Batterham v Nauer, in the matter of Peter James Batterham

Batterham v Nauer, in the matter of Peter James Batterham - [2019] FCA 1648 - FCA 2019 case summary — Zoe

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FLICK J: 1 In December 2017, an order was made by a Judge of the Supreme Court of New South Wales requiring Mr Batterham to pay Mr Nauer the sum of $163,456.71. 2 Those costs were not paid and Mr Nauer caused a Bankruptcy Notice to be served upon Mr Batterham in May 2018. The Bankruptcy Notice claimed a total indebtedness of $168,595.52, being the $163,456.71 together with the interest that had accrued. 3 Mr Batterham thereupon commenced two proceedings in this Court: one proceeding seeking to set aside the Bankruptcy Notice (proceeding NSD 982/2018); the other proceeding being one in which he sought relief against Mr Nauer (proceeding NSD 990/2018). The application to set aside the Bankruptcy Notice was founded upon s 40(1)(g) of the Bankruptcy Act 1996 (Cth) (the "Bankruptcy Act"), the counter-claim, set-off or cross-demand being the claims for relief against Mr Nauer in the second proceeding. 4 In December 2018, a Judge of this Court heard Mr Batterham's application to set aside the Bankruptcy Notice and an application by Mr Nauer seeking to have the second proceeding summarily dismissed. Her Honour published reasons for decision on 11 April 2019 (the "April 2019 decision"): Batterham v Nauer; in the matter of Peter James Batterham [2019] FCA 485. It was concluded that: the proceeding against Mr Nauer "should be summarily dismissed because Mr Batterham's claims for relief are either misconceived or doomed to fail": at paras [12] and [82]; and Mr Batterham did not have "the requisite counter-claim, set-off or cross-demand for the purpose of s 40(1)(g)" and that the "application to set aside the bankruptcy notice must fail": at paras [16] to [17]. 5 On 2 May 2019, a Notice of Appeal was filed in respect to that part of the April 2019 decision refusing to set aside the Bankruptcy Notice (proceeding NSD 654/2019). An Application for an Extension of Time and Leave to Appeal was also filed in respect to that part of the April 2019 decision summarily dismissing Mr Batterham's claims for relief against Mr Nauer (proceeding NSD 656/2019). An extension of time, as well as leave to appeal, was necessary because Mr Batterham mistakenly thought that he could file both the Notice of Appeal and seek Leave to Appeal within the same time. The extension of time required is only a matter of a few days. Leave to appeal is required because an order summarily dismissing a proceeding is an interlocutory decision. 6 An Amended Notice of Appeal and an Amended Application for Extension of Time and Leave to Appeal (the "Amended Application") have since been filed. 7 Now before the Court are two Interlocutory Applications filed by Mr Nauer - one in each of the proceedings. Mr Nauer seeks to have both proceedings "summarily dismissed" pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court of Australia Act"). Section 25(2B)(aa) provides, in relevant part, as follows: (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: ...; or (aa) give summary judgment; or … Section 25(2B)(aa) confers "a separate head of power to give summary judgment in an appellate matter" and it is not necessary to also invoke s 31A of the Federal Court of Australia Act: Conde v Hunter [2009] FCA 1016 at [18]. In that case Collier J had earlier (at para [15]) concluded that as "a general proposition the court may strike out a notice of appeal if the notice does not disclose any arguable basis for granting the appeal" and that "s 25(2B)(aa) contemplates an order striking out a notice of appeal". See also: Singh v Owners Strata Plan No 11723 [2012] FCA 1121 at [34] to [35], (2012) 207 FCR 390 at 397 per Griffiths J. 8 It is concluded that it is appropriate for the present Interlocutory Applications to be heard by a single Judge and that the Amended Notice of Appeal should be struck out as having no prospects of success. The Amended Application should be refused. 9 Mr Batterham appeared in person at the hearing of the Interlocutory Applications. Senior counsel appeared for Mr Nauer. It should also be noted that Mr Batterham filed post-hearing submissions in which he stated (inter alia) "[a]s a self-represented citizen, the Court must consider in its deliberations these supplementary submissions in the interest of natural justice". Mr Batterham also sent various emails to the Registry in which he appeared to make further submissions. Leave was not granted for Mr Batterham to file or provide any such submissions and accordingly they have not been considered. It is considered that Mr Batterham was given more than an adequate opportunity to present his submissions during the hearing itself.

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The proceedings in the Supreme Court 10 As the costs orders made by the Supreme Court form the basis for the Bankruptcy Notice, the proceedings giving rise to those orders should be briefly mentioned. 11 Two proceedings were pursued in the Supreme Court. Those proceedings were commenced by Mr Batterham in the name of Maylord Equity Management Pty Limited. 12 One proceeding commenced in December 2014 was dismissed in April 2015 for non-compliance with that Court's directions. The second proceeding was commenced in April 2016. But the Commercial List Statement that had been filed in that proceeding was struck out by Bergin CJ in Eq in October 2016 on the basis that the pleadings were deficient. In doing so, an order was made that an amended Commercial List Statement could be filed "subject to the payment of the $25,000 to the defendant by no later than 21 November 2016". That payment was not made and no amended Statement was filed. 13 In May 2017, Ward CJ in Eq dismissed an application seeking to have the October 2016 orders set aside: Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund v Nauer [2017] NSWSC 634. In November 2017, Slattery J ordered that the 2016 proceeding be dismissed: Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund v Nauer (No 2) [2017] NSWSC 1467. In doing so, his Honour then made costs orders, including orders against Mr Batterham. Both Maylord and Mr Batterham were subsequently given an opportunity to further address the costs orders that had been made. Of present relevance is the fact that in December 2017 Slattery J made an order that Mr Batterham pay costs 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 at [33]. An application to set aside the orders made by Slattery J was dismissed by Hammerschlag J. In April 2018, Basten and Leeming JJA refused (inter alia) an application to extend the time within which to file a notice of leave to appeal against the orders and judgment in October 2016 and May 2017, and refused leave to appeal the decision of Slattery J in December 2017: Maylord Equity Management Pty Ltd as Trustee of the Batterham Retirement Fund v Nauer [2018] NSWCA 76.

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The fate of the two proceedings in this Court - an overview 14 Although the two proceedings currently sought to be pursued are inter-related, each should be separately considered. 15 Common to both Interlocutory Applications, however, is the centrally relevant conclusion of the primary Judge that: any chose in action which Mr Batterham had, and which he sought to pursue, was vested in his trustee in bankruptcy upon him being declared bankrupt in November 2014 and did not re-vest in him upon his discharge from bankruptcy in December 2017. An order striking out the Amended Notice of Appeal pursuant to s 25(2B)(aa) and the refusal of an extension of time and leave to appeal necessarily follows from: the absence of any Ground of Appeal in the Amended Notice of Appeal or Ground with respect to the Amended Application challenging the relevant findings made by the primary Judge. A submission advanced by Mr Batterham in his written submissions that the Court should now "go behind" the judgment debt upon which the Bankruptcy Notice was founded was not pressed at the hearing. At present, the issue under judicial scrutiny is the issue of the Bankruptcy Notice; a submission that the Court should "go behind" the judgment debt was a submission reserved by Mr Batterham to any subsequent application that may be made seeking a sequestration order. Reliance, Mr Batterham foreshadowed, would then be placed upon Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132. 16 With respect to proceeding NSD654/2019, it is also concluded that an order striking out the Amended Notice of Appeal also follows from: the absence of any Ground of Appeal which has any prospect of success. 17 With respect to proceeding NSD656/2019, that proceeding relating to the decision of the primary Judge to summarily dismiss the proceeding before Her Honour in which Mr Batterham made claims for relief against Mr Nauer, it is concluded that an extension of time and leave to appeal should be refused because: the Grounds upon which that Amended Application is advanced also fail to expose any error said to have been committed by the primary Judge; and the fundamental deficiencies in Mr Batterham's Amended Statement of Claim remain, the claims for relief sought to be relied upon remain "misconceived or doomed to fail". There is no merit in granting either an extension of time or leave. 18 Each of these reasons for striking out the Amended Notice of Appeal and refusing to grant the Amended Application should be considered in turn.

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The property vesting in the trustee - the absence of challenge on appeal 19 In respect to the claim made by Mr Batterham before the primary Judge seeking to have the Bankruptcy Notice set aside, her Honour the primary Judge relevantly concluded as follows: Mr Batterham's bankruptcy [173] Mr Batterham was declared bankrupt on 13 November 2014. The bankruptcy was discharged on 3 December 2017. [174] Section 58(1) of the Bankruptcy Act provides that "where a debtor becomes a bankrupt: (a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee …". [175] The word "property" is broadly defined in s 5 of the Bankruptcy Act. For the purposes of s 58 of the Act, "property" which vests in the trustee in bankruptcy includes choses in action and claims to enforce equitable rights: … A bare right to sue in respect of alleged property and economic losses is property of the bankrupt which will vest in the trustee pursuant to s 58: … [176] Thus, upon his bankruptcy, any chose in action which Mr Batterham then had vested with his trustee in bankruptcy. [177] On the basis of the facts pleaded in the ASOC, any claim that Mr Batterham had against Mr Nauer in respect of any breach of the joint venture agreement or breach of fiduciary duty, or claim to set aside the settlement deed, existed well prior to Mr Batterham's bankruptcy. By 12 August 2014, Vesture had paid Maylord and Mr Batterham a total of $450,000 in accordance with the settlement deed. Mr Nauer contended, and Mr Batterham did not dispute, that property of a bankrupt that vests in the trustee in bankruptcy, including a chose in action, does not re-vest in the bankrupt when they are discharged from bankruptcy: … [178] On Mr Batterham's argument, these matters are beside the point because the causes of action which he now seeks to pursue were "excluded assets" in the bankruptcy for the reason that they are owned by the Batterham Retirement Fund and not Mr Batterham. [179] However, Mr Batterham is the applicant in the proceeding. The proceeding is relied upon by Mr Batterham in answer to a bankruptcy notice issued against him. Mr Batterham is not bringing the proceeding on behalf of the Batterham Retirement Fund and has no standing to do so. [180] Accordingly, a further reason why the proceeding should be dismissed is that, to the extent that the claims in the proceeding are the property of Mr Batterham (as they must be), they vested in his trustee in bankruptcy in November 2014 and did not re-vest in him on his discharge from bankruptcy. [181] It follows that the whole of the proceeding should be summarily dismissed. (citations omitted) 20 The Amended Notice of Appeal advances no challenge by Mr Batterham to any of these findings and conclusions. In the absence of any such challenge, these findings and conclusions doom any appeal from the decision refusing to set aside the Bankruptcy Notice to failure. The absence of any challenge to these findings also necessarily dooms to failure any attempt to place reliance upon the causes of action and claims for relief sought to be pursued by Mr Batterham in his Amended Statement of Claim. Each of the choses in action there sought to be pursued became vested in the trustee. It also necessarily follows that the extension of time and leave to appeal sought in the Amended Application must be refused. 21 Orders should thus be made striking out the Amended Notice of Appeal and refusing both leave to appeal and an extension of time, as sought by Mr Batterham in his Amended Application.

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The Grounds of Appeal that are advanced 22 The Amended Notice of Appeal which has been filed in respect to the proceeding seeking to challenge the order made by the primary Judge refusing to set aside the Bankruptcy Notice is also curious by reason of the Grounds of Appeal which are sought to be pursued. As amended, 20 purported Grounds of Appeal are set forth. 23 Rather than mounting any challenge to the findings and conclusions of the primary Judge as to the choses in action vesting in the trustee upon the bankruptcy of Mr Batterham and not re-vesting upon the discharge from bankruptcy, the amended Grounds of Appeal raise no basis upon which a Full Court of this Court on appeal would grant any relief. 24 The amended Grounds of Appeal, moreover, raise real concerns as to whether that appeal would itself be an abuse of process or vexatious or oppressive. 25 It is, however, sufficient for present purposes to conclude that none of the amended Grounds of Appeal provide any basis to question the conclusions reached by the primary Judge and provide no basis upon which a Full Court on appeal would grant any relief. 26 As recounted in the written submissions filed on behalf of Mr Nauer, amended Grounds 1 to 6, part of Ground 7, Grounds 8 to 12 and part of Ground 13 are all directed to the judgments and orders made by the Supreme Court. Other than stating the obvious, namely that this Court does not sit on appeal from decisions or orders made by Judges of the Supreme Court, the relevance of these Grounds to any challenge to the decision of the primary Judge remained unexplained. 27 That part of Ground 7 which directs attention to the reasons for decision of the primary Judge (at para [43]) is merely a reference to an account given by the primary Judge to an order in the Supreme Court. It does not provide any basis for any submission as to an error on the part of the primary Judge. 28 Grounds 13 to 15 of the Amended Notice of Appeal are directed to the decision of the primary Judge not to join the trustee of the Batterham Retirement Fund, namely Finsec Pty Ltd, as a party to the proceeding. Those Grounds focus in large part upon the following conclusion of her Honour: [202] The proposed joinder of Finsec is, at best, only a partial answer to the points raised by Mr Nauer. On the ASOC, it is far from clear that the trustee of the Batterham Retirement Fund has a reasonable cause of action against Mr Nauer. The ASOC does not identify facts upon which a finding could be made that Mr Nauer owed any relevant fiduciary obligation or that he engaged in a conspiracy to defraud the trustee of the Batterham Retirement Fund. Even if Maylord as the previous legal owner of shares in ZCL and ZL has a cause of action against Mr Nauer, it is not obvious that this cause of action has been transferred to Finsec: cf Tydeman v Tibra Capital Pty Ltd (No 2) [2018] NSWSC 884 at [42]. Then, there would be a further question as to whether the joinder of Finsec would be an abuse of process in the light of the 2016 Supreme Court proceeding: cf Tydeman at [62] to [65]. In the absence of a properly articulated case, there is no good reason to permit the joinder of Finsec at this stage. Ground 14 of the Amended Notice of Appeal recounts (inter alia), more as a submission than a Ground of Appeal, that the statement of her Honour "is totally at odds with the facts outlined in the [Amended Statement of Claim]". Whether that is so or not, the fundamental difficulty confronting Mr Batterham is that by reason of s 24(1AA)(b)(i) of the Federal Court of Australia Act an appeal may not be brought from a decision to "join or remove a party". See: Ecap Finance Pty Ltd v Ottoway Engineering Pty Ltd [2017] FCA 200 at [3] per White J; Torres Strait Regional Authority v Akiba [2018] FCA 601 at [5] per Jagot J; Peterson v Western Australia [2017] FCA 1056 at [52] per McKerracher J. 29 Grounds 16 to 19 of the Amended Notice of Appeal do not relate to any orders made by the primary Judge. Ground 16 alleges that the primary Judge "has a history with Mr Batterham" and Grounds 17 and 18 elaborate upon this "history". If Ground 16 is intended to raise a submission that there was a reasonable apprehension of bias on the part of her Honour, it is rejected. Any argument as to there being a reasonable apprehension of bias, it is to be constantly recalled, is one that must be "firmly established": Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J; at 364 per Wilson J; at 371 per Dawson J. What is required of decision-makers, including judicial decision-makers, is a mind "open to persuasion": Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [71] to [72], (2001) 205 CLR 507 at 531-532 per Gleeson CJ and Gummow J. There is no basis for any suggestion that the primary Judge resolved all of the submissions advanced with anything other than a mind "open to persuasion". 30 Ground 19 maintains that the Court "has a charter to seek justice" and Ground 20 maintains that "the above should be considered together with the Applicant's Outline of Submissions…plus the affidavit filed by Peter Batterham on 2 May 2019…". 31 Irrespective of the absence of any challenge to the findings and conclusions of the primary Judge as to the choses in action vesting in the trustee and not re-vesting in Mr Batterham upon the discharge of his bankruptcy, the Grounds of Appeal in the Amended Notice of Appeal raise no challenge to the conclusions of the primary Judge which have any prospects of success on appeal.

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The proposed appeal in respect to NSD 990/2018 and the claims made in the Amended Statement of Claim 32 The second of the two proceedings which were before the primary Judge was the one in which Mr Batterham sought relief against Mr Nauer and in which he relied upon an Amended Statement of Claim (proceeding NSD 990/2018). 33 The importance of this proceeding to Mr Batterham was that the causes of action and claims for relief which he there sought to pursue were the foundation for his counter-claim, set-off and/or cross-demand upon which he sought to rely to have the Bankruptcy Notice set aside pursuant to s 40(1)(g) of the Bankruptcy Act. In the absence of any such counter-claim, set-off and/or cross-demand, the application to set aside the Bankruptcy Notice necessarily failed. 34 The primary Judge summarily dismissed the proceeding in NSD 990/2018. It was with respect to this part of her Honour's decision that Mr Batterham filed his Amended Application for Extension of Time and Leave to Appeal. 35 An order summarily dismissing a proceeding is interlocutory in character: cf. Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303 at [15]; (2004) 51 ACSR 473 at 476 per Ryan, Weinberg and Crennan JJ. Leave to appeal from an interlocutory decision is required: Federal Court of Australia Act, s 24(1A). Leave in such circumstances, it has been said, is usually granted "if there is any doubt about the decision at first instance": Dart v Norwich Union Life Australia Limited [2002] FCAFC 34 at [2] per Beaumont, Finn and Sundberg JJ citing Johnson Tiles Pty Ltd v Esso Australia Limited [2000] FCA 1572 at [43]; (2000) 104 FCR 564 at 584 per French J (Beaumont and Finkelstein JJ agreeing). An application for leave is required to be filed "within 14 days after the date on which the judgment was pronounced or the order was made": Federal Court Rules 2011 (Cth), r 35.13 ("Federal Court Rules"). By way of contrast, as of 2 May 2019, a notice of appeal must be filed within 28 days: Federal Court Rules, r 36.03. It was this difference which apparently led Mr Batterham into filing his Application for an Extension of Time and Leave to Appeal some seven days late. An extension of time is "not automatic" and the discretion to extend time is "given for the sole purpose of enabling the court … to do justice between the parties": cf. Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J. His Honour went on to further observe that when exercising the discretion "it is always necessary to consider the prospects of the applicant succeeding in the appeal…". 36 In summary form, it is concluded that the proposed appeal is without merit such that leave to appeal is refused. Any application for an extension of time in which to commence an appeal should also be refused. So much, it is respectfully considered, follows from: the absence of any proposed Ground in the Amended Application which exposes any error said to have been committed by the primary Judge; and a consideration of the reasons of the primary Judge in concluding that the claims for relief sought to be advanced by Mr Batterham (including in his Amended Statement of Claim) were "misconceived or doomed to fail" - those reasons remaining as persuasive now as they were before the primary Judge. Although unnecessary to express any further reason for refusing leave to appeal, it is nevertheless further concluded that: her Honour the primary Judge was also correct in concluding that by reason of a settlement deed entered into in July 2011, "Mr Batterham released Mr Nauer from the claims in this proceeding": at para [189] - and no Ground upon which the present Amended Application is sought to be advanced seeks to challenge that conclusion.

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The claims made in the Amended Statement of Claim - "misconceived or doomed to fail" 45 If attention is shifted from the Grounds sought to be pursued on appeal, assuming leave to appeal were to be granted, and focused upon the reasons for decision of the primary Judge, only further reason emerges to refuse to grant leave or an extension of time. 46 By reference to the originating process, the primary Judge identified the relief sought in proceeding NSD990/2018 as follows (at para [80]): 1. Damages for breaches of Sections 180, 181 and 182, 232 and 233 of the Corporations Act 2001. 2. Damages pursuant to Section 236 of the Australian Consumer Law for contravention of Sections 18 and 20 of the Australian Consumer Law. 3. Damages for breach of fiduciary duty. 4. Damages for fraud. The causes of action relied upon were identified by her Honour (at para [81]) by reference to Mr Batterham's affidavit affirmed on 25 July 2018, namely: a) Breach of fiduciary duties as a partner in a joint venture b) Conspiracy to Defraud and c) Breach of the Corporations Act 2001. Her Honour also identified (at paras [84] and [85]) the "heads of damage" claimed by Mr Batterham. 47 In respect to the claimed relief founded upon ss 180, 181 and 182 of the Corporations Act 2001 (Cth), the primary Judge: observed that the Amended Statement of Claim did "not allege with precision any breach of s 180 or s 181" (at para [104]) but, in any event, concluded that: the "fundamental difficulty with these claims is that Mr Batterham has no right to claim damages from Mr Nauer for any breach of ss 180, 181 or 182, either under the statute or at general law…" (at para [106]). These claims, it was concluded, were "misconceived and should be summarily dismissed" (at para [108]). 48 No argument was advanced by Mr Batterham on the hearing of the present Interlocutory Applications which exposed any reasonable basis for questioning the conclusion of the primary Judge at paras [106] or [108]. 49 In respect to the claims for damages pursuant to s 236 of the Australian Consumer Law, being sch 2 of the Competition and Consumer Act 2010 (Cth), founded upon contraventions of ss 18 and 20 of that Law the primary Judge identified "the matters" relied upon by Mr Batterham as being those pleaded in: a February 2015 Deed; and a letter referred to by Mr Batterham as a letter dated 16 February 2011 but in fact dated 4 February 2011. The difficulties in the path of Mr Batterham, as identified by the primary Judge, were that: the allegation in respect to the February 2015 Deed did not "identify any conduct that could be characterised as misleading or deceptive on the part of Mr Nauer" (at para [117]); and there was no identification with respect to the letter that Mr Nauer engaged in any conduct with respect to the sending of the letter; or that the letter made any statement that was misleading or deceptive or likely to mislead or deceive; or that the sending of the letter involved misleading or deceptive conduct or conduct that was likely to mislead or deceive (at para [119]). 50 The primary judge thus concluded that "the pleading of the alleged claims is hopelessly deficient" (at para [122]) and further concluded in respect to the letter that there was "no hint of an allegation that Mr Batterham might have relied on any such representation to his detriment" (at para [124]). This claim with respect to the Australian Consumer Law, it was thus concluded, was "hopeless and should be summarily dismissed" (at para [126]). 51 Again, no argument was advanced by Mr Batterham on the hearing of the present Interlocutory Applications which exposed any reasonable basis for questioning the conclusion of the primary Judge at paras [122] or [126]. 52 With respect to the claim founded upon a breach of fiduciary duty, the primary Judge identified the "fundamental deficiency" in the Amended Statement of Claim as being that "Mr Batterham has not pleaded facts from which it could be found that there was a partnership between Mr Batterham and Mr Nauer" and further observed that "no facts are pleaded that identify the creation of the joint venture, the parties to the joint venture or any contractual terms of the joint venture" (at para [133]). Her Honour went on to consider particular paragraphs of the Amended Statement of Claim and concluded that it "does not plead a case that could support a claim for relief for breach of a fiduciary duty owed by Mr Nauer to Mr Batterham on the basis of the existence of a partnership between them, or them and others" (at para [150]). 53 Again, no argument was advanced by Mr Batterham on the hearing of the present Interlocutory Applications which exposed any reasonable basis for questioning the conclusion of the primary Judge at paras [133] and [150]. 54 With respect to the claim founded upon fraud, the primary Judge concluded that "Mr Batterham's allegations are flawed because they do not identify facts by reason of which Mr Nauer was obliged to refrain from doing the allegedly fraudulent acts" and, to the extent that he wished to rely upon the tort of deceit, "no relevant misrepresentation is alleged" (at paras [159] and [160]). 55 Again, no argument was advanced by Mr Batterham on the hearing of the present Interlocutory Applications which exposed any reasonable basis for questioning the conclusions of the primary Judge at paras [159] and [160]. 56 The absence of any reasonable prospect of successfully challenging any of these conclusions of the primary Judge is also a further and sufficient reason in itself to refuse to grant leave to appeal or to extend time within which a notice of appeal may be filed.

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The request for a subpoena & further revisions to the pleadings 57 Presumably in recognition of the difficulties confronted by reason of the form of the Amended Statement of Claim as it was before the primary Judge, the Notice of Appeal as initially filed by Mr Batterham, sought (inter alia): "leave to subpoena [Mr Nauer] for documents detailed in the draft subpoena to produce documents attached to the request for leave to issue subpoena filed in the Federal Court on 25 June 2018"; and leave to join a further entity to the Amended Statement of Claim, namely Finsec Pty Ltd ("Finsec"); and leave to "file a revised Statement of Claim following receipt of the [subpoenaed] documents". Orders were sought, in much the same terms, within the Amended Notice of Appeal. 58 The request for leave to issue the subpoena to Mr Nauer identified 14 categories of documents which were "required as discovery evidence to support the Statement of Claim". Although the request for leave was dated 25 June 2018, it formed no part of the reasons for decision of the primary Judge. That was not surprising because consent orders made by Justice Burley in proceeding NSD 990/2018 on 12 September 2018 included (inter alia) an order that "[t]he request for leave to issue a subpoena filed by the plaintiff on 25 June 2018 be dismissed". In an email chain tendered as an exhibit at the interlocutory hearing Mr Batterham stated (inter alia) that the "orders seem to be consistent with what was discussed last Thursday…". 59 The application to join Finsec as a party was an application that had been made to the primary Judge. Finsec was the current trustee of the Batterham Retirement Fund. The primary Judge resolved this application at para [202]. It is Grounds 13 to 15 of the Amended Notice of Appeal which direct attention to the question as to whether Finsec should be joined as a party. It has been concluded that s 24(1AA)(b)(i) of the Federal Court of Australia Act precludes an appeal from this part of the primary Judge's decision. 60 It is, with respect, too late for Mr Batterham to seek to amend the basis upon which he sought to advance his claims for relief against Mr Nauer. Before the primary Judge a Statement of Claim had first been filed on 8 June 2018 and was amended on 9 July 2018. No further application was made before the primary Judge to further amend the Amended Statement of Claim. 61 None of these three further claims for relief have, with respect, any substance.

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