Batterham v Goldberg

1. [1]

   On 22 June 2023 I made an order dismissing the plaintiff’s proceedings under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on the basis that the proceedings are frivolous and vexatious, disclose no reasonable cause of action, and are an abuse of process.

2. [2]

   These are my reasons for making that order.

Background

1. [3]

   The plaintiff is an aggrieved litigant, apparently unable to move past the unfavourable outcomes he has sustained in proceedings in the Industrial Relations Commission of NSW, this Court, the Federal Court, the High Court of Australia and the Federal Circuit Court.

2. [4]

   The plaintiff, in his Statement of Claim filed 19 January 2023 (and Amended Statement of Claim filed 22 February 2023) alleges that he was wrongly made bankrupt some years ago because of a judgment wrongly entered in the Local Court of NSW for unpaid legal costs claimed by Turner Freeman, to which, the plaintiff has asserted on numerous occasions, they were not entitled.

3. [5]

   The plaintiff pleads a kind of “flow on” effect, that because he was wrongly made bankrupt, he was not able to pursue his rightful entitlement to a significant sum of money in excess of $2 million being:

4. [6]

   The plaintiff also claims “exemplary damages” for “distress”, a claim which I interpolate has the dual problem of “distress” not forming a valid basis for a claim for exemplary damages, and the complete absence of the necessary particulars of such a claim.

5. [7]

   Apart from the fact that the proceedings disclose no valid cause of action, they duplicate the claims made by him in proceedings he commenced in the Federal Court, complaining of the same matters and seeking the same damages from Turner Freeman, as well as Clayton Utz and a separately named solicitor, Mr Rush.

6. [8]

   The defendants in the Federal Court proceedings filed summary dismissal applications in September 2021. On 7 April 2022 Halley J heard and determined those applications: Batterham v Clayton Utz Partnership [2022] FCA 360 (the “Halley Judgment”). In a comprehensive and cogently reasoned judgment, his Honour dismissed the proceedings, concluding that:

7. [9]

   An application for leave to appeal Halley J’s decision was refused by Stewart J on 20 November 2022: Batterham v Clayton Utz Partnership [2022] FCA 1435.

8. [10]

   As explained in the written and oral submissions by counsel for the defendants in this Court, the proceedings in this Court are nothing more than an attempt to relitigate the same matters already raised and determined in the proceedings commenced in the Federal Court and disposed of by Halley J.

The plaintiff’s claims in the proceedings in this Court

1. [11]

   In Prayer 1 of the Amended Statement of Claim, the plaintiff seeks to recover alleged loss from a joint venture between himself and Mr Nauer, which is said to have been caused “when the wrongful bankruptcy of the plaintiff by the defendants caused proceedings against Mr Nauer to be dismissed for want of due dispatch”.

2. [12]

   Prayers 2, 3 and 4 of the Amended Statement of Claim also seek to recover interest from 2013 (although the loss is alleged to have arisen in 2017), exemplary damages for distress, (which is not otherwise pleaded or particularised), and costs (although the plaintiff is unrepresented in these proceedings).

3. [13]

   As far as the conduct of the defendants is concerned, the plaintiff alleges that:

4. [14]

   A large part of the Amended Statement of Claim does not relate to the defendants, but sets out losses alleged to have been suffered by the plaintiff: see pars [16] to [37].

5. [15]

   The alleged link between those losses and the conduct of the defendants is asserted to be:

6. [16]

   It should also be noted that the plaintiff’s cause of action is alleged to have arisen in November 2017. Even if that were correct as a matter of law, it would have arisen prior to his discharge from bankruptcy on 3 December 2017.

The Federal Court proceedings

1. [17]

   The proceedings which led to Halley J’s decision also involved claims by the plaintiff in respect of the diminution of value of shares in ZCL allegedly caused by the conduct of Turner Freeman in making him a bankrupt.

2. [18]

   His Honour gave judgment in favour of the defendants, and made orders summarily dismissing the plaintiff’s claims holding that:

3. [19]

   Halley J dealt with and determined the allegations the plaintiff made against Turner Freeman at [112] to [113]:

4. [20]

   The submissions made by Turner Freeman are set out at [136] to [143] of the judgment:

5. [21]

   His Honour concluded at [172]:

6. [22]

   His Honour also dealt with the arguments regarding limitation periods at [195] to [202]:

7. [23]

   His Honour dealt with the vesting of the cause of action in the plaintiff’s trustee in bankruptcy at [203] to [210]:

8. [24]

   The issues of res judicata, issue estoppel and abuse of process were also dealt with at [211] to [216]:

9. [25]

   His Honour concluded at [217]:

Evidence and submissions

1. [26]

   The defendants’ notice of motion filed on 2 March 2023 was supported by an affidavit of Baron David Alder which sets out a history of proceedings, including, amongst other things, the multiple previous proceedings by the plaintiff and related companies between 2003 and 2022, commencing with proceedings in the Industrial Relations Commission and concluding with the appeal to Stewart J in the Federal Court at the end of 2022.

2. [27]

   The plaintiff opposed the orders sought. He relied upon a document titled “Evidence in Response to the Defendants’ 2 March 2023 Notice of Motion” which comprised mainly argumentative submissions claiming that neither Halley J nor Stewart J had dealt with his arguments in the terms, or on the terms that the plaintiff thought they should have. He developed, and to a large extent, repeated these themes in his written submissions dated 11 April 2023 and 5 May 2023 and the oral submissions he made to the Court on 22 June 2023.

3. [28]

   The plaintiff emphasised again his perseverative view that there can be no issue estoppel because a costs assessor mistakenly determined that he was bound to pay Mr Kenzie’s bill. Because that assessor is not a “judge” and so was not bound by the rules of evidence, everything after that was tainted. He repeated that he was never given notice of the bankruptcy proceedings (although this was all the subject of an application to set aside the bankruptcy notice in 2014, which failed,) and that he should be allowed to pursue his rights now against the named Turner Freeman partners because it was their fault he was not able to pursue his rights against Mr Nauer.

4. [29]

   Counsel for the defendants argued that the reasons for judgment of Halley J operate by way of (yet a further) issue estoppel upon the plaintiff. This is so even if the judgment was given at an “interlocutory” stage, because those reasons were final judicial determinations disposing of the issues before the Court, [4] namely whether the plaintiff’s claims were time-barred, whether his claims vested in his trustee in bankruptcy, and whether his claims were an abuse of process or subject to issue estoppel.

5. [30]

   Counsel for the defendants submitted that it is an abuse of process to seek to re-litigate the same issues which were determined by Halley J, quite apart from doctrines of res judicata or issue estoppel. [5] The present case is an attempt to re-litigate the same matters which were determined in the judgment. It has already been held that the plaintiff’s claims are time-barred, that they vested in his trustee in bankruptcy, that they are an abuse of process, and that the plaintiff is bound by an issue estoppel precluding him from disputing that counsel whose fees were the subject of the costs assessment was retained by Turner Freeman, contrary to the factual basis of his current claim. The conclusions of Halley J were correct and are binding. The plaintiff has no prospects of success in seeking to re-litigate those issues again in this Court. His proceedings are doomed to fail.

6. [31]

   Counsel for the defendants concluded that it is an appropriate case to exercise the power to summarily dismiss the claim because the plaintiff’s claims in the Amended Statement of Claim are unarguable. They have already been held to be unarguable in a recent decision of the Federal Court, and these proceedings are merely an attempt to re-litigate the same issues which the plaintiff has already lost.

Principles applicable to summary dismissal

1. [32]

   The principles were correctly summarised in the defendants’ written submission as follows:

Decision

1. [33]

   The power to summarily dismiss proceedings is an exceptional one and should only be exercised in circumstances where there is an absence of a cause of action demonstrated, and/or a clear abuse of the Court’s processes taking place. In my view, both bases for dismissal are present in this case.

2. [34]

   The proceedings are also vexatious for the very reason that the seek to re-litigate, yet again, old issues already comprehensively considered and determined. As I held in Chandrasekaran v Commonwealth of Australia [2021] NSWSC 1149 at [84]:

3. [35]

   As persuasively argued by counsel for the defendants, the cause of action is hopeless, but more egregiously, the claim is a transparent and unacceptable attempt by the plaintiff to yet again relitigate the earlier unsuccessful attempt in the Federal Court to pursue the same (already determined) issues and allegations. It is very clearly an abuse of process that must not be allowed to continue and so the proceedings must be dismissed.

Orders made on 22 June

1. [36]

   The orders made on 22 June were as follows:

   1. (1)

      The proceedings are dismissed.

   2. (2)

      The plaintiff is to pay the defendants’ costs of the proceedings.

   3. (3)

      Noting that a special costs order is sought that needs to be the subject of affidavit evidence and potentially written submissions, a timetable is to be fixed to deal with that additional or alternative cost order.

   4. (4)

      A further order sought in the Notice of Motion regarding restraint from commencing or continuing similar proceedings also needs to be the subject of argument for which a date will need to be fixed and potentially other affidavit material and written submissions will require directions.

   5. (5)

      The applicant/defendants are to file and serve their affidavit evidence and written submissions of no more than 4 pages in length in support of orders 4 and 5 in the Notice of Motion filed 2 March 2023, on or before 6 July 2023 with a copy to be provided by email to my Associate.

   6. (6)

      The respondent/plaintiff is to file and serve any affidavit evidence upon which he wishes to rely and written submissions of no more than 4 pages in length in response to orders 4 and 5 sought in the Notice of Motion filed 2 March 2023, on or before 20 July 2023 with a copy to be provided by email to my Associate.

   7. (7)

      Orders 4 and 5 of the defendants’ Notice of Motion filed 2 March 2023 are listed for hearing at 10:00am on 31 July 2023 with a 1.5-hour estimate.