FEDERAL COURT OF AUSTRALIA
Frigger v Banning [2025] FCA 535
Appeal from: Application for leave to appeal: Frigger v Banning [2024] FCA 1207 File number(s): WAD 326 of 2024 Judgment of: MCDONALD J Date of judgment: 23 May 2025 Catchwords: PRACTICE AND PROCEDURE – application by respondents for applicants to provide security for costs in relation to application for leave to appeal against decision which itself required applicants to provide security for costs – applicants have significant litigation history including costs orders that have not been paid – applicants could access funds in superannuation – whether respondents’ costs would be recoverable if costs orders made in respondents’ favour – prospects of application for leave to appeal and proposed appeal limited – interests of justice served by order that applicants provide security for costs Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 56
Legal Profession Uniform Law Application Act 2014 (Vic) Schedule 1 ss 6, 171, 175, 177, 178, 180
Legal Profession Uniform Law Application Act 2022 (WA)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA) rr 12, 13, 21, 22, 105, 106
Cases cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153
Burgess v Centrelink (2007) 159 FCR 500; [2007] FCA 595
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Dye v Commonwealth Securities Ltd [2012] FCA 992
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284
Federal Commissioner of Taxation v Vasiliades (2016) 344 ALR 558; [2016] FCAFC 170
Frigger v Banning [2024] FCA 1207
Frigger v Professional Services of Australia Pty Ltd (No 6) [2024] FCA 1320
Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405
Hancock Prospecting Pty Ltd v Hancock (No 3) [2016] WASC 423
Knight v Beyond Properties Pty Ltd [2005] FCA 764
Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61
Nationwide News Pty Limited v Rush [2018] FCAFC 70
Oswal v Federal Commissioner of Taxation [2015] FCA 1366
Patdith Services Pty Ltd v Mitronics Corporation Pty Ltd [2016] FCA 1315
Tait v Bindal People [2002] FCA 322
Tran v Commonwealth (2009) 111 ALD 111; [2009] FCA 921
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 82 Date of last submissions: 5 May 2025 (First, Second and Fourth Respondents)
20 May 2025 (Applicants)Date of hearing: Determined on the papers Counsel for the Applicants: The Applicants appeared in person Counsel for the First, Second and Fourth Respondents: Mr T R Stephenson Solicitor for the First, Second and Fourth Respondents: Eastwood Law Counsel for the Third Respondent: The Third Respondent did not appear ORDERS
WAD 326 of 2024 BETWEEN: ANGELA CECILIA THERESA FRIGGER
First Applicant
HARTMUT HUBERT JOSEF…
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- Frigger v Banning [2025] FCA 535
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- [2025] FCA 535
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CaseChat Overview and Summary
The respondents, in the matter of Frigger v Banning, have applied for an order that the applicants, Angela Frigger and Hartmut Frigger, provide security for costs in relation to their application for leave to appeal against an interlocutory judgment made by Colvin J. In the Security Judgment, Colvin J required the applicants to provide security for costs in relation to an application for review of a taxation of costs. The applicants have a significant litigation history and have failed to pay costs orders made in their previous cases. The court must decide whether the applicants should be required to provide security for costs in relation to the current application for leave to appeal.
The primary legal issue the court had to address was whether the applicants should be required to provide security for the respondents’ costs of defending the application for leave to appeal against the Security Judgment. The court considered the applicants’ significant litigation history, including their failure to pay previous costs orders, and their ability to access funds in superannuation. The court also considered the prospects of success of the application for leave to appeal and the proposed appeal, as well as the interests of justice. The court concluded that it was appropriate to require the applicants to provide security for the respondents’ costs, given the applicants' history of non-compliance with costs orders and the potential for the appeal to be unsuccessful.
The court found that the applicants should be required to provide security for the respondents’ costs of defending the application for leave to appeal. The court fixed the amount of security at $11,000. The court also ordered that the proceedings be stayed pending the provision of security and that the applicants pay the respondents’ costs of the interlocutory application for security for costs. The decision highlights the importance of adhering to costs orders and the potential consequences for parties who repeatedly fail to comply with such orders.
ORDERS:
1. By 20 June 2025, the applicants provide security for the first, second and fourth respondents’ costs of the application for leave to appeal in the amount of $11,000 by payment into court or by the provision of an unconditional bank guarantee from an Australian trading bank in a form approved by a registrar of the Court.
2. These proceedings be stayed pending the provision of security.
3. The applicants pay the first, second and fourth respondents’ costs of the interlocutory application for security for costs filed on 24 January 2025.
The primary legal issue the court had to address was whether the applicants should be required to provide security for the respondents’ costs of defending the application for leave to appeal against the Security Judgment. The court considered the applicants’ significant litigation history, including their failure to pay previous costs orders, and their ability to access funds in superannuation. The court also considered the prospects of success of the application for leave to appeal and the proposed appeal, as well as the interests of justice. The court concluded that it was appropriate to require the applicants to provide security for the respondents’ costs, given the applicants' history of non-compliance with costs orders and the potential for the appeal to be unsuccessful.
The court found that the applicants should be required to provide security for the respondents’ costs of defending the application for leave to appeal. The court fixed the amount of security at $11,000. The court also ordered that the proceedings be stayed pending the provision of security and that the applicants pay the respondents’ costs of the interlocutory application for security for costs. The decision highlights the importance of adhering to costs orders and the potential consequences for parties who repeatedly fail to comply with such orders.
ORDERS:
1. By 20 June 2025, the applicants provide security for the first, second and fourth respondents’ costs of the application for leave to appeal in the amount of $11,000 by payment into court or by the provision of an unconditional bank guarantee from an Australian trading bank in a form approved by a registrar of the Court.
2. These proceedings be stayed pending the provision of security.
3. The applicants pay the first, second and fourth respondents’ costs of the interlocutory application for security for costs filed on 24 January 2025.
Orders
Orders of the court
1. By 20 June 2025, the applicants provide security for the first, second and fourth respondents’ costs of the application for leave to appeal in the amount of $11,000 by payment into court or by the provision of an unconditional bank guarantee from an Australian trading bank in a form approved by a registrar of the Court.
2. These proceedings be stayed pending the provision of security.
3. The applicants pay the first, second and fourth respondents’ costs of the interlocutory application for security for costs filed on 24 January 2025.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, I have decided that the Friggers should be required to provide security for the respondents’ costs of defending their application for leave to appeal against the Security Judgment. The amount of security will be fixed at $11,000.Background In the Security Judgment, Colvin J described previous litigation by the Friggers in the following terms (at [7]-[13]):Mrs and Mr Frigger are prodigious litigants in this and other courts over two decades. In most instances, they have conducted the proceedings as litigants in person. Much of it has involved the respondents in some way.The genesis for the litigation conducted by Mrs and Mr Frigger was described by the Court of Appeal in Western Australia in Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 and Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119. The latter is a decision in which security for costs was ordered to be paid by Mrs and Mr Frigger in respect of an appeal brought by them against some of the respondents and others (including counsel for the respondents in these proceedings).In 2018, sequestration orders were made in respect of the estates of Mrs and Mr Frigger: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032. Those estates are still being administered by their trustee in bankruptcy. However, they have been discharged from bankruptcy.The bankruptcy of Mrs and Mr Frigger arose from their failure to pay costs in earlier court proceedings in an amount of about $61,000. The petition was supported by other creditors who claimed to have unpaid costs orders against Mrs and Mr Frigger. One of the matters advanced in opposition to the application for sequestration orders (and not accepted) was alleged fraud in the conduct of the taxation fixing the amount of costs due pursuant to those orders.There have been very substantial proceedings heard and determined by this Court as to the extent of the property being administered by the trustee in bankruptcy of the estates of Mrs and Mr Frigger: Frigger v Trenfield (No 10) [2021] FCA 1500; Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605; Frigger v Trenfield (No 3) [2023] FCAFC 49 and Frigger v Trenfield (Application for Release from Undertaking) [2023] FCA 1284.Mrs and Mr Frigger are now pursuing proceedings for the removal of the trustee in bankruptcy in which they claim that the trustee is not entitled to remuneration by reason of the arrangements made with her employer as to fees and as to remuneration for administration of the estates: Frigger v Trenfield (Application to Amend) [2024] FCA 508.The above brief summary is by no means comprehensive as to the extent of proceedings brought by Mrs and Mr Frigger in this and other courts. In action no WAD 607 of 2015, the Friggers were ordered to pay the costs of the respondents. A registrar of the Court estimated that the taxed costs would be $106,987.09. The Friggers objected to that estimate. Accordingly, in July 2024, a taxation of costs was conducted, and the total costs were taxed at $160,098.41.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The applicants, Angela Frigger and Hartmut Frigger, have applied for leave to appeal against an interlocutory judgment of Colvin J, Frigger v Banning [2024] FCA 1207 (Security Judgment). In the Security Judgment, Colvin J determined that the Friggers should be required to provide security for costs, in the amount of $10,000, in connection with their application for the Full Court of the Federal Court to review a taxation of costs. The first, second and fourth respondents have applied for an order that the Friggers give security for their costs of defending the application for leave to appeal. This judgment addresses that application. The third respondent, Ann Marion Campbell-Smith in her capacity as executor of the estate of Donald Campbell-Smith, has not appeared and, at a case management hearing held on 4 February 2025, Mrs Frigger accepted that the third respondent was named in error. It is not clear whether the third respondent has been served with the proceedings but, in any event, she has not taken an active role. It will be convenient to refer to the first, second and fourth respondents collectively as “the respondents”. For the reasons that follow, I have decided that the Friggers should be required to provide security for the respondents’ costs of defending their application for leave to appeal against the Security Judgment. The amount of security will be fixed at $11,000.Background In the Security Judgment, Colvin J described previous litigation by the Friggers in the following terms (at [7]-[13]):Mrs and Mr Frigger are prodigious litigants in this and other courts over two decades. In most instances, they have conducted the proceedings as litigants in person. Much of it has involved the respondents in some way.The genesis for the litigation conducted by Mrs and Mr Frigger was described by the Court of Appeal in Western Australia in Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 and Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119. The latter is a decision in which security for costs was ordered to be paid by Mrs and Mr Frigger in respect of an appeal brought by them against some of the respondents and others (including counsel for the respondents in these proceedings).In 2018, sequestration orders were made in respect of the estates of Mrs and Mr Frigger: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032. Those estates are still being administered by their trustee in bankruptcy. However, they have been discharged from bankruptcy.The bankruptcy of Mrs and Mr Frigger arose from their failure to pay costs in earlier court proceedings in an amount of about $61,000. The petition was supported by other creditors who claimed to have unpaid costs orders against Mrs and Mr Frigger. One of the matters advanced in opposition to the application for sequestration orders (and not accepted) was alleged fraud in the conduct of the taxation fixing the amount of costs due pursuant to those orders.There have been very substantial proceedings heard and determined by this Court as to the extent of the property being administered by the trustee in bankruptcy of the estates of Mrs and Mr Frigger: Frigger v Trenfield (No 10) [2021] FCA 1500; Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605; Frigger v Trenfield (No 3) [2023] FCAFC 49 and Frigger v Trenfield (Application for Release from Undertaking) [2023] FCA 1284.Mrs and Mr Frigger are now pursuing proceedings for the removal of the trustee in bankruptcy in which they claim that the trustee is not entitled to remuneration by reason of the arrangements made with her employer as to fees and as to remuneration for administration of the estates: Frigger v Trenfield (Application to Amend) [2024] FCA 508.The above brief summary is by no means comprehensive as to the extent of proceedings brought by Mrs and Mr Frigger in this and other courts.
Ratio Decidendi
Legal Principle Established
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