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Leave to appeal case against 2 law firm partnerships dismissed
The leave to appeal a case against the partnerships of Clayton Utz and Turner Freeman has been denied to an applicant who pursued a case due to allegedly being “wrongly advised” on a matter, and for unduly receiving fees that resulted in bankruptcy.
Jess Feyder
Peter Batterham has spent several years pursuing a case against the Clayton Utz partnership, the Turner Freeman partnership, and the director of Esplins, Stephen Rush.
The claims sought by Mr Batterham against the three respondents date back to 1999 and involve many different proceedings in a number of courts.
Mr Batterham asserted that Clayton Utz “wrongly advised” in relation to proceedings he took against the NSW Industrial Relations Commission in the case of Batterham v QSR Ltd [2006].
Mr Batterham pleaded that Clayton Utz breached ss18 (misleading and deceptive conduct) and 21 (unconscionable conduct) of Australian Consumer Law (ACL) in its conduct on the QSR proceedings.
Shortly before Clayton Utz was set to represent him in the Federal Court, Mr Batterham terminated the firm’s retainer to act for him, and instead retained Turner Freeman.
Turner Freeman claimed costs from Mr Batterham (after costs were assessed by a costs assessor), and the firm subsequently obtained a judgment from the Local Court with respect to the fees, which then became the basis for Mr Batterham’s estate being sequestrated in 2014.
Mr Batterham asserted a claim against Clayton Utz with respect to the firm’s conduct on the proceedings in his case against the NSW Industrial Relations Commission. The claim was settled, and a deed of release was signed by him in 2007.
Mr Batterham pleaded that he was ignorant at the time of signing the deed of release that he might be made bankrupt by the costs invoiced to him by Turner Freeman.
Mr Batterham also asserted that Turner Freeman engaged in misleading and deceptive conduct by representing to the costs assessor that the firm represented him in the High Court, which Mr Batterham had instructed them to do, when instead, they merely attended the hearing and provided administrative assistance.
Mr Batterham also pleaded that Turner Freeman caused his bankruptcy nine years after the High Court hearing and that his bankruptcy made it impossible to continue his mergers and acquisitions business and prevented him from earning an income.
Mr Batterham also asserted a claim against Mr Rush and Esplins, regarding two agreements he entered into which Mr Rush drafted, which “knowingly financially disadvantaged” Mr Batterham and his self-managed super fund (SMSF).
Mr Batterham claimed relief which does not differentiate between the different respondents, but rather asks the court to allocate the relief between the respondents “as appropriate”.
He claimed for the loss of $1,653,758 for the value of his SMSF’s shares, compensation for costs orders of $168,595, which remains outstanding and cannot be paid, and compensation for stress and anxiety the respondents imposed on him over years of wrongdoing and loss of future income after he became bankrupt.
The application was dismissed on the basis that the judge could not find “any coherent basis on which the loss and damage alleged can be attributed to the respondents”.
In the judgment denying Mr Batterham’s leave to appeal, Justice Angus Stewart stated: “It is apparent that Mr Batterham struggled to meaningfully articulate his claims in the proceeding before the primary judge, and he has struggled to meaningfully articulate the grounds on which he relies in seeking leave to appeal.”
Stewart J stated that the “draft notice of appeal, and the submissions that [Mr Batterham] has filed in support of it, essentially re-argue the case that was before the primary judge”.
“The draft notice does not state ‘briefly but specifically’ the grounds relied on in support of the prospective appeal as required by the Federal Court Rules 2011 (Cth).
“I am not satisfied that the judgement of the primary judge is attended by sufficient doubt so as to warrant a leave to appeal being granted,” he stated.
