Tsekouras v Evangelinidis S291/2001 [2002] HCATrans 653 (13 December 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

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 3.03 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA: May it please the Court, I appear for the applicant. (instructed by Ian D. Graham and Associates)

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

GUMMOW J: Yes, Mr Killalea.

MR KILLALEA: Your Honour, might I in the first instance - there are two matters which, with the Court's leave, I wish to put before the Court. One is a copy of the District Court proceedings which feature in the arguments for both the applicant and the respondent. They were part of the application book referred to in the supplementary material but they simply have not been reproduced in that application book. I understand my friend has no objection to that being put before the Court if your Honours - - -

GUMMOW J: Yes, is it part of the record in the Supreme Court below?

MR KILLALEA: District Court.

MR JOHNSON: There is no objection to them being put before this Court in any event.

GUMMOW J: Yes.

MR KILLALEA: The other matter, your Honours - I am remiss in this, I take responsibility for this and apologise to the Court. I have not caused to be produced to the Court copies of the authorities upon which the applicant relies.

GUMMOW J: That is all right.

MR KILLALEA: Your Honours, of course, have the two judgments in the Federal Court which are pertinent. The particular authority which the applicant relies upon is Minogue v Human Rights and Equal Opportunity Commission. The second is Neil v Nott, a judgment of this Court which is referred to in that judgment.

GUMMOW J: What do we get out of those cases?

MR KILLALEA: That a duty does - - -

GUMMOW J: This is a very practical matter we are looking at. It is a matter of practice - - -

MR KILLALEA: Yes.

GUMMOW J: What do we get out of these authorities?

MR KILLALEA: That there is a duty upon courts. A duty may arise upon a court in respect of an unrepresented litigant to assist that litigant in the presentation of the litigant's case before the court. Now, what Minogue tells us is that there are limitations upon that duty and the duty of the court was not abrogated in that case because the litigant was both legally competent in the sense of being able to present legal arguments, and he did so present legal arguments.

Secondly, the litigant's contention to the substantial contentions which the litigant put to the court in that case were also supported by senior counsel and junior counsel acting as amicus curiae for the Human Rights and Equal Opportunity Commission. So in those circumstances a duty did not arise. There was no duty breached in respect of giving assistance to the unrepresented litigant in that case.

CALLINAN J: Would you just state for me what the principle is and where it is found, I am sorry, with respect to the obligation of a court.

MR KILLALEA: I will take your Honours to the judgment in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129.

GUMMOW J: What was the nature of the proceeding there?

MR KILLALEA: In that matter:

the appellant argued that the primary judge had a duty to assist him as an unrepresented - - -

GUMMOW J: What was the nature of the proceeding before - - -

MR KILLALEA: It was in relation to procedural matters:

The appellant also complained that prison officers were able to gain access to documents related to the petition. He said these actions infringed his rights under the International Covenant on Civil and Political Rights (ICCPR).

The HREOC declined to investigate on the basis that it had no authority to inquire into an act or practice of a State agency . . . The appellant commenced proceedings against HREOC, seeking an order that HREOC hear his complaint and orders relating to his human rights under the ICCPR - - -

CALLINAN J: And that is the Full Federal Court, is it?

MR KILLALEA: That is the Full Federal Court, your Honour.

CALLINAN J: Which of their Honours state the principle?

MR KILLALEA: It is a judgment of the Full Bench, their Honours Justices Sackville, North and Kenny and it is stated at - - -

GUMMOW J: Yes, but where is the core of it? Where is the core passage?

MR KILLALEA: Page 136. What is cited at paragraph [27] is the case of Abram v Bank of New Zealand (1996) ATPR:

a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment -

and this is what the Full Court adopts -

What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.

GUMMOW J: Yes. Now, just assuming there is such a principle - - -

MR KILLALEA: Yes.

GUMMOW J: - - - Justice Priestley was alive to it, and if you read page 27 of the application book, he is saying this litigant could not be helped.

CALLINAN J: It is a very, very difficult principle to apply in any event, assuming it does exist.

MR KILLALEA: Yes.

CALLINAN J: Because a judge has to appear to be even-handed.

MR KILLALEA: Yes.

CALLINAN J: We had this problem in a case in which we refused special leave recently.

MR KILLALEA: Yes.

CALLINAN J: An unrepresented litigant said that the trial judge in the Federal Court had not given him enough assistance. There were certainly some statements made that might suggest that there is no such principle. I am not saying there is or there is not. Apart from the other Full Federal Court authority cited, was anything cited? Is that the only case?

MR KILLALEA: Not cited to your Honours but as part of what is referred to in Neil v Nott.

GUMMOW J: Is there not a decision in this Court?

MR KILLALEA: Yes.

GUMMOW J: Being an appeal from the Family Court.

MR KILLALEA: I do not know that judgment, your Honour.

GUMMOW J: Yes, about 10 or 12 years ago.

MR KILLALEA: I was to refer your Honours to Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, though, a decision of this Court.

GUMMOW J: That might be it.

MR KILLALEA: That is referred to in Minogue's Case at paragraph [27] and what the Court observed at page 150:

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.

I have copies of that judgment, your Honours, if that would assist.

CALLINAN J: Thank you.

GUMMOW J: Yes, thank you. Just pardon us a minute. Which particular paragraph, at 150, was it?

MR KILLALEA: At page 150 and at about point 5 the quote is taken.

GUMMOW J: The sentence, "A frequent consequence"?

MR KILLALEA:

of self-representation -

Yes, I think it is about point 5.

GUMMOW J: Yes, thank you. Yes, this is the case I had in mind.

MR KILLALEA: Sorry, your Honour? This is the case?

GUMMOW J: Yes.

MR KILLALEA: Thank you. Then the Court's finding set out simply at 151 point 6, line 28:

In our view, although it is not possible to identify a particular error of principle, his Honour's exercise of discretion did miscarry. It seems that the misconceived advocacy by Mr Neil directed his Honour's attention away from the material considerations.

GUMMOW J: Yes.

MR KILLALEA: If I might go back to your Honour's question about the principles. They are set out further at paragraph [28] of Minogue's Case:

The general principles governing the role of the judge in civil proceedings - - -

CALLINAN J: I am sorry. Paragraph 28 did you say?

MR KILLALEA: Yes.

GUMMOW J: It is the task of the Executive Government, supported with the necessary funding from the legislature to provide a legal aid system. It is not the task of the courts to tilt the scales.

MR KILLALEA: No.

GUMMOW J: Otherwise justice is not seen to be done.

MR KILLALEA: Yes, and so what comes out of those cases is to that effect, your Honour, that I submit that what comes out of what is quoted at paragraph [28], the dicta of his Honour Justice Samuels and that of his Honour Justice Mahoney, is that the court should not put the unrepresented litigant to advantage vis-à-vis the other party and particularly it should not give assistance so as to render unfair the - - -

GUMMOW J: It is a question of appearances.

MR KILLALEA: A question of appearances and being seen to be impartial.

GUMMOW J: Both to the other side and to the litigant in person and the litigant in person loses.

MR KILLALEA: Yes. So when one looks to - - -

GUMMOW J: They misconstrue the assistance so-called that was being proffered, when it does not yield this ultimate success.

MR KILLALEA: It is a question - - -

GUMMOW J: That disparages the whole operation of the judicial process.

CALLINAN J: I do not read these cases really as saying more than that. The court has to do the best it possibly can to reach the right result even when there may be an unrepresented person obfuscating that task, or making that task more difficult.

MR KILLALEA: With respect, I submit that in this case there was no obfuscation. What happened below was that the Master found that a res judicata principle applied.

GUMMOW J: Yes.

MR KILLALEA: And when that was taken on appeal his Honour Justice Sperling confirmed that and what he said was at page 23 of the application book, paragraph 14.

GUMMOW J: Yes.

MR KILLALEA: In relation to ground 3 of the appeal - - -

GUMMOW J: That is right.

MR KILLALEA: Which, at paragraph 10 was:

Her Honour did not give the appellant a reason for dismissing this claim.

I submit that in simple terms that is to be read as a valid reason -

Ground 3 fails on an examination of the master's reasons for decision. There, she makes clear that the reason for the orders made by her was that the plaintiff's claim in the present proceedings was barred by the decision of the Federal Court when the sequestration order was made against the plaintiff -

and the plaintiff takes no issue with that in these proceedings. The sequestration order was made because the court was properly satisfied in terms of section 52(1) of the Bankruptcy Act 1966 that the debt was proven.

But then what the Federal Court, both his Honour Justice Hely below and the Full Court above, their judgment was to the effect that the offsetting claim which the applicant sought to bring before the Federal Court, his Honour Justice Hely was not satisfied that the offsetting claim was such as to warrant not granting a sequestration order, but he made no ruling about the offsetting claim. So when his Honour Justice Sperling said at paragraph 14 that Master Harrison was right, or that the Federal Court was right - I am sorry. When Justice Sperling said at paragraph 14:

that the plaintiff's claim in the present proceedings was barred by the decision of the Federal Court -

then, with respect, his Honour Justice Sperling was manifestly wrong because the Federal Court had not rejected the offsetting claim in the sense of saying it was not proven. The Federal Court was simply required, in terms of section 52(2)(b) of the Bankruptcy Act 1966 , to make a determination:

is satisfied by the debtor . . .

(b) that for other sufficient cause a sequestration order ought not be made -

The Federal Court simply found that it was not satisfied in respect of the offsetting claim, but it neither determined that the offsetting claim could not be made out elsewhere, but in particular, and I will refer your Honour to the supplementary material - - -

GUMMOW J: Now, there was an appeal from Justice Hely, was there, in the bankruptcy proceedings?

MR KILLALEA: Yes.

GUMMOW J: And that found its way up here, through the Federal Court.

MR KILLALEA: Yes, I believe that is right. That is right, and that is why certainly the Master was right and Justice Sperling was right, to say that there was the claim in respect of the costs which founded the bankruptcy proceedings, and they were costs awarded in a failed application by the applicant for damages for negligence. Costs were awarded in the sum of about 73,000, and that was taken on appeal. But the applicant does not come before you today to quibble with that finding of costs and what the Federal Court found in relation to that finding of costs. The Full Federal Court was quite - - -

GUMMOW J: What is the current bankruptcy status involved?

MR KILLALEA: The applicant is bankrupt. These proceedings continue as a matter of a tort relating to personal injuries.

GUMMOW J: I see.

MR KILLALEA: If I can refer your Honours to folio 9 of the amended supplementary material, which is the judgment of the Full Federal Court.

GUMMOW J: Yes.

MR KILLALEA: Your Honours will see there at line 32 the award of $73,000 as:

legal costs of the negligence proceeding -

and I take your Honours to folio 22 of the supplementary materials, the judgment of his Honour Justice Hely, and at the top of that page his Honour Justice Hely at line 7:

I am satisfied that the matters stated in the petition have been proved.

That is in relation to the $73,000 costs. So the applicant does not come before you complaining that he has not been dealt with fairly in relation to those costs. What the applicant claims he has been dealt unfairly with in relation to is the offsetting claim. That is the nub of his Honour Justice Sperling's judgment at 23 of the application book. His Honour Justice Sperling, again to repeat at line 30:

the plaintiff's claim in the present proceedings was barred by the decision of the Federal Court when the sequestration order was made against the plaintiff -

that is the $73,000 -

and in the course of which the off-setting claim against the defendant, to which I have referred, was rejected.

With respect, the Federal Court did not reject the claim in a res judicata sense. It simply said it was not satisfied for the purposes of section 52(2)(b).

Now, the substance of the offsetting claim to which his Honour Justice Sperling referred, if I can take your Honours to page 19 of the application book at paragraph 3. His Honour there refers to the application book which, at paragraph 2 on page 18, is the "High Court Application Book No S187 of 2000". It is one of the previous proceedings that came before this Court. What he says at paragraph 3 is:

The Application Book is intended to provide particulars of the plaintiff's claim in the present proceedings. Thus, the sum of $247,705.24 specified in the statement of claim filed in this court consists of moneys allegedly paid to the defendant in relation to the personal injury proceedings. The claim now made is, accordingly, in substance, coextensive with the off-setting claim rejected by Hely J.

I repeat the applicant's claim in this Court that his Honour Justice Hely did not reject the offsetting claim in a res judicata sense. He simply says, "I am not satisfied for the purposes of section 52(2)(b) of the Bankruptcy Act that I should not grant a sequestration order". If there be, perhaps, any room to move on that argument, then I would refer your Honours to what his Honour Justice Hely found in any case at folio 25 of the amended supplementary material.

GUMMOW J: Yes.

MR KILLALEA: And what he considers there at paragraph 19 is an item called:

"GIO payment by way of party costs of $17,000.00" -

If I can refer your Honours to 27A of the supplementary material, your Honours will see there the relevant sums of money which his Honour Justice Hely is considering. If I can just identify the $17,000.

GUMMOW J: Yes.

MR KILLALEA: So it is folio 27A. The GIO payment is the fifth item which the applicant took before the Federal Court. What his Honour Justice Hely said about that, at paragraph 19, is that - well, he considers that, and at paragraph 20 he says:

It is not clear to me what I should make of the reference to $17,000.00. On the one hand, in his affidavit of 8 June 2000 Mr Tsekouras appears to assert that it is a sum of money which he has paid, whereas in Exhibit 2 he refers to it as a payment from the Government Insurance Office to pay my bills -

Paragraph 21 -

I am simply uncertain as to what the status of this sum is. I am not satisfied on the evidence that it reflects a liability of Ms Evangelinidis to Mr Tsekouras, but my uncertainties in relation - - -

GUMMOW J: The red light has been on, you know. It has a point.

MR KILLALEA: Sorry, your Honour. If I can just quickly close, I simply say that the Federal Court, to the extent it was not satisfied generally as to most of the items of Mr Tsekouras' claim, it did allow in particular that that item of $17,000 was at large. I simply say in respect of Justice Sperling finding that the matter was settled by the Federal Court, his Honour erred. So too did the Master to the extent that she found that, and the Court of Appeal should have also found that error.

GUMMOW J: Yes, Mr Johnson. Put to one side the Neil v Nott situation. What do you say is the point about the re-agitation of the bankruptcy questions?

MR JOHNSON: Your Honour, firstly, in respect of the $17,000 that my friend just referred to at page 25 of the supplementary material, that would be a debt owing to Mr Tsekouras which, on bankruptcy, would vest in his trustee and would not be a cause of action. It was one of the grounds that was raised before Master Harrison, although not specifically dealt with by her.

In respect of each of the other claims that were detailed in the affidavit particularising the items of indebtedness, Justice Hely, inferentially making a little bit of criticism about cross-examination of Mr Tsekouras opening up that issue when there was not any evidence to support it before him, made specific findings that they were, in effect, barred by the judgment of Judge Cripps in the District Court of New South Wales in his judgment in February 1999. That was the judgment that my friend handed up at the beginning of today.

That being the case, if it is the same claim that has been sought to be maintained, as was outlined to Justice Hely, it is either barred to the extent that he has outlined and stated the barring by operation of the District Court judgment, confirmed by him in his determination of the offsetting claim, or because the debt is not a debt capable of being recovered by Mr Tsekouras. To that extent, the learned Master was correct.

GUMMOW J: Yes.

MR JOHNSON: And inferentially, the Rajski v Scitec judgment was, we say, a correct statement of the principle even though at that stage Dr Rajski was what I might call a sophisticated litigant in person. It does correctly state those rules, and we adopt them.

GUMMOW J: Thank you. Anything in reply?

MR KILLALEA: Just the very shortest of points, your Honours. If I could just refer you to the additional supplementary material, that is the judgment of the District Court. There is no consideration of costs in that matter save that an order for costs flowed. If my friend says to the contrary, then I simply take your Honours to the judgment of the District Court. Costs are not considered, so the list of items which are set out as being considered by the Federal Court are not part of the judgment of the District Court.

GUMMOW J: Yes. We will take a short adjournment.

AT 3.29 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.33 PM:

GUMMOW J: The applicant relied, in particular, upon what was said in this Court in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, at 150, concerning the ascertainment by courts of the rights of parties where that process is obfuscated by the advocacy of self-represented parties.

In this case, the New South Wales Court of Appeal dealt with the matter, an application for leave to appeal, in a fashion not inconsistent with what was said in Neil v Nott. In these circumstances, no question arises as to the width of any obligation of courts respecting self-represented litigants or as to the existence of a specific duty upon courts beyond the overriding and ever present duty to administer justice accordingly to law.

There is no substance in the other matters the applicant seeks to raise. Accordingly, special leave is refused.

MR JOHNSON: We do seek costs, your Honours.

GUMMOW J: And for what it is worth, refused with costs.

AT 3.34 PM THE MATTER WAS CONCLUDED