Tsecouras v Price [2008] FCA 106 (20 February 2008)

Last Updated: 22 February 2008

FEDERAL COURT OF AUSTRALIA

Tsecouras v Price [2008] FCA 106

PETER TSECOURAS v ANNE PRICE
NSD 2076 OF 2007

COWDROY J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2076 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PETER TSECOURAS Appellant
AND:	ANNE PRICE Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to O 20 r 5 of the Federal Court Rules the Amended Notice of Appeal and the appeal be dismissed.

2. The Appellant pay the Respondent’s costs of the motion and of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2076 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PETER TSECOURAS Appellant
AND:	ANNE PRICE Respondent

JUDGE:	COWDROY J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The respondent’s notice of motion before this Court seeks an order that the appeal be struck out.

2 By amended notice of appeal filed on 20 December 2007 the appellant (‘Mr Tsecouras’) appeals from the decision of Federal Magistrate Raphael delivered on 2 October 2007 in the Federal Magistrates Court of Australia. By such decision Raphael FM dismissed an application made by Mr Tsecouras to set aside the bankruptcy notice pursuant to s 41(6A) of the Bankruptcy Act 1966 which relevantly states:

(6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:

(a)  proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b)  an application has been made to the Court to set aside the bankruptcy notice;

the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

3 Mr Tsecouras also appeals from the orders made by me in this Court on 30 November 2007, although the only orders made on that date were as follows:

1. The appellant file and serve an amended notice of appeal by 4 pm on 13 December 2007.

2. The proceedings be adjourned until 9.30 am on Tuesday 18 December 2007.

3. The respondent be at liberty to file a notice of motion to strike out the proceedings on Monday 17 December 2007 to be made returnable on Tuesday 18 December 2007.

4. Costs be reserved.

As these orders were not addressed in either Mr Tsecouras’ written or oral submissions, the purported appeal from such orders will be ignored.

4 By notice of motion filed on 17 December 2007 the respondent (‘Ms Price’) seeks orders that Mr Tsecouras’ appeal be dismissed pursuant to O 20 r 5 of the Federal Court Rules as constituting an abuse of process or alternatively that summary judgment be entered in her favour pursuant to s 31A of the Federal Court of Australia Act 1976. Such motion is the subject of this judgment.

FACTS

5 In 2005 Mr Tsecouras instituted proceedings in the Supreme Court of New South Wales under the Family Provision Act 1982 against the estate of the late Diana Rosemary Keefe who died on 23 October 2003 aged 81 years (‘the deceased’). Ms Price is the executrix of the deceased’s estate and one of the eight beneficiaries of that estate. In his claim Mr Tsecouras alleged that a defacto relationship existed between the deceased and himself.

6 On 6 July 2006 Associate Justice Macready delivered judgment in which his Honour found that no such relationship existed between Mr Tsecouras and the deceased. His Honour dismissed the proceedings and ordered Mr Tsecouras to pay costs.

7 Ms Price duly obtained judgment against Mr Tsecouras in respect of the award of costs, and such judgment formed the debt upon which bankruptcy notice NN2367/07 was issued against Mr Tsecouras. The bankruptcy notice was served on 12 September 2007.

8 Mr Tsecouras appealed to the New South Wales Court of Appeal (‘the Court of Appeal’) from the decision of Associate Justice Macready. Such appeal came before Handley JA in the Court of Appeal on 11 December 2006 in response to a motion filed on 1 December 2006 to strike out the appeal. Handley JA struck out the grounds of appeal but adjourned the notice of motion to 26 February 2007 to allow Mr Tsecouras an opportunity to reformulate his notice of appeal.

9 On 26 February 2007 the notice of motion again came before Bryson JA in the Court of Appeal who considered an amended notice of appeal dated 31 January 2007. His Honour found that this document suffered from the same defects as those which were contained in the notice of appeal which had been considered by Handley JA. Bryson JA said:

The paragraphs under the heading ‘Grounds’ could not be treated as intelligible ground of appeal and the document should be struck out.

10 Bryson JA so ordered and ordered Mr Tsecouras to pay Ms Price’s costs of the appeal and of the notice of motion dated 1 December 2006. On 19 March 2007 Mr Tsecouras filed an application for special leave to appeal to the High Court of Australia against the decision of Bryson JA delivered on 26 February 2007. It should be observed that the High Court of Australia dismissed Mr Tsecouras’ application for special leave to appeal to that court on 15 November 2007.

11 On 19 September 2007 Mr Tsecouras made an application to set aside bankruptcy notice NN2367/07. The grounds for setting aside the notice are stated as follows:

I am still awaiting notificatin [sic] date for a Hearing in Case No.S99 of 2007 filed March 19 2007 in the High Court of Australia, and the matter has not been settled.

See also letter sent to Supreme Court of Australia, re will and costs.

12 The application to set aside the bankruptcy notice was heard in the Federal Magistrates Court of Australia by Raphael FM on 2 October 2007 and his Honour dismissed such application with costs. Mr Tsecouras appeals to this Court from that decision.

Submissions of Ms Price

13 It was submitted for Ms Price that there is no demonstrable error in the decision of Raphael FM not to set aside the bankruptcy notice. It is further submitted that Mr Tsecouras has instituted the appeal solely in an attempt to challenge the factual findings made by the Supreme Court of New South Wales.

Submissions of Mr Tsecouras

14 Mr Tsecouras, who is unrepresented and who appeared with an interpreter, claims that in the Supreme Court of New South Wales the witnesses gave false evidence before Associate Justice Macready. He informed this Court at the hearing of his appeal on 14 February 2008 that he wished to have those witnesses present so that he could demonstrate that they had been untruthful and that false evidence led to the costs order being made against him by Associate Justice Macready. Mr Tsecouras accordingly submitted that the order for costs should not have been made and that the resulting bankruptcy notice against him should have been set aside by Raphael FM. Otherwise no challenge is made to the decision of the Federal Magistrate.

FINDINGS

15 Many paragraphs of Mr Tsecouras’ notice of appeal do not challenge the decision of Raphael FM, but rather seek to challenge the factual basis upon which Associate Justice Macready reached his decision. By way of example, set out hereunder are the first three grounds of appeal:

1. His Honour erred in his discretion to refuse the appellant an extension of time for compliance with a bankruptcy notice, by basing his discretion almost exclusively upon the perceived merit of the appellant’s appeals from the decision of Macready AsJ in the Supreme Court of New South Wales.

2. His Honour erred in his discretion by treating the appellant’s appeals from Macready AsJ as not bearing upon the order for costs made by Macready AsJ at first instance (that order forming the subject matter of the bankruptcy proceedings now under appeal);

3. His Honour erred in his discretion by treating the absence of attempts at staying Macready AsJ’s orders as a further reason for declining the appellant an extension of time for compliance, when the reasons for the said absence of attempts were not considered by His Honour;

16 The remaining grounds of appeal do not refer to the decision of Raphael FM.

17 In his decision Raphael FM referred to the proceedings in the Supreme Court of New South Wales and in the Court of Appeal and said:

It is clear from the judgment of Bryson J that what he was dealing with was an incompetent attempt at an appeal against the decision of Associate Justice Macready which he dismissed. It was a procedural matter. Of course the debtor is entitled to seek special leave from the High Court to appeal this procedural decision but having read his Honour's decision and having noted that the applicant had had an opportunity to formulate proper grounds of appeal provided to him on a previous occasion by Handley JA I would have to say that his prospects of success in obtaining special leave must be slight.

In those circumstances I would be disinclined to exercise any discretion
I might have pursuant to s.41(6A) because, in addition to the failure of the applicant to persuade me that there is any merit in the appeal, I note that the appeal is not against the costs order itself and no attempts since have been made to put a stay on that order pending the appellate decisions. These are additional reasons why I do not propose to exercise my discretion in the applicant's favour.

18 The High Court of Australia had not considered Mr Tsecouras’ application for special leave when Raphael FM heard the proceedings. Nevertheless since there was no stay issued by any court, Ms Price was at liberty to proceed to enforce the order for costs. Raphael FM observed:

There is substantial authority, some of it dropping from my own lips, Porter v OAMPS [2004] FMCA 272 that in this type of case the appropriate decision is not to exercise discretion to grant an extension of time but to ensure that when the inevitable petition is presented the court hearing that petition is made aware of the existence of the appeal so that it can decide at that stage whether or not to adjourn the hearing of the petition.

19 To succeed in an appeal against the exercise of discretion, it must be shown that the judicial officer has acted upon a wrong principle, or taken into consideration irrelevant or extraneous matters, mistaken the facts or ignored some material consideration: see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 47-48 (Mason J) and 71-72 (Dawson J).

20 No reasons have been advanced by Mr Tsecouras that demonstrate any error on the part of Raphael FM in the exercise of his discretion. Rather, his claim is that Associate Justice Macready made the costs order against him on the basis of false evidence. This Court cannot re-determine the merits of Associate Justice Macready’s decision which is Mr Tsecouras’ purpose in this appeal.

21 At the hearing of the notice of motion Mr Tsecouras claimed that he wished to ask questions of the witnesses in respect of whom he had sought to issue subpoenas. Mr Tsecouras acknowledged that the only purpose in requiring the attendance of those persons was to ask them questions which would demonstrate that they had given false evidence before Associate Justice Macready. It was explained to Mr Tsecouras that this Court could not re-hear such evidence in his appeal against the decision of Raphael FM. It was further explained that the sole purpose of the hearing of the appeal was to determine whether there was any error of law in the decision of Raphael FM not to set aside the bankruptcy notice. Despite such explanations Mr Tsecouras persisted in his claim that he wished to interrogate the witnesses to demonstrate that they had given false evidence.

ABUSE OF PROCESS

22 Ms Price submits that Mr Tsecouras’ appeal to this Court constitutes an abuse of its process. Although the power to dismiss a proceeding for abuse of process should be ‘sparingly exercised and only in exceptional circumstances’ (Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279), the appeal of Mr Tsecouras is an appropriate instance for its exercise. The predominant purpose of Mr Tsecouras’ appeal is demonstrated in the following extracts from the transcript:

HIS HONOUR: Mr Tsecouras, do you wish to say anything at all in your appeal to support this claim that the Federal Magistrate made a mistake in not extending the time for compliance with the bankruptcy notice?

THE INTERPRETER: Yes. I need the witnesses to be here so I can prove that they have said lies.

...

HIS HONOUR: I would like him to tell this Court why he has appealed to it.

THE INTERPRETER: I may [sic] this appeal just to prove to this court that these people had lied.

...

HIS HONOUR: Could you please explain to him this court cannot rehear the case which was heard before Macready J?

THE INTERPRETER: Why does Macready did [sic] not hear my evidence and was with them and not with me.

The predominant purpose of Mr Tsecouras’ appeal is improper as it has transparently been instituted to re-agitate the facts before another Court and to re-litigate its findings. As such this Court is satisfied that the appeal constitutes an abuse of its process: see Worthley v England (1994) 52 FCR 69 at 89D.

23 It follows that orders pursuant to O 20 r 5 of the Federal Court Rules should be made as sought in the notice of motion.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 20 February 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	N Geikie
Date of Hearing:	14 February 2008
Date of Judgment:	20 February 2008