004 in the Common Law Division. Statement of Claim 20436 of 2004 stated as follows :

The Plaintiff claims that Peter Olsen of the Insolvency & Trustee Service Australia tried to have his home sold to pay monies to solicitors Sally Nash & Vivieca Evangelinidis to cover expenses when he had already paid the Solicitors as was shown by copies of bank cheques issued by Commonwealth bank, Liverpool & Castlereagh Street, Sydney – see copy of their statement dated 7th January 2003, and therefore the solicitors were paid twice. (See Supplementary Material, page 17 attached, affidavit I, and Appeal Book No.651 of 2000 page 79 etc.)
THE PLAINTIFF CLAIMS:
1. Peter Olsen never accepted the Plaintiff’s assets and should not have allowed him to be declared bankrupt. He should have recognised that the solicitors Sally Nash & Vivieca Evangelinidis had been paid twice for their services.
2. The Plaintiff seeks monies returned that have been paid out in error by the Defendant to the Solicitors for a second time, plus damages and interest under section 94 as well as costs.

14 While these claims make little sense, in so far as they mean anything it can be seen that they raise matters of controversy and complaint which are also raised in the Summons.

15 Filing Statement of Claim 20436 of 2004 on 6 December 2004 constituted the institution of legal proceedings (“the common law proceedings”). The terms of that Statement of Claim, which I set out above, do not reveal in any clear way what facts were alleged to support the claims for orders: a particular difficulty being that they do not show why Mr Olsen personally was said to be the subject of the claim. The terms of Statement of Claim 20436 of 2004 support the conclusion that the common law proceedings instituted on 6 December 2004 were vexatious.

16 Mr Tsekouras filed his affidavit of 24 January 2005, the burden of which was that he was declared bankrupt on 14 June 2000, - he says "I was declared bankrupt by the Insolvency and Trustee Service Australia” which of course is not what happened, - that he should never have been declared bankrupt as he had supplied proof that he had already paid all costs to the two solicitors, and that he had requested Mr Olsen, by many letters, to explain why he had been declared bankrupt and why his house had been sold "when I had proved in court that I had paid all expenses are shown in Supplementary Material". The affidavit concludes, "5. I now seek Peter Olsen to explain and recover the monies that have been paid out twice on my behalf without my consent”.

17 The affidavit contains material that is obviously wrong and inconsequential and, while it refers to Mr Olsen, it does not explain, on any real basis, how he is involved. Annexed to the affidavit were copies of a number of letters and papers which did nothing to assist understanding, an unusually inconsequential example being Annexure F, a copy of a Notice of Motion in the bankruptcy proceedings in the Federal Court of Australia in February 2000, before the sequestration order, and before the involvement of the Official Trustee or Mr Olsen. This affidavit further assists the conclusion that the common law proceedings instituted on 6 December 2004 were vexatious.

18 Mr Tsekouras filed a Notice of Motion in the common law proceedings on 25 January 2005 seeking:

1. Seeking all past, present and future costs for lost superannuation, damages and interest on claim.
2. The Plaintiff seeks monies returned that have been paid out in error by the Defendant to the Solicitors for a second time, plus damages and interest under section 94 as well as costs.

19 Claim 2 simply repeats Claim 2 in Statement of Claim 20436 of 2004, but Claim 1 seeks a remedy which had not been claimed in Statement of Claim 20436 of 2004, and, although seeking that remedy in a Notice of Motion was irregular, filing the Notice of Motion, in my opinion, constituted the institution of further legal proceedings. Its inconsequential terms assist the conclusion that the common law proceedings instituted by Statement of Claim 20436 of 2004 and the Notice of Motion dated 25 January 2005 were vexatious.

20 Mr Tsekouras filed another Notice of Motion on 14 February 2005. As well as making the same claims as the Notice of Motion dated 25 January 2005 (but renumbered as claims 2 and 3) this Notice of Motion claimed hearing by jury and also

4. The plaintiff wishes the Court to recognise that Vivieca vangelinidis and Sally Nash both solicitors knew each other very well and signed legal documents together (see document attached N-7106/2000

I do not see the filing of the Notice of Motion dated 14 February 2005 as constituting the institution of new legal proceedings but its lack of relevance to a claim against Mr Olsen assists the conclusion that earlier proceedings (OR proceedings against Mr Olsen generally, ) were vexatious.

21 On 14 March 2005, Master Harrison heard Mr Tsekouras’ Notice of Motion dated 14 February 2005 as well as a Notice of Motion by Mr Olsen seeking dismissal of the proceedings pursuant to Pt 13 r 9 or Pt 15 r 26 of the Supreme Court Rules 1970 then in force. The transcript shows that in the course of this application Mr Tsekouras asked for an adjournment and asked to have Ms Evangelinidis compelled to attend on subpoena, although she had not been served with a subpoena. Mr Tsekouras argued with the Master and pressed for an adjournment and the attendance of Ms Evangelinidis however gave no relevant reason why her attendance was required. Mr Tsekouras made many objections to submissions by counsel for Mr Olsen. He made extensive submissions and contentions about facts, but what he said did not engage with the application for summary disposal. The common law proceedings were dismissed by order of Master Harrison on 14 March 2005. The learned Master’s careful reasons included the following:

12. It is my view that the plaintiff’s claim in any event, as it is pleaded, is hopeless and should be dismissed. It is my view that the pleading cannot be cured by granting leave to amend the statement of claim. I make an order that the proceedings be dismissed.

22 In my view Mr Tsekouras’ manner of conducting his case before the Master, and what he said in doing so, support the conclusion that the common law proceedings were vexatious.

23 Mr Tsekouras made a series of attempts to challenge the order made by Master Harrison, but it stands. The last stage in those attempts was dismissal by the High Court of Australia of an application for special leave to appeal by an order of 11 April 2006.

24 On 21 March 2005, Mr Tsekouras filed a Notice of Motion for review of the decision of the Master Harrison. This did not, in my opinion, constitute the institution of proceedings. An affidavit dated 21 March 2005, which repeated (though not in exactly the same form) matters which Mr Tsekouras had already put forward on affidavit, dealt particularly with endeavours to obtain the attendance of Ms Evangelinidis on subpoena. Again a number of documents were annexed to the affidavit which had no discernible connection with the application for summary disposal and the pending review.

25 The review was heard by Adams J on 18 April 2005. The contentions made by Mr Tsekouras are recorded in the transcript of the application under review. Adams J dismissed the application for reasons stated orally which included the observation that the Master's reasons disclosed no error.

26 On 29 April 2005 Mr Tsekouras filed a Notice of Appeal to the Court of Appeal from the decision of Adams J. Mr Tsekouras had no right of appeal, because of the interlocutory character of the decisions of Master Harrison and Adams J. On 30 May 2005 Mr Tsekouras applied by Summons for Leave to Appeal and lodged a Summary of Arguments which restated his grievances relating to the alleged double payment of debts, but did not engage with his claim against Mr Olsen or with reasons why the decision under appeal should be set aside. He filed an affidavit in the Court of Appeal proceedings on 25 August 2005 which suffered the same shortcomings.

27 The application for leave to appeal was heard by the Court of Appeal (Mason P and Giles JA) on 12 October 2005; Mason P gave reasons for dismissing the application and costs were awarded on the indemnity basis. Among other things, Mason P said:

The Master concluded that the claim was hopeless and should be dismissed. In my view she was correct to do so and this Court should refuse leave to appeal. There should be an order for costs on the indemnity basis because the application was quite hopeless

28 Mr Tsekouras interrupted the judgment to say of Adams J, "He did not have any jurisdiction"; in the circumstances this was a remarkable observation.

29 In my opinion both the filing of the Notice of Appeal dated 29 April 2005 and the filing of the Summons for Leave to Appeal dated 30 May 2005 constituted the institution of legal proceedings within the meaning of s84(2) of the Act. Both these applications to the Court of Appeal were plainly lacking in substance and had no prospects of success. The institution of proceedings in the Court of Appeal and the manner in which Mr Tsekouras conducted them support the view that those proceedings, and Mr Tsekouras’ proceedings against Mr Olsen generally, were vexatious.

30 Mr Tsekouras made an application to the High Court of Australia for special leave to appeal from the judgment of the Court of Appeal. The day of filing that application does not appear but it had occurred by 14 November 2005 when Mr Tsekouras filed a written case which went through a number of his grievances but did not engage at all with any question relevant to the grant of special leave to appeal. His application was dismissed by the High Court of Australia (Hayne and Crennan JJ) on 11 April 2006.

31 On 15 May 2006 Mr Tsekouras filed a Statement of Claim in the Equity Division in proceedings 2741 of 2006. The relief claimed is simple enough:

The Plaintiff claims:

1. Costs.

32 The Statement of Claim is again difficult to follow and makes its allegations in the form of a rambling tale. It includes these elements. It is alleged that Mr Olsen stated in an affidavit that $163,521 had been paid by Miss Evangelinidis and Ms Sally Nash, solicitors, and that this was incorrect: Mr Tsekouras claims he paid these costs. Mr Olsen had not accepted documents which Mr Tsekouras had put forward showing that he had paid some of the debts claimed in the bankruptcy by bank cheques. A number of allegations relate to conduct of the solicitors named but not to conduct of Mr Olsen. The Statement of Claim includes these passages:

9. The Plaintiff seeks reimbursement of costs as he has paid $166,469.54 for the costs claimed as having been paid by the solicitors (Sally Nash/Viveca Evangelinidis) and is seeking reimbursement of this amount plus superannuation, interest and out of pocket costs when he himself paid these costs direct by Commonwealth Bank cheques. Peter Olsen from the Official Trustee in Bankruptcy did not recognise the payments made and started proceedings of bankruptcy against him.
10. Mr Olsen has been given copies of all payments made by the Plaintiff but he refuses to recognise them even though they have been verified by the Commonwealth Bank and copies of all bank cheques drawn have been supplied in Supplementary Material to him. Also in the supplementary material details of money paid out by the Plaintiff have been assessed by an independent assessor who has reached a total of $244,895.52 (see page 47 of Supplementary Material).
11. The Plaintiff paid the monies claimed she Supplementary Material No.S438 of 2003 (pages 18 to 38 inclusive) already supplied to the Court and a copy forwarded to Peter Olsen). This shows all bank cheques drawn on Commonwealth bank and paid by the Plaintiff for costs, amounting to $166,469.54 which the bank have confirmed have been cashed. Also see independent loss assessor (Pickfords) letter dated 22 February 2001 on page 3 (pages45, 46 & 47 of Supplementary Material refer) which comes to a total of $244,895.52 paid out by the Plaintiff. Altogether the Plaintiff is seeking $750,000 which includes the amounts as set out in this paragraph, plus superannuation, interest, damages and out of pocket expenses.

33 It can be seen, notwithstanding the obscure expressions used in these paragraphs, that the controversy sought to be raised is the same as that sought to be raised by the Summons.

34 On 26 June 2006 Mr Tsekouras filed a Notice of Motion seeking default judgment as Mr Olsen had not filed a Defence within the time limited by the rules of court. The filing of the Notice of Motion dated 26 June 2006 strongly supports the view that the proceedings overall were vexatious, as Mr Olsen could not reasonably be expected to file a Defence to the Statement of Claim, which, as its own terms showed, could not be understood.

35 Solicitors representing Mr Olsen filed a Notice of Motion on 28 June 2006 seeking an order for summary disposal and an order declaring Mr Tsekouras a vexatious litigant.

36 In a moderately expressed and carefully reasoned letter of 28 June 2006 , Mr Olsen’s solicitors pointed out some significant matters for Mr Tsekouras’ consideration. They contended that proceedings relating to bankruptcy had no prospect of success in the Supreme Court and should be heard by either the Federal Court of Australia or the Federal Magistrates Court. They also made clear their view that Mr Olsen was not the correct defendant and that, if Mr Tsekouras had any claim, the proper defendant would be the Official Trustee. They referred to earlier cost orders and said that they would seek costs on an indemnity basis in the current proceedings. They also referred to their intention to seek an order that Mr Tsekouras be declared a vexatious litigant. They sent further correspondence to Mr Tsekouras on 14 December 2004 and 5 July 2005 explaining some basic realities about his application and contentions about what he should do; but these did not affect his course. Mr Tsekouras made an affidavit on 6 July 2006 saying ‘the Court is dealing with this case and I have no intention of withdrawing’.

37 On Mr Olsen’s application, Brereton J made orders on 28 July 2006 including an order that Statement of Claim 2741 of 2006 be struck out. However that order did not finally dispose of the proceedings because Brereton J also made this order:

5. That leave granted to Plaintiff to file a Notice of Motion seeking to file an Amended Statement of Claim to be filed by 18 August 2006 and returnable on 25 August 2006.

38 Mr Tsekouras did not within the time limited, or at any time, apply as indicated for leave to file an Amended Statement of Claim. He did file a Notice of Motion on 17 August 2006, and, although it was irregular to do so in a Notice of Motion, he made several claims which should be understood as claims for principal relief. Claim 1 was expressed in a strange way, but should be understood as a claim for restitution from Mr Olsen of $166,469.54. There were other claims:

2. The appellant also seeks $750,000 as per Statement of Claim in Supreme Court No. 11541/01 for damages, interest under Section 95, Superannuation, income loss and costs.

a 3. The plaintiff seeks that Mr Olsen be responsible as he is negligent in not recognising the facts and the negligence of Sally Nash & Company and Viva Evangelinidis/Maria Evangelinidis who claimed they paid the monies”.

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:

5641/06 Con Tsekouras v Peter Olsen

1. Order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 that the proceedings be dismissed with costs.
2. The plaintiff’s costs are to include the costs of the Notice of Motion of 17 January 2007.

6274/06 Peter Olsen v Con Tsekouras

1. Order pursuant to s 84(2) of the Supreme Court Act 1970 that Con Tsekouras, herein called the “vexatious litigant”, shall not, without leave of this Court institute any legal proceedings against Peter Olsen, herein called the “person aggrieved”, in the Supreme Court of New South Wales or in any inferior court of New South Wales and further order that any legal proceedings, instituted by the vexatious litigant against the person aggrieved, in the Supreme Court of New South Wales or in any inferior court of New South Wales, before the making of this order, shall not be continued by the vexatious litigant without leave of this Court.
2. Order that the defendant pay the plaintiff’s costs of these proceedings on the indemnity basis.

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