Frigger v Banning

Case [2017] FCA 1589

FEDERAL COURT OF AUSTRALIA

Frigger v Banning [2017] FCA 1589

Appeal from: Application for leave to appeal:  Frigger v Banning (No 3) [2017] FCA 221
File number(s): WAD 178 of 2017
Judge(s): SIOPIS J
Date of judgment: 21 December 2017
Catchwords:

PRACTICE AND PROCEDURE - the applicants applied for leave to file a substituted originating application and a substituted statement of claim – the applicants pleaded that orders made by the Supreme Court of Western Australia Court of Appeal for the payment of monies by a third party were obtained in contravention of the Corporations Act 2001 (Cth) – the primary judge found that the allegation was an abuse of process – the primary judge refused leave to the applicants to file the substituted originating application and substituted statement of claim which contained that claim and other common law tortious claims – whether the primary judge’s decision was attended by sufficient doubt to warrant granting leave to appeal.

CORPORATIONS – ambit of relief available under s 1324(10) of the Corporations Act.  
Legislation: Corporations Act 2001 (Cth) Pt 5.3A, ss 445A, 445F, 447A, 447A(1), 447A(4)(f), 450E, 450E(3), 1324, 1324(1), 1324(10)
Cases cited:

Frigger v Banning [2016] FCA 359

Frigger v Banning (No 2) [2016] FCA 749

Frigger v Professional Services of Australia Pty Ltd [2016] WASCA 68

Frigger v Kitay [No 2] [2017] WASCA 139

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38

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

Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444

Computer Accounting and Tax Pty Ltd (in liquidation) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253

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

Cook v Pasminco Limited (2000) 99 FCR 548

Executor Trustee Australia Ltd v Deloitte Haskins & Sells (1996) 135 FLR 314

McCracken v Phoenix Constructions (Qld) Pty Ltd [2013] 2 Qd R 27

NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90

Date of hearing: 28 June 2017
Date of last submissions: 17 August 2017
Registry: Western Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 150
Counsel for the First and Second Applicants: The Applicants appeared in person.
Counsel for the First, Second, Third and Fourth Respondents: Mr TR Stephenson
Solicitor for the First, Second, Third and Fourth Respondents: Eastwood Sweeney Law

ORDERS

WAD 178 of 2017
BETWEEN:

ANGELA CECILIA…

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AGLC
Frigger v Banning [2017] FCA 1589
Case
[2017] FCA 1589
Decision Date

CaseChat Overview and Summary

The case of Frigger v Banning involves the applicants, the Friggers, who applied for leave to file a substituted originating application and a substituted statement of claim against the respondents, Sandra Banning, Donald Campbell-Smith, Professional Services of Australia Pty Ltd, and Banning Holdings Pty Ltd. The Friggers sought a permanent injunction to prevent the enforcement of certain Supreme Court orders, alleging that those orders were obtained in contravention of the Corporations Act 2001 (Cth). The primary judge found that the allegation of contravention was an abuse of process and refused the applicants leave to file the substituted originating application and substituted statement of claim.

The legal issues before the court included whether the primary judge’s refusal to grant leave to file the substituted originating application and substituted statement of claim was attended by sufficient doubt to warrant an appeal, and the extent of the relief available under section 1324(10) of the Corporations Act. The Friggers argued that the primary judge's decision was flawed and that they had a valid claim under the Corporations Act. They also sought to rely on common law tortious claims, which the primary judge deemed an abuse of process.

The court, however, found that the primary judge's decision was not attended by sufficient doubt to merit an appeal. The court held that the primary judge correctly identified that the allegation of contravention of the Corporations Act was an abuse of process and that the Friggers’ attempt to include common law tortious claims in the substituted statement of claim further evidenced the abuse. The court also noted that the relief sought under section 1324(10) of the Corporations Act was limited and did not extend to the relief claimed by the Friggers. Consequently, the applicants' application for leave to appeal was dismissed. The applicants were also ordered to pay the respondents' costs, subject to certain exceptions, and the time for filing the respondents' responsive submissions was extended. The Federal Court listed the matter for a directions hearing.

Orders

Orders of the court

1. The applicants’ application for leave to appeal from orders 1, 2 and 3 of the orders of Barker J made on 8 March 2017 is dismissed.

2. The applicants’ interlocutory application dated 18 December 2017 is dismissed.

3. The applicants are to pay all of the costs and expenses of the respondents of and incidental to the applications referred to in order 1 and order 2 above, including any reserved costs, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception, the respondents are completely indemnified by the applicants in respect of their costs of opposing the applications, to be taxed if not agreed.

4. For the avoidance of doubt, the time for the filing of the respondents’ responsive submissions is extended to 17 August 2017.

5. Federal Court of Australia proceeding no WAD 607 of 2015 is listed for a directions hearing on Tuesday, 27 February 2018 at 10.15 am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

During the course of that litigation orders have been made by the Supreme Court for the payment of monies and costs which were adverse to CAT (before it went into liquidation) and the Friggers, in favour of one or more of the four respondents to the proposed substituted originating application sought to be filed by the Friggers. In their proposed substituted originating application and statement of claim the Friggers sought a permanent injunction restraining the beneficiaries of these Supreme Court orders from enforcing a number of those orders.PROCEDURAL BACKGROUND On 19 October 2015, the applicants filed an originating application and a statement of claim in this Court in proceeding WAD 607 of 2015. In that originating application, the applicants sought orders that legal costs incurred by the applicants in a number of legal proceedings in the Supreme Court, the District Court of Western Australia and the Magistrates Court of Western Australia (Magistrates Court) be paid by the respondents; and also that losses and other damages incurred by the applicants and losses incurred by the applicants’ self-managed superannuation fund, known as the Frigger Super Fund, be paid by the respondents. The four respondents are Mrs Sandra Banning, Mr Donald Campbell-Smith, Professional Services of Australia Pty Ltd (PSA) and Banning Holdings Pty Ltd. The applicants also sought by way of interlocutory relief orders that certain named legal practitioners be restrained from representing the respondents in the proceeding on the grounds that they would be material witnesses at the trial of the application. On 30 December 2015, the applicants filed an amended statement of claim. On 25 January 2016, the applicants filed an interlocutory application seeking leave to amend the originating application filed on 19 October 2015 and for leave to amend the amended statement of claim filed on 30 December 2015. On 25 February 2016, the respondents filed an interlocutory application seeking the summary dismissal of the originating application on the basis that the applicants had no standing to pursue the proceeding or alternatively that the Court had no jurisdiction to entertain the proceeding. Alternatively, the respondents claimed that the statement of claim be struck out as disclosing no reasonable cause of action. The respondents also sought orders for security for costs. The primary judge listed the Friggers’ application for leave to amend the originating application and the amended statement of claim, the respondents’ application for summary dismissal and security for costs and the Frigger’s interlocutory injunction application to restrain the named legal practitioners from acting for the respondents, for hearing on 5 April 2016. However, on 5 April 2016, the primary judge did not hear the applicants’ amendment application and the respondents’ corresponding application for summary dismissal because shortly prior to the hearing, the Friggers foreshadowed that they would now advance their amendment application on the basis of a new minute which contained a proposed substituted originating application and a proposed substituted statement of claim.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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