Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Batterham v Nauer [2020] NSWCA 204 Hearing dates: 18 August 2020 Date of orders: 3 September 2020 Decision date: 03 September 2020 Before: Macfarlan JA at [1]
Payne JA at [2]
Simpson AJA at [7]Decision: 1. Leave to appeal is refused.
2. The applicant to pay the respondent’s costs of the proceedings.
Catchwords: CIVIL PROCEDURE – vexatious litigant –
Vexatious Proceedings Act 2008 (NSW), s 8(7) –applicant sought leave to appeal against primary judge’s order prohibiting him from instituting proceedings against respondent – proceedings commenced by companies controlled by applicant – requirements of Vexatious Proceedings Act – proceedings raised essentially issues that had been resolved in earlier proceedings – correspondence of applicant established proceedings commenced to harass or annoy or for another wrongful reason
Legislation Cited: Supreme Court Act 1970 (NSW), ss 75A, 101(2)(e), 101(2)(r)
Vexatious Proceedings Act 2008 (NSW), ss 6, 8
Cases Cited: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485
De Varda v Austin [2018] NSWCA 263
Finsec Pty Ltd as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831
Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313
Mahmoud v Attorney General of New South Wales [2017] NSWCA 12
Marcel Andre Nauer v Peter James Batterham [2020] NSWSC 240
Martin v Attorney General for the State of New South Wales [2014] NSWCA 189
Potier v Attorney-General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category: Principal judgment Parties: Peter James Batterham (Applicant)
Marcel Andre Nauer (Respondent)Representation: Counsel:
Solicitors:
Applicant self-represented
J R Clarke SC (Respondent)
Esplins Solicitors (Respondent)
File Number(s): 2020/114107 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity Division - Commercial List
- Citation:
- Date of Decision:
- 19 March 2020
- Before:
- Hammerschlag J
- File Number(s):
- 2020/71906
Judgment
-
MACFARLAN JA: I agree with Simpson AJA.
-
PAYNE JA: I have read the reasons of Simpson AJA in draft. I agree with the reasons and orders proposed by her Honour and wish only to add some brief additional reasons, not intended to be inconsistent with what her Honour has written.
-
The present appeal is from orders made by Hammerschlag J in Marcel Andre Nauer v Peter James Batterham [2020] NSWSC 240. There, his Honour explained that litigation conducted by Maylord Equity Management Pty Ltd and subsequently Finsec Pty Limited, each as Trustee of the Batterham Retirement Fund against Mr Nauer, was conducted at Mr Batterham’s instigation:
“[6] Batterham’s companies are his mere cypher. He is the person who has…
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- AGLC
- Batterham v Nauer [2020] NSWCA 204
- Case
- [2020] NSWCA 204
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge had erred in finding that the applicant was a vexatious litigant within the meaning of section 8(7) of the *Vexatious Proceedings Act 2008* (NSW). This involved considering whether the proceedings raised essentially the same issues as had been resolved in earlier litigation and whether the proceedings were commenced to harass, annoy, or for another wrongful reason.
The court found that the correspondence from the applicant demonstrated that the proceedings were initiated for the purpose of harassment or annoyance, or for some other improper reason. The court concluded that the primary judge had correctly applied the requirements of the *Vexatious Proceedings Act* and that there was no error in the decision to prohibit the institution of further proceedings.
Leave to appeal was refused, and the applicant was ordered to pay the respondent’s costs of the proceedings.
Orders
Orders of the court
1. Leave to appeal is refused.
2. The applicant to pay the respondent’s costs of the proceedings.
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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