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Batterham v Goldberg (No. 2)

Batterham v Goldberg (No. 2)

Case [2023] NSWSC 1426 21 November 2023

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Batterham v Goldberg (No. 2) [2023] NSWSC 1426
Hearing dates: 31 July 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The costs order made on 22 June 2023 is varied as follows:
The plaintiff is to pay the defendants’ costs of the proceedings on an indemnity basis fixed in the specified gross sum of $29,000.00.
(2) The plaintiff is restrained from commencing in any court or tribunal, any proceedings against any of the defendants, or the current partners, former partners from time to time of the partnership with the business name “Turner Freeman” and trading as Turner Freeman Solicitors, (other than by a claim in the nature of a defence, cross-claim, or cross-summons), which arise from the same or similar facts as those alleged in these proceedings, without the leave of a Justice of the Supreme Court of New South Wales, and unless and until the plaintiff has paid the costs ordered in Order 1 above.

Catchwords:
COSTS – self represented litigant – repeated attempt to re-litigate the same subject matter – Federal Court already dismissed the same case as an abuse of process – application for indemnity costs – application for gross sum costs order – where claim summarily dismissed – applications granted
CIVIL PROCEDURE – application to restrain plaintiff from commencing further proceedings unless and until payments of costs

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Batterham v Clayton Utz Partnership [2022] FCA 360
Batterham v Clayton Utz Partnership [2022] FCA 1435
Batterham v Goldberg [2023] NSWSC 721
Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294
Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863
Davy v Van Gorp [2022] NSWSC 466
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; [1988] FCA 364.
Golden v Anderson (No 2) [2023] NSWSC 339
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621
Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822
Nauer v Batterham [2020] NSWSC 240
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531

Category: Procedural rulings
Parties: James Batterham (Plaintiff)
Terrance Goldberg (First Defendant)
Armando Gardiman (Second Defendant)
Thady Blundell (Third Defendant)
Representation:
Counsel:
A Smorchevsky (Defendants)
Solicitors:
Moray & Agnew Lawyers (Defendants)

File Number(s): 2023/00036445
Publication restriction: Nil

JUDGMENT

On 22 June 2023, I ordered judgment in favour of the defendants, dismissing the plaintiff’s proceedings under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on the basis that the proceedings were frivolous and vexatious, disclose no reasonable cause of action, and were an abuse of process: Batterham v Goldberg [2023] NSWSC 721 (Principal Judgment).
A summary of the…

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 (No. 2)

Details

AGLC: Batterham v Goldberg (No. 2) [2023] NSWSC 1426
Case: [2023] NSWSC 1426
Decision Date: 21 November 2023

CaseChat Overview and Summary

The plaintiff, Batterham, sought to have the court award him indemnity costs and a gross sum costs order against the defendant, Goldberg, following the dismissal of his claims. The Federal Court had previously dismissed the same subject matter between these parties, and Batterham was self-represented. The dispute centred on Batterham's attempt to re-litigate the same subject matter despite the Federal Court already dismissing it as an abuse of process. The court was required to determine whether the application for indemnity costs and the gross sum costs order were appropriate, given the circumstances of the case. Additionally, the court needed to decide whether to grant an application to restrain the plaintiff from commencing further proceedings unless and until payment of costs had been made.

The court granted the application for indemnity costs and the gross sum costs order, noting that Batterham had repeatedly attempted to re-litigate the same subject matter. The court found that the application for indemnity costs was justified due to the self-represented nature of the litigant and the repeated attempts to re-litigate the same subject matter. The court also granted the gross sum costs order, considering the circumstances of the case. The court exercised its inherent jurisdiction to restrain the plaintiff from commencing further proceedings unless and until payment of costs had been made. The court found that the application to restrain further proceedings was appropriate given the repeated attempts to re-litigate the same subject matter and the abuse of process.

The court dismissed Batterham's claims and granted the applications for indemnity costs and the gross sum costs order. The court also granted the application to restrain the plaintiff from commencing further proceedings unless and until payment of costs had been made. The court emphasised the importance of adhering to the decisions of higher courts and the need to prevent abuse of process. The orders reflected the court's concern with preventing repeated attempts to re-litigate the same subject matter and ensuring that the parties abide by the decisions of the court.

Orders