Batterham v Goldberg - [2023] NSWCA 237

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Batterham v Goldberg [2023] NSWCA 237
Hearing dates: 5 October 2023
Date of orders: 06 October 2023
Decision date: 06 October 2023
Before: White JA and Griffiths AJA
Decision:
The summons seeking leave to appeal be dismissed, with costs.

Catchwords:
APPEALS — Leave to appeal — no issue of principle or any question of general public importance — no error on the part of the primary judge which warrants a grant of leave — grounds of appeal raised by applicant not sufficiently arguable
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Vexatious proceedings — Abuse of process — primary judge correct in finding the proceeding constitutes an attempt to re-litigate claims made and determined in previous proceedings

Legislation Cited:
Bankruptcy Act 1966 (Cth) s 58
Legal Profession Act 2004 (NSW) ss 310, 311, 345, 351, 368
Superannuation Industry (Supervision) Act 1993 (Cth)
Supreme Court Act 1970 (NSW) s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW) r 13.4

Cases Cited:
Batterham v Clayton Utz Partnership [2022] FCA 360
Batterham v Clayton Utz Partnership [2022] FCA 1435
Batterham v Goldberg (2014) 285 FLR 370; [2014] FCCA 302
Batterham v Goldberg (2014) 226 FCR 166; [2014] FCAFC 136
Batterham v Goldberg [2023] NSWSC 721
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69

Category: Principal judgment
Parties: James Batterham (Applicant, Litigant in person)
Terence Goldberg (First Respondent)
Armando Gardiman (Second Respondent)
Thady Blundell (Third Respondent)
Representation:
Counsel:
A Smorchevsky (First, Second and Third Respondents)
Solicitors:
Moray & Agnew (First, Second and Third Respondents)

File Number(s): 2023/240072
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2023] NSWSC 721

Date of Decision:

27 June 2023

Before:

Lonergan J

File Number(s):

2023/36445

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant claimed that the respondents (partners of Turner Freeman) wrongfully caused him to become bankrupt and consequently suffer losses. He alleged that the respondents knowingly caused a false amended costs assessment application for unpaid legal costs of Mr Kenzie QC, for which the applicant claims he was not liable, to be submitted for the purpose of obtaining a costs assessment in their favour. Turner Freeman relied on the costs certificate issued, which took effect as a Local Court judgment, in obtaining a bankruptcy notice against the applicant. The applicant claimed that the respondents are liable for the subsequent losses he suffered from a joint venture.

The primary judge summarily dismissed the proceeding under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). Her Honour found that the proceedings before her duplicated claims which were unsuccessfully made by the applicant in proceedings in the Federal Court: Batterham v Clayton Utz Partnership [2022] FCA 360 per Halley J. Her Honour concluded 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 had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batterham v Goldberg

Details

AGLC: Batterham v Goldberg [2023] NSWCA 237
Case: [2023] NSWCA 237
Decision Date: 06 October 2023

CaseChat Overview and Summary

The applicant, Batterham, sought leave to appeal a decision of the primary judge to the Court of Appeal of the Supreme Court of New South Wales. The dispute concerned an attempt by Batterham to re-litigate claims that had already been determined in previous proceedings. Goldberg was the respondent.

The Court of Appeal was required to determine whether there was an error on the part of the primary judge that warranted granting leave to appeal, and whether the grounds of appeal raised by the applicant were sufficiently arguable. Specifically, the court considered whether the primary judge had correctly found that the proceeding constituted an abuse of process by attempting to re-litigate concluded matters.

The Court of Appeal found that there was no issue of principle or any question of general public importance raised by the applicant's proposed appeal. Furthermore, the court concluded that the primary judge had not erred in finding that the proceeding was an attempt to re-litigate claims already determined in previous proceedings, and that it therefore constituted an abuse of process. The grounds of appeal were not considered sufficiently arguable to justify granting leave.

Consequently, the Court of Appeal dismissed the summons seeking leave to appeal, with costs ordered in favour of the respondent.

Orders

Orders of the court

The summons seeking leave to appeal be dismissed, with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Batterham v Goldberg [2023] NSWCA 237
Hearing dates:	5 October 2023
Date of orders:	06 October 2023
Decision date:	06 October 2023
Before:	White JA and Griffiths AJA
Decision:	The summons seeking leave to appeal be dismissed, with costs.
Catchwords:	APPEALS — Leave to appeal — no issue of principle or any question of general public importance — no error on the part of the primary judge which warrants a grant of leave — grounds of appeal raised by applicant not sufficiently arguable CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Vexatious proceedings — Abuse of process — primary judge correct in finding the proceeding constitutes an attempt to re-litigate claims made and determined in previous proceedings
Legislation Cited:	Bankruptcy Act 1966 (Cth) s 58 Legal Profession Act 2004 (NSW) ss 310, 311, 345, 351, 368 Superannuation Industry (Supervision) Act 1993 (Cth) Supreme Court Act 1970 (NSW) s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW) r 13.4
Cases Cited:	Batterham v Clayton Utz Partnership [2022] FCA 360 Batterham v Clayton Utz Partnership [2022] FCA 1435 Batterham v Goldberg (2014) 285 FLR 370; [2014] FCCA 302 Batterham v Goldberg (2014) 226 FCR 166; [2014] FCAFC 136 Batterham v Goldberg [2023] NSWSC 721 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Category:	Principal judgment
Parties:	James Batterham (Applicant, Litigant in person) Terence Goldberg (First Respondent) Armando Gardiman (Second Respondent) Thady Blundell (Third Respondent)
Representation:	Counsel: A Smorchevsky (First, Second and Third Respondents) Solicitors: Moray & Agnew (First, Second and Third Respondents)
File Number(s):	2023/240072
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2023] NSWSC 721 Date of Decision: 27 June 2023 Before: Lonergan J File Number(s): 2023/36445