Tsekouras v Evangelinidis S291/2001 [2002] HCATrans 195 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S291 of 2001

B e t w e e n -

CON TSEKOURAS

Applicant

and

VIVECA EVANGELINIDIS

Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 3.41 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA: I appear for the applicant. (instructed by the applicant)

MR J.T. JOHNSON: If the Court pleases, I appear for the respondent. (instructed by Sally Nash & Co)

McHUGH J: Yes, Mr Killalea.

MR KILLALEA: Your Honour, I have only come on late. I was requested to advise on the matter through the New South Wales Bar Assistance Scheme just on Tuesday, I think it was.

McHUGH J: Yes.

MR KILLALEA: It was only this morning I did elect to assist Mr Tsekouras with his application this afternoon. Your Honour, if I can just cut to what it is that we seek and then give your Honour reasons why we seek that. We seek an adjournment for this matter to be heard so that I might properly prepare it. The reason why I submit an adjournment is warranted is that when one looks to the genesis of this case, it starts properly before Master Harrison of the Supreme Court and essentially, what the Master decided was that res judicata applied in respect of Mr Tsekouras' claim in that court that he had paid the monies for which he had in the interim been bankrupted for.

McHUGH J: Yes. I have read it, but there are other problems, are there not? At page 11 Master Harrison thought that the pleading was "hopeless". At page 24 Justice Sperling said "the appeal was utterly without merit" and then, when it came before the Court of Appeal, Justice Priestley took the view that the only order was that you had "to dismiss the appeal". Now, the point that I gather you want to raise has never been raised at any stage of the proceedings and does it affect the pleading point? Even if you made that point good, what about the pleading point?

MR KILLALEA: That is why this matter must be taken back to where it commenced because I submit that what has really driven Master Harrison's decision is her finding that res judicata and/or Anshun estoppel applied in respect of Mr Tsekouras' claim. But, of course, no such res judicata and no such estoppel applied.

McHUGH J: Well, your point is, I take it, that the statement of claim should not have been dismissed even if it is badly drawn.

MR KILLALEA: Yes, your Honour.

McHUGH J: Yes. Now, at this stage, to seek an adjournment I think your client would have to pay any extra costs thrown away by this adjournment application, Mr Killalea.

MR KILLALEA: I do not have a specific instruction on it, but he is subject to a bankruptcy order and that, as I understand it, is stayed pending these proceedings. That is what I - my friend tells me that is not the case. But I am poorly instructed and yet I do say there is a substantial miscarriage of justice below before Master Harrison. It is a point that was not taken up before Justice Sperling and it was not taken up in the Court of Appeal, but if that point stands then the situation is simply this. Mr Tsekouras had a claim to make and he was denied the opportunity to make that claim because Master Harrison wrongly found that res judicata applied and it did not apply because Master Harrison based that on the finding of his Honour Justice Hely in the Federal Court - - -

McHUGH J: Anyway, on your examination of the materials, you think that there is an arguable case that there has been a miscarriage of justice here?

MR KILLALEA: Yes, your Honour.

McHUGH J: Sufficient to warrant a grant of special leave to appeal in this Court?

MR KILLALEA: Yes, your Honour, because it goes to jurisdiction.

McHUGH J: Yes. We will hear what your opponent says. Yes, Mr Johnson.

MR JOHNSON: Your Honour, we oppose any adjournment.

McHUGH J: Well, I understand that. It is really a dilemma. If you have a bankrupt applicant on the one hand, no costs order is going to be of much use to you, I suppose.

MR JOHNSON: No, your Honour. So far as the res judicata point, the reason why I think there is some confusion as to why it might have flowed out of Justice Hely's judgment is that he sat on the hearing of the creditor's petition, which was subsequently - his judgment was an appeal to the Full Court which was also to the special leave application to this Court which was dismissed.

He dealt with each and every claim that was sought to be maintained by way of offsetting claim on the creditor's petition and found that except in the case of one item of about $17,000 that it was a claim that was caught up in the original District Court proceedings which Mr Tsekouras lost and which are referred to at page 7 of the application book, paragraph 12 of the judgment.

It is not abundantly clear from the application book that is before you that that is where the res judicata arises, from the District Court judgment. That District Court judgment, I should say, was also the subject of an appeal to the Court of Appeal by way of leave and leave had been refused. But more importantly, on the adjournment application, your Honour, the application for special leave which appears at page 30 seeks orders for my client to explain what accounts she actually paid.

McHUGH J: I understand that. The whole application is misconceived. Ground 2 and ground 3 - - -

MR JOHNSON: None of them derive any foundation out of the judgment of Justice Priestley in the Court of Appeal in the orders that were made. If there was an adjournment, it would need a fundamental change to the entire application that is before this Court if it was to get anywhere.

McHUGH J: I understand, yes.

MR JOHNSON: For those reasons, we would seek to oppose it.

McHUGH J: Very well. The application for adjournment is granted upon the terms that the applicant pay the costs of today. The matter can be relisted when the application is put in order and either party has liberty to apply on seven days notice in respect of the proceedings.

Is there any further order that either party would require?

MR JOHNSON: No, your Honour.

MR KILLALEA: Could I, perhaps to tidy up, just ask that the amended application be put on within 28 days, your Honour?

McHUGH J: Yes, certainly.

MR KILLALEA: Thank you.

McHUGH J: Yes. We also order that the amended application be put on within 28 days. That would contain your summary of argument as well, Mr Killalea?

MR KILLALEA: Yes, your Honour.

McHUGH J: And, Mr Johnson, how long would you require?

MR JOHNSON: We could reply within seven days. There is no difficulty with that.

McHUGH J: And the respondent's reply be filed within seven days and the ordinary time for the applicant to file a reply also applies.

MR KILLALEA: If the Court pleases.

McHUGH J: Yes, adjourn the Court to Tuesday.

AT 3.50 PM THE MATTER WAS ADJOURNED