Supreme Court New South Wales Medium Neutral Citation: Batterham v Goldberg [2023] NSWSC 721 Hearing dates: 22 June 2023 Date of orders: 22 June 2023 Decision date: 27 June 2023 Jurisdiction: Common Law Before: Lonergan J Decision: Proceedings dismissed. For ancillary orders refer to par [36] of this judgment Catchwords: CIVIL PROCEDURE – summary disposal – application for claim to be summarily dismissed – frivolous and vexatious proceedings – no reasonable cause of action disclosed – abuse of process – attempt to re-agitate issues comprehensively and conclusively determined in the Federal Court – where those proceedings in the Federal Court were time-barred, barred as a result of res judicata and issue estoppel, disclosed no cause of action and where alleged loss and damage not caused by respondents – proceedings dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Batterham v Clayton Utz Partnership [2022] FCA 360 Batterham v Clayton Utz Partnership [2022] FCA 1435 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Castillon v P & O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364; Chandrasekaran v Commonwealth of Australia [2021] NSWSC 1149 Coffey v Secretary, Department of Social Security (1999) 86 FCR 434; [1999] FCA 375 Crocker v Toys 'R' Us (Australia) Pty Ltd (No 3) [2015] FCA 728 Kanakaridis v Westpac Banking Corporation [2015] FCA 1146 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Pi v Zhou [2016] NSWCA 24 Pickering v Centrelink [2008] FCA 561 Rana v Commonwealth [2013] FCA 189 Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 Category: Procedural rulings Parties: James Batterham (Plaintiff) (Self represented) 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 1. On 22 June 2023 I made an order dismissing the plaintiff's proceedings under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") on the basis that the proceedings are frivolous and vexatious, disclose no reasonable cause of action, and are an abuse of process. 2. These are my reasons for making that order. Background 1. The plaintiff is an aggrieved litigant, apparently unable to move past the unfavourable outcomes he has sustained in proceedings in the Industrial Relations Commission of NSW, this Court, the Federal Court, the High Court of Australia and the Federal Circuit Court. 2. The plaintiff, in his Statement of Claim filed 19 January 2023 (and Amended Statement of Claim filed 22 February 2023) alleges that he was wrongly made bankrupt some years ago because of a judgment wrongly entered in the Local Court of NSW for unpaid legal costs claimed by Turner Freeman, to which, the plaintiff has asserted on numerous occasions, they were not entitled. 3. The plaintiff pleads a kind of "flow on" effect, that because he was wrongly made bankrupt, he was not able to pursue his rightful entitlement to a significant sum of money in excess of $2 million being: "the value of the net loss from a joint venture between Mr Nauer and the plaintiff incurred by the plaintiff in November 2017 when the wrongful bankruptcy of the plaintiff by the defendants caused proceedings against Mr Nauer to be dismissed for want of due dispatch." 1. The plaintiff also claims "exemplary damages" for "distress", a claim which I interpolate has the dual problem of "distress" not forming a valid basis for a claim for exemplary damages, and the complete absence of the necessary particulars of such a claim. 2. Apart from the fact that the proceedings disclose no valid cause of action, they duplicate the claims made by him in proceedings he commenced in the Federal Court, complaining of the same matters and seeking the same damages from Turner Freeman, as well as Clayton Utz and a separately named solicitor, Mr Rush. 3. The defendants in the Federal Court proceedings filed summary dismissal applications in September 2021. On 7 April 2022 Halley J heard and determined those applications: Batterham v Clayton Utz Partnership [2022] FCA 360 (the "Halley Judgment"). In a comprehensive and cogently reasoned judgment, his Honour dismissed the proceedings, concluding that: "[10] I am satisfied that the claims pleaded by Mr Batterham in the AOA and the ASOC disclose no reasonable cause of action, fail to articulate any coherent basis on which the loss and damage alleged can be attributed to the respondents, can fairly be characterised as an abuse of process, are time barred, precluded by the doctrines of res judicata and issue estoppel and in the case of Clayton Utz are also precluded, at least in part, by a deed of release. Further, I am satisfied that to the extent that any cause of action might have been available to Mr Batterham in respect of the alleged loss of future income as a promoter of private equity opportunities it would have vested in his trustee in bankruptcy on the making of the sequestration order against him." 1. An application for leave to appeal Halley J's decision was refused by Stewart J on 20 November 2022: Batterham v Clayton Utz Partnership [2022] FCA 1435. 2. As explained in the written and oral submissions by counsel for the defendants in this Court, the proceedings in this Court are nothing more than an attempt to relitigate the same matters already raised and determined in the proceedings commenced in the Federal Court and disposed of by Halley J. The plaintiff's claims in the proceedings in this Court 1. In Prayer 1 of the Amended Statement of Claim, the plaintiff seeks to recover alleged loss from a joint venture between himself and Mr Nauer, which is said to have been caused "when the wrongful bankruptcy of the plaintiff by the defendants caused proceedings against Mr Nauer to be dismissed for want of due dispatch". 2. Prayers 2, 3 and 4 of the Amended Statement of Claim also seek to recover interest from 2013 (although the loss is alleged to have arisen in 2017), exemplary damages for distress, (which is not otherwise pleaded or particularised), and costs (although the plaintiff is unrepresented in these proceedings). 3. As far as the conduct of the defendants is concerned, the plaintiff alleges that: a. he retained Turner Freeman in relation to litigation to which he was a party in 2005; b. he was the subject of a wrongful costs assessment for the fees of counsel who, on his case, was never properly retained by Turner Freeman, and for which he says that he was not liable; and c. Turner Freeman thereafter wrongfully caused him to become a bankrupt in November 2014 in reliance upon the judgment arising from that costs assessment process. 1. A large part of the Amended Statement of Claim does not relate to the defendants, but sets out losses alleged to have been suffered by the plaintiff: see pars [16] to [37]. 2. The alleged link between those losses and the conduct of the defendants is asserted to be: a. the defendants' wrongdoing in submitting an amended costs assessment application against Mr Batterham in 2011 led to him to become a bankrupt in November 2014; b. his bankruptcy caused proceedings brought by the "trustee of the Batterham Retirement Fund" (Maylord) to be dismissed in November 2017; c. those proceedings sought compensation for a reduction in the value of shares in a company, Ztrata Capital Limited (ZCL); and d. Mr Batterham was sole beneficiary of the trust of which Maylord was trustee, such that "damages awarded from these proceedings, would have flowed" to him. 1. It should also be noted that the plaintiff's cause of action is alleged to have arisen in November 2017. Even if that were correct as a matter of law, it would have arisen prior to his discharge from bankruptcy on 3 December 2017. The Federal Court proceedings 1. The proceedings which led to Halley J's decision also involved claims by the plaintiff in respect of the diminution of value of shares in ZCL allegedly caused by the conduct of Turner Freeman in making him a bankrupt. 2. His Honour gave judgment in favour of the defendants, and made orders summarily dismissing the plaintiff's claims holding that: a. Mr Batterham appeared to be attempting to overcome limitation period issues by seeking to characterise his claims as causes of action relating to diminution in value of shares in ZCL arising in or after November 2017 upon the dismissal of proceedings commenced by entities controlled by him, but such causes of action were nevertheless time-barred, because the diminution in value of those shares crystalised in 2011, and subsequent dismissal of proceedings did not restart the time period; [1] b. Any cause of action that Mr Batterham may have had for the diminution in value of shares in ZCL vested in his trustee in bankruptcy, and did not re-vest in him after his discharge from bankruptcy absent any assignment from his trustee in bankruptcy, because such causes of action accrued upon the making of a sequestration order against Mr Batterham, were after-acquired property for the purpose of s 58 of the Bankruptcy Act 1958 (Cth), and were not exempt assets; [2] and c. Mr Batterham's claims were an attempt to re litigate his unsuccessful challenges to his liability to pay the fees of counsel retained by Turner Freeman which led to his bankruptcy but he is precluded from challenging the correctness of the proposition that counsel was retained by Turner Freeman by reason of issue estoppel arising from the determination of the costs assessor and from prior proceedings, and his claims to recover loss from the diminution in value of shares in ZCL had been litigated before, such that the proceedings were a collateral attack on concluded proceedings and an abuse of process. [3] 1. Halley J dealt with and determined the allegations the plaintiff made against Turner Freeman at [112] to [113]: "[112] It is alleged that Turner Freeman engaged in misleading and deceptive conduct by representing to the Costs Assessor that: (a) it had instructed Mr Kenzie QC in the High Court Appeal in circumstances where it "did not provide a Brief to Kenzie and Kimber regarding the High Court appeal or enter into a cost agreement with them and did not give any advice to Batterham on the merits of the High Court appeal" (ASOC at [25]; [30]); and (b) Mr Batterham had instructed Turner Freeman to represent him in the High Court Appeal, rather than attend the hearing to provide administrative assistance, in circumstances in which "they knew that they had no knowledge of the legal basis for the appeal and provided no advice to Batterham of the likely outcome of the appeal" (ASOC at [30]). [113] It is then alleged in the ASOC that: 31. Accordingly for turner Freeman to cause Batterham's bankruptcy nine years after the High Court hearing based on this falsely claimed event was unconscionable. 32. Batterham's bankruptcy made it effectively impossible to continue his mergers and acquisitions business that he had conducted for over 20 years and thereby prevented him from earning an income. Additionally, Batterham being a bankrupt also stymied proceedings that SMSF instigated in the Supreme Court in April 2016 against Marcel Nauer, represented by Stephen Rush, a director of Esplins Pty Ltd. 33. Turner Freeman breached s 18 and s 21 of the Competition and Consumer Act 2010 by its conduct. Particulars The public record of Batterham's bankruptcy commenced on 14 November 2014 and discharged on 3 December 2017 plus Para 5 of Hunt & Hunt's letter dated 14 December 2007." 1. The submissions made by Turner Freeman are set out at [136] to [143] of the judgment: "[136] Turner Freeman advances two principal submissions in support of its application for summary dismissal of this proceeding, or alternatively, the striking out of the AOA and the ASOC. [137] First, Turner Freeman submits that Mr Batterham is foreclosed by the related doctrines of res judicata, issue estoppel and abuse of process, to relitigate issues that were determined: (a) as part of the Costs Assessment, which assessment has the effect as a judgment entered against Mr Batterham by reason of the Local Court Judgment; and (b) in proceedings in the Full Court of this Court concerning the validity of the Bankruptcy Notice served upon Mr Batterham in reliance upon the Local Court Judgment. [138] Turner Freeman submits that the case that Mr Batterham seeks to advance against it proceeds on the contention that the outcome of the Costs Assessment was incorrect and that Turner Freeman was not a creditor of Mr Batterham and therefore not entitled to seek the issue of the Bankruptcy Notice. It observes, however, that Mr Batterham has not alleged that the Local Court Judgment was given or entered "irregularly, illegally or against good faith" within the meaning of r 36.15 of the UCPR, and no attempt has been made to set aside the judgment. It submits that whatever claim Turner Freeman may have had with respect to the fees of Mr Kenzie QC merged in the Local Court Judgment and in the absence of any attempt to set aside that judgment "there is simply no basis for concluding that Turner Freeman was anything other than a creditor of Mr Batterham and thus entitled to seek the issue of the Bankruptcy Notice". [139] Turner Freeman further submits that Mr Batterham is precluded by the doctrine of issue estoppel from contending that Turner Freeman did not instruct Mr Kenzie QC. It submits that this was contrary to the basis on which the Manager of the Costs Assessment Unit determined Mr Kenzie was not entitled to be a co-applicant of the costs assessment, the Cost Assessor's finding that Turner Freeman was Mr Kenzie's instructing solicitor and the findings by Judge Raphael that adopted the Cost Assessor's findings, and which in turn were affirmed by White J (with whom Jacobson J agreed) in the Full Court Appeal. [140] In addition, Turner Freeman submits that the continuation of these proceedings would involve an abuse of process given that the nature of the relationship between Turner Freeman and Mr Kenzie QC is an issue that has been litigated and determined on four separate occasions — before the Costs Assessor, in the Bankruptcy Proceedings, the Full Court Appeal and in the Sequestration Stay Proceedings — in circumstances where Mr Batterham had legal representation in each of those proceedings. [141] Second, Turner Freeman submits that Mr Batterham has no standing to bring the proceedings. It submits that whatever cause of action Mr Batterham might have had against the partners of Turner Freeman vested in his trustee in bankruptcy after the Sequestration Order was made against his estate on 13 November 2014, and did not subsequently re-vest in Mr Batterham following his discharge from bankruptcy. [142] Turner Freeman submits that the principal loss sought to be recovered by Mr Batterham is the loss of an ability to generate income from a mergers and acquisition business, and that is not a loss that could be characterised as a right to recover damages or compensation for "personal injury or wrong done to the bankrupt" pursuant to the exemption in s 116(2) from property vesting in the Official Trustee on a debtor becoming bankrupt. It submits that any stress or anxiety for which Mr Batterham seeks relief was consequential upon the damage to his economic interests and therefore cannot be divisible from such damage. [143] Finally, Turner Freeman further submits that any cause of action against it must have accrued after the making of the Sequestration Order on 13 November 2014 because it was the very fact of his bankruptcy that underpinned Mr Batterham's contention that he had been impeded his conduct of his mergers and acquisitions business and prevented him from earning an income. It submits that such cause of action was thus after-acquired property for the purposes of s 58 of the Bankruptcy Act, it did not re-vest in him after his discharge from bankruptcy on 3 December 2017, and there is no evidence that he took any assignment of after-acquired property from his trustee." 1. His Honour concluded at [172]: "[172] Independently of limitation, res judicata, issue estoppel and abuse of process considerations, I am satisfied that the finding that Mr Kenzie QC was retained by Turner Freeman in the High Court Appeal from 2 November 2005 was plainly correct and Mr Batterham has not established any basis on which it should now be disturbed." 1. His Honour also dealt with the arguments regarding limitation periods at [195] to [202]: "[195] It would appear that Mr Batterham seeks to overcome limitations issues with the claims that he seeks to advance against the respondents in these proceedings by characterising them as causes of action that arose on 6 November 2017 when Maylord's claim against Mr Nauer in the Nauer Proceedings was dismissed and in October 2019 when an application to appeal the dismissal of the Nauer Proceedings was dismissed on the basis that it was vexatious. In doing this he has ignored or overlooked that the alleged conduct upon which he relies would have first given rise to loss or damage more than six years before he commenced this proceeding on 5 August 2021. [196] The foundation for the case that Mr Batterham seeks to advance with respect to the diminution in the value of the ZCL Shares is the conduct of Mr Nauer and Mr Rush in the period leading up to the entry into the Settlement Deed. Mr Batterham alleges that Maylord accepted an offer of $450,000 payable over three years for the ZCL Shares compared with alleged admissions made by Esplins in March 2011 that the ZCL Shares were worth $843,048 and on 19 May 2011 that they were worth $534,110 and that by the second half of 2013 the audited accounts of Vesture recorded that the value of the ZCL Shares had increased to $1,653,758: ASOC at [65]. [197] The diminution in the value of the ZCL Shares crystallised on the execution of the Settlement Deed on 4 July 2011 and on that date any cause of action in respect of that loss was complete, irrespective of any further losses that might have arisen by reason of the entry into the Settlement Deed. [198] A subsequent dismissal of proceedings seeking to recover that loss from Mr Nauer in 2017 and an unsuccessful appeal from the dismissal of those proceedings in 2019 cannot restart the limitation period with respect to proceedings seeking to recover the same loss from Clayton Utz, Turner Freeman and Mr Rush. [199] I am satisfied that any causes of action sought to be advanced against the respondents directed at the diminution in the value of the ZCL Shares are time barred. [200] The alleged loss of an opportunity to earn future income as a promoter of private equity opportunities is alleged in the ASOC to have arisen "after Mr Batterham became bankrupt". It must follow that any cause of action directed at recovering this alleged loss was complete immediately after the making of the Sequestration Order because from that date it is alleged that Mr Batterham was unable to promote the alleged private equity opportunities. [201] Similarly, the stress and anxiety that it is alleged the respondents "imposed on the Applicant over many years by their wrongdoing" must have arisen by no later than the making of the Sequestration Order. No other subsequent conduct of the respondents giving rise to any "stress" or "anxiety" is identified in the ASOC. [202] I am therefore also satisfied that any claims sought to be advanced against the respondents directed at the lost opportunity to promote private equity opportunities or stress or anxiety imposed on Mr Batterham by his bankruptcy or the earlier conduct of Mr Rush in relation to the events leading up to the entry into the Settlement Deed are time barred." 1. His Honour dealt with the vesting of the cause of action in the plaintiff's trustee in bankruptcy at [203] to [210]: "[203] I now turn to consider the contention advanced by each of the respondents that the causes of action that Mr Batterham now seeks to advance in these proceedings vested in his trustee on the making of the Sequestration Order. [204] At the outset it is important to distinguish between a bankrupt's interest in a regulated superannuation fund for the purposes of s 116(2)(d)(iii) and a cause of action that the trustee of a regulated superannuation fund might have in respect of the diminution in the value of assets held in the fund. [205] Mr Batterham's contention that the BRF was an "exempt asset" for the purposes of s 116 of the Bankruptcy Act because the ZCL Shares were owned by his superannuation fund is therefore misconceived. Maylord's cause of action with respect to the diminution in the value of the ZCL Shares is distinct from Mr Batterham's interest as a beneficiary in the BRF. Nor could it be characterised as a right to recover damages or compensation for any personal injury or wrong done to him. Any cause of action that Mr Batterham might have had with respect to the diminution in the value of the ZCL Shares would not have been an "exempt asset". [206] I am satisfied that to the extent that Mr Batterham had any cause of action with respect to the diminution in the value of the ZCL Shares such cause of action existed as at the date of his bankruptcy, was not an exempt asset and vested in his trustee in bankruptcy on the making of the Sequestration Order pursuant to s 58(1) of the Bankruptcy Act. [207] Finally, I turn to the claim for compensation for stress and anxiety "imposed on" Mr Batterham "over many years" by the respondents' alleged wrongdoing and the alleged loss of future income as "a promoter of private equity opportunities" after he became bankrupt. [208] The loss of income is alleged to be attributable to Mr Batterham's bankruptcy. It follows that whatever causes of action that Mr Batterham might have had in this respect must have accrued to him after the making of the Sequestration Order. The causes of action thus comprised after acquired property for the purposes of s 58 of the Bankruptcy Act. Any such claims with respect to loss of income were property claims and not personal claims and therefore vested in Mr Batterham's trustee on the making of the Sequestration Order. Further, the alleged stress and anxiety was consequential upon the damage to his economic interests and therefore is not divisible from the damage to those interests: Mannigel at 189; Sands at [95]. [209] On his discharge from bankruptcy, any such causes of action could not re-vest in Mr Batterham in the absence of any evidence that he took any assignment of any causes of action that had vested in his trustee as after acquired property. [210] In the circumstances, Mr Batterham is precluded from seeking compensation for any alleged loss of income or consequential "stress and anxiety" caused by the loss of such income as a result of his bankruptcy, irrespective of any alleged conduct of the respondents." 1. The issues of res judicata, issue estoppel and abuse of process were also dealt with at [211] to [216]: "[211] The interrelated principles of res judicata, issue estoppel and abuse of process provide further reasons why the claims now sought to be advanced by Mr Batterham against the respondents cannot succeed. [212] The extent of the various proceedings that have been commenced by Mr Batterham and the appeals that he has pursued are set forth above in the Factual Background. [213] In substance, Mr Batterham is seeking in these proceedings to relitigate his unsuccessful challenges to his liability for Mr Kenzie QC's fees which led to his bankruptcy and his claims against Mr Nauer. [214] Mr Batterham's liability for Mr Kenzie QC's fees were litigated and determined in the Costs Assessment that merged in the Local Court Judgment, the Bankruptcy Proceedings and the Full Court Appeal. The contention that Clayton Utz remained liable for the fees of Mr Kenzie after the withdrawal of their instructions was expressly raised and rejected by the Costs Assessor and that rejection was endorsed in both the Bankruptcy Proceedings and in the Full Court Appeal. The acceptance of the proposition that Turner Freeman instructed Mr Kenzie in the High Court Appeal following the termination of the retainer of Clayton Utz was an essential element to the Local Court Judgment and the subsequent decisions in the Bankruptcy Proceedings and the Full Court Appeal. Mr Batterham is precluded by an issue estoppel from seeking to challenge the correctness of that proposition in these proceedings. [215] Similarly to the extent that Mr Batterham seeks to recover the loss he alleges he suffered as a result of Mr Nauer's conduct, namely the diminution in the value of the ZCL Shares, those claims have been sought to have been litigated and determined in numerous proceedings, including the Nauer Proceedings and the FCA Nauer Proceedings, culminating in the making of a vexatious litigant order on 19 March 2020 prohibiting Mr Batterham from launching any further proceedings against Mr Nauer. [216] I am satisfied that these proceedings constitute a collateral attack on concluded proceedings and amount to an abuse of process." 1. His Honour concluded at [217]: "[217] I am satisfied for the reasons outlined above that Mr Batterham does not have any reasonable prospects of successfully prosecuting the proceeding or any part of the proceeding, no reasonable cause of action is disclosed and the proceeding is an abuse of the process of the Court." Evidence and submissions 1. The defendants' notice of motion filed on 2 March 2023 was supported by an affidavit of Baron David Alder which sets out a history of proceedings, including, amongst other things, the multiple previous proceedings by the plaintiff and related companies between 2003 and 2022, commencing with proceedings in the Industrial Relations Commission and concluding with the appeal to Stewart J in the Federal Court at the end of 2022. 2. The plaintiff opposed the orders sought. He relied upon a document titled "Evidence in Response to the Defendants' 2 March 2023 Notice of Motion" which comprised mainly argumentative submissions claiming that neither Halley J nor Stewart J had dealt with his arguments in the terms, or on the terms that the plaintiff thought they should have. He developed, and to a large extent, repeated these themes in his written submissions dated 11 April 2023 and 5 May 2023 and the oral submissions he made to the Court on 22 June 2023. 3. The plaintiff emphasised again his perseverative view that there can be no issue estoppel because a costs assessor mistakenly determined that he was bound to pay Mr Kenzie's bill. Because that assessor is not a "judge" and so was not bound by the rules of evidence, everything after that was tainted. He repeated that he was never given notice of the bankruptcy proceedings (although this was all the subject of an application to set aside the bankruptcy notice in 2014, which failed,) and that he should be allowed to pursue his rights now against the named Turner Freeman partners because it was their fault he was not able to pursue his rights against Mr Nauer. 4. Counsel for the defendants argued that the reasons for judgment of Halley J operate by way of (yet a further) issue estoppel upon the plaintiff. This is so even if the judgment was given at an "interlocutory" stage, because those reasons were final judicial determinations disposing of the issues before the Court, [4] namely whether the plaintiff's claims were time-barred, whether his claims vested in his trustee in bankruptcy, and whether his claims were an abuse of process or subject to issue estoppel. 5. Counsel for the defendants submitted that it is an abuse of process to seek to re-litigate the same issues which were determined by Halley J, quite apart from doctrines of res judicata or issue estoppel. [5] The present case is an attempt to re-litigate the same matters which were determined in the judgment. It has already been held that the plaintiff's claims are time-barred, that they vested in his trustee in bankruptcy, that they are an abuse of process, and that the plaintiff is bound by an issue estoppel precluding him from disputing that counsel whose fees were the subject of the costs assessment was retained by Turner Freeman, contrary to the factual basis of his current claim. The conclusions of Halley J were correct and are binding. The plaintiff has no prospects of success in seeking to re-litigate those issues again in this Court. His proceedings are doomed to fail. 6. Counsel for the defendants concluded that it is an appropriate case to exercise the power to summarily dismiss the claim because the plaintiff's claims in the Amended Statement of Claim are unarguable. They have already been held to be unarguable in a recent decision of the Federal Court, and these proceedings are merely an attempt to re-litigate the same issues which the plaintiff has already lost. Principles applicable to summary dismissal 1. The principles were correctly summarised in the defendants' written submission as follows: * UCPR r 13.4 permits summary dismissal if proceedings are "frivolous or vexatious," if "no reasonable cause of action is disclosed", or if the proceedings are "are an abuse of the process of the court". UCPR r 14.28(1) in similar in scope, permitting strike-out if a pleading "discloses no reasonable cause of action", "has a tendency to cause prejudice, embarrassment or delay in the proceedings" or "is otherwise an abuse of the process of the court". * When considering summary dismissal of proceedings on the ground that no reasonable cause of action is disclosed, the issue can be described as whether there are more than fanciful prospects of success, or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward. [6] * Proceedings are frivolous if they are unarguable, without substance, groundless or fanciful. [7] They are vexatious if they are instituted for an improper or collateral purpose, if they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, embarrassing, or an abuse of process. [8] * There is a degree of overlap in those expressions, and in their relationship to abuse of process. [9] The categories of abuse of process are not closed, but typical examples include using the Court's procedures for an illegitimate purpose, in a manner that is unjustifiably oppressive to a party, or in a manner that would bring the administration of justice into disrepute. [10] * It is also an abuse of process to seek to re-litigate matters which have already been raised and determined in prior proceedings, [11] and that is so even if the earlier proceedings did not give rise to res judicata or issue estoppel in relation to the matter that is sought to be raised again. [12] * The defendants accept that the power to grant summary dismissal must be exercised with great care, and that the Court must be satisfied that there is no real issue to be tried. [13] Decision 1. The power to summarily dismiss proceedings is an exceptional one and should only be exercised in circumstances where there is an absence of a cause of action demonstrated, and/or a clear abuse of the Court's processes taking place. In my view, both bases for dismissal are present in this case. 2. The proceedings are also vexatious for the very reason that the seek to re-litigate, yet again, old issues already comprehensively considered and determined. As I held in Chandrasekaran v Commonwealth of Australia [2021] NSWSC 1149 at [84]: "[84] The proceedings are also vexatious, because they are productive of serious and unjustified trouble and harassment. There does not need to be an issue estoppel in play before this Court can control its processes to prevent them being misused to allow a rehearing and reagitation of allegations that failed elsewhere. In the words of Bellew J in Young, if a question has been disposed of in one case, a litigant cannot be permitted, by changing the form of the proceedings, to set up the same again. To do so will amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414; [1995] NSWSC 136." 1. As persuasively argued by counsel for the defendants, the cause of action is hopeless, but more egregiously, the claim is a transparent and unacceptable attempt by the plaintiff to yet again relitigate the earlier unsuccessful attempt in the Federal Court to pursue the same (already determined) issues and allegations. It is very clearly an abuse of process that must not be allowed to continue and so the proceedings must be dismissed. Orders made on 22 June 1. The orders made on 22 June were as follows: 1. The proceedings are dismissed. 2. The plaintiff is to pay the defendants' costs of the proceedings. 3. Noting that a special costs order is sought that needs to be the subject of affidavit evidence and potentially written submissions, a timetable is to be fixed to deal with that additional or alternative cost order. 4. A further order sought in the Notice of Motion regarding restraint from commencing or continuing similar proceedings also needs to be the subject of argument for which a date will need to be fixed and potentially other affidavit material and written submissions will require directions. 5. The applicant/defendants are to file and serve their affidavit evidence and written submissions of no more than 4 pages in length in support of orders 4 and 5 in the Notice of Motion filed 2 March 2023, on or before 6 July 2023 with a copy to be provided by email to my Associate. 6. The respondent/plaintiff is to file and serve any affidavit evidence upon which he wishes to rely and written submissions of no more than 4 pages in length in response to orders 4 and 5 sought in the Notice of Motion filed 2 March 2023, on or before 20 July 2023 with a copy to be provided by email to my Associate. 7. Orders 4 and 5 of the defendants' Notice of Motion filed 2 March 2023 are listed for hearing at 10:00am on 31 July 2023 with a 1.5-hour estimate. ********** Endnotes 1. Halley Judgment at [195]-[202]. 2. Halley Judgment at [203]-[210]. 3. Halley Judgment at [213]-[216]. 4. Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 at 531-532 per Dixon J; see also Castillon v P & O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364 at [49] et seq per Holmes JA, Wilson J agreeing, and Kanakaridis v Westpac Banking Corporation [2015] FCA 1146 at [62] per Beach J. 5. Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] and following per French J. 6. O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3] per Macfarlan JA, Beazley P agreeing. 7. Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J. 8. Rana v Commonwealth [2013] FCA 189 at [42] per Mansfield J. 9. Crocker v Toys 'R' Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9] per Reeves J. 10. Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [14]-[15] per Gleeson CJ and Gummow, Hayne and Crennan JJ. 11. State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423. 12. Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 at [25] per von Doussa, Branson and Sundberg JJ. 13. Pi v Zhou [2016] NSWCA 24 at [9] per Gleeson JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2023