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
Category: Procedural rulings Parties: James Batterham (Plaintiff)
Terrance Goldberg (First Defendant)
Armando Gardiman (Second Defendant)
Thady Blundell (Third Defendant)Representation: Counsel:
Solicitors:
A Smorchevsky (Defendants)
Moray & Agnew Lawyers (Defendants)
File Number(s): 2023/00036445 Publication restriction: Nil
JUDGMENT
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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).
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- AGLC
- Batterham v Goldberg (No. 2) [2023] NSWSC 1426
- Case
- [2023] NSWSC 1426
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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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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