Angela Cecilia Theresa Frigger & Hartmut Hubert Josef Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [No 5]

[2024] WASC 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ANGELA CECILIA THERESA FRIGGER & HARTMUT HUBERT JOSEF FRIGGER -v- MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) [No 5] [2024] WASC 57

CORAM:   HILL J

HEARD:   28 JULY 2022

DELIVERED          :   20 MARCH 2024

PUBLISHED           :   20 MARCH 2024

FILE NO/S:   COR 2 of 2010

BETWEEN:   ANGELA CECILIA THERESA FRIGGER & HARTMUT HUBERT JOSEF FRIGGER

Applicants

AND

MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq)

Respondent

Catchwords:

Practice and procedure - Application for leave to adduce confidential affidavit in other proceedings - Whether applicants can refer to content of confidential affidavit in the application - Whether application is an abuse of the process of the court - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicants	:	In person
Respondent	:	D W John

Solicitors:

Applicants	:	No appearance
Respondent	:	Herbert Smith Freehills

Cases referred to in decision:

Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners [1974] AC 405

Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366

Ammon v Consolidated Minerals Ltd [2004] WASC 201

Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) [No 2] [2020] FCA 497

Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 14] [2017] WASC 120

Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69

Harman v Home Department State Security [1983] 1 AC 280

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Mobil Oil Australia v Guinea Developments Pty Ltd [1996] 2 VR 34

Mulley v Manifold (1959) 103 CLR 341

Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93

Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178

Science Research Council v Nasse [1980] AC 1028

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

HILL J:

1. By interlocutory application dated 15 June 2022, the applicants sought leave to adduce the confidential affidavit of Mervyn Jonathan Kitay sworn 5 January 2012 and filed on 11 January 2012, as well as its annexures (Confidential Affidavit), in three separate proceedings, being Federal Court proceedings WAD 66 of 2021, Court of Appeal proceedings CACV 55 of 2022 and Supreme Court proceedings CIV 2765 of 2010.

2. The applicants say the Confidential Affidavit is relevant to the issues raised in each of these proceedings and that, as a result, they ought to have leave to adduce it.  At the hearing, the applicants did not press the application in respect of CIV 2765 of 2010.[1]  For this reason, I have not considered the application in respect of those proceedings further in these reasons.

   [1] ts 894 - 895.

3. The application is opposed by the defendant.  Counsel for the defendant emphasised that the Confidential Affidavit remains the subject of orders for confidentiality in these proceedings and submitted that while these orders remain in place, the applicants cannot obtain the orders they seek.[2]  The defendant also contends the application is an abuse of process as the applicants have unsuccessfully applied on 'at least three prior occasions' to be able to use the Confidential Affidavit.[3]

   [2] ts 914.

   [3] Respondent's outline of submissions filed 20 July 2022 [9].

4. For the reasons that follow, I am not satisfied the Confidential Affidavit is relevant to the issues in the two proceedings identified by the applicants or that the applicants have established any basis which would allow them to use the Confidential Affidavit in those proceedings.  On this basis, it is my view that the application should be dismissed.

Relevant history of these proceedings

1. On 8 January 2010, these proceedings (COR 2 of 2010) were commenced by Professional Services Australia Pty Ltd (PSA) and the executor of the estate of Martin Banning seeking orders for the winding up of Computer Accounting & Tax Pty Ltd (CAT), a company of which the applicants were and are members. 

2. On 21 January 2010, orders were made by the court appointing Mr Kitay as provisional liquidator of CAT.  On 6 May 2010, Master Sanderson ordered that CAT be wound up in insolvency and appointed Mr Kitay as court-appointed liquidator of CAT.[4]  

   [4] Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.

3. On 6 January 2012, Mr Kitay filed an interlocutory application under s 477(2B) of the Corporations Act 2001 (Cth) seeking orders for approval for the entry into three agreements. The Confidential Affidavit was filed in support of the application. The Confidential Affidavit annexed, among other things, two letters of advice Mr Kitay had received from his solicitors.

4. The application came on for hearing before Acting Master Chapman on 17 January 2012 who made orders in terms of the application, including an order that:[5]

   The Confidential Affidavit of Mervyn Kitay dated 5 January 2012 (Confidential Affidavit) and the annexures thereto remain in the court file in a sealed envelope marked 'confidential', such Confidential Affidavit not to be accessed by any person without order of this Honourable Court.

   [5] Orders of Acting Master Chapman dated 17 January 2012.

5. After this order was made, Mrs Frigger obtained access to the Confidential Affidavit.

6. On 25 November 2013, the liquidator filed an application for orders in respect of the Confidential Affidavit.  The application came before Master Sanderson for hearing on 17 March 2014.  Mrs Frigger appeared for herself at this hearing.  Mrs Frigger was given an opportunity to file an affidavit and written submissions in opposition to the application prior to delivery of judgment, but did not do so.

7. On 15 May 2014, Master Sanderson delivered his reasons for decision and made orders in respect of the Confidential Affidavit.  The orders included orders that:[6]

   [6] Orders of Master Sanderson dated 15 May 2014.

   1.Within 7 days of the date of this order, Angela Cecilia Theresa Frigger (Mrs Frigger) and Hartmut Frigger (Mr Frigger) do deliver up to the Applicants all hard copies of the Confidential Affidavit of Mervyn Jonathan Kitay sworn on 5 January 2012 and any of the annexures thereto, which was filed herein (Confidential Affidavit).

   2.Within 7 days of the date of this order, Mr and Mrs Frigger do each provide a written statement to the solicitors of the Applicants:

   (a)that they have not retained any copies of the Confidential Affidavit or any of the annexures thereto;

   (b)that they have permanently deleted any electronic copies of the Confidential Affidavit and any of the annexures thereto in their possession;

   (c)setting out each and every person, whether as solicitor, or counsel, or otherwise (Third Parties), to whom they have provided a copy of the Confidential Affidavit or any of the annexures thereto, whether in hard copy or electronically;

   (d)confirming that they have had returned to them, for return to the Applicants, all copies of the Confidential Affidavit and any of the annexures thereto which were provided to Third Parties; and

   (e)confirming that these Third Parties have confirmed to them in writing that they have permanently deleted any electronic copies of the Confidential Affidavit and any of the annexures thereto in their possession.

   3.Any solicitors or counsel acting for Mr and Mrs Frigger who have had access to the Confidential Affidavit, or any of the annexures thereto, cease to act for Mr and Mrs Frigger in relation to Supreme Court proceedings CIV 2765 of 2010 unless they have the prior consent of Mervyn Jonathan Kitay.

   4.Mr and Mrs Frigger be restrained from disclosing the contents of the Confidential Affidavit or any of the annexures thereto to any person, including, any solicitor or counsel acting for them in the future.

8. On 9 October 2019, Mr Kitay filed a notice of motion seeking the punishment of Mrs Frigger for contempt.  The particulars of the contempt contend that in breach of the orders of Acting Master Chapman and Master Sanderson, Mrs Frigger has sworn and filed affidavits in three proceedings (one in the District Court and two separate Federal Court proceedings) which annexed a copy of the Confidential Affidavit.[7]

   [7] Particulars of contempt [9] - [11]. 

9. In support of the application, Mr Kitay filed an affidavit dated 9 October 2019, as well as an affidavit of his solicitor, David William John, filed 28 February 2020.  Each of these affidavits annexed copies of the affidavits of Mrs Frigger filed in the other proceedings, which in turn annexed copies of the Confidential Affidavit.[8]  The Notice of Motion and both affidavits have been served on Mrs Frigger.[9]

   [8] Affidavit of Mervyn Jonathan Kitay filed 9 October 2019, 'MJK9', 'MJK15'; Affidavit of David William John filed 28 February 2020, 'DWJ1', 'DWJ10'.

   [9] Affidavit of Teanna Jade Whitecross filed 31 January 2020.

Evidence on the application

1. At the hearing, the applicants relied on two affidavits of Mrs Frigger: an affidavit filed 15 June 2022 which annexed, among other things, a copy of the appeal case statement filed by the applicants in CACV 55 of 2022, as well as a second affidavit filed 26 July 2022. 

2. The respondent relied on an affidavit of Mervyn Jonathan Kitay filed 29 June 2022, which annexed, among other things, details of the claim filed by him with the applicants' trustee in bankruptcy.

3. In submissions, the applicants sought to rely on the contents of the Confidential Affidavit.  I made orders closing the court during the course of the hearing and submissions were made by the parties directing me to the relevant matters contained in the Confidential Affidavit in support of the position they contended.  At the time, I indicated that I would address the admissibility of this evidence in my reasons for decision.

4. The applicants submitted that it was open to them to refer to the contents of the Confidential Affidavit in this application for two primary reasons.  First, the Confidential Affidavit was no longer confidential.[10]  Second, it was necessary to refer to the contents of the Confidential Affidavit to demonstrate the relevance of the contents to the other proceedings.[11]  The defendant disputed both of these submissions.

   [10] ts 882 - 883.

   [11] ts 897.

5. In support of the contention that the Confidential Affidavit was no longer confidential, the applicants referred to the affidavits served in support of the notice of motion for contempt.  The applicants contend that as a consequence of serving these affidavits, the Confidential Affidavit is no longer confidential and can be used by them. 

6. I do not accept this submission.  The affidavits on which the applicants rely upon are affidavits filed in support of the notice of motion for contempt.  Annexing these affidavits is necessary in order for Mr Kitay to attempt to prove the alleged contempt.  These affidavits have been served on Mrs Frigger, the only other party to that application.  Notably, they have not been served on Mr Frigger, who is not a party to the application.  The service of these affidavits in and of itself does not support a contention that the Confidential Affidavit is no longer confidential. 

7. At present, neither of the affidavits of Mr Kitay and Mr John have been read nor tendered in evidence.  Consistent with Mrs Frigger's substantive obligation not to use these affidavits for any purpose other than in responding to the notice of motion for contempt,[12] the affidavits of Mervyn Jonathan Kitay filed 9 October 2019 and David William John filed 28 February 2020 can only be used in that application unless leave is granted for some other use by the court.  No such leave has been granted nor has Mrs Frigger sought to be released from her substantive obligation. 

   [12] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

8. At present, the Confidential Affidavit is the subject of orders for both confidentiality[13] and use.[14]  Neither of these orders have been appealed nor have they been revoked or otherwise amended.  As a result, the applicants are bound by the orders of the court that the Confidential Affidavit is and remains confidential and cannot be disclosed by them to anyone.  Until an order is made by the court to amend these orders, it would be a breach of the existing orders of the court for the applicants to disclose to anyone the Confidential Affidavit or its contents.  This, in my view, extends to any reference being made to the contents of the Confidential Affidavit or its annexures in this application.

   [13] Orders of Acting Master Chapman dated 17 January 2012.

   [14] Order 4 of orders of Master Sanderson dated 15 May 2014.

9. I find that the applicants cannot refer to or rely on the contents of the Confidential Affidavit in support of their application.  As a result, I have disregarded any submissions made by the applicants referring to or relying on the contents of the Confidential Affidavit in reaching my conclusion on the application.

Disposition

1. The applicants contended that the grounds on which the Confidential Affidavit were ordered to be confidential were no longer effective nor valid and that, as a result, the applicants should be entitled to use the Confidential Affidavit in other proceedings.  The applicants advanced two reasons in support of this contention.  First, the applicants have now had access to the Confidential Affidavit, including from the service of two separate affidavits in support of the application for contempt.  Second, the information contained in the Confidential Affidavit is no longer confidential.

2. I have already addressed the first of these reasons at [19] - [22] above. In relation to the second contention, I do not consider this submission assists the applicants. Whether or not the information in the affidavit remains confidential is not, in my view, a complete answer to the question as to whether or not the applicants can use the Confidential Affidavit. As set out above, orders have been made by the court in respect of the Confidential Affidavit which have not been varied or revoked. Until this occurs, the applicants are bound by the orders of the court. For this reason, I have not addressed the question as to whether the information contained in the Confidential Affidavit remains confidential. In my view, this is an issue that should be considered on any application to vary or revoke the orders.

3. The applicants accept that in order for them to obtain the orders they seek, it is necessary to establish the Confidential Affidavit is relevant to the issues raised in the other proceedings.[15]  This is because, as was noted in Ammon v Consolidated Minerals Ltd:[16]

   The court should not encourage litigants to undertake fishing expeditions in respect of documents which on their face may be confidential and where there is no aspect of relevance.  Relevance is necessary to enliven the jurisdiction to order inspection.  Even where a document is relevant, there may be other reasons why it should not be produced (for example, legal professional privilege). (citations omitted)

   [15] Applicants' submissions filed 6 July 2022 [14].

   [16] Ammon v Consolidated Minerals Ltd [2004] WASC 201 [17].

4. In order to determine whether a document is relevant, the court considers the pleadings, together with the conduct and admissions of the parties and the nature of the action.[17]  On an appeal, the question of relevance is determined by reference to the grounds of the appeal.[18]

   [17] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [5] citing Mulley v Manifold (1959) 103 CLR 341, 345 and Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178, 186.

   [18] Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 [148].

5. In their submissions, the applicants referred to a number of cases which address the discovery and inspection of confidential documents in proceedings.[19]  The applicants submitted that even if the Confidential Affidavit was confidential, this was not a basis to refuse access to it and that the public interest in doing justice between the parties outweighed any interest in maintaining any confidentiality in the Confidential Affidavit. 

   [19] Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners [1974] AC 405, 433; Science Research Council v Nasse [1980] AC 1028, 1065, 1072; Harman v Home Department State Security [1983] 1 AC 280 [308]; Mobil Oil Australia v Guinea Developments Pty Ltd [1996] 2 VR 34.

6. While I accept that these authorities summarise the general position at law concerning the inspection of confidential documents, none concern the use of documents which are the subject of specific orders of a court. As such, it is my view that these cases are of limited utility in the present proceedings.

7. I turn then to the question as to whether the Confidential Affidavit is relevant to the issues in the other proceedings.  If it is not, the application must be dismissed.

WAD 66 of 2021

1. None of the relevant court documents in these proceedings (the originating process or any pleadings) were adduced in evidence before me.   The only evidence about these proceedings was a summary of the claim.  Mrs Frigger says the proceedings are an application to set aside the sequestration orders made against each of the applicants and that the grounds for the application include a contention that the orders were obtained by fraud.[20]

   [20] Affidavit of Angela Frigger filed 15 June 2022 [3].

2. Mrs Frigger says that after orders for sequestration were made against the applicants, Mr Kitay filed a claim in the bankruptcy administration for $2.5 million.  The claim is based in part on the counterclaim of Mr Kitay and CAT in CIV 2765 of 2010 of approximately $2.24 million, which includes an amount of a fixed term deposit with ING Direct.  The applicants seek to use the Confidential Affidavit in order to dispute this claim.[21]  The applicants challenge the way in which this claim has been calculated, including the calculation of the loan accounts between CAT and themselves.  They also say that the account with ING Direct is an account in Mrs Frigger's name, and not CAT.  In support of this, Mrs Frigger annexed a copy of a letter from ING Direct to Mr Kitay's firm.  The applicants say this letter was not included in any affidavits filed by Mr Kitay and that, as a result, the claim by Mr Kitay is fraudulent.

   [21] Affidavit of Angela Frigger filed 15 June 2022 [4] - [5].

3. Mrs Frigger explained that in seeking to set aside the sequestration orders in WAD 66 of 2021, the applicants will contend their estates were not bankrupt and will challenge a report the bankruptcy trustee 'will provide, or will be ordered to provide'.[22]  The applicants say that in order to respond to any reliance on the claim by Mr Kitay and CAT in CIV 2765 of 2010, they require a copy of the letter from Mr Kitay's solicitors to him of August 2010, which is annexed to the Confidential Affidavit.

   [22] ts 884.

4. For three reasons, I do not accept the Confidential Affidavit is relevant to the issues or that the applicants should have leave to adduce it in these proceedings. 

5. First, there is no evidence before me as to whether, and if so, on what basis the respondent to these proceedings will dispute the application.  In my view, the matters relied upon by the applicant as to what may happen are speculative and do not support a conclusion the Confidential Affidavit is relevant to the issues in these proceedings. 

6. Second, and in any event, I am not satisfied that the Confidential Affidavit is relevant to the two issues identified by the applicants.  In relation to the calculation of the loan account, the balance of the loan account does not form part of the claim by Mr Kitay and CAT lodged with the bankruptcy trustee.  Their claims are for the funds deposited with ING Direct and the amount paid to CAT by PSA, together with various costs orders.[23]  In respect of the funds deposited with ING Direct, the applicants say that without the evidence in the Confidential Affidavit, the Federal Court will accept Mr Kitay's claim.  I do not accept this.  The applicants are able to refer to and can adduce the letter from ING Direct in answer to the claim. 

   [23] Affidavit of Mervyn Jonathan Kitay filed 29 June 2022, 'MJK-1', page 32.

1. Third, the only part of the Confidential Affidavit sought to be relied upon by the applicants is a letter from Mr Kitay's solicitors to their client, which is an annexure to the Confidential Affidavit.  The claim for legal professional privilege over this letter is properly made. 

2. For these reasons, I do not consider leave should be granted to the applicants to use the Confidential Affidavit in WAD 66 of 2021. 

CACV 55 of 2022[24]

[24] After the hearing of this application, the appeal was dismissed on 21 October 2022 (by order of Murphy and Mitchell JJA).  Notwithstanding this, I have addressed the matters that were raised at the hearing as a matter of completeness.

1. This is an appeal by the applicants against a decision of Master Sanderson in CIV 1309 of 2021 to enter summary judgment against the applicants.  These proceedings (CIV 1309 of 2021) were commenced by the applicants against PSA, Mrs Banning and three lawyers.  The grounds of appeal contend that the respondents committed fraud on the court by preparing and adducing fraudulent versions of the memorandum of association of PSA.[25]

   [25] Affidavit of Angela Frigger filed 15 June 2022, 'AF2', page 13.  This is the second of the annexures labelled 'AF2'.

2. In submissions, Mrs Frigger explained that she wished to use the Confidential Affidavit to 'prove that the criminal charges [against her] were malicious prosecutions to impugn [her] credibility'[26] and had their genesis in the advice which is annexed to the Confidential Affidavit.  The applicants say the Confidential Affidavit contains evidence of a civil conspiracy to impugn her credibility to improve their chances of success in CIV 2765 of 2010. 

   [26] Affidavit of Angela Frigger filed 15 June 2022 [9].

3. I do not accept these submissions.  At the hearing, Mrs Frigger accepted the criminal charges arose out of a referral from the Court of Appeal to the Director of Public Prosecutions,[27] following publication of its reasons for decision in April 2014.[28]  It is clear from this decision that the referral arose from what is described in the reasons as contradictions in affidavits sworn by Mrs Frigger in September 2008, June 2010 and October 2010.  For this reason, I am not satisfied there is any basis on which it can be concluded the criminal charges had their genesis in the Confidential Affidavit.

   [27] ts 893.

   [28] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69.

4. In any event, the criminal charges against Mrs Frigger are not matters in issue in the appeal.  The grounds of appeal concern allegations of fraud in relation to the memorandum of association of PSA.  Nothing in the Confidential Affidavit addresses this. 

5. For these reasons, I do not consider leave should be granted to the applicants to use the Confidential Affidavit in this appeal.

Abuse of process

1. Given these conclusions, it is not strictly necessary for me to address the question as to whether this application was an abuse of process.  However, for the sake of completeness, I will now briefly address this. 

2. I accept that on two previous occasions, the applicants have applied for orders in respect of the Confidential Affidavit and on a third occasion (in Federal Court proceedings), have sought to rely on the Confidential Affidavit. 

3. The first application was in CIV 2765 of 2010 and the second application in these proceedings.  These applications were ordered to be heard together and were heard by Martino J in September 2016 and January 2017. On 28 April 2017, Martino J delivered his reasons for decision dismissing both applications.[29]  In addition to providing his reasons for not accepting the five grounds which were raised by the applicants in these applications, Martino J expressed the view that there was a further reason he would not make the orders sought, namely that:[30]

   As Master Sanderson said in Re Computer Accounting and Tax Pty Ltd; Ex Parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] at [20] the issue of inspection of the confidential affidavit in this action is based on a confidentiality order made by Acting Master Chapman, not on questions of privilege.  Mr and Mrs Frigger have not established any basis to vary that order.  The application for the first order in their application in COR 2 of 2010 will be dismissed.

   [29] Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 14] [2017] WASC 120.

   [30] Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 14] [52].

4. The third occasion on which the applicants attempted to use the Confidential Affidavit was in relation to four interlocutory applications in proceedings commenced in the Federal Court seeking an extension of time to appeal the sequestration order.  In these proceedings, the applicants contended the information contained in the Confidential Affidavit was relevant to their appeal against the sequestration orders that had been made against them.[31]  The interlocutory applications included applications to set aside the orders for security for costs and to strike out the notice of address for service.  The basis for each of these applications was the contention that Herbert Smith Freehills (HSF) had no authority to take steps in these proceedings on behalf of CAT.   In addition to these applications, two applications by Mr Kitay were heard at the same time, being an application for an order that the proceedings be dismissed unless the security for costs ordered be paid into court, and an application concerning the costs agreement between HSF and Mr Kitay and for leave to amend its notice of address for service.[32]

   [31] Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) [No 2] [2020] FCA 497 [89].

   [32] Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) [No 2] [7], [10], [15] - [16].

5. In these proceedings, Charlesworth J held that the Confidential Affidavit was not relevant to any issue before her, and that, in any event, it should be excluded under s 138 of the Evidence Act 1995 (Cth) on the basis that it had been improperly obtained. Her Honour went on to state that:[33]

   It may be acknowledged that the availability of the Confidential Affidavit in the public domain (if that is indeed what has occurred) may bear on the question of whether the orders of Master Sanderson preserving its confidentiality should be maintained. However, this Court is not concerned with the question of whether Master Sanderson's orders should remain in force. If there is a proper basis for the applicants to argue that the orders should no longer remain in force (whether because confidentiality in otherwise privileged material has been lost or for any other reason) then an application may be made to the Supreme Court to have the orders varied or revoked.

   Until that is done, the indisputable fact is that the orders are binding on the applicants. At the very least, their attempted use of the affidavit in this proceeding is an improper act.

   [33] Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd) [No 2] [98] ‑ [99].

6. While I accept that the applicants have unsuccessfully applied and/or sought to use the Confidential Affidavit previously, I do not accept that this, of itself, means that this application is an abuse of process.  In my view, it is not impossible that the applicants could demonstrate that the Confidential Affidavit is relevant to issues raised in other proceedings.  On each previous occasion, the court has considered whether the Confidential Affidavit is relevant to the issues in the particular application or proceeding and held, in relation to that particular application or proceeding, it was not.

7. For the reasons set out above, I have reached a similar conclusion on this application. 

8. That said, as set out above, on multiple occasions, the courts have made plain that the orders made by Acting Master Chapman and Master Sanderson are binding on the applicants.  In submissions, Mrs Frigger accepted these orders had to be obeyed but contended this did not mean they could not get an order to be able to use it.[34]  I do not agree.  At present, the orders that have been made by the court have not been set aside or varied.  Unless and until this occurs, the applicants cannot use or attempt to use the Confidential Affidavit.  The applicants' continued attempts to do so without these orders having been set aside or varied are, in my view, improper.

   [34] ts 901.

Conclusion

1. For these reasons, the application ought be dismissed.  My preliminary view is that costs should follow the event.  I will hear from the parties as to the precise orders that should be made to give effect to these reasons and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JN

Associate to the Honourable Justice Hill

20 MARCH 2024