Tsekouras v Olsen [2009] FCA 429 (1 May 2009)

Last Updated: 6 May 2009

FEDERAL COURT OF AUSTRALIA

Tsekouras v Olsen [2009] FCA 429

PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) – no reasonable prospect of successfully prosecuting any part of proceeding – vexatious proceedings – whether applicant should be prevented from commencing or continuing proceedings without leave of the Court pursuant to O 21 r 1 of the Federal Court Rules

Bankruptcy Act 1966 (Cth) s 153A
Federal Court of Australia Act 1976 (Cth) s 31A
Supreme Court Act 1970 (NSW) s 84

Federal Court Rules O 21 r 1, O 21 r 2

Attorney-General v Wentworth (1988) 14 NSWLR 481 cited
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 cited
Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 considered

CON TSEKOURAS v PETER OLSEN

NSD 1887 of 2008

BENNETT J
1 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1887 of 2008

BETWEEN:

CON TSEKOURAS Applicant/Cross-Respondent

AND:	PETER OLSEN Respondent/Cross-Claimant

JUDGE:	BENNETT J
DATE OF ORDER:	1 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), judgment be entered in favour of the respondent against the applicant.
2. Pursuant to O 21 r 1 of the Federal Court Rules, the applicant/cross-respondent:

(a) not continue any proceeding without leave of the Court; and

(b) not institute any proceeding without leave of the Court.
3. The applicant/cross-respondent pay the respondent/cross-claimant’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1887 of 2008

BETWEEN:

CON TSEKOURAS Applicant/Cross-Respondent

AND:	PETER OLSEN Respondent/Cross-Claimant

JUDGE:	BENNETT J
DATE:	1 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The first order sought by Mr Tsekouras in his application filed on 8 December 2008 is: ‘The Applicant seeks a Third Party Claim as this bankruptcy should never have been instigated by Peter Olsen on behalf of the Insolvency and Trustee Service Australia’. The bankruptcy to which the application refers arises from a sequestration order made against Mr Tsekouras’ estate on 14 June 2000 by an order of Hely J on the application of Mr Tsekouras’ former solicitor, Ms Evangelinidis (‘the sequestration order’).
2. The application then contains a number of assertions and, in particular, an assertion that ‘at the time of the proceedings’ Mr Tsekouras had paid the sum of $247,705.24 and that in November 1999 he paid further monies in an amount of $166,469.54. Mr Tsekouras claims that he has paid all monies owed by him and seeks compensation including ‘compensation for the inconvenience of being declared bankrupt’. He says that the monies paid out of his bankrupt estate have, in effect, been paid twice.
3. The respondent, Mr Olsen, is the Assistant Official Receiver of Insolvency and Trustee Service Australia. Mr Olsen points out that all dealings between himself and Mr Tsekouras were in his capacity as an employee and subject to the responsibility of the Official Trustee in Bankruptcy (‘the Official Trustee’) for the administration of Mr Tsekouras’ bankrupt estate between 14 June 2000 and 21 August 2003. He says that he is not liable in respect of any decisions of the Official Trustee regarding the administration of the estate. Mr Olsen was not involved in any way in the proceedings in which the sequestration order was made.
4. Mr Olsen has filed a notice of motion seeking, inter alia, summary judgment or dismissal of the proceedings with costs under s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). Mr Olsen also seeks an order in the notice of motion joining the Official Trustee who, he says, is the appropriate respondent. However, he does not press for any such order at this stage. In addition, by cross-claim, Mr Olsen seeks orders pursuant to O 21 r 1 of the Federal Court Rules that Mr Tsekouras:

(a) not continue any proceeding without leave of the Court; and

(b) not institute a proceeding without leave of the Court.

5. In the alternative, Mr Olsen seeks an order pursuant to O 21 r 2 of the Federal Court Rules that Mr Tsekouras not institute or continue any proceedings against Mr Olsen or the Official Trustee without leave of the Court.
6. At this stage, it is relevant to note two sets of prior proceedings commenced by Mr Tsekouras:

(a) a personal injury claim in which Mr Tsekouras was represented by Ms Evangelinidis and in which he was successful (‘the personal injury proceedings’); and

(b) a professional negligence claim against Ms Evangelinidis in relation to her conduct of the personal injury claim (‘the professional negligence proceedings’).

Mr Tsekouras’ personal injury proceedings

7. Mr Tsekouras obtained a verdict in his personal injury proceedings in the Supreme Court of New South Wales (‘the Supreme Court’), for $179,552.00. This figure was reduced by 40% to $107,731.20 for contributory negligence. Mr Tsekouras appealed to the New South Wales Court of Appeal (‘the Court of Appeal’) both on liability and quantum. The Court of Appeal varied the verdict and judgment to correct errors in calculation and to allow for damages for lost tips as a component of future wages. The corrected award was $103,885.20. The finding of 40% contributory negligence was not disturbed and the Court of Appeal made no order as to costs.

Mr Tsekouras’ proceedings for professional negligence

8. Mr Tsekouras commenced proceedings against Ms Evangelinidis claiming that she was negligent in her conduct of the personal injury proceedings. The claim was dismissed by Cripps ADCJ. Ms Evangelinidis was awarded costs in the amount of $73,251.84. His Honour was not persuaded that Ms Evangelinidis had acted negligently. An appeal to the Court of Appeal was dismissed by Mason P and Handley JA on the grounds that there was no real prospect of success in the foreshadowed appeal and leave to appeal was refused. Mr Tsekouras sought special leave to appeal to the High Court which was refused with costs.

The timing of payments made

9. On or about 21 August 2003 the Official Trustee admitted various proofs of debt in Mr Tsekouras’ bankrupt estate including a proof of debt lodged by LawCover Pty Limited on account of Ms Evangelinidis. The proof of debt was the result of non-payment of the legal costs by Mr Tsekouras to Ms Evangelinidis in respect of the unsuccessful professional negligence proceedings. Mr Olsen says that, so far as it is possible to determine from the application, all of the amounts that Mr Tsekouras claims he has paid were incurred prior to the commencement of the professional negligence proceedings by Mr Tsekouras on 15 February 1999. The list of payments made by the Official Trustee annexed to Mr Tsekouras’ application were all made between 7 September 2001 and 21 August 2003, that is, after the sequestration order was made. As far as it is possible to tell, a further list of payments annexed to the application that Mr Tsekouras insists he has paid, totalling $247,705.24, were all incurred prior to the commencement of the professional negligence proceedings.
10. Mr Olsen says that it is not in dispute that Mr Tsekouras made the payments shown in Annexure A to the application totalling $247,705.24 but says that these payments relate to the personal injury proceedings. Mr Olsen says that the payments paid out of the bankrupt estate relate to costs incurred as a result of the professional negligence proceedings and that these costs were not paid by Mr Tsekouras prior to his bankruptcy.
11. There is no dispute that all creditors of Mr Tsekouras’ estate were paid in full and that the bankruptcy was annulled on 21 August 2003 pursuant to s 153A of the Bankruptcy Act 1966 (Cth).

The course of the bankruptcy proceedings

12. Ms Evangelinidis served a bankruptcy notice on Mr Tsekouras on 1 November 1999 and lodged a creditor’s petition on 10 February 2000.
13. The saga concerning Mr Tsekouras’ claim that all monies owing by him had been paid commenced with a notice of opposition to Ms Evangelinidis’ creditor’s petition that came before Einfeld J. Justice Einfeld noted that the subject of the debt was legal costs in respect of the unsuccessful action for damages for professional negligence. His Honour observed that an application to a Registrar to set aside the bankruptcy notice had been dismissed and an application for review of that dismissal was also dismissed by Gyles J. Justice Einfeld dismissed the motion before him with costs. Mr Tsekouras’ appeals from Gyles J’s refusal to set aside the bankruptcy notice and from Einfeld J were heard by the Full Court. Justice Drummond, with whom Whitlam and Nicholson JJ agreed, expressed the opinion that Gyles J had been correct in not attempting to go behind the judgment in respect of which the bankruptcy notice was issued and dismissed that appeal with costs. Justice Drummond agreed with Einfeld J’s comments about the impossibility of understanding the relief sought in the notice of motion and, after hearing Mr Tsekouras, observed that it was apparent that the appeal against the dismissal of that motion had no prospects of success. Accordingly, leave to appeal from the decision of Einfeld J was refused with costs.
14. The creditor’s petition came before Hely J on 14 June 2000. His Honour dealt with the same claim by Mr Tsekouras: that he had paid all of the monies owed by him, relying upon the payment of $244,895.52 that had been paid in respect of the personal injuries proceedings, together with some payments made to his own lawyers in the professional negligence proceedings. The payments did not include any payments for costs awarded against him in the professional negligence proceedings. Mr Tsekouras’ ground of opposition before Hely J was that he had a claim of $166,469.54 against Ms Evangelinidis, which he said exceeded the amount of her claim by a sum of about $93,217.00. It can be seen that this sum represents the difference between the $166,469.54 said to be owed by Ms Evangelinidis and the $73,251.84 claimed by her. Mr Tsekouras’ evidence was that: ‘The respondent (ie Ms Evangelinidis) claims that she has paid all of the following amounts, but this is not true. I, the applicant, have paid all of the following amounts totalling $244,895.52’. It would appear from the judgment of Hely J that the $166,469.54 said to be owed by Ms Evangelinidis represented a portion of the $244,895.52 claimed to have been paid by Mr Tsekouras.
15. Justice Hely considered in detail the sums involved and the payments that related to them together with Mr Tsekouras’ claims of payment and of a liability in Ms Evangelinidis to Mr Tsekouras in relation to any of those sums. His Honour concluded at [15] that there was ‘simply nothing which establishes any liability in Ms Evangelinidis to Mr Tsekouras in relation to these sums’. Having considered Mr Tsekouras’ assertions and claims in respect of payments, his Honour was satisfied that Ms Evangelinidis was entitled to a sequestration order.
16. Mr Tsekouras appealed that decision to the Full Court. Justice Goldberg, with whom Gray and Merkel JJ agreed, expressed himself satisfied (at [16]) that ‘after carefully considering [Mr Tsekouras’] evidence and submissions it was plainly open for the primary judge to find that there was no sufficient cause why a sequestration order should not be made’. The appeal was dismissed and costs awarded to Ms Evangelinidis out of Mr Tsekouras’ estate.
17. Special leave to appeal from that decision was refused by the High Court on 6 April 2001.
18. Mr Tsekouras then commenced a series of proceedings in the Supreme Court to which I shall return. It is clear that Mr Tsekouras cannot re-litigate the making of the sequestration order. Nor can he re-litigate his assertion that he had paid the monies that gave rise to the making of that order. The evidence establishes that the payments made by the Official Trustee upon lodgement of proofs of debt which totalled $163,521.00 were monies owed as a result of the professional negligence proceedings and were not monies in respect of Mr Tsekouras’ personal injuries proceedings. It was the latter class of monies that Mr Tsekouras had paid, not the former, other than payments made by him to solicitors acting on his behalf in the professional negligence proceedings. This is clear beyond doubt and was carefully considered and explained by Hely J.
19. To the extent that it is possible to glean meaning from the application, Mr Tsekouras makes the following claims:

(1) a claim, akin to an annulment, that he should not have been made a bankrupt;

(2) a claim that Mr Olsen made payments from the bankrupt estate which he should not have made; and

(3)&(4) a claim for compensation.

20. The claim in (1) cannot be sustained, certainly not against Mr Olsen who had nothing to do with the making of the sequestration order. Further, if this is to be treated as an annulment claim, it is not available. The bankruptcy has already been annulled by operation of law and, in any event, there is no reason to doubt the correctness of Hely J’s decision on the hearing of the creditor’s petition, which has already been the subject of appellate review.
21. It is clear that the payments made out of Mr Tsekouras’ bankrupt estate as referred to in (2) were in respect of liabilities incurred as a result of the professional negligence proceedings and were not paid by Mr Tsekouras prior to his bankruptcy. It follows that there is no basis for (3) and (4).
22. I am satisfied that Mr Tsekouras has no reasonable prospects of successfully prosecuting any part of his proceeding. The subject matter of this proceeding has been considered by numerous other courts. Accordingly, Mr Olsen is entitled to summary judgment pursuant to s 31A of the Federal Court Act. Further, I am satisfied that Mr Tsekouras’ case is hopeless and bound to fail and Mr Olsen would have been entitled to summary judgment under the test under General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

Order 21 of the Federal Court Rules: vexatious litigants

23. Order 21 rule 1 of the Federal Court Rules relevantly provides:

(1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the Court; and

(b) that the person may not institute a proceeding without leave of the Court.

(2) An order under this rule may be made:

(a) on the application of a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings; or

(b) on the application of a person who has sufficient interest in the matter; ...

24. The operation of O 21 of the Federal Court Rules, as then in force, was considered by Sackville J in Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378. The following principles emerge from that decision at [51]-[59] and are relevant to the present form of O 21:

(a) The power to make an order under O 21 is to be exercised having regard to the fundamental principle that every person has a right of access to the Court to seek remedies in consequence of an alleged infringement of his or her rights and that it is a serious thing to limit or restrict that right.

(b) The power to restrict that right of access exists to protect the Court’s own processes against unwarranted usurpation of judicial time and resources and to avoid the loss and disruption caused to those who face actions which lack substance.

(c) The terms of O 21 r 1 identify the jurisdictional criteria which must be established before the power to make any order will arise. An application for such an order needs to show that the person against whom such an order is sought:

- habitually and persistently;

- and without any reasonable cause;

- institutes;

- a vexatious proceeding;

- in the Court [or any other Australian court].

(d) The expression “habitually and persistently” implies more than “frequently”. “Habitually” suggests that the institution of proceedings is undertaken automatically and without due consideration to the merits of the proceedings. “Persistently” suggests determination and continuation in the face of difficulty or opposition, with a degree of stubbornness.

(e) The test of whether a vexatious proceeding has been commenced “without any reasonable cause” is an objective one. The relevant inquiry is whether the legal proceedings in fact can be shown to have had no reasonable basis regardless of the subjective motive or point of view of Mr Tsekouras.

Similar principles were stated by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 which considered the equivalent provision of the Supreme Court Act 1970 (NSW) (‘the Supreme Court Act’).

25. Mr Olsen has provided a useful chronology of proceedings in which Mr Tsekouras was involved, which is Annexure A to these reasons.

Proceedings in the Common Law Division of the Supreme Court

26. I have already referred to the earlier proceedings in this Court. After his lack of success in those proceedings, Mr Tsekouras turned to the Supreme Court.
27. In a judgment of 27 July 2001, Master Harrison dealt with a statement of claim by Mr Tsekouras against Ms Evangelinidis in which he claimed that he had paid the amount of $247,705.24 and also claimed a sum of $750,000.00. On an application for dismissal of the proceedings, Master Harrison concluded at [15] that Mr Tsekouras had already litigated the issue as to how much he owed Ms Evangelinidis. She found the pleadings in the statement of claim ‘hopeless’ and concluded that the proceedings were ‘doomed to failure’ and could not be cured by amendment. Master Harrison declined to make an order preventing Mr Tsekouras from filing any further statement of claim in the proceedings as she formed the view that there was no utility in making that order when she was dismissing the proceedings.
28. Mr Tsekouras then commenced a process of appeal. Justice Sperling found that the grounds of appeal were unsustainable and dismissed the appeal. In the absence of a cross-appeal or other process before the Court to provide a vehicle for an order that Mr Tsekouras not be permitted to file any further process in relation to his claim without prior leave of the Court, his Honour declined to entertain the application. Mr Tsekouras sought leave to appeal to the Court of Appeal. This application was dismissed with costs. Mr Tsekouras then sought special leave to appeal to the High Court. The application was dismissed by the High Court.

Proceedings in the Equity Division of the Supreme Court

29. Mr Tsekouras then commenced proceedings in the Equity Division of the Supreme Court, filing a summons claiming that Ms Evangelinidis pay him the amount of $247,705.24 together with $750,000.00 in damages, interest and costs. The matter came before Palmer J. As Palmer J noted at [19], Mr Tsekouras’ reaction to the refusal of special leave which disposed of the Common Law proceedings was to commence proceedings in the Equity Division in respect of exactly the same amounts for costs and for general damages. That is, his Honour found that it was abundantly clear that the claims which Mr Tsekouras sought to raise in the Equity Division proceedings were exactly the same as those brought in the Common Law proceedings, which had been found by Master Harrison to be the same as in the Federal Court proceedings. Justice Palmer concluded that the proceedings before him were vexatious and an abuse of process and must be dismissed under Pt 13 r 5(1) of the Supreme Court Rules.
30. His Honour then considered whether an order should be made preventing Mr Tsekouras from commencing any further proceedings against Ms Evangelinidis without prior leave of a judge of the Supreme Court. Justice Palmer observed at [25] that it was evident from Mr Tsekouras’ persistence in litigation that he would not be deterred by adverse judgments and costs orders from commencing and prosecuting litigation against Ms Evangelinidis for as long as his desires remained unsatisfied. His Honour was satisfied that unless an order was made pursuant to s 84(2) of the Supreme Court Act, Mr Tsekouras would continue to institute and prosecute litigation against Ms Evangelinidis. Accordingly, his Honour made an order that Mr Tsekouras cannot, without leave of the Supreme Court, institute any legal proceedings against Ms Evangelinidis in any court.

Further proceedings in the Common Law Division of the Supreme Court

31. Mr Tsekouras then filed a statement of claim in the Common Law Division of the Supreme Court. This time Mr Olsen was the respondent. Mr Tsekouras claimed that Mr Olsen should not have allowed him to be declared bankrupt and that Ms Evangelinidis had been paid twice for her services. Mr Tsekouras sought the return of monies which he said had been paid out for a second time, as well as damages, interest and costs. Mr Tsekouras subsequently filed a notice of motion in the proceedings making similar claims.
32. Master Harrison found that Mr Tsekouras’ claim arose directly from the administration of the bankruptcy, that the Federal Court had jurisdiction and that the proceedings were incompetent. She continued to observe that, even if she were wrong on that point, it would seem that the matters were the same as those examined by Hely J. She dismissed the proceedings.
33. That decision was appealed and Adams J found no error in Master Harrison’s reasons. He refused Mr Tsekouras’ appeal. Once more in the Court of Appeal, Mason P and Giles JA agreed with Master Harrison’s conclusion that the claim was hopeless and should be dismissed. Special leave was refused by the High Court.

Further proceedings in the Equity Division of the Supreme Court

34. Mr Tsekouras went back to the Equity Division, in proceedings filed against Mr Olsen in 2006. The subject matter of the various proceedings, as set out in the judgment of Bryson AJ, was Mr Tsekouras’ assertion that he had paid monies in the amount of $244,895.52 and a claim that he be reimbursed the amounts he had paid out directly. Again, Mr Tsekouras also sought damages in an amount of $750,000.00. Mr Olsen subsequently sued Mr Tsekouras for remedies under s 84(2) of the Supreme Court Act.
35. Acting Justice Bryson acknowledged that to prevent a person from instituting legal proceedings was an extreme remedy and a serious thing. However, his Honour observed that, where the circumstances provided for in s 84(2) of the Supreme Court Act exist, a claim to be free of further proceedings which are ‘habitual, persistent and vexatious’ is a very strong one – stronger than a claim to institute vexatious proceedings ‘habitually and persistently’. At [12], his Honour observed that Mr Tsekouras was dissatisfied with the way his bankruptcy was administered, that he sought recognition that he had paid some monies which were treated as debts in the bankruptcy and that he sought reimbursement of those amounts. It is clear from Bryson AJ’s judgment that the subject matter with which he was concerned was identical with the subject matter of these proceedings. His Honour concluded at [13] that the claims were an attempt to raise, in substance, much the same claims against Mr Olsen as in the earlier proceedings in the Supreme Court. His Honour concluded at [43] that the ‘vexatious character of the proceedings instituted by Mr Tsekouras is in my finding altogether clear’. His Honour then referred to the previous proceedings in the Supreme Court.
36. After dismissing the summons summarily, Bryson AJ returned at [47] to the application of s 84(2) of the Supreme Court Act, commenting that the discretion in that section should be exercised with care having regard to the importance of the right to approach the Court and obtain adjudication. His Honour said that in Mr Tsekouras’ case, ‘he has used that right repeatedly though never appropriately’. Observing that the opportunity to approach the Court was not an opportunity of any value in the circumstances of the history of Mr Tsekouras’ litigation, his Honour noted the effect of the continuing cost of the litigation and the obligation to defend such litigation on the part of Mr Olsen. His Honour concluded that he would put a stop to the requirement that Mr Olsen engage in ‘futile proceedings’ by making the order sought under s 84(2) and did so.
37. The Court of Appeal refused leave to appeal and Mr Tsekouras’ application for special leave to appeal that decision was dismissed. Justices Gummow and Kiefel observed that the application to the High Court was entirely devoted to complaints about the administration of Mr Tsekouras’ bankruptcy and did not address the judgment in the Court below.
38. Mr Tsekouras then filed another summons in the Supreme Court seeking ‘[r]estitution for monies charged twice, i.e. costs paid direct in an amount of $166,469.54’. Again he asserted that he had actually paid a sum of $244,895.52 and claimed $750,000 compensation. Annexed to that summons were Annexures A and B, the same or similar documents as are annexed to the application in this case. Mr Olsen again filed a notice of motion seeking dismissal of the proceeding pursuant to r 13.4 of the Uniform Civil Procedure Rules. Associate Justice McLaughlin noted that the complaints from Mr Tsekouras were in respect of his bankruptcy and that the subject matter had been heard not only at first instance but also by the Court of Appeal and, on two occasions, by the High Court. His Honour observed that the summons before him was filed less than two months after the High Court had dismissed Mr Tsekouras’ application for special leave to appeal from the decision of the Court of Appeal, refusing leave to Mr Tsekouras to appeal from the decision of Bryson AJ. His Honour observed that Mr Tsekouras could not challenge further the orders that had been made by the Court of Appeal and by the High Court respectively in refusing leave to appeal to the Court of Appeal from the decision of Bryson AJ and special leave to appeal to the High Court from the decision of the Court of Appeal. His Honour also observed that no leave had been sought to bring the proceedings. Accordingly, they constituted an abuse of process of the Court and were vexatious. The proceedings were dismissed.
39. Mr Tsekouras attempted to file a summons seeking leave to appeal against that judgment. Apparently the summons was accepted for filing. That summons was later dismissed as incompetent by Registrar Schell.

These proceedings

40. It would seem to be after that dismissal that Mr Tsekouras decided to come back to the Federal Court with his application filed on 8 December 2008.
41. At the hearing Mr Tsekouras, who appeared in person, made it quite clear that what he wished to say about these proceedings was that he did not owe any money to Ms Evangelinidis or anyone else to whom payments had been made out of his bankrupt estate and that he had paid out amounts of $247,705.24 and $166,469.54. These are the very matters that have been litigated repeatedly.
42. I do not doubt that this is a clear case for the application of O 21 r 1 of the Federal Court Rules. I adopt, with respect, what was said by Bryson AJ as to the history of this matter and the balancing of Mr Tsekouras’ right to bring proceedings with the effect on Mr Olsen and his right not to be continually harassed by the requirement to defend a never-ending series of futile applications.
43. Importantly, the subject matter of these proceedings has been heard and determined on more than one occasion and Mr Tsekouras has availed himself of the avenue of appeal in respect of those decisions. As Mr Olsen submits, the Official Trustee and the public have been prejudiced by Mr Tsekouras’ litigious history. From that history I conclude that it is inevitable that it will continue.
44. Mr Olsen propounds two alternative orders. One is an order that Mr Tsekouras not be permitted to continue or institute any proceeding without leave of the Court. The other is that he be precluded from bringing any proceedings against Mr Olsen and/or the Official Trustee without leave of the Court. As Mr Tsekouras has a history of commencing proceedings against different parties concerning the same subject matter, I am inclined not to make the more limited order. Accordingly, I will order that:

(1) Judgment be entered in favour of the respondent against the applicant with costs pursuant to s 31A of the Federal Court Act.

(2) Pursuant to O 21 r 1 of the Federal Court Rules, the applicant/cross-respondent:

(a) not continue any proceeding without leave of the Court; and

(b) not institute any proceeding without leave of the Court.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 1 May 2009

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr S Golledge
Solicitor for the Respondent:	Bartier Perry

Date of Hearing:	6 April 2009
Date of Judgment:	1 May 2009

CON TSEKOURAS v PETER OLSEN

CHRONOLOGY OF PROCEEDINGS

No.	Date	Event	Reference
	1987	Personal injury litigation Tsekouras awarded damages by Badgery-Parker J in the District Court.	Hely J in [2000] FCA 861 at [1]
	14 July 1994	Court of Appeal slightly increased judgment sum in favour of Tsekouras.	Hely J in [2000] FCA 861 at [1] Tsekouras v GIO [1994] NSWCA 323
Proceedings by Tsekouras against Evangelinidis
	15 February 1999	District Court Negligence proceedings by Tsekouras against his former solicitor, Ms Vivieca Evangelinidis heard by Cripps J and dismissed with costs.	Hely J in [2000] FCA 861 at [2]
	11 October 1999	NSW Court of Appeal refused leave to appeal from judgment of Cripps DCJ, dismissing appeal as incompetent (Mason P & Handley J).	[1999] NSWCA 382
	14 October 1999	District Court Judgment entered in favour of Evangelinidis against Tsekouras for $73,251.84 for costs of proceedings before Cripps J.	Hely J in [2000] FCA 861 at [3]
	1 November 1999	Bankruptcy Notice served on Tsekouras by Ms Evangelinidis.	Hely J in [2000] FCA 861 at [3]
	7 December 1999	Act of Bankruptcy when Registrar refused application to set aside Bankruptcy Notice.	Hely J in [2000] FCA 861 at [3]
	8 February 2000	Gyles J confirmed refusal to set aside Bankruptcy Notice.	Hely J in [2000] FCA 861 at [3]
	10 February 2000	Creditor’s Petition filed by Evangelinidis against Tsekouras (proceedings N7106 of 2000)	Hely J in [2000] FCA 861 at [3]
	17 March 2000	Special leave to appeal to High Court against decision of NSW Court of Appeal (11 October 1999) refused.	S192/1999 transcript of proceedings
	2 May 2000	Motion filed in bankruptcy proceedings (N7106 of 2000) by Tsekouras against Evangelinidis seeking: “1. Evangelinidis solicitor dismissed all the costs The applicant wishes to renew the application for costs.” Motion dismissed by Einfeld J.	[2000] FCA 587
	30 May 2000	Appeal from decision of Gyles J (8 February 2000) dismissed by full Federal Court of Australia (Drummond, Whitlam and Nicholson JJ).	[2000] FCA 734
	14 June 2000	Sequestration Order made against Tsekouras by Hely J.	Hely J in [2000] FCA 861
	15 August 2000	Appeal (proceedings 651 of 2000) to Full Federal Court by Tsekouras against sequestration order (14 June 2000) of Hely J dismissed (Gray, Merkel and Goldberg JJ).	[2000] FCA 1153 at [18]
	7 November 2000	Application for expedition of special leave application in respect of appeal from Full Federal Court (15 August 2000) granted by Gummow J.	S187/2000 transcript 7/11/00
	6 April 2001	Application for special leave to appeal from Full Federal Court (15 August 2000) dismissed with costs (Gleeson CJ, Kirby J).	S187/2000 transcript 6/4/01
	22 May 2001	Tsekouras commenced proceedings against Evangelinidis in Common Law Division of NSW Supreme Court claiming that “The applicant has paid the costs to the amount of $247,705.24 plus interest.”	[2003] NSWSC 139 at [12]
	27 July 2001	Summary Judgment of Master Harrison dismissing Supreme Court of NSW Common Law proceedings as “doomed to failure”.	[2001] NSWSC 638
	10 August 2001	Notice of Appeal lodged in Supreme Court of NSW Common Law Division against decision of Master Harrison.	[2001] NSWSC 755
	31 August 2001	Sperling J dismissed the appeal against judgment of Master Harrison with costs on indemnity basis as “the appeal was utterly with merit, there being no reasonably arguable support for any of the grounds of appeal.”	[2001] NSWSC 755
	7 December 2001	Tsekouras sought leave to appeal to Court of Appeal. Dismissed with costs.	[2003] NSWSC 139 at [16]
	17 May 2002	Plaintiff filed an amended Application for Special Leave to Appeal to the High Court.	[2003] NSWSC 139 at [17]
	19 April 2002	Application for special leave to appeal from decision of NSW Court of Appeal judgment (7 December 2001) adjourned.	S291/2001 transcript 19/4/02
	13 December 2002	Application for special leave to appeal to the High Court heard. Leave refused with costs.	[2003] NSWSC 139 at [17] + [18]; S291/2001 transcript 13/12/02
	9 January 2003	Proceedings commenced by Tsekouras against Evangelinidis in the Supreme Court of NSW (Equity Division) claiming: “1. That Vivieca Evangelinidis pay me costs to the amount of $247,705.24 plus interest; and Therefore I claim $750,000 in damages, interests [sic] and costs, and the superannuation income lost.”	[2003] NSWSC 139 at [1]
	5 March 2003	NSW Supreme Court Equity Division proceedings against Evangelinidis dismissed. Orders made pursuant to s84(2) Supreme Court Act that Tsekouras not, without leave of the Court institute proceedings against the Defendant (Ms Evangelinidis) in any Court. The Court (Palmer J) noted (at [251]): “The Plaintiff has made it clear in the course of his responses to the Court today that he intends to persist with the claim against the Defendant. He seems to take the attitude that he will not be satisfied unless he vindicates that claim and until the Defendant is compelled to appear personally in Court to answer his allegation...the Plaintiff will not be deterred by adverse judgments and costs orders from commencing and prosecuting litigation against the Defendant for as long as his desires remain unsatisfied.”	[2003] NSWSC 139 at [20] to[29]
Proceedings by Tsekouras against Olsen
	21 August 2003	Bankruptcy of Tsekouras annulled pursuant to s153A following payment in full of all provable debts.	Judgment of Master Harrison 14/03/05 at [7]
	6 December 2004	Proceedings commenced by Tsekouras against Olsen in Common Law Division of Supreme Court of NSW 20436 of 2004. Statement of Claim included: “The Plaintiff claims that Peter Olsen... tried to have his home sold to pay monies to solicitors Sally Nash and Vivieca Evangelinidis to cover expenses when he had already paid the solicitors ... (see Appeal Book No. 651 of 2000 page 79 etc). The Plaintiff claims: 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 and Vivieca Evangelinidis have been paid twice for their services. 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.”	[2007] NSWSC 556 per Bryson AJ at [13]
	25 January 2005	Notice of Motion filed by Tsekouras in NSW Supreme Court Common Law Division proceedings against Olsen: “1. Seeking all past, present and future costs for lost superannuation, damages and interest on claim. 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.”
	8 February 2005	Notice of Motion filed by Tsekouras in NSW Supreme Court Common Law Division proceedings against Olsen seeking: Hearing by jury 2.& 3. The same claims as the Notice of Motion dated 25 January 2005 The Plaintiff wishes the Court to recognise that Vivieca Evangelinidis and Sally Nash both knew each other very well and signed legal documents together (see documents attached N-7106/2000). 2	[2007] NSWSC 556 per Bryson AJ at [20]
	14 March 2005	Judgment of Master Harrison in NSW Supreme Court Common Law Division proceedings 20436 of 2004 commenced by Tsekouras against Olsen dismissed as “hopeless” and noting that “these matters, of which Mr Tsekouras complains, have been examined by Hely J in the Federal Court on 14 June 2000”.	Judgment of Master Harrison 14/03/05 at [12]
	18 April 2005	Adams J in NSW Supreme Court dismisses appeal by Tsekouras against judgment of Master Harrison in Common Law Division.	Judgment of Adams J 18/04/05 at [4]
	29 April 2005	Application filed by Tsekouras in NSW Court of Appeal from the decision of Adams J.	[2007] NSWSC 556 per Bryson AJ at [26]
	30 May 2005	Summons for leave to appeal filed by Tsekouras in NSW Court of Appeal proceedings seeking leave to appeal from decision of Adams J.	[2007] NSWSC 556 per Bryson AJ at [26]
	12 October 2005	NSW Court of Appeal (Mason P & Giles JA) dismisses appeal by Tsekouras against the judgment of Adams J and orders costs on an indemnity basis because the application was “quite hopeless”.	Judgment of Mason P and Giles JA 12/10/05 at [4]
	11 April 2006	Application for special leave to appeal to High Court by Tsekouras against the decision of Mason P & Giles JA. Application dismissed (Hayne & Crennan JJ).	[2006] HCATrans 174
	15 May 2006	Statement of Claim filed in NSW Supreme Court Equity Division by Tsekouras against Olsen, proceedings no. 2741 of 2006, seeking orders, inter alia, monies said to have already been paid totalling $244,895.22 together with $750,000.00 plus superannuation, interest, damages and out of pocket expenses.	[2007] NSWSC 556 per Bryson AJ at [32]
	26 June 2006	Tsekouras files application for default judgment in NSW Supreme Court Equity Division proceedings.	[2007] NSWSC 556 at [34]
	28 June 2006	Olsen files application for dismissal of NSW Supreme Court Equity Division proceedings.	[2007] NSWSC 556 at [35]
	28 July 2006	Orders made striking out Statement of Claim filed in NSW Supreme Court Equity Division and leave granted to Tsekouras to file a motion “seeking to file an Amended Statement of Claim” returnable on 25 August 2006 (Brereton J).	[2007] NSWSC 556 per Bryson AJ at [37]
	17 August 2006	NSW Supreme Court Equity Division motion by Tsekouras seeking orders in respect of amounts of $244,895.52, plus $750,000.00 as per proceedings 11541 of 2001.	[2007] NSWSC 556 per Bryson AJ at [38]
	25 August 2006	Motion dismissed by Registrar Walton.	Transcript of proceedings by Registrar Walton 25/08/06
	14 September 2006	NSW Supreme Court Equity Division motion by Tsekouras seeking same orders sought in 17 August 2006 Motion.	[2007] NSWSC 556 per Bryson AJ at [40]
	24 October 2006	NSW Supreme Court Equity Division motion dismissed by Registrar Walton.	Transcript of proceedings by Registrar Walton 24/10/06
	3 November 2006	Summons filed in NSW Supreme Court Equity Division by Tsekouras against Olsen seeking orders, inter alia, for the reimbursement of monies said to have already been paid totalling $244,895.22 together with $750,000.00 plus superannuation, interest, damages and out of pocket expenses.	[2007] NSWSC 556 [1]
	11 December 2006	Summons filed in NSW Supreme Court Equity Division by Olsen, proceedings no. 6274 of 2006, against Tsekouras seeking an order to have Tsekouras declared a vexatious litigant.	[2007] NSWSC 556 per Bryson AJ at [3]
	17 January 2007	Motion filed in NSW Supreme Court Equity Division Proceedings 5641 of 2006 by Olsen seeking orders that the proceedings be dismissed.	[2007] NSWSC 556 per Bryson AJ at [2]
	5 June 2007	Judgment handed down in NSW Supreme Court Equity Division by Bryson J declaring Tsekouras to be a vexatious litigant in proceedings no. 6274 of 2006 and dismissing proceedings no. 5641 of 2006 filed by Tsekouras.	[2007] NSWSC 556 per Bryson AJ at [43]
	8 November 2007	Tsekouras’ application to appeal against Bryson J’s decision was dismissed by the NSW Supreme Court of Appeal with costs.	Ex tempore judgment by Beazley JA and Ipp JA [7] 08/11/07
	15 May 2008	Application for special leave to appeal to the High Court by Tsekouras was dismissed.	[2008] HCASL 234
	10 July 2008	Tsekouras files Summons in NSW Supreme Court Equity Division proceedings no. 3717 of 2008 claiming the amounts of $750,000.00 and $244,895.52.
	15 August 2008	Supreme Court of NSW dismisses proceedings no. 3717 of 2008.	3717 of 2008 transcript of proceedings – McLaughlin J – 15/9/08
	23 September 2008	Tsekouras files Summons in NSW Supreme Court, Court of Appeal proceedings no. 40303 of 2008 claiming the amounts of $750,000.00 and $244,895.52.
	17 November 2008	Directions hearing of Summons in NSW Supreme Court, Court of Appeal seeking leave to appeal filed by Tsekouras dismissed with no order as to costs by Registrar Schell.	40303 of 2008 transcript of proceedings – Registrar Schell – 17/11/08
	8 December 2008	Tsekouras files Bankruptcy Application in Federal Court proceedings NSD1887 of 2008 against Olsen alleging his bankruptcy should never have been instigated by Olsen and seeking (inter alia) $750,000 compensation for reimbursement of out-of-pocket expenses, plus superannuation and interest on the amounts of $297,705.24 and $166,469.54 said to have been paid by Tsekouras and also paid by Olsen.