Batterham v Clayton Utz Partnership

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FEDERAL COURT OF AUSTRALIA

Batterham v Clayton Utz Partnership [2022] FCA 1435

Appeal from: Application for leave to appeal: Batterham v Clayton Utz Partnership [2022] FCA 360
File number: NSD 304 of 2022
Judgment of: STEWART J
Date of judgment: 30 November 2022
Catchwords: PRACTICE AND PROCEDURE – leave to appeal from summary dismissal – where claims statute-barred – leave to appeal refused
Legislation:

Corporations Act 2001 (Cth) s 184

Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18, 21, 236

Trade Practices Act 1974 (Cth) s 82

Federal Court Rules 2011 (Cth) r 36.01(2)(c)

Cases cited:

Batterham v Clayton Utz Partnership [2022] FCA 360

Batterham v QSR Ltd [2006] HCA 23; 225 CLR 237

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397

Jobbins v Capel Court Corp Ltd [1989] FCA 801; 25 FCR 226

Wardley Australia Ltd v State of Western Australia [1992] HCA 55; 175 CLR 514

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 36
Date of last submissions: 7 October 2022
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent: S Mirzabegian SC and T Epstein
Solicitor for the First Respondent: King & Wood Mallesons
Counsel for the Second Respondent: G Ng
Solicitor for the Second Respondent: YPOL Lawyers
Counsel for the Third Respondent: I Griscti
Solicitor for the Third Respondent: Gilchrist Connell

ORDERS

NSD 304 of 2022
BETWEEN:

PETER JAMES BATTERHAM

Applicant
AND:

CLAYTON UTZ PARTNERSHIP

First Respondent

TURNER FREEMAN PARTNERSHIP

Second Respondent

STEPHEN RUSH

Third Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

30 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWART J:

Introduction

  1. This is an application for leave to appeal from a judgment of a judge of the Court in which the claims brought by the applicant, Mr Batterham, against the three respondents were all summarily dismissed. These reasons assume familiarity with the reasons of the primary judge which are published as Batterham v Clayton Utz Partnership [2022] FCA 360 (PJ).

  2. It is not in dispute that leave to appeal will only be granted if the decision from which leave to appeal is sought is attended by sufficient doubt to warrant the grant of such leave, and that substantial injustice would result from a refusal of such leave: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397.

  3. Mr Batterham was self-represented before the primary judge, including in drafting the statement of claim and the amended statement of claim, and he is self-represented in the proceeding before me. It is apparent that Mr Batterham struggled to meaningfully articulate his claims in the proceeding before the…

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Details
Case
[2022] FCA 1435
Decision Date

CaseChat Overview and Summary

The case of Batterham v Clayton Utz Partnership was heard in the Federal Court of Australia, where Mr Batterham, self-represented, sought leave to appeal from a summary dismissal of his claims against Clayton Utz, Turner Freeman, and Kenzie QC. The claims against Clayton Utz stemmed from alleged wrongful advice in relation to the QSR Proceedings, which were dismissed by the High Court in 2006. Mr Batterham further alleged that Turner Freeman wrongfully invoiced him for costs related to Kenzie QC's appearance, leading to his bankruptcy. The primary judge summarised the extensive background and claims, which Mr Batterham did not contest in his draft notice of appeal. The central legal issue was whether Mr Batterham's claims were statute-barred.

The court examined the grounds of appeal and the basis on which Mr Batterham sought leave to appeal. It found that Mr Batterham's claims against Clayton Utz were statute-barred as he had signed a Deed of Release in 2007, which settled the matter. Additionally, the claims against Turner Freeman and Kenzie QC were also statute-barred as they were based on the same advice and events covered by the Deed of Release. The court held that Mr Batterham's arguments did not sufficiently address the statute of limitations, and his claims were untimely. Given that the appeal had no reasonable prospect of success, the court dismissed the application for leave to appeal with costs.

The final orders of the court were that the application for leave to appeal be dismissed with costs. This outcome underscores the importance of timely assertion of claims and the stringent application of statute of limitations in legal proceedings.

Orders

Orders of the court

1. The application for leave to appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mr Batterham was self-represented before the primary judge, including in drafting the statement of claim and the amended statement of claim, and he is self-represented in the proceeding before me. It is apparent that Mr Batterham struggled to meaningfully articulate his claims in the proceeding before the primary judge, and he has struggled to meaningfully articulate the grounds on which he relies in seeking leave to appeal. I have done the best that I can in identifying and understanding the errors that he says that the primary judge made.Background The relevant background to the claims which Mr Batterham sought to assert against the three respondents in the now dismissed proceeding from which he seeks leave to appeal is extensive, stretching back to 1999 and involving many different proceedings in a number of different courts in the intervening period. The background is summarised at PJ[12]-[64]. Save for some detail at PJ[41] which is not presently relevant, Mr Batterham’s draft notice of appeal does not take issue with any part of that summary. The claims that Mr Batterham wishes to pursue against the respondents are summarised at PJ[103]-[126]. Again, Mr Batterham’s draft notice of appeal does not take issue with any part of that summary. For present purposes, the pleaded claims against the respondents can be further identified as follows.The asserted claims against Clayton Utz (the first respondent) Mr Batterham pleads that he commenced proceedings referred to as the QSR Proceedings, which were commenced in June 2003 in the New South Wales Industrial Relations Commission and which were ultimately dismissed by the High Court in Batterham v QSR Ltd [2006] HCA 23; 225 CLR 237, on the advice of Clayton Utz. He complains that Clayton Utz wrongly advised in relation to those proceedings. Shortly before the matter was heard in the High Court, Mr Batterham terminated Clayton Utz’s retainer to act for him, and retained Turner Freeman, the second respondent. Mr Kenzie QC, who had previously been briefed by Clayton Utz, continued to appear for Mr Batterham. Turner Freeman later claimed costs from Mr Batterham, both for itself and for Mr Kenzie QC. The claim for costs was assessed by a Costs Assessor, who determined that Mr Batterham was liable to Turner Freeman for Mr Kenzie QC’s fees. Turner Freeman subsequently obtained a judgment in the Local Court in respect of those fees, which then became the basis for Mr Batterham’s estate being sequestrated in November 2014. Mr Batterham’s various attempts to resist bankruptcy, including by seeking to set aside the bankruptcy notice that was issued against him on the application of Turner Freeman and subsequently seeking review of the sequestration order, all failed. Mr Batterham previously asserted a claim against Clayton Utz in respect of its conduct of the QSR Proceedings. That claim was settled and a Deed of Release that was signed by him in December 2007. He pleads that he was ignorant at the time of signing the Deed of Release that he might be made bankrupt by reasons of costs invoiced to him by Turner Freeman on behalf of counsel engaged and briefed by Clayton Utz to appear in the High Court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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