Batterham v Goldberg

1. [1]

   THE COURT: The applicant requires and seeks leave to appeal from an order made by Lonergan J on 22 June 2023 in which her Honour dismissed the applicant’s proceeding under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Her Honour held that the proceeding was frivolous and vexatious, disclosed no reasonable cause of action and was an abuse of process. Subsequently, on 27 June 2023, her Honour published detailed reasons for summarily dismissing the proceeding (see Batterham v Goldberg [2023] NSWSC 721 (primary judgment or PJ)).

2. [2]

   There was no dispute as to the relevant principles guiding this Court’s decision whether or not to grant leave to appeal: they are well settled. Ordinarily, an applicant for leave must show that the subject decision is attended by sufficient doubt to warrant its consideration on appeal, that there is some issue of principle or of general public importance, or that there is an injustice that is reasonably clear beyond being merely arguable (see, e.g., Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69).

3. [3]

   The applicant requires leave because the summary dismissal is an interlocutory decision: Supreme Court Act 1970 (NSW) s 101(2)(e). The respondents properly acknowledged that, despite the summary dismissal being interlocutory, it had the practical effect of finally determining the applicant’s right to bring the proceeding.

4. [4]

   The respondents oppose the grant of leave. For the following reasons, leave should not be granted.

5. [5]

   By an amended statement of claim filed on 22 February 2023, the applicant alleged that he was wrongly made bankrupt in 2014 by the law firm Turner Freeman, based upon a judgment for unpaid legal costs which the applicant asserts was wrongly entered in the Local Court. In essence, the applicant claimed that the unpaid legal costs, which were recorded in a fee invoice issued by Mr Kenzie QC, created no liability on the applicant’s part because the applicant himself had directly briefed Mr Kenzie to appear in High Court proceedings in 2005, and not Turner Freeman acting on his behalf.

6. [6]

   In the amended statement of claim, the applicant claimed that the partners of Turner Freeman knowingly caused a false amended costs assessment application to be submitted in July 2011 to obtain a costs assessment in their favour. The applicant pleaded that he had retained Turner Freeman to represent him in the litigation to which he was a party in 2005. He claimed that he was the subject of a wrongful costs assessment for the fees of Mr Kenzie QC, whom he asserted had never been properly retained by Turner Freeman and for which he had no liability. He accused Turner Freeman of using the unpaid invoice to have him bankrupted in November 2014, relying upon a costs certificate issued by the costs assessor, which took effect as a judgment of the Local Court following their filing of the certificate in the Local Court Registry pursuant to what was then s 368 of the Legal Profession Act 2004 (NSW) (Legal Profession Act).

7. [7]

   The applicant made further claims, based upon the predicate that he had wrongly been made bankrupt, including that he was disabled from pursuing proceedings against a co-joint venturer (Mr Marcel Nauer) in the Supreme Court, which were dismissed for want of due dispatch on 6 November 2017. The applicant claims such proceedings would have resulted in an award of damages in his favour in excess of $2 million.

8. [8]

   The applicant was discharged from bankruptcy on 3 December 2017.

9. [9]

   As will shortly be developed, the summary dismissal decision was principally based upon the finding by the primary judge that the claims raised in the amended statement of claim duplicated claims which were unsuccessfully made by the applicant in proceedings in the Federal Court: see Batterham v Clayton Utz Partnership [2022] FCA 360 per Halley J (and see also Batterham v Clayton Utz Partnership [2022] FCA 1435 in which Stewart J refused an application for leave to appeal from Halley J’s decision).

10. [10]

    These are not the only proceedings in which either or both the applicant and the trustee of his self-managed superannuation fund, Batterham Retirement Fund (BRF), have been involved in relation to or arising from the failed investment. Proceedings have also been brought in this State’s Industrial Relations Commission, the District Court, the Supreme Court, this Court, the Federal Circuit Court, the Full Court of the Federal Court, and the High Court (the numerous proceedings are described in Halley J’s reasons for judgment).

The primary judgment summarised

1. [11]

   After summarising the key relevant features of the amended statement of claim, the primary judge referred at some length to the Federal Court proceedings before Halley J and, to a lesser extent, before Stewart J. Her Honour set out lengthy extracts from Halley J’s judgment in which his Honour summarily dismissed the applicant’s claim that his bankruptcy in November 2014 had the effect of preventing him from being compensated for a reduction in the value of shares in the joint venture company, Ztrata Capital Limited (ZCL).

2. [12]

   The primary judge noted that Halley J summarily dismissed the applicant’s proceedings in the Federal Court on the following four grounds:

3. [13]

   In the Supreme Court, the primary judge summarised the parties’ evidence and submissions in respect of the summary dismissal application, as well as setting out uncontroversial principles applying to the Court’s power summarily to dismiss proceedings. Her Honour correctly acknowledged that the power was an exceptional one which should be used only where there is a demonstrated absence of a cause of action and/or a clear abuse of the Court’s processes.

4. [14]

   The primary judge concluded at PJ[35] that the applicant’s cause of action was “hopeless” and was also both vexatious and an abuse of process because it sought to re-litigate issues which previously had been “comprehensively considered and determined” in the Federal Court.

The applicant’s application for leave to appeal

1. [15]

   The draft notice of appeal which accompanied the applicant’s summons seeking leave to appeal did not set out any specific proposed grounds of appeal. It merely referred to the applicant’s ten page summary of argument dated 18 July 2023. At the outset of the hearing of the application for leave to appeal, the applicant handed up an 8 page written transcript of his oral submissions, which the Court has considered.

2. [16]

   In brief, it appears that the applicant seeks leave to pursue the following grounds of appeal:

Consideration and determination

1. [17]

   For the following reasons, leave to appeal should not be granted.

2. [18]

   First, the applicant has not identified any issue of principle or any question of general public importance sufficient to warrant a grant of leave.

3. [19]

   Secondly, the applicant has not raised any matter relating to the primary judgment which is beyond what is merely arguable. Rather, he largely repeats submissions which were made, unsuccessfully, by him below.

4. [20]

   Thirdly, the applicant has not identified any error on the part of the primary judge which warrants a grant of leave. As the respondents correctly pointed out in their response to the application for leave to appeal filed on 16 August 2023, despite the repeated references to “error” in the applicant’s summary of argument, no error of law or fact was identified.

5. [21]

   The applicant sought to rectify this criticism in his submissions in reply filed on 11 September 2023. In particular, apart from repeating many of the matters raised in the earlier summary of argument, the applicant submitted that the primary judge’s “material error” was to misconceive at PJ[34] the applicant’s complaint that the respondents had breached provisions of the Legal Profession Act by submitting a knowingly illegitimate invoice for costs assessment.

6. [22]

   We consider this allegation to have no basis, to be not even barely arguable and to add nothing to a substantially similar claim which was considered and rejected by Halley J, whose findings were implicitly accepted by the primary judge. Despite their length, it is desirable to set out the following extracts from Halley J’s extensive judgment:

7. [23]

   The primary judge relied upon these and other parts of Halley J’s judgment in support of her summary dismissal decision. Indeed at PJ[21], her Honour referred with apparent approval to Halley J’s conclusion at [172] that Mr Kenzie QC was retained by Turner Freeman on behalf of the applicant in the High Court proceeding and the applicant had failed to establish any basis on which that finding should be disturbed (see also at PJ[24]).

8. [24]

   Mr Batterham had challenged the judgment entered in the Local Court on the costs assessor’s certificate in his application to set aside the bankruptcy notice. That application was dismissed by Judge Raphael in the Federal Circuit Court (Batterham v Goldberg (2014) 285 FLR 370; [2014] FCCA 302). Mr Batterham’s appeal from that decision was dismissed by the Full Court of the Federal Court (Batterham v Goldberg (2014) 226 FCR 166; [2014] FCAFC 136) which upheld the decision of the Federal Circuit Court that Turner Freeman were Mr Batterham’s creditors for the fees the subject of Mr Kenzie QC’s invoice and entitled to issue the bankruptcy notice (at [11], [59]-[61], [65(c)], [69]).

9. [25]

   It appears from the reasons of Judge Raphael that it was common ground that there was no written costs agreement entered into between Mr Batterham and Turner Freeman or between him and Mr Kenzie (at [5]). Judge Raphael found that after Mr Batterham dispensed with the services of Clayton Utz he instructed Turner Freeman to continue to involve Mr Kenzie (at [8]). On the appeal, White J referred to the long established principle that, in considering an application to set aside a bankruptcy notice, the Court may go behind the judgment to ascertain whether in truth the debt for which judgment has been given was due (at [24]).

10. [26]

    As Halley J held, the question whether Turner Freeman was entitled to issue and rely on the bankruptcy notice is res judicata.

11. [27]

    The applicant’s references to the respondents’ alleged non-compliance with ss 310, 311, 345 and 351(3)(a) of the Legal Profession Act do not overcome the primary judge’s conclusion that the claims in his amended statement of claim were an attempt to re-litigate claims made in previous proceedings. It was open to the applicant to raise those statutory provisions in his earlier proceedings.

12. [28]

    In oral address before us, the applicant said that he had not raised these provisions before Judge Raphael but that he did raise them before Halley J and his Honour failed to deal with them. Even if this be the case (and it is unnecessary to determine the matter) the fundamental difficulty is that Judge Raphael’s decision was upheld on appeal by the Full Court of the Federal Court (and there is nothing in the separate judgments published by that Court to suggest that the provisions were raised on that appeal). Furthermore, Stewart J refused the applicant leave to appeal against Halley J’s decision (and again, there is nothing to suggest that the applicant relied on the provisions in support of that application for leave to appeal). These matters serve to underline why the doctrine of res judicata applies in the applicant’s case.

13. [29]

    None of the other “grounds” in the applicant’s summary of argument, including the matters summarised at [16(g) and (h)], are sufficiently arguable to warrant leave to appeal being granted.

Conclusion

1. [30]

   For these reasons, the applicant has not established any basis warranting the grant of leave to appeal. Accordingly, the summons seeking leave to appeal filed on 19 July 2023 should be dismissed, with costs.