Stan Stergiou and Ekaterine Stergiou v Robert Peter Clynes and Alice Jeanette Mccormick T/As Minter Ellison [1997] ACTSC 25 (24 April 1997)

SUPREME COURT OF THE ACT

STAN STERGIOU and EKATERINE STERGIOU v. ROBERT PETER CLYNES and ALICE
JEANETTE McCORMICK t/as MINTER ELLISON
No. SCA54 of 1996
Number of pages - 3
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MILES CJ, GALLOP and MADGWICK JJ

CATCHWORDS

Appeal - against order for summary judgment made pursuant to O.17 r.1 of the Supreme Court Rules - appellants' claim utterly hopeless - against order that the plaintiffs/appellants be restrained from commencing any further action against the defendants/respondents without leave - order without jurisdiction - discussion of the Court's inherent jurisdiction to prevent abuse of its process.

Supreme Court Act 1933 Supreme Court Rules, O.17 r.1

Stan Stergiou and Another v. Reid and Others (unreported, Full Court of the Supreme Court of the ACT, 24 April 1997) Commonwealth Trading Bank v. Inglis and Another [1974] HCA 17; (1974) 131 CLR 311

HEARING

CANBERRA, 6 February 1997 24:4:1997

Mr. S. Stergiou appeared in person.

Counsel for the respondents: Mr. G.J.D. Richardson, SC

Solicitors for the respondents: Minter Ellison

ORDER

THE COURT ORDERS THAT:
1. The appeal is upheld in part, in that the order of the Master made on 14 June 1996 that the appellants be restrained from commencing any further action against the respondent without first obtaining leave of this honourable Court to institute the proceedings, is set aside. 2. The orders made by the Master be otherwise confirmed. 3. There be no order as to costs of the appeal.

DECISION

MILES CJ, GALLOP and MADGWICK JJ 1. This matter comes before the Court by way of notice of appeal dated 18 June 1996. The appeal is brought by the appellants/plaintiffs from a decision of the Master of 14 June 1996 in which the Master ordered: 1. That judgment be entered against the plaintiffs for the defendants pursuant to O.17. 2. That the plaintiffs be restrained from commencing any further action against the defendants without leave. 3. That the plaintiff pay the defendants' costs of the application. 2. The appellants commenced proceedings against the respondents by writ of summons issued on 6 May 1996. Annexed to or endorsed on the writ was a statement of claim. The allegations in the statement of claim are not easy to understand but appear to be as follows: the respondents practise as barristers and solicitors; the first respondent at material times was the President of the Law Society of the Australian Capital Territory; other solicitors in the Territory have exercised undue influence over solicitors formerly acting for the appellants with resulting detriment to the appellants; and the respondents knew of this but acted for the appellants' former solicitors in proceedings brought by the appellants against their former solicitors. 3. There appears to be a further allegation that the second respondent unlawfully or improperly obtained access to the court file in the proceedings brought by the appellants against their former solicitors. However, nothing is alleged which points towards anything unlawful or improper about the conduct itself which consisted of simply inspecting a file which is available for public inspection. 4. The relief claimed appears to be damages for personal injury in the nature of mental distress and damages also for "character assassination". We would interpret the latter liberally to mean damages for libel. 5. The nature of the Court's power under O.17 has been discussed at length by the Court in another appeal brought by the appellants in matter SCA No. 76 of 1995 - Stan Stergiou and Another v. Reid and Others. It is not necessary to repeat what was said in that judgment. 6. In the present appeal we have no hesitation in saying that the appellants' claim is utterly hopeless and that no allegation to support any claim sustainable in law has been made. Apart from the statement of claim itself, there are copious allegations in the affidavit of Mr. Stergiou sworn 27 May 1996 to which we have had regard. At its very highest the affidavit does no more than make allegations of improper behaviour which are not supported by any admissible evidence. We see nothing in the argument (if in fact it is sought to be argued) that it is improper for the President of the Law Society to act for a firm of solicitors sued by a former client of that firm. 7. We consider that we should go further than striking out the statement of claim. It is appropriate that the respondents have judgment against the appellants and the appeal in this regard will be dismissed. 8. However, the respondents concede that the Master had no power to order that the appellants be restrained from commencing any further action against the respondents without leave. 9. We should consider this aspect for ourselves. The Court in the exercise of its inherent jurisdiction has undoubted power to prevent abuse of its process and that power includes the power to stay unwarranted applications in proceedings already commenced. 10. However, there is no inherent power to forbid a particular litigant from starting legal proceedings. In Commonwealth Trading Bank v. Inglis and Another [1974] HCA 17; (1974) 131 CLR 311 in the joint judgment of Barwick CJ and McTiernan J at 319, it was said: "There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court's process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand." 11. The decision in Inglis does not cover the situation where the Court seeks to invoke its inherent jurisdiction in order to prevent a so-called vexatious litigant from commencing further proceedings against a particular defendant against whom proceedings have already been brought and failed. We prefer to leave open the question whether such power exists or should exist. 12. In the present case the jurisdiction of the Court was being exercised by the Master. The Master's jurisdiction is limited by the Supreme Court Act 1933 and the Rules of Court. Order 61A r.4 provides: "In any matter in which the jurisdiction of the Court may be exercised by the Master pursuant to a provision of this Order, the Master may exercise the Court's inherent jurisdiction relating to the matter." 13. The matter before the Master was an application for judgment under O.17 r.1. The Master had jurisdiction to entertain that matter by virtue of O.61A sub-r.1(i) which provides for the jurisdiction of the Court to be exercised by the Master (subject to certain exceptions) "in the hearing and determination of applications under any of the provisions of these Rules". However, that matter, namely the application for judgment under O.17 r.1, did not include the application for the appellants to be restrained from commencing proceedings against the respondents without leave. It was not within the Master's jurisdiction to entertain the latter application. It follows that the restraining order was without jurisdiction and must be set aside. 14. The order of the Court is that the appeal is upheld in part, in that the order of the Master made on 14 June 1996 that the appellants be restrained from commencing any further action against the respondents without first obtaining leave of this honourable Court to institute the proceedings, is set aside. The orders made by the Master are otherwise confirmed. We make no order as to the costs of the appeal.