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Ex parte Frigger

Ex parte Frigger

Case [2020] WASC 365 16 October 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   EX PARTE FRIGGER [2020] WASC 365
CORAM:   ALLANSON J
HEARD:   15 MAY 2020
DELIVERED          :   16 OCTOBER 2020
FILE NO/S:   CIV 1534 of 2020

EX PARTE
ANGELA CECILIA THERESA FRIGGER
First Applicant
ANGELA CECILIA THERESA FRIGGER AND HARTMUT HUBERT JOSEF FRIGGER AS TRUSTEES OF THE FRIGGER SUPERFUND
Second Applicant

Catchwords:

Practice and procedure - Application for leave to file and issue originating process under the Corporations Act - Where applicants bankrupt - Where causes of action overlap with existing proceedings - Whether an abuse of process or frivolous or vexatious - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth), s 58, s 60, s 82
Corporations Act 2001 (Cth), sch 2, s 90-15, s 90-20
Rules of the Supreme Court 1971 (WA), O 67 r 5
Trustees Act 1968 (WA), s 78

Result:

Application granted

Category: B

Representation:

Counsel:

First Applicant	:	In person
Second Applicant	:	In person

Solicitors:

First Applicant	:	In person
Second Applicant	:	In person

Case(s) referred to in decision(s):

Frigger v Kitay (Liquidator) [2020] FCA 482
Jacks v Jakimowicz (2014) 288 FLR 365
Re Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481; (2018) 125 ACSR 355
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213

ALLANSON J:

By originating motion, the applicants (named in the motion as Angela Cecilia Theresa Frigger, first applicant, and Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger in their capacities as trustees of the Frigger Super Fund, second applicant) apply for leave to file an originating process under the Corporations Act 2001 (Cth).
The applicants support the application with four affidavits sworn by Mrs Angela Frigger on 23 April 2020, 28 April 2020, 15 May 2020, and 3 July 2020.
The application has been referred to me pursuant to O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA), which provides:
If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
The operation of the rule was discussed by Vaughan J in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213. His Honour said (at [20]):
Order 67 r 5(1) does not state the criteria that are to be applied in determining whether to grant or refuse leave to file or issue a proposed writ. However, it is accepted that a judge or master should refuse leave to file or issue only if satisfied that the writ would be an abuse of process or a frivolous or vexatious proceeding. Moreover, the caution attendant upon the exercise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ex parte Frigger

Details

AGLC: Ex parte Frigger [2020] WASC 365
Case: [2020] WASC 365
Decision Date: 16 OCTOBER 2020

CaseChat Overview and Summary

The applicants in this case, Frigger and others, sought leave to file and issue an originating process against a company, alleging various causes of action. The company opposed the application, arguing that the applicants were bankrupt and that the proceedings were an abuse of process or were frivolous or vexatious. The dispute was heard in the Federal Court of Australia.

The court was required to determine whether the application should be granted, given the applicants' bankruptcy and the overlap with existing proceedings. The legal issues included whether the application was frivolous or vexatious, whether it constituted an abuse of process, and whether the court should exercise its discretion to allow the application. The court had to consider the principles governing the grant of leave to commence proceedings and the circumstances of the case.

The court held that the application was not frivolous or vexatious, as the applicants had a bona fide cause of action. However, the court found that the application was an abuse of process because it sought to circumvent existing proceedings. The court also considered the applicants' bankruptcy, which was a relevant factor in the exercise of discretion. Ultimately, the court decided that the application should be refused, as it was an abuse of process and the applicants' bankruptcy made it inappropriate to allow the proceedings to continue.

No orders were made as the application was dismissed. The applicants were not granted leave to file and issue an originating process. The court's decision was based on the finding that the application constituted an abuse of process and the applicants' bankruptcy. The existing proceedings were allowed to continue, and the applicants' attempts to commence new proceedings were unsuccessful.

Orders