Marcel Andre Nauer v Peter James Batterham

HIS HONOUR: By summons, issued on 5 March 2020, the plaintiff (Nauer) moves the Court for an order under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (the Act) that the defendant (Batterham) be prohibited from instituting proceedings in New South Wales against Nauer.

This application is closely connected to proceedings commenced by Finsec as Trustee of the Batterham Retirement Fund against Nauer: Finsec as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238 (the principal proceedings). For reasons which appear in that judgment, which will be delivered immediately before this judgment, the principal proceedings now stand dismissed.

References below to sections are to the Act.

The relevant sections are ss 4, 6, 8, and 13(1). They provide:

Section 16 sets out the procedure for obtaining leave to institute proceedings.

Batterham’s companies are his mere cypher. He is the person who has stood behind all the proceedings that have been brought against Nauer and he has conducted them. He has plagued Nauer for years by conducting unsuccessful proceedings, including motions and appeals in this and other courts: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831.

Batterham, through his company Maylord, commenced proceedings in this list on 19 December 2014 (Batterham was a bankrupt at the time). A new director, Mr Ohlson, was appointed to Maylord and I gave him leave to conduct the proceedings. Maylord failed to comply with directions and I dismissed the proceedings on 24 April 2015, on terms that it was without prejudice to it recommencing them within 12 months. Maylord recommenced two days before the expiry of the 12 months.

On 24 October 2016, Bergin CJ in Eq struck out the Commercial List Statement and ordered Maylord to pay Nauer's costs, fixed at $25,000, prior to filing any proposed amended pleading. Maylord moved by motion to set those orders aside. On 6 February 2017, I dismissed the motion with costs, but I was told that more information which could sustain the motion might be available and I gave leave for it to be remotivated within six months. Maylord was thus given another indulgence. Maylord filed a further Notice of Motion, which I dismissed on 7 April 2017 when Maylord did not appear. On that day, Maylord filed a Notice of Motion seeking to set aside my orders.

On 28 April 2017 Nauer filed a Notice of Motion seeking orders that the proceedings be stayed or dismissed because under superannuation legislation Maylord lacked authority to represent a superannuation fund as a consequence of Batterham's bankruptcy. Batterham had been made bankrupt on 13 November 2014.

On 12 May 2017, Ward CJ in Eq found that Maylord did not have authority: Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer [2017] NSWSC 634. Her Honour dismissed Maylord's Notice of Motion and made a costs order in favour of Nauer for $55,000.

On 2 August 2017, Nauer filed a Notice of Motion seeking an order that the proceedings be dismissed for want of prosecution and that Batterham pay part of the costs.

On 6 November 2017, Slattery J dismissed Maylord's proceedings for want of due dispatch, and ordered Batterham to pay part of Nauer's costs: Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer (No 2) [2017] NSWSC 1467. Slattery J assessed Batterham's share of those costs as $163,456.71.

On 13 December 2017, Maylord filed a Notice of Motion seeking that Slattery J's orders be set aside. On 2 February 2018, I dismissed it with costs. Maylord and Batterham sought leave to appeal from the Court of Appeal in relation to the orders of Bergin CJ in Eq, Ward CJ in Eq and Slattery J. That Court refused leave on 10 April 2018: Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer [2018] NSWCA 76.

On 24 May 2018, Nauer served Batterham with a Bankruptcy Notice. Batterham then moved the Federal Court of Australia to set aside the Bankruptcy Notice. In those proceedings he sought to raise by cross-claim the substance of the claim in the proceedings dismissed by Slattery J.

On 8 June 2018, Batterham commenced new proceedings in the Federal Court by Originating Application and Statement of Claim, this time in his own name, against Nauer, seeking to vindicate the same grievance.

On 11 April 2019, Gleeson J of the Federal Court dismissed Batterham's proceedings: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485. Her Honour described his claims for relief as being either misconceived or doomed to fail. Her Honour considered that his pleading did not disclose any reasonable cause of action and, on the available evidence, there was no reason to believe that Batterham had a viable cause of action against Nauer.

Batterham sought leave to appeal from Gleeson J’s judgment out of time. This extension was refused by Flick J on 10 October 2019: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 1648.

Some of the correspondence which has emanated from Batterham is set out in the first judgment. It is appropriate to set it out again with further examples added where relevant.

On 27 January 2017 Batterham emailed Nauer's solicitor:

In an email to the solicitor of 22 April 2017, he wrote:

In an email to the solicitor of 27 May 2017, he wrote:

On 29 October 2017, Batterham wrote to Nauer’s solicitor, relevantly,

In an email to the solicitor on 12 April 2018, he wrote:

In an email to the solicitor on 24 May 2018, he wrote:

Batterham has expressly stated that:

Batterham has conducted (either alone or through his companies) proceedings within the meaning of s 4 against Nauer no less than nine times, all in connection with the same underlying grievance. He has been refused leave to appeal orders of this Court and of the Federal Court of Australia. His claims for relief have been described by a judge of that Court as being either misconceived or doomed to fail, an observation with which I respectfully agree. Those proceedings were vexatious because they were instituted or pursued without reasonable ground.

The principal proceedings were vexatious because they were:

The calling into question of the decisions of Bergin CJ in Eq., Ward CJ in Eq., and Slattery J was without reasonable ground and vexatious.

The bringing of the principal proceedings and the proceedings in the Federal Court of Australia are in themselves sufficient to satisfy the requirement of frequency. But, in addition, there have been numerous and frequent interlocutory proceedings and decisions have been called into question: Teoh v Hunter’s Hill Council (No 8) [2014] NSWCA 125.

It is clear that if he is permitted to do so, Batterham (either alone or through a corporate alter ego) will continue to hound Nauer with legal proceedings in connection with the same grievance for which proceedings there cannot be a reasonable basis. If he is permitted to do this, he will bring about a significant wastage of judicial resources. Leaving aside the personal position of Nauer, it is in the public interest that Batterham be prevented from doing this.

There are significant outstanding costs orders against Batterham which will not be met. Permitting Batterham to continue will require Nauer to incur legal costs which will never be recovered. This is harassment and significant detriment.

This is an appropriate case in which to make an order against Batterham prohibiting him from instituting proceedings in New South Wales against Nauer.

The effect of this order is that another person, including any of his companies, may not, acting in concert with him, institute proceedings without leave of the Court.

I order, under s 8(7) of the Vexatious Proceedings Act 2008 (NSW), that Peter James Batterham be prohibited from instituting proceedings in New South Wales against Marcel Andre Nauer.