Batterham v Nauer

[2020] NSWCA 204

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 Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238

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

Viavattene v Attorney General (NSW) [2015] NSWCA 44

Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Category:

Principal judgment

Parties:

Peter James Batterham (Applicant)
Marcel Andre Nauer (Respondent)

Representation:

Counsel:
Applicant self-represented
J R Clarke SC (Respondent)

Solicitors:
Esplins Solicitors (Respondent)

File Number(s):

2020/114107

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division - Commercial List

Citation:

[2020] NSWSC 240

Date of Decision:

19 March 2020

Before:

Hammerschlag J

File Number(s):

2020/71906

Judgment

1. MACFARLAN JA: I agree with Simpson AJA.

2. 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.

3. 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 stood behind all the proceedings that have been brought against Nauer and he has conducted them. He has plagued Nauer for years by conducting unsuccessful proceedings, including motions and appeals in this and other courts: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831.”

4. In Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831, Hammerschlag J had earlier found:

“[8]   Doing the best I can to describe it, Batterham’s underlying grievance is that he had, or was to have, a minority interest through corporate entities in a joint venture with Vesture Limited (‘Vesture’) and perhaps others, in a strata property management business conducted through an entity called Victorian Body Corporate Services Pty Limited (‘VBCS’). Vesture is associated with Nauer. Batterham complains that he did not get his fair share of the venture and that the other joint venture participants divested themselves of their interests in the venture for value, but left Batterham out of the process, as a consequence of which he says he suffered economic loss and personal stress. The relevant events occurred principally between 2007 and 2011.

[9]   A Settlement Deed was entered into on 4 July 2011, under which Vesture, asserted by Batterham to be controlled by Nauer, bought from Maylord, the shares through which it participated in the venture. Maylord and Batterham released Vesture and all others from all claims. Vesture paid Maylord $450,000. By express provision, Nauer has the benefit of the releases under the Settlement Deed in certain events, which, I am prepared to accept, have occurred.”

5. The primary judge concluded that he was not satisfied that the proceedings had any prospects of success, not least of all because of the terms of the Deed of Settlement: at [22]. His Honour found:

“[24]   Despite the manner in which it is now framed, it is plain that these proceedings seek to motivate the same complaints dealt with in earlier proceedings in this Court and dismissed, and proceedings dealt with in the Federal Court and dismissed.”

6. No appeal was brought from this decision or these findings. Those findings, in the context of all the proceedings that have been brought against Nauer identified by Simpson AJA, are dispositive of the application for leave to appeal. There are no issues of principle, questions of public importance or circumstances which make it reasonably clear that an injustice has occurred by reason of error in the judgment below.

7. SIMPSON AJA: By summons filed on 16 April 2020 the applicant, Peter James Batterham, seeks leave to appeal against an order made in the Equity Division of the Supreme Court on 19 March 2020 that he be prohibited, under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (“the VP Act”), from instituting proceedings in NSW against Marcel Andre Nauer (the “vexatious proceedings order”): Marcel Andre Nauer v Peter James Batterham [2020] NSWSC 240 (“the primary judgment”). The summons and any appeal (if leave were granted) were listed for a concurrent hearing on 18 August 2020.

8. In commencing the proceedings by summons seeking leave to appeal the applicant implicitly accepted (correctly, in my opinion) that leave to appeal against an order made under s 8(7) of the VP Act is required, whether by reason of s 101(2)(e) or of s 101(2)(r) of the Supreme Court Act 1970 (NSW): see Potier v Attorney-General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [47]; De Varda v Austin [2018] NSWCA 263 at [35].

9. The principles on which leave to appeal will be granted are well established. As a general proposition, a grant of leave is warranted only in:

“13.    … matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond that which is merely arguable”: The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 (Bathurst CJ, Beazley and McColl JJA agreeing).

10. In an Amended Draft Notice of Appeal the applicant identified four grounds of the proposed appeal, formulated as follows:

“1.   Judicial bias in favour of the respondent as detailed in Paras 1 to 7 [of] the summary of argument

2.   Mistake in fact as detailed in    Paras 8 to 14 of the summary of argument

3.   Mistake in law as detailed in Paras 15 to 30 of the summary of argument.

4.   Relevant authorities as detailed in Paras 31 to 37 of the summary of argument.”

The Vexatious Proceedings Act 2008

11. By s 8(1) of the VP Act an authorised court (of which the Supreme Court is one) may make a “vexatious proceedings order” in relation to a person if satisfied that:

“(a)   the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b)   the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.”

By s 6 “vexatious proceedings” is defined to include:

“(a)   proceedings that are an abuse of the process of a court or tribunal, and

(b)   proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   proceedings instituted or pursued without reasonable ground, and

(d)   proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.”

“Proceedings” is widely defined in s 4, and includes (inter alia) interlocutory proceedings or applications, procedural applications taken in connection with or incidental to civil proceedings, any proceedings taken in connection with or incidental to proceedings pending before a court, and any “calling into question” of a decision of a court or tribunal.

Background

12. The following factual background appears to emerge from the somewhat scanty material provided to this Court.

13. The applicant is the beneficiary of a superannuation fund called the Batterham Retirement Fund (“the BRF”) of which the trustee was, until 27 June 2018, Maylord Equity Management Pty Ltd (“Maylord”), and, thereafter, Finsec Pty Ltd (“Finsec”). The applicant was the sole director of both companies, until bankruptcy (on 13 November 2014) prevented his continuing in those roles. A new director of Maylord, Mr Ohlson, was appointed in his place.

14. Between 2007 and 2011 Maylord engaged in some form of commercial arrangement (which the applicant describes as a “joint venture”) with the respondent, Marcel Andre Nauer, and a company or companies with which Mr Nauer was associated. The applicant had a grievance arising out of the conduct of that arrangement. Maylord commenced proceedings against the respondent. Those proceedings came to an end on 4 July 2011 when the parties entered into a Deed of Settlement.

15. It appears that the applicant became dissatisfied with the terms of the resolution of the dispute. On 19 December 2014 Maylord commenced a new proceeding (No 2014/373063) (“the 2014 proceeding”) in the Equity Division of the Supreme Court, which raised, essentially, the same issues as those the subject of Deed of Settlement. That proceeding was dismissed by the primary judge on 24 April 2015 for failure to comply with directions. There then followed a course of litigation to which it will be necessary in due course to refer in more detail. That litigation included two further proceedings in the Supreme Court, commenced by Maylord in 2016 (No 2016/124822) (“the 2016 proceeding”) and by Finsec in 2019 (No 2019/340500) (“the Finsec proceeding”), again raising essentially the same issues as had been raised in the earlier proceedings, and two proceedings commenced by the applicant in his own name in the Federal Court of Australia (respectively “the first FCA proceeding” and “the second FCA proceeding”). Both FCA proceedings were dismissed by Gleeson J on 11 April 2019: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485. Both FCA proceedings, in different ways, raised the same issues as had previously been resolved by the Deed of Settlement. The Finsec proceeding was finally dismissed by the primary judge on 19 March 2020: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238. The litigation saga was punctuated by a number of interlocutory applications. A more complete account of the saga is annexed to these reasons.

16. The various proceedings constituted the basis of the respondent’s application for a vexatious proceedings order. Behind the application was the contention that the applicant, in his own name or in the name of one or other of the companies that he controlled, sought repeatedly to litigate the issues that had been concluded by the Deed of Settlement.

The application for a vexatious proceedings order

17. The respondent’s application for a vexatious proceedings order was initially made by notice of motion filed in the Finsec proceeding on 7 December 2019. The applicant was not a party to that proceeding. The Finsec proceeding was listed before the primary judge on 5 March 2020, although the precise purpose of the listing is not apparent. Also before the court was the respondent’s notice of motion seeking a vexatious proceedings order. Initially the respondent was prepared to abandon that application if he were successful in obtaining other orders that he sought. It was at the applicant’s insistence that the hearing of that notice of motion proceeded on that day. The respondent then decided to press on with that application. On behalf of the respondent two affidavits were read. Neither of these affidavits are before this Court. An affidavit of the applicant was also read. That, too, is not before this Court. The respondent provided written submissions. They are not before this Court.

18. After both parties had made their submissions, the primary judge raised a procedural issue – that the notice of motion sought an order under the VP Act against the applicant in proceedings to which he was not a party. He gave leave to the respondent to convert the application to a summons, which he would make returnable instanter. That is what happened.

The primary judgment

19. The primary judge gave only a broad overview of the course of litigation on which the application, and the ultimate order, were based. He said (at [26]) that the applicant, either alone or through Maylord or Finsec, had commenced proceedings against the respondent on nine occasions, all in connection with the same underlying grievance. While he referred, briefly, to various of the interlocutory applications which he later found to be vexatious, he provided no details. He did not evaluate the proceedings individually for vexatiousness (as defined in s 6), nor did he state why any was vexatious.

20. At the outset of his reasons the primary judge characterised each of Maylord and Finsec as the applicant’s “mere cypher”; later, as his “corporate alter ego”. In an earlier judgment he referred to the companies as the applicant’s “vehicle”: Finsec Pty Ltd as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831 at [6].

21. The primary judge concluded that the Finsec proceeding came within each of the four paragraphs of s 6 of the VP Act and was therefore vexatious (at [27]). He held that certain challenges to other decisions (to which I will refer below) were without reasonable ground (and came within par (c) of s 6) and were therefore vexatious. He held that the Finsec proceeding and the FCA proceedings were in themselves sufficient to satisfy the requirement of frequency (s 8(1)(a) of the VP Act), but said that they were supplemented by the calling into question of “numerous and frequent interlocutory applications and decisions” at ([29]) (by which, it may be inferred, he considered that the satisfaction as to frequency was strengthened).

22. The primary judge quoted from correspondence from the applicant to the respondent’s solicitor, in which the applicant said:

“I tell you you fucking arsehole, I do all I can to destroy you”. (27 January 2017);

“This matter has a long way to go, my friend, and I have nothing to lose.” (22 April 2017);

“I am 69 years old and living on a pension. I have nothing to lose by causing Nauer as much pain as I can, as he took away my retirement nest egg for reasons that I am unable to fathom.” (27 May 2017);

“…the statute of limitation is not an issue and we can always file a new claim based on a different cause of action

Sleep well working for a client like Nauer that your firm acted for in perpetrating a crime against a minority shareholder in February 2011.

As you know we do not give up in brining [sic] the likes of Nauer to account. More to come.

Cheers” (29 October 2017);

“I suggest that you do not tell Nauer that it is all over, as it is not. I am now moving to plan B.” (12 April 2018);

“By now you will realise that I am not going away.

As such, I imagine I will be seeing you on many more occasions in various courts.” (24 May 2018)” (at [19]-[24])

23. The primary judge also recorded that the applicant had expressly stated that:

• “•   he will do all he can to destroy Nauer’s solicitor;

• •   he has nothing to lose by causing Nauer as much pain as he can; and

• •   he is not going away.” (J at [25])

24. The primary judge said:

“26. Batterham has conducted (either alone or through his companies) proceedings within the meaning of s 4 [of the VP Act] against Nauer no less than nine times, all in connection with the same underlying grievance. He has been refused leave to appeal orders of this Court and of the Federal Court of Australia. His claims for relief have been described by a judge of that Court as being either misconceived or doomed to fail, an observation with which I respectfully agree. Those proceedings were vexatious because they were instituted or pursued without reasonable ground.”

25. The primary judge concluded:

“30.    It is clear that if he is permitted to do so, [the applicant] (either alone or through a corporate alter ego) will continue to hound [the respondent] with legal proceedings in connection with the same grievance for which proceedings there cannot be a reasonable basis. If he is permitted to do this, he will bring about a significant wastage of judicial resources. Leaving aside the personal position of [the respondent], it is in the public interest that [the applicant] be prevented from doing this.”

26. He accordingly made the order sought (see [17]-[18] above).

The proposed grounds of appeal

(a)   a preliminary observation

27. Before considering the grounds of appeal advanced by the applicant, it may be noted that the approach taken by the primary judge did not comply with the requirements of the VP Act. This Court has emphasised, on a number of occasions, the importance, in dealing with applications for vexatious proceedings orders (the effect of which is to preclude an individual’s access to the courts), of identifying those proceedings which are found to be vexatious, the statutory basis on which they are found to be vexatious, and the reasons therefor. In Martin v Attorney General for the State of New South Wales [2014] NSWCA 189, Sackville AJA (with whom Basten and Leeming JJA agreed) (remitting, after successful appeal, proceedings to the Supreme Court for further hearing) said:

“25. In the remitted proceedings it will be necessary to make findings as to whether each of the proceedings relied on by the Attorney General satisfies the definition of ‘vexatious proceedings’ in s 6 of the VP Act. If only some of the proceedings satisfy the definition, it will then be necessary to decide whether the appellant ‘has frequently instituted or conducted vexatious proceedings in Australia’ (s 8 (1)(a)). If the answer is yes, the final question to be answered under the VP Act is whether the court should exercise the discretion conferred by s 8(1) to make vexatious proceedings orders against the appellants.”

28. In Viavattene v Attorney General (NSW) [2015] NSWCA 44 this Court accepted a concession made on behalf of the Attorney General that error had been shown because the primary judge had failed to specify why each of the proceedings he found to have been vexatious came within one or more of the paragraphs of s 6 of the VP Act (see [43], [64]). In Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 this Court upheld a ground that the primary judge in that case failed to give the necessary detailed consideration to the circumstances in which an application for a vexatious proceedings order is made (at [45], [50]).

29. Payne JA, with whom Beazley P and Macfarlan JA agreed, said:

“49.    In the present case it was not sufficient for the primary judge to discern a pattern or series of features of the proceedings as a whole described at a level of generality. That is what the primary judge did … As in Viavattene, it was necessary in the present case to have regard in more detail to the circumstances in which the applications were made and to identify which proceedings were in fact vexatious. This latter finding is also highly relevant to the exercise of determining the proportion of vexatious proceedings, a matter important to the exercise of discretion. Further, the findings made by the primary judge were expressed at a global level, without explaining how it was that particular proceedings were vexatious proceedings and how those proceedings fitted the description of ‘frequently instituted or conducted vexatious proceedings in Australia’ … ”

30. In Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317, with the concurrence of McColl and Macfarlan JJA, I set out three steps necessary in the process of determining that application under the VP Act (at [13]-[14]). Those steps are:

1. identification of the “proceedings” the subject of the application said to be vexatious;

2. determination, applying s 6, of which, if any, of the proceedings comes within one or more of the four paragraphs of that section and is therefore vexatious;

3. determination, on the basis of those proceedings found to have been vexatious, whether the person concerned has “frequently” instituted or conducted vexatious proceedings in Australia or has acted in concert with such a person.

31. The process required by s 8 of the VP Act is one that is, admittedly, painstaking, but one for which there are no shortcuts.

(b)   the applicant’s argument

32. I have set out above (at [10]) the proposed grounds of appeal. The applicant initially filed, in support of the grounds, a Summary of Argument dated 14 April 2020. He has subsequently filed written submissions dated 18 May, 18 June, 28 July, 8 August and 10 August 2020. Only the first of these documents clearly addresses the identified grounds of appeal. It is convenient to deal with those grounds as they are explained in the Summary of Argument.

1. “Judicial Bias”

33. Under this ground the applicant complains that the primary judge erroneously took into account the correspondence that he had directed to the respondent’s solicitor. He contends that the correspondence was “personal” and did not constitute “proceedings” as defined in the VP Act. The latter proposition is correct, but irrelevant. The correspondence was not relied upon by the respondent, or by the primary judge, as “proceedings”.

34. The applicant submitted that the primary judge took a personal dislike to him and took offence at the correspondence although (he submitted) it was not relevant “to any cause of action for wrongdoing upon which the respondent’s application was based”. He submitted that his Honour’s dislike of him influenced his decision, and that he formed the view that the respondent was an innocent party and that the applicant wrongfully instigated and continued proceedings “to hound Nauer without a reasonable basis”.

35. The applicant clearly misunderstood the purpose for which the correspondence was put before the court. Paragraphs (b) and (d) of s 6 of the VP Act include in the definition of “vexatious proceedings”, respectively, “proceedings instituted to harass or annoy … or for another wrongful purpose”, and “proceedings that are conducted … in a way that harasses, or causes unreasonable annoyance, delay or detriment … “

36. The evidence of the applicant’s correspondence, and, indeed, his stated aim therein, was clearly relevant to whether the respondent had established that the proceedings in question were vexatious. The various statements made by the applicant unmistakeably establish that his intention was to harass or cause unreasonable annoyance to the respondent. Taking that evidence into account was not indicative of “judicial bias”.

37. Under the same ground the applicant argued that the primary judge “…concluded that Maylord, Finsec and [the applicant] were one party” and were determined to be “his corporate alter egos”. He therefore contended that he had a legal right to represent Finsec and pursue claims against the respondent. This appears to have been intended as a challenge to the primary judge’s refusal, in the Finsec proceeding, to dispense with the requirement that Finsec be represented by a solicitor (as to which, see item (v)(b) in the annexure to these reasons).

38. This is not the appropriate occasion to challenge that decision. There is no arguable error in the finding of the primary judge that Maylord and Finsec were the “cyphers” or the “vehicles” or the “alter egos” of the applicant. The finding was relevant to s 8(1)(b) of the VP Act, which permits a vexatious proceedings order to be made where the person against whom it is sought has acted in concert with another who has instituted or conducted vexatious proceedings in Australia. There is no substance in this proposed ground of appeal.

1. Mistake in fact

39. The applicant pointed to [7] of the primary judgment in which the primary judge said that Mr Ohlson had been appointed to Maylord (on the applicant’s bankruptcy) and had been given leave to conduct the proceedings on Maylord’s behalf (see item (i) in the annexure). The proceedings were dismissed on 24 April 2015 on terms that it was without prejudice to Maylord’s right to commence proceedings within 12 months.

40. The applicant argued that this implied that Mr Ohlson had been given leave to conduct the proceedings before 24 April and is factually wrong because Mr Ohlson was not present at court on that date. For my part, I do not draw that inference from the paragraph on which the applicant places reliance. In any event, on behalf of the respondent it was conceded that there was a minor error of fact, but it was argued (correctly) that the error was immaterial to the outcome. The applicant has pointed to no error of fact that had any bearing on the outcome of the application. There is no substance in this ground of appeal.

(iii) & (iv):   Mistakes in law; relevant authorities

41. The applicant identified five areas of the judgment in which, he contended, the primary judge erred in law.

(a)   “Frequently”

42. This argument focussed on the requirement that, before a vexatious proceedings order may be made, the person the subject of the application has “frequently instituted or conducted vexatious proceedings in Australia” (s 8(1)(a)) or has acted in concert with a person who has done so (s 8(1)(b)). In finding that the requirement of frequency was satisfied the primary judge cited the decision in Teoh. In Teoh this Court adopted the approach taken by the High Court in Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 (in relation to parallel provision under the High Court Rules 1958 (Cth)). In Jones (at 315), Toohey J said that the term “frequently” is a relative term that has to be understood in the context of the proceedings in question.

43. The argument advanced by the applicant distinguished the facts in Teoh from the facts of the present case. He argued that his prospects of success in his litigation were better than those of Mrs Teoh in hers.

44. It is neither necessary nor possible to judge the validity of that contention: the passage in Teoh to which the primary judge referred was a statement of principle – it was equally applicable to both cases.

45. No error is demonstrated with respect to the primary judge’s approach to the frequency with which he found the applicant had commenced vexatious proceedings.

(b)   “Reasonable ground”

46. In [26] of the primary judgment the primary judge said that, on no fewer than nine occasions, the applicant, either alone or through one or other of his companies, had commenced proceedings “all in connection with the same underlying grievance”. He held that these proceedings were vexatious because they were instituted or pursued without reasonable grounds.

47. The argument of the applicant under this subheading did not address or assert any error in the primary judgment. Rather, it sought to canvass the reasons given in various of the interlocutory proceedings to which the primary judge had referred.

48. The applicant has identified no arguable error in this respect.

(c)   “Breach of fiduciary duties as a joint venture partner”

49. The argument of the applicant under this head was entirely directed to reasons given by Bergin CJ in Eq for striking out the proceeding brought by Maylord in 2016 (see item (ii)(a) in the annexure), and (it appears) to the decision by Slattery J in dismissing, for want of due despatch, proceedings brought by Maylord. It was a challenge to the reasons for the decisions. This has nothing to do with the vexatious proceedings order made by the primary judge and does not support a grant of leave to appeal.

(d)   “Legal precedents for breach of joint venture fiduciary duty”

50. Again, the argument that appears under this heading in the outline of argument is not directed to any asserted error in the primary judge’s approach to the application for a vexatious proceeding order. It does not support an application for leave to appeal.

(e)   Legal precedents for dishonesty and fraud

(f)   Conspiracy to defraud and misleading and deceptive conduct

51. These arguments also seek to canvass decisions other than the decision of the primary judge in making the vexatious proceedings order. They do not support a grant of leave to appeal against that order.

Conclusion

52. None of the proposed grounds of appeal identified by the applicant has any prospect of success. Nothing in the Summary of Argument enhances the applicant’s prospects.

53. I have also read the various additional submissions filed by the applicant on the dates set out above. None is directed to any of the grounds of appeal proposed in the amended draft notice of appeal, and none raises any legitimate or arguable additional ground. All are directed to the applicant’s underlying grievance, and to the various decisions that rejected his pleadings and dismissed the proceedings.

54. Bearing in mind that the applicant is unrepresented I have also considered whether leave to appeal should be granted on the basis of inadequacy of reasons. For that purpose I have carefully examined the judgments given for dismissing the applicant’s proceedings.

55. If leave to appeal were granted the appeal would be governed by s 75A of the Supreme Court Act 1970 (NSW). An appeal would be by way of rehearing (subs (5)); this Court would have the powers and duties of the Supreme Court, including, relevantly, powers and duties concerning the drawing of inferences and the makings of findings of fact (subs (6)).

56. I am satisfied that, even if leave were to be granted, no different outcome would eventuate.

57. The applicant has, on five occasions, in two courts, commenced substantive proceedings that replicate the original proceedings that were finalised by the Deed of Settlement in 2011 (the 2014 proceeding, the 2016 proceeding the first and second FCA proceedings, and the Finsec proceeding). Each of these proceedings was instituted and pursued without reasonable ground (VP Act s 6(c)) and was therefore an abuse of the process of the court (par (a) of s 6). It may also be safely concluded (having regard to the applicant’s correspondence with the respondent’s solicitor) that the proceedings were instituted to harass or annoy, and were conducted for the same wrongful purpose (pars (b) and (d)).

58. The institution of five substantive proceedings with respect to the same subject matter is sufficient to satisfy the requirement of frequency for the purposes of s 8(1) of the VP Act.

59. It follows from the vexatious character of the substantive proceedings that the interlocutory proceedings that followed were also without reasonable ground and an abuse of process and conducted to achieve a wrongful purpose. These interlocutory proceedings included:

60. (i)   the application to set aside the orders of Bergin CJ in Eq of 24 October 2016 (item (ii)(b) in the annexure);

61. (ii)   the application to file an amended Commercial List Statement (at the hearing of which Maylord failed to appear) (item (ii)(c) in the annexure);

62. (iii)   the application to set aside Slattery J’s order of 6 November 2017 dismissing the 2014 proceeding (item (ii)(e) in the annexure);

63. (iv)   the application for leave to appeal to this Court against the orders of Bergin CJ in Eq, Ward CJ in Eq and Slattery J (item (ii)(f) in the annexure);

64. (v)   the appeal and application for leave to appeal against the orders of Gleeson J in the FCA (items (iii)(b) and (iv)(b) in the annexure).

An appeal, if leave were granted, would inevitably fail.

65. The applicant has not identified any relevant arguable error in the findings and conclusions of the primary judge. Nor has he satisfied any of the requirements for a grant of leave to appeal. Leave to appeal should be refused.

66. The orders that I propose are:

1. Leave to appeal is refused;

2. The applicant to pay the respondent’s costs of the proceedings.

*************************

Annexure to Judgment of Simpson AJA

2020/114107 – Batterham v Nauer

The proceedings

67. Five substantive proceedings were in issue, three in the Supreme Court and two in the Federal Court. In no case has the originating process been provided to this Court. In each case the named defendant/respondent was the present respondent, Mr Nauer.

1. Supreme Court Proceeding No 2016/373063, commenced on 19 December 2014 by Maylord (the 2014 proceeding).

The primary judge recorded (at [7]) that a new director (Mr Ohlson) had been appointed to Maylord and that (on a date not stated) he had given leave to Mr Ohlson to conduct the proceedings on Maylord’s behalf. On 24 April 2015 the primary judge dismissed this proceeding for failure by Maylord to comply with directions, but on terms that the dismissal was without prejudice to Maylord’s right to recommence within 12 months. Any reasons given for the dismissal (beyond that it was for non-compliance with directions) have not been made available to this Court.

(ii)(a)   Supreme Court Proceeding No 2016/124822, commenced on 22 April 2016 by Maylord

1. This was the recommencement of the 2014 proceeding. A Commercial List Statement (“CLS”) accompanied the originating process. On 24 October 2016 Bergin CJ in Eq struck out the CLS and ordered that Maylord pay $25,000 towards the respondent’s costs by 21 November 2016. Her Honour refused leave to file an amended CLS. Neither party sought reasons for the orders and none have been provided.

68. (b) On 6 February 2017 Maylord filed a notice of motion (presumably in reliance on UCPR r 36.16) seeking orders setting aside Bergin CJ in Eq’s orders of 24 October 2016. On 17 February 2017 the primary judge dismissed the notice of motion, but granted Maylord leave to have the notice of motion reinstated within six months.

69. (c)   On 24 March 2017 Maylord filed another notice of motion seeking orders to set aside Bergin CJ in Eq’s orders of 24 October 2016 and sought leave to file an amended CLS. This matter was listed for hearing on 7 April 2017 when there was no appearance by or on behalf of Maylord. The primary judge accordingly dismissed the notice of motion with costs.

(d)   On the same date (7 April 2017), by notice of motion, Maylord sought to have the primary judge’s orders set aside and again sought orders setting aside the orders of Bergin CJ in Eq of 24 October 2016. On 22 May 2017 Ward CJ in Eq dismissed the notice of motion: Maylord Equity Management Pty Ltd as Trustee of the Batterham Retirement Fund v Nauer [2017] NSWSC 634 at [48].

70. On 6 November 2017 Slattery J dismissed the 2014 proceeding for want of due dispatch: Maylord Equity Management Pty Ltd as Trustee of the Batterham Retirement Fund v Nauer (No 2) [2017] NSWSC 1467 and ordered that the applicant be personally liable for the costs because he was “substantially in control of Maylord’s actions and has been initiating and directing the impecunious Maylord’s steps on this application” (at [53]). On 19 December 2017 Slattery J quantified the costs order against the applicant in the sum of $163,456.71: Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund v Nauer (No. 3) [2017] NSWSC 1783.

71. (e) On 13 December 2017 Maylord filed a notice of motion (again, presumably in reliance on UCPR r 36.16) seeking an order setting aside Slattery J’s order of 6 November 2017. On 2 February 2018 the primary judge dismissed the notice of motion.

72. (f)   In February 2018 Maylord filed in this Court an application for leave to appeal against the orders of Bergin CJ in Eq of 24 October 2016, Ward CJ in Eq of 22 May 2017 and Slattery J on 6 November 2017. In each case, leave was refused because:

“11.    …. No question of principle or of general importance arises in this application. Further, there is no demonstrated injustice. In substance, the litigation has not proceeded because concededly inadequate pleadings have led to the incurring of costs which have not been paid: Maylord Equity Management Pty Ltd as Trustee of the Batterham Retirement Fund v Nauer [2018] NSWCA 76.”

Undeterred, the applicant turned to the Federal Court.

(iii)(a)   Federal Court Proceeding No NDS 982/2018, commenced on or about 8 June 2018

The applicant moved in the Federal Court to set aside a bankruptcy notice issued on behalf of the respondent following the unsatisfied costs orders made against the applicant by Slattery J on 6 November 2017. The application was based on what the applicant asserted were proprietary rights he had in the litigation represented by proceeding No NDS 990/2018.

1. (iv)(a)   Federal Court Proceeding No NSD 990/2018, commenced on 12 June 2018

The applicant commenced this proceeding in his own name. The causes of action he pleaded all related to the asserted joint venture with respect to the BRF. Gleeson J summarily dismissed the proceeding because the claims for relief were either misconceived or doomed to fail. More expansively, her Honour said:

“164.    Mr Batterham has completely failed to identify any valid claim or cause of action or to provide any factual material that could amount to a valid claim, having been given a reasonable opportunity to do so.

165.    With the possible exception of the claim for relief for breach of fiduciary duty, it is clear that there is no reasonable question to be tried and accordingly, the proceeding should be summarily dismissed to that extent.

166.    As to the claim that Mr Nauer has breached fiduciary duties owed to Mr Batterham, it is currently hopelessly defective and liable to be struck out. The fact that Mr Batterham has not pleaded a reasonable cause of action following the detailed interaction between Bergin CJ in Eq and Mr Fernon of counsel strongly suggests that Mr Batterham is unable to do so. …”: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485

As a consequence of her decision summarily to dismiss that proceeding Gleeson J also (in the same judgment) summarily dismissed the application to set aside the bankruptcy notice. It is not necessary further to explore the reasons for that decision.

1. (iii)(b)   Federal Court Proceeding No NSD 65420/19;

2. (iv)(b)   Federal Court Proceeding No NSD 65620/19

3. The applicant filed in the Federal Court an appeal against Gleeson J’s refusal to set aside the bankruptcy notice, an application for leave to appeal against the summary dismissal of proceeding No NSD 990/2018, and an application for extension of time in that proceeding. On the respondent’s application the Notice of Appeal (as amended) was struck out as having no reasonable prospects of success: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 1648. The application for extension of time (also as amended) was refused. Flick J struck out the Amended Notice of Appeal because no ground challenged the relevant findings of Gleeson J, and that the grounds of the application for leave to appeal was equally deficient and the claims for relief remained “misconceived or doomed to fail”.

1. (v)(a)   Supreme Court Proceeding No 2019/340500, commenced by Finsec on 30 October 2019 (“the Finsec proceeding”)

This proceeding was filed in the Equity Division, with a CLS. Finsec was not represented by a solicitor as required by UCPR r 7.1.

(b)   By notice of motion Finsec sought dispensation from the requirements of that rule so that it could be represented by Mr Ohlsen.

On 28 November 2019 the primary judge dismissed the notice of motion and also dismissed the Finsec proceeding: Finsec Pty Ltd as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831. At [22] his Honour said that he was not satisfied that the proceeding had any prospects of success “not least of all because of the terms of the Deed of Settlement” (of 2011). He said that the CLS “was fraught with difficulties” and that “as an articulation of a claim it is unintelligible”. He said:

“24.    Despite the manner in which it is now framed, it is plain that these proceedings seek to motivate the same complaints dealt with in earlier proceedings in this Court and dismissed, and proceedings dealt with in the Federal Court and dismissed.”

He ordered that no further proceedings be brought by the applicant or a party owned or controlled by him, against the respondent on the same or on substantially similar cause of action or for the same or substantially the same relief as in these proceedings without first obtaining the leave of the court.

However, his Honour stayed operation of the dismissal of the proceedings until 6 February 2020, on the basis that if Finsec obtained legal representation the stay of the dismissal would continue until further order. In other words, he would allow the proceeding to progress provided Finsec was legally represented.

73. Finsec was then briefly represented by a solicitor, but the representation terminated on 28 February 2020. On 19 March 2020 (the same day as he made the vexatious proceedings order) the primary judge dissolved the stay of the order of dismissal, which thereupon came into effect: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238. He said that the Finsec proceeding was an abuse of process and had no reasonable prospects of success.

Decision last updated: 03 September 2020