Frigger v Bank of Queensland
[2021] FCA 1667
•8 December 2021
FEDERAL COURT OF AUSTRALIA
Frigger v Bank of Queensland [2021] FCA 1667
File numbers: WAD 225 of 2021
WAD 227 of 2021
WAD 228 of 2021Judgment of: LOGAN J Date of judgment: 8 December 2021 Catchwords: PRACTICE AND PROCEDURE – application by trustee in bankruptcy to intervene in proceedings – where trustee’s interest in proceedings not confined merely to questions of law – trustee in bankruptcy joined as a respondent
PRACTICE AND PROCEDURE – interlocutory application for restraining orders against respondents – where applicants did not attend Court – where evidence shows one of the named applicants was imprisoned – where interlocutory applications filed after the date of incarceration – interlocutory applications dismissed
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 8 Date of hearing: 8 December 2021 WAD 225 of 2021 Counsel for the Applicants: The Applicants did not appear Solicitor for the First Respondent: Dentons Solicitors Counsel for the Second Respondent: Mr S Matjeles Solicitor for the Second Respondent: Carles Solicitors WAD 227 of 2021 and WAD 228 of 2021 Counsel for the Applicants: The Applicants did not appear Solicitor for the First Respondent: HWL Ebsworth Counsel for the Second Respondent: Mr S Matjeles Solicitor for the Second Respondent: Carles Solicitors ORDERS
WAD 225 of 2021 BETWEEN: HARTMUT HUBERT JOSEF FRIGGER AS TRUSTEE OF THE FRIGGER SUPER FUND ABN 99602844956
First Applicant
ANGELA CECILIA THERESA FRIGGER
Second Applicant
AND: BANK OF QUEENSLAND LIMITED ACN 009 656 740
First Respondent
KELLY TRENFIELD
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.Ms Kelly-Anne Trenfield, the Trustee in Bankruptcy, be joined as second respondent.
2.The second respondent give notice to Mr and Mrs Frigger and other parties, of such interlocutory directions, if any, that the Trustee considers appropriate in light of the joinder.
3.The applicants’ interlocutory application for a restraining order filed 1 December 2021 be dismissed.
4.Costs be reserved in respect of the applicants’ interlocutory application for a restraining order, with liberty to the respondents to apply for an order for costs at the next case management hearing.
5.A Registrar send a copy of the orders made today to the applicants at the email address nominated in the originating application, and also by prepaid letter post to the postal address nominated in the originating application.
6.The time for compliance with Order 2 of the Court’s Orders made on 4 November 2021 be extended until 14 January 2022.
7.The time for compliance with Order 3 of the Court’s Orders made on 4 November 2021 be extended until 28 January 2022.
8.The case management hearing in this matter listed for 2 February 2022 be vacated.
9.The matter be listed for case management hearing at 2.15pm (AEST), 17 February 2022.
10.The time for compliance with Order 4 of the Court’s Orders made on 4 November 2021 be extended until 14 days before the case management hearing listed in accordance with above Order 9.
11.The time for compliance with Order 5 of the Court’s Orders made on 4 November 2021 be extended until 7 days before the case management hearing listed in accordance with above Order 9.
12.Otherwise as provided for by the above Order 4, there be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 227 of 2021 BETWEEN: HARTMUT HUBERT JOSEF FRIGGER AS TRUSTEE OF THE FRIGGER SUPER FUND ABN 99602844956
First Applicant
ANGELA CECILIA THERESA FRIGGER
Second Applicant
AND: COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application by Ms Trenfield, the Trustee in Bankruptcy, for leave to intervene be adjourned, and is to be brought on, if so advised, on 2 clear business days’ notice.
2.The time for compliance with Order 2 of the Court's Orders made on 4 November 2021 be extended until 14 January 2022.
3.The time for compliance with Order 3 of the Court's Orders made on 4 November 2021 be extended until 28 January 2022.
4.The case management hearing in this matter listed for 2 February 2022 be vacated.
5.The matter be listed for case management hearing at 2.15pm (AEST), 17 February 2022.
6.Any applications filed in accordance with this the Court's Orders made on 4 November 2021 as varied by these orders shall be returnable at the case management hearing listed in accordance with Order 5 above.
7.The time for compliance with Order 4 of the Court's Orders made on 4 November 2021 be extended until 14 days before the case management hearing listed in accordance with above Order 5.
8.The time for compliance with Order 5 of the Court's Orders made on 4 November 2021 be extended until 7 days before the case management hearing listed in accordance with above Order 5.
9.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 228 of 2021 BETWEEN: HARTMUT HUBERT JOSEF FRIGGER AS TRUSTEE OF THE FRIGGER SUPER FUND ABN 99602844956
First Applicant
ANGELA CECILIA THERESA FRIGGER
Second Applicant
AND: COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
First Respondent
KELLY TRENFIELD
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.Ms Kelly-Anne Trenfield, the Trustee in Bankruptcy, be joined as second respondent.
2.The second respondent give notice to Mr and Mrs Frigger and other parties, of such interlocutory directions, if any, that the Trustee considers appropriate in light of the joinder.
3.The applicants' interlocutory application for a restraining order filed 1 December 2021 be dismissed.
4.Costs be reserved in respect of the applicants' interlocutory application for a restraining order, with liberty to the respondents to apply for an order for costs at the next case management hearing.
5.A Registrar send a copy of the orders made today to the applicants at the email address nominated in the originating application, and also by prepaid letter post to the postal address nominated in the originating application.
6.The time for compliance with Order 2 of the Court's Orders made on 4 November 2021 be extended until 14 January 2022.
7.The time for compliance with Order 3 of the Court's Orders made on 4 November 2021 be extended until 28 January 2022.
8.The case management hearing in this matter listed for 2 February 2022 be vacated.
9.The matter be listed for case management hearing at 2.15pm (AEST), 17 February 2022.
10.Any applications filed in accordance with this the Court's Orders made on 4 November 2021 as varied by these orders shall be returnable at the case management hearing listed in accordance with Order 9 above.
11.The time for compliance with Order 4 of the Court's Orders made on 4 November 2021 be extended until 14 days before the case management hearing listed in accordance with above Order 9.
12.The time for compliance with Order 5 of the Court's Orders made on 4 November 2021 be extended until 7 days before the case management hearing listed in accordance with above Order 9.
13.Otherwise as provided for by the above Order 4, there be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The view I have got in relation to the trustee’s application is that the trustee in bankruptcy has an obvious interest in both WAD 225 and WAD 228 of 2021. That interest does not appear to me to be confined solely to questions of law. It may extend to questions of fact, and, indeed, it may be that the trustee in bankruptcy ought always by the applicants to have been joined as a party. In those circumstances, it seems to me that it is more appropriate in WAD 225 and WAD 228 of 2021 to join the trustee in bankruptcy as a respondent, with the naming of the respondents being amended accordingly to reflect an additional joinder rather than just to grant leave to the trustee to intervene in each of the proceedings.
It may also be, as was highlighted on behalf of the trustee in submissions, that the particular interest of the trustee in each of those proceedings is confined to particular subjects. If so, it is open to the trustee, if so advised, to confine submissions and, for that matter, any evidence just to those subjects and to put to the other parties in the proceedings and the court that the trustee will, subject to the particular issue, otherwise abide the order of the Court.
The difficulty then is that in the absence of Mr and Mrs Frigger, notwithstanding their having been given notice of today’s proceeding, there may well be some consequential interlocutory orders that are apt as a sequel to the joinder of the trustee. In their present absence, it is not possible in an expeditious and convenient way to work through those orders without having heard submissions from each of the parties to those proceedings, including Mr and Mrs Frigger. So what I propose is that the trustee in bankruptcy should give notice to Mr and Mrs Frigger and the other parties of such interlocutory directions, if any, that the trustee considers appropriate in light of the joinder. Ideally, they would then become, if there is no controversy about them, the subject of a consent signed by each of the parties for consideration by me for making an order in chambers. If not, then that subject can be dealt with at the next case management hearing, which will have to be heard, in any event, in light of others orders that are sought today. That will have to be heard some time in February 2022, by the look of things. That deals with the trustee’s application.
Now, as to the application that Mrs Frigger made seeking a restraining order against the Bank of Queensland in WAD 225 of 2021 and as to her application in WAD 228 of 2021 seeking a restraining order against Commonwealth Securities, the view I have, subject to anything which anyone present wishes to put to me, is that that application has not been prosecuted and it should be dismissed in default of appearance. And that it would be on terms as to costs, of course.
If it were to transpire that there were some all too human reason – and all of us have to keep an open mind; I certainly do – which were explained on affidavit for the absence, given in the ordinary course at the next case management hearing in February, those applications might be restored and dealt with.
As to those interlocutory applications by Mrs Frigger in WAD225 of 2021 and WAD228 of 2021 for restraining orders against respectively the Bank of Queensland and Commonwealth Securities, the trustee in bankruptcy has, by her counsel, well served the administration of justice by highlighting what may be a reason for Mr and Mrs Frigger not attending personally. The reason may lie, and it is necessary to put it in an interrogative rather than definitive sense, in an imprisonment of Mrs Frigger on Friday, 26 November 2021. That likelihood emerges from an email dated 29 November 2021 exhibited to the trustee’s affidavit. The email is from Mrs Frigger’s email address to the associate to Perry J. Whilst the email is from Mrs Frigger’s email address, the apparent author of the email is her husband, Mr Hartmut Frigger. In that email, he states:
Dear Associate to Justice Perry,
Unfortunately my wife Angela Frigger has been imprisoned on Friday 26.11.
The reason was for given a false statement. This has to do with all the litigation we are involved in.
Seven lawyers were present at the sentencing, all representing the appointers of Kitay and the trustee Trenfield in this proceeding.
Surely everybody involved knows it now.
Never before has anybody been send to jail for given a false statement, when there was no charge for perjury or perverting the course of justice.
That means this was totally unforeseen and not expected by my wife.
That means I will represent only myself tomorrow. Further I will ask for an adjournment for 2 weeks to give my wife or a lawyer a chance to prepare. A bail and appeal application for my wife has been lodged and Glen Cridland (Barrister) is representing her. We had 3 Barristers telling us that our bail and appeal have very strong grounds.
Under this circumstances my wife who almost all affidavits and submissions in this proceeding is not able to attend the hearing at all. Therefore we ask the judge for 2 weeks adjournment and for orders for the judge Jackson in WAD141/2019 to stay the judgement (due 1.12.21), till this hearing is finalized and orders made.
I am sorry for the late notice as I had to wait to discuss bail proceeding with my wife and her Barrister Glen Cridland, who spend most of the day in court himself.
I hope I can send you confirmation from the Barrister before the hearing tomorrow.
Yours faithfully
Hartmut Frigger
It is noteworthy that the interlocutory applications for restraining orders were made and filed by Mrs Frigger after the date of that email. Further, on the face of the email authored by Mr Frigger, it is apparent that Mrs Frigger has, at least for some purposes, access to legal representation. In those circumstances, it seems to me that the listing notice directed to Mrs Frigger’s email address, in all likelihood, did come to her attention via her husband, who apparently has access to that email account. It seems to me that in the time that has passed since the filing of the application and an apparent incarceration, there has been sufficient time at least to alert the Court and the parties directly as to any inability on the part of Mrs Frigger either to attend in person or to seek to have her husband speak for her or to have legal representation.
In these circumstances, whilst the trustee has, as I have mentioned, appropriately drawn to the Court’s attention a possible explanation for an absence of any appearance, even on behalf of Mrs Frigger, the position remains that the applications have not been prosecuted. Further, there has not been any explanation given by or on behalf of Mrs Frigger as to why that is not so. Were it to transpire that an explanation came to be given, then, of course, it may be that the applications could be restored to the list. At the present I propose to and do dismiss each application.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 10 February 2022
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