Frigger v Banning (No 10) - [2019] FCA 1664

FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 10) [2019] FCA 1664

File number: WAD 607 of 2015

Judge: COLVIN J

Date of judgment: 9 October 2019

Catchwords: PRACTICE AND PROCEDURE - whether interlocutory application should be accepted for filing - where statutory stay of proceedings pursuant to s 60 of the Bankruptcy Act 1966 (Cth) - direction made under r 2.27(e) of the Federal Court Rules 2011 (Cth) that the application not be accepted for filing

Legislation:
Bankruptcy Act 1966 (Cth) s 60

Federal Court Rules 2011 (Cth) rr 2.27, 40.06

Cases cited:
Adamopoulos v Olympic Airways SA [1990] FCA 280

Allanson v Midland Credit Ltd [1977] FCA 14

Frigger v Banning (No 3) [2017] FCA 221

Frigger v Banning (No 8) [2019] FCA 1319

Frigger v Banning (No 9) [2019] FCA 1611

James v Commonwealth Bank of Australia [2015] FCA 582; (2015) 236 FCR 379

McDonald v Federal Court of Australia [2017] FCA 1216

Date of hearing: Determined on the papers

Date of last submissions: 7 October 2019 (Applicants)

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicants: In person

ORDERS

WAD 607 of 2015

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
SANDRA MAY BANNING

First Respondent

ANN MARION CAMPBELL-SMITH IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF DONALD CAMPBELL‑SMITH

Second Respondent

PROFESSIONAL SERVICES OF AUSTRALIA LTD (ACN 082 879 641)

Third Respondent

BANNING HOLDINGS PTY LTD (ACN 009 006 437)

Fourth Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

9 OCTOBER 2019

THE COURT DIRECTS THAT:
1.Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth) the proposed interlocutory application by the applicants received by the Registry on 1 October 2019 not be accepted for filing.

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

REASONS FOR JUDGMENT
COLVIN J:

Mr and Mrs Frigger are undischarged bankrupts. On 1 October 2019, they sought to file in these proceedings a document described as an interlocutory application. The document states that the interlocutory orders sought are leave to make the application and a declaration pursuant to r 40.06 of the Federal Court Rules 2011 (Cth) that certain costs were improperly incurred and charged to Donald Campbell‑Smith or his deceased estate by two named lawyers at a time when Mr Campbell‑Smith was under a legal incapacity and that the lawyers acted without instructions and are personally liable for the costs. The costs orders are orders made in these proceedings. A further order is sought that each of the other three respondents have no liability to pay the costs.
Mr and Mrs Frigger are the persons liable under each of the costs orders.
The proposed application states that it is based on the evidence of Ms Campbell‑Smith sworn 25 July 2019. The affidavit was filed on behalf of the respondents in the proceedings and was in…

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 Frigger v Banning (No 10)

Details

AGLC: Frigger v Banning (No 10) [2019] FCA 1664
Case: [2019] FCA 1664
Decision Date: 9 October 2019

CaseChat Overview and Summary

The case of Frigger v Banning involved a dispute concerning the acceptance of an interlocutory application for filing in the Federal Court of Australia. The application was made under the Bankruptcy Act 1966, specifically section 60, which allows for a statutory stay of proceedings in bankruptcy cases. The matter came before the court due to a direction under rule 2.27(e) of the Federal Court Rules 2011, which instructed that the application should not be accepted for filing.

The primary legal issue before the court was whether the interlocutory application should be accepted for filing, considering the statutory stay of proceedings in bankruptcy cases. The court had to determine whether the direction made under rule 2.27(e) of the Federal Court Rules 2011 was appropriate in this context, and whether it was justified to refuse the application for filing. The court needed to balance the statutory provisions and rules with the principles of procedural fairness and the interests of justice.

The court held that the direction made under rule 2.27(e) was appropriate in this case. The statutory stay of proceedings pursuant to section 60 of the Bankruptcy Act 1966 had implications for the acceptance of the interlocutory application. The court considered the context of the case, the nature of the application, and the provisions of the Federal Court Rules 2011. The court concluded that the direction not to accept the application for filing was justified, as it was consistent with the statutory provisions and the interests of justice. The court's decision was based on a careful analysis of the relevant statutory and rule provisions, and the court found that the direction was appropriate in this instance.

The final orders of the court were that the interlocutory application should not be accepted for filing, in line with the direction made under rule 2.27(e) of the Federal Court Rules 2011. The court's decision was based on a detailed examination of the statutory provisions and the principles of procedural fairness and the interests of justice. This case serves as a reminder of the importance of considering statutory provisions and rules when dealing with interlocutory applications in bankruptcy cases.

Orders