Stan Stergiou and Ekaterine Stergiou v Jane Maree Ferry [1996] ACTSC 74 (12 July 1996)

SUPREME COURT OF THE ACT

STAN STERGIOU and EKATERINE STERGIOU v. JANE MAREE FERRY
No. SC344 of 1996
Number of pages - 4
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Practice and Procedure - Application for Judgment to be Entered for the Defendant - Whether Plaintiffs' Claim Discloses a Cause of Action - Whether Plaintiffs' Claim Frivolous or Vexatious - Exercise of Discretion to Waive Filing Fees.

Supreme Court Act 1933 (ACT), s.37B(2)(b)
Supreme Court Rules (ACT), O.17

Re Limbo (1989) 64 ALJR 241
Re Louis (No.2) (1988) 62 ALJR 428
Re Louis (1987) 62 ALJR 39

HEARING

CANBERRA, 28 June 1996
12:7:1996

Mr S. Stergiou (Litigant in person).

Counsel for the Defendant: Mr A. Tsirimokos

Instructing Solicitors: Vandenberg Reid

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the defendant.
2. The plaintiffs to pay the defendant's costs.
3. The plaintiffs be restrained from commencing any further proceedings in this Court without first obtaining leave of this Court to institute the proceedings.

DECISION

MASTER T. CONNOLLY This is an application pursuant to Order 17 of the Supreme Court Rules to enter judgment for the defendant or, in the alternative, to order the action frivolous or vexatious.

2. The action against which these applications are directed is a Writ of Summons of 6 May 1996 claiming, inter alia, that the defendant, a solicitor in the firm of Vandenberg Reid, engaged in deceptive conduct to the detriment of the plaintiffs.

3. The plaintiffs have commenced many actions in this Court. They originally were in dispute with a bank. During that litigation the firm of Vandenberg Reid acted for the other party. The plaintiffs have now commenced a series of actions against the firm and persons associated with the firm. At various times another law firm has represented persons the subject of an action by Mr Stergiou. That firm, and persons associated with it, have then been subject to claims similar to the present action.

4. Mr Stergiou believes himself to be the victim of a conspiracy. His regular actions against lawyers expressly plead this. But they do not disclose a cause of action, and applications in similar terms to the present have been made and granted before this Court on a number of occasions. Where these orders have been made by the Master they have been appealed by Mr Stergiou to a Judge, and in some cases to the Federal Court. Always the result has been the same.

5. Mr Stergiou asserts in support of his claim of a conspiracy that the present defendant wrongly inspected Court files. It is of course open for a party to attend the Registry of this or other Courts and avail themselves of facilities to inspect Court files, which are public records.

6. In an affidavit of 18 June 1996 the defendant acknowledges that she has availed herself of this facility, quite properly, for the purpose of discovering whether filing fees in various actions of the Stergiou's against persons associated with her firm had been waived. In fact they had been.

7. I am concerned at what appears to be a view that the discretion to waive a fee in the case of hardship must be exercised if a plaintiff is of limited means, even where a plaintiff is regularly bringing actions of the same type which are, with equal regularity, being dismissed by this Court.

8. This factor must be taken into account in exercising a discretion to waive fees. In Re Limbo (1989) 64 ALJR 241 Brennan J (as he then was) said: "Where a person has a legal right to enforce or a legal defence to offer to another's claim, the imposition of substantial court fees restricting access to the courts of law may place that person, unless he be affluent, outside the law's protection. In a society governed by law no barrier can be erected against reasonable access to the courts for the vindication and protection of legal rights. To ensure that litigation is not frivolously commenced, modest fees have traditionally been exacted but the courts have reserved a dispensing discretion to ensure that, where litigation can be seen to be justifiable, poverty is no bar to the operation of the law. Order 72 r.12 confers such a discretion but its exercise is governed by the considerations which evoke its creation. In Re Louis (No.2) (1988) 62 ALJR 428, I expressed the view that O.72 r.12 requires that there be a special reason shown for the order to be made. I added:

'Involved in that concept ... is some degree of satisfaction that the cause of action which is sought to be litigated is a cause of action which has some reasonable prospect of success, being pleaded in a fashion which is sufficiently intelligible to identify its constituent parts.'

In an earlier case in the same Volume, Re Louis (1987) 62 ALJR 39, Deane J said that:

'...it must always be relevant to pay regard to the nature of the proposed proceedings and to the prospects which the applicants hold of success in them. It would, for an example, be an absurdity ... to order that filing fees be waived to facilitate the receipt of a document which constituted an abuse of process or was the initiating process of proceedings which constituted an abuse of Court.' "

9. Similar considerations ought to be taken into account in exercising the discretion to waive fees under s.37B(2)(b) of the Supreme Court Act. I have set out the extract of Brennan J's judgment at some length in order to provide guidance to officers of this Court. Where a plaintiff brings a multiplicity of actions, which regularly result in summary judgment for the defendant, but which incur much time and expense for the defendant and the Court, it should not be assumed that the Court will continue to waive filing fees.

10. At the original hearing of this application I indicated to counsel for the applicant defendant that a history of claims by Mr Stergiou involving the firm Vandenberg Reid would be of assistance. This was provided in an affidavit of Ms Ferry dated 28 June 1996.

11. This reveals that two matters, SC 460 of 1995 and SC 461 of 1995 involving claims against persons associated with that firm, have been through the process to the point of a hearing before the Full Federal Court. At every stage Mr Stergiou was unsuccessful and costs have been ordered against the plaintiffs. Costs have been taxed to over $10,000, but in two matters (before Master Hogan and Justice Higgins) costs have yet to be taxed. Costs in the two Full Federal Court appeals also are yet to be taxed. A further Federal Court appeal was dismissed on 9 July 1996.

12. The affidavit states that bankruptcy proceedings have been issued against Mr Stergiou, and no costs have been paid.

13. I am satisfied that this action, like all those which have preceded it, now amounting to some 11 in total, is without merit. Pursuant to O.17 I order judgment for the defendant, with costs.

14. I am concerned that Mr Stergiou's sequential actions against persons associated with this firm is causing great expense, and taking up the time of this Court when other plaintiffs, with good claims, want their day in Court. At each stage an order has been sought, and granted, that the plaintiff be restrained from commencing any further action against the defendant without leave of the Court. Mr Stergiou has simply commenced a fresh action against someone else connected with this firm, or with a firm which might have appeared for this firm. This process could be never ending.

15. I therefore modify the order sought, and order that the plaintiffs be restrained from commencing any further proceedings in this Court without first obtaining leave of this Court to institute the proceedings.

16. I should add that Mr Stergiou should expect such leave if he needs, say, to commence an unrelated claim should he be unfortunate enough to suffer injury on the highway. But further versions of this litigation should be controlled by this Court in order to avoid unnecessary expense.